State of Louisiana v. Demetrice Lewis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1183

STATE OF LOUISIANA

VERSUS

DEMETRICE LEWIS

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. CR-198-05-1
HONORABLE ANNE LENNAN SIMON, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Glenn B. Gremillion, Judges.

AFFIRMED.

Charles Long Bull, Jr.
P. O. Box 400
Welsh, LA 70591
Telephone: (337) 734-2811
COUNSEL FOR:
Defendant/Appellant - Demetrice Lewis

Michael Cade Cassidy
District Attorney - 31st Judicial District Court
P. O. Box 1388
Jennings, LA 70546
Telephone: (337) 824-1893
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Norman Silverman
917 Franklin Street - 4th Floor
Houston, TX 77002
Telephone: (713) 526-1515
COUNSEL FOR:
Defendant/Appellant - Demetrice Lewis

THIBODEAUX, Chief Judge.

Defendant, Demetrice Lewis, was convicted of possession of a controlled

dangerous substance, i.e., marijuana, with intent to distribute in violation of La.R.S.

40:966(A)(1). Prior to trial, her motion to suppress the evidence was denied. She

appeals this denial. For the following reasons, we affirm.

FACTS

On February 15, 2005, Jonathan Odom, a trooper with the Louisiana

State Police, was patrolling Interstate 10 at approximately noon time, in the area of

Jefferson Davis Parish, when a red Grand Prix vehicle passed him on his left,

traveling approximately sixty-five miles per hour. As he continued eastward, he

noticed the vehicle did not pull over into the right-hand lane but continued traveling

in the left-hand lane. As he watched, approximately eight cars moved up behind the

vehicle in the left-hand lane. Finally, a white car, which was directly behind the

Grand Prix, pulled into the right-hand lane in order to pass. Still, the Grand Prix still

did not pull over into the right-hand lane to allow the cars behind to pass. At this

point, Trooper Odom pulled the Grand Prix over for impeding the flow of traffic, a

violation of La.R.S. 32:71. Yolanda Jenkins was a passenger in the vehicle.

Trooper Odom asked the Defendant where she was going. She explained

she was driving her friend to New Orleans to visit her sick mother. The car was a

rental car and Trooper Odom noticed the rental receipt indicated the term of rental

had expired. Defendant told the trooper she had called the rental agency and received

an extension on the rental period. Defendant appeared to be very nervous and would

not make eye contact with the trooper. The trooper approached the passenger and

asked her where they were going. She said they were going to New Orleans to visit

her mother who was ill. He noticed that although it was cool inside the vehicle, the

passenger was sweating profusely. The passenger explained she had a disease which

caused her to sweat. As he talked to the passenger, he smelled a strong odor of

marijuana coming from inside the vehicle.

A criminal check on Defendant and her passenger came back showing

no criminal history. The trooper asked permission to search the vehicle. Defendant

at first said he could search, but then changed her mind. During this time, Trooper

Odom’s back-up arrived, Trooper Steven Lee, who had a drug sniffing dog with him

in his unit. After Defendant could not make up her mind whether to give Trooper

Odom permission to search, he considered her indecision a refusal and had Trooper

Lee run the dog, “Tank,” around the car. On the first pass around the car, Tank

alerted to the passenger window, and on the second pass around, the dog scratched

at the trunk of the vehicle. Trooper Odom opened the trunk and looked inside a

duffle bag and located three large bags of marijuana.

Denial of Motion to Suppress

Defendant filed a motion to suppress which alleged that the search was

unlawful “because it was conducted without a warrant and without probable cause

and without any lawful cause.” Following testimony of the troopers involved with

the initial stop and search, the trial court found that the traffic stop was valid and that

the trooper, through a combination of factors, gained a reasonable suspicion of

additional criminal activity, and that the search of the vehicle was a valid search

based on probable cause.

In State v. Thomas, 02-471, p. 3 (La.App. 3 Cir. 10/30/02), 829 So.2d

1137, 1139-40, this court stated:

When reviewing a trial court’s denial of a motion to
suppress, the appellate court looks at the totality of the
evidence presented at the suppression hearing. State v.

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Bargeman, 98-617 (La.App. 3 Cir. 10/28/98); 721 So.2d
964, writ denied, 99-0033 (La. 5/28/99); 743 So.2d 658.
Unless the trial court’s conclusions are not supported by
the evidence or there exists a clear abuse of discretion, an
appellate court should not overturn the trial court’s ruling.
State v. Purvis, 96-787 (La.App. 3 Cir. 12/11/96); 684
So.2d 567 (citing State v. Burkhalter, 428 So.2d 449
(La.1983)). In other words, the appellate court will give
the trial court’s determination great weight and will not set
aside the trial court’s ruling unless clearly mandated by a
preponderance of the evidence. State v. Lewis, 97-1244
(La.App. 3 Cir. 3/6/98); 728 So.2d 1.

Moreover, when reviewing the trial court’s decision on a motion to

suppress the evidence, this court may look to the entire record, including relevant

testimony given at trial. State v. Sherman, 04-1019 (La. 10/29/04), 886 So.2d 1116.

Defendant asserts that:

The trial court erred in denying the motion to
suppress because the seizure of marijuana was the fruit of
a traffic stop effected without probable cause, in violation
of the Fourth Amendment to the United States Constitution
and Article I, § 5 of the Louisiana Constitution.

The trial court erred in denying the motion to
suppress because the marijuana was discovered as a result
of an illegal search of the interior of the vehicle conducted
without probable cause, in violation of the Fourth
Amendment to the United States Constitution and Article
I, § 5 of the Louisiana Constitution.

The trial court erred in denying the motion to
suppress because the marijuana was discovered as a result
of an illegally prolonged detention conducted without
reasonable suspicion or probable cause, in violation of the
Fourth Amendment to the United States Constitution and
Article I, § 5 of the Louisiana Constitution.

Defendant basically argues that the initial stop was not valid and that the

trooper “conducted an illegal warrantless search of the passenger compartment of the

vehicle when he put his head inside the vehicle and smelled the odor of marijuana.”

Therefore, Defendant argues that the evidence should have been suppressed and

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Defendant should be acquitted of the offense of possession of marijuana with intent

to distribute.

Claim number 1: Valid traffic stop

Defendant argues that the initial traffic stop was invalid. She argues that

she was traveling the “normal” speed in the left-hand lane and, therefore, there was

no requirement that she move into the right-hand lane so that a “speeding vehicle may

pass.”

Louisiana Revised Statutes 32:71(B)(1) provides:

Upon all multilane highways any vehicle proceeding
at less than the normal speed of traffic at the time and place
and under the circumstances then existing, shall be driven
in the right-hand lane then available for traffic except when
preparing for a left turn at an intersection or into a private
road or driveway, or passing or overtaking a vehicle
proceeding in the same direction, if passing on the left side
of it. Nothing herein contained shall be construed to
authorize driving any vehicle in the left lane so as to
prohibit, impede or block passage of an overtaking vehicle
in such lane and in such event the vehicle in the left lane
prohibiting, impeding or blocking passage of an overtaking
vehicle shall expeditiously merge into the right lane of
traffic.

At the motion to suppress hearing, Trooper Odom testified that he was

driving approximately sixty miles per hour on Interstate 10 when Defendant passed

him on his left traveling at a rate of approximately sixty-five miles per hour.

Defendant admitted she had the cruise control set at sixty-five. He testified:

[T]hey had plenty of time to get over. With no other
vehicles in the front of me, she could have moved over, but
she stayed in the left lane, and there was, you know at least
eight (8) vehicles behind her--building up behind her, and
one (1) small white car who was following behind her
moved to the right lane to go around her because she was
driving under the speed limit in the left lane.

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The speed limit on Interstate 10 is seventy miles per hour. On cross-

examination, the trooper was asked if it might have been possible that “she needed

to get a little bit further down the road before she got into the right-hand lane in front

of you?” The trooper stated that she had traveled a good half mile after she passed

him with several cars driving behind her. It was not until one car pulled into the right

lane to pass her that the trooper decided to pull her over.

When an officer observes what he objectively believes is a traffic

offense, the decision to stop the vehicle is reasonable. Whren v. United States, 517

U.S. 806, 116 S.Ct. 1769 (1996). Moreover, even relatively minor traffic violations

offer an objective basis for lawful detention of a vehicle and the occupants. See State

v. Richards, 97-1182 (La.App. 5 Cir. 4/15/98), 713 So.2d 514 (failure to come to a

complete stop at stop sign); State v. Dixon, 30,495 (La.App. 2 Cir. 2/25/98), 708

So.2d 506 (traveling less than a car length behind the car ahead); and State v. Duran,

96-602 (La.App. 5 Cir. 3/25/97), 693 So.2d 2 (failure to signal lane change).

Defendant argues, however, that her conduct was “illegal only if 65

miles per hour was not a ‘normal’ speed and if proceeding at that speed impeded the

‘normal and reasonable’ flow of traffic, thereby creating an emergency.” A speed of

five miles per hour under the posted speed limit, she contends, is not unreasonable

and is “normal.”

Defendant’s argument is attractive, but untenable. The duty imposed by

La.R.S. 32:71(B) and other statutes such as La.R.S. 32:64(B)1 that directly proscribe

against the slow speed of traffic upon state highways are for the purpose of

1
Louisiana Revised Statutes 32:64(B) states:

B. Except when a special hazard exists that requires lower speed for
compliance with paragraph A of this section, no person shall operate or drive a motor
vehicle upon the highways of this state at such a slow speed as to impede the normal
and reasonable movement of traffic.

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“protect[ing] against the risk that a slow-moving vehicle would block traffic or create

a dangerous condition on a high speed highway.” Gray v. Poplar Grove Planting and

Refining Co., Inc., 321 So.2d 919, 923 (La.App. 1 Cir. 1975), writ denied, 325 So.2d

280 (La.1976). The trooper testified that there was an eight-car build-up behind

Defendant’s vehicle, with one car finally moving into the right lane to pass the slower

moving vehicle in front. Considering the above testimony and statutory duty

imposed, the trooper observed what he objectively believed was a traffic offense, and

the decision to stop the vehicle was reasonable. Where the speed limit was seventy-

miles per hour, and there were several cars waiting in the passing lane for a vehicle

traveling less than the speed limit to move over so that they could pass by, the slower

moving vehicle was impeding the normal flow of traffic at the time and place and

under the circumstances then existing.

The trial court did not err when it found that the State met its burden of

showing that the traffic stop was a valid stop.

Claims number 2 and 3: Probable cause and detention

Defendant argues that the trooper conducted an illegal search of the

passenger compartment of the vehicle when he put his head inside the vehicle and

smelled the odor of marijuana. Defendant argues the “detection of the odor of

marijuana by Trooper Odom was the fruit of an illegal search.”

It is well established jurisprudence that when the constitutionality of a

warrantless search or seizure is at issue in a motion to suppress the evidence, the

State bears the burden of proof. State v. Parnell, 07-37 (La.App. 5 Cir. 5/15/07), 960

So.2d 1091. Evidence obtained as the result of an illegal invasion may be excluded.

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 (1963). At the suppression

hearing, Trooper Odom testified that after Defendant showed him the rental papers,

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he noticed that the rental period for the vehicle had expired. She told him she had

called the agency and received an extension on the rental. He stated that she appeared

to be very nervous, shifting her feet, hands fidgeting, and that the carotid artery in her

neck was pulsating heavily. She told him she was taking her friend to New Orleans

to visit her sick mother.

The trooper stated he then approached the passenger sitting on the

passenger side of the vehicle. He testified as follows:

A. Okay. I went and approached and talked to the
passenger on the passenger side of the vehicle. I
approached. The window was up. I knocked on the
window. She rolled it down. The air-conditioner was
blowing. It was cool inside the vehicle, and I noticed the
passenger was sweating profusely. Sweat was running
down her face, and so I asked her name. She told me. I
asked her where they were going. I asked her why she was
sweating so bad, and she said--she explained that she had
some type of disease that causes her to sweat. I--I don’t
know anything about that.

Q. As you were making these observations as to the
demeanor of the two (2) passengers of the vehicle, did you
observe anything else with any of the other senses?

A. Yes, sir. When I was talking to Ms. Jenkins, I
could smell a strong odor of marijuana emitting from the
vehicle.

Q. And how were you able to recognize the odor as
that being of marijuana?

A. Normally, in a bulk, marijuana has--has got a
distinctive odor. I’ve been around, you know, numerous
cases with that much marijuana and know what it smells
like.

The trooper testified that at this point, he made up his mind to ask for

permission to search the vehicle. He ran a criminal check on each of the women, and

as he waited for the response, he filled out a consent form. When he asked for

consent, Defendant wafted back and forth, finally stating she wanted to discuss it with

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her passenger. At this time, he noted “refused” on the consent form and asked his

partner to run the dog around the car. He stated the dog alerted on the trunk of the

car.

During cross-examination of Trooper Odom, the following colloquy:

Q. Now, Officer Odom, you said when Tank--Tank
is the K-9; is that correct?

A. Correct.

Q. And Tank’s sense of smell is much more
sensitive than your sense of smell?

A. Correct.

Q. So Tank didn’t just jump right up on the
passenger side of the vehicle where you said you detected
the marijuana?

A. I didn’t see him, no sir.

Q. So he walked all around the vehicle?

A. Yes, sir.

Q. So Tank wasn’t all that sure until he got to the
trunk, was he?

A. I’m not sure. I’m not certified.

Q. He didn’t put his paw up on anything but the
trunk.

A. He might have put it on the passenger side, but
no, I saw him put it on the trunk.

Q. You saw him put it on the --

A. I didn’t see him put it on the passenger side, no,
sir.

Q. So, in essence, you’re saying your sense of smell
is more acute--

A. No, sir.

Q. --than a trained dog?

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....

Q. So--

A. My head was inside the vehicle, sir. Whenever
the dog went around, the window had been up and--or was
down or whatever it was. But my head was inside the
vehicle when I was talking to the subject, and they might
have even smoked a joint in there or something, or some
might have been laid on the floor--

MR. HENDERSON: Objection, Your Honor.
That’s not responsive.

While at the hearing, Defendant objected to the above declaration by the

trooper that he could smell the marijuana because his head was in the vehicle as non-

responsive, citing State v. Dickens, 633 So.2d 329, 332 (La.App. 1 Cir. 1993),

Defendant argues:

“On the other hand, if an officer sticks his head into
a vehicle for the purpose of seeing and/or smelling things
he could not see or smell from the exterior of the vehicle,
his inspection goes beyond that which may be seen or
smelled by a lawfully positioned inquisitive officer and
such actions constitute a search. See also State v. Waters,
780 So.2d 1053, 1057 (La. 2001).”

The record is clear that Trooper Odom’s head was
inside the interior of the vehicle when he smelled the odor
of marijuana.

In Dickens, the first circuit affirmed the trial court’s denial of Dickens’

motion to suppress the evidence. Dickens argued that the officer could not have

detected the odor of marijuana in the vehicle prior to leaning into the car to take the

rental agreement papers out of Dickens’ hand. Dickens argued that “by entering the

vehicle without consent, [the officer] was not lawfully positioned at the time he

detected the odor of the marijuana.” The first circuit held:

Under these facts and circumstances, we find that
defendant at least tacitly consented to the officer’s action
in leaning into the vehicle to accept the rental agreement
from defendant and, thus, defendant relinquished any

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expectation of privacy in the vehicle’s interior that
otherwise would have inured to him. Consequently, the
officer’s entry into the interior of defendant’s vehicle to
obtain the agreement was not an unlawful search; and,
thus, these facts and circumstances are clearly
distinguishable from facts and circumstances such as those
in which an officer’s unlawful intrusion of the interior of
a stopped vehicle constitutes an illegal search.
Furthermore, in the instant case, the officer’s testimony
reflects that his purpose in leaning into the vehicle was to
accept the document extended to him by defendant rather
than to position himself inside the vehicle to see and/or
smell things he could not have seen or smelled from the
vehicle’s exterior.

Id. at 332.

The Louisiana Supreme Court has long recognized that detecting

marijuana by smell does not constitute a search and, thus, there is no reasonable

expectation of privacy from a lawfully positioned officer with an inquisitive nose.

State v. Coleman, 412 So.2d 532 (La.1982); State v. Risin, 02-100 (La.App. 4 Cir.

1/22/02), 807 So.2d 1042.

In the present case, the facts concerning the trooper’s position as to the

open passenger-side window and objective are not so clearly stated or argued. As

noted above, the only mention of the trooper’s alleged act of putting his head in the

window was made during cross-examination in response to Defendant’s questioning

which insinuated the odor of the marijuana was so insignificant that even the dog

could not smell it from the passenger window.

Following Trooper Odom’s examination, however, Steven Lee, a trooper

with the Louisiana State Police and a certified drug-sniffing dog handler, testified.

He stated that he had arrived as back-up while Trooper Odom was talking to the

passenger. After Trooper Odom asked for and was refused consent to search the

vehicle, Trooper Lee made two passes around the vehicle with his dog, Tank. He

stated on the first pass, the dog jumped up onto the passenger’s side door and stuck

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his head into the opened window, and on the second pass, Tank scratched on the

trunk of the car.

At trial, Trooper Odom testified that the passenger appeared to be very

nervous. He testified:

Q. Okay. Besides her demeanor, did you notice
anything else?

A. Yes. When I was speaking with her, I could
smell the strong odor of raw marijuana in the vehicle area,
the passenger com--or the--the--I’m trying to find the
word--the occupant compart--the compartment of the
vehicle where the passenger and driver sit. I’m sorry.

Q. How long did it take you to notice this odor of
marijuana after she--she opened the door or rolled down
the window?

A. I was there for a little while. I had to ask her a
question or two (2), and then, like I said, I was right there
at the window, and I had leaned in, you know, ‘cause she
was sweating real bad and I just wanted to make sure she
was okay ‘cause she was, you know, trembling--her hands
were trembling, and I just, you know, thought she was
about to pass out actually.

There was no further testimony given by the trooper regarding how far into the

vehicle he put his head and for what purpose.

The passenger also testified at trial. When asked about the stop, she

testified only that the trooper stated he had to search the car “because I looked like

I was nervous, which I may have looked like I was nervous due to the fact that I have

a sweating disorder and my hands tend to get sweaty.” There were no further

questions asked at trial which concerned the trooper putting his head inside the

vehicle.

In State v. Waters, 00-356 (La. 3/12/01), 780 So.2d 1053, the supreme

court found that the officer was justified in conducting a warrantless search of the

vehicle when he reached into the back seat of the vehicle to retrieve a gun and then

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smelled the odor of marijuana. Waters was pulled over for a traffic violation. His

girlfriend told the officer there was a gun in her purse, which was behind the driver’s

seat. When the officer opened the door and accessed the back seat of the vehicle, he

smelled a strong odor of marijuana. Because the officer knew Waters had convictions

for violent crimes, the supreme court found that intruding into the vehicle to secure

the weapon justified his intrusion and when he smelled the marijuana, he acquired

probable cause to search the vehicle’s interior for the contraband.

In this case, except for the trooper’s statement he could smell the

marijuana because, “my head was inside the car,” there is no indication there was any

intrusion with the intent to search out contraband. It was not unlawful for the trooper

to lean down and into the open window to speak with the passenger. See Maryland

v. Wilson, 519 U.S. 408, 117 S.Ct. 882 (1997) and State v. Parfait, 96-1814 (La.App.

1 Cir. 5/9/97), 693 So.2d 1232.

Moreover, there was no evidence of an intrusion into the vehicle such

that would have violated Defendant’s expectation of privacy. The record does not

compel a finding that the trooper put more than his face inside the open window of

the car for any purpose other than to inquire as to where Defendant and the passenger

were going and as to the passenger’s well-being. The trooper’s statement that his

head was inside the car was nothing more than an exaggerated response to the line of

questioning which implied the stop was nothing more than pretext because he could

not have smelled the odor of marijuana if the dog did not smell it from the passenger-

side window.

Considering all the factors--that the initial stop was a valid stop, that

Defendant and the passenger exhibited very nervous behaviors, that the vehicle’s

rental period had expired, that the trooper smelled the odor of marijuana as he was

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speaking with the passenger who was sitting inside the vehicle, and because of his

experience as a law enforcement officer he immediately recognized the smell of the

marijuana--the trooper had probable cause to search the vehicle.

Finally, Defendant argues:

[b]ut for the illegal search of the interior of the vehicle and
resulting detection of the odor of marijuana, there was no
justification for prolonging Appellant’s detention in order
to request consent to search and to deploy a drug-detecting
dog. After the criminal history checks were completed,
any further prolonging of the detention was illegal.”

Louisiana Code of Criminal Procedure Article 215.1(D) provides in

pertinent part:

During detention of an alleged violator of any
provision of the motor vehicle laws of this state, an officer
may not detain a motorist for a period of time longer than
reasonably necessary to complete the investigation of the
violation and issuance of a citation for the violation, absent
reasonable suspicion of additional criminal activity.

Defendant does not indicate how much time was spent after the trooper

stopped her to complete the investigation and issue the citation. At the suppression

hearing, the trooper testified the citation was issued at 12:45 p.m. There was no

further testimony regarding duration of the stop. Although, in response to this

argument, the State asserts that from the “initial stop of the vehicle to the time the K-9

alerted was approximately 31 minutes,” there is nothing before this court to

substantiate the duration of the stop. However, after the trooper smelled the odor of

marijuana, he had reasonable suspicion there was additional criminal activity. As

noted above, the drug-sniffing dog had arrived while he was speaking with the

passenger. The trooper testified he had formed the belief there was contraband in the

vehicle before he ran a criminal check and filled out the consent to search form. At

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this point, the trooper had probable cause to search the vehicle and the duration of

detention was not an issue.

For all of the above reasons, the trial court did not err when it denied

Defendant’s motion to suppress the evidence.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s denial of

Defendant’s motion to request and affirm the Defendant’s conviction and sentence.

AFFIRMED.

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