KA-0011-0774 Nonprecedential Set aside Processed

STATE OF LOUISIANA VERSUS ERIC DARELL COSEY AKA HENRY CARTER AKA KENDRICK CARTER

Louisiana Court of Appeal, Third Circuit · Filed February 1, 2012

Authorities cited

Identified automatically; this list may not be exhaustive.

34 So. 3d 2 not in our corpus
Wright v. Willis-Knighton Medical Center 63 So. 3d 972
State v. Steele 387 So. 2d 1175
State v. Cotton 778 So. 2d 569
State v. Cotton 787 So. 2d 278
State v. Trahan 425 So. 2d 1222
State v. Major 888 So. 2d 798
State v. Toups 833 So. 2d 910
State v. Smith 257 La. 1109
State v. Harris 647 So. 2d 337
State v. Bell 566 So. 2d 959
State v. Hughes 587 So. 2d 31
State v. Hughes 590 So. 2d 1197
State v. Jacobs 6 So. 3d 315
State v. Jacobs 23 So. 3d 931
State v. Davies 350 So. 2d 586
State v. Richards 956 So. 2d 160
State ex rel. Keene v. State 970 So. 2d 529
State v. Pickens 741 So. 2d 696
State v. Pickens 751 So. 2d 232
State ex rel. Scott v. State 813 So. 2d 1081
State v. Wilburn 591 So. 2d 1255
State ex rel. King v. Jeane 613 So. 2d 970
State v. Lawson 684 So. 2d 1150
State v. Lawson 695 So. 2d 986
State Ex Rel. Graffagnino v. King 436 So. 2d 559
State v. Duncan 420 So. 2d 1105
State v. Moody 393 So. 2d 1212
State v. Richardson 425 So. 2d 1228
State v. Kennerson 695 So. 2d 1367
State v. Kinchen 71 So. 3d 344
State v. Belton 441 So. 2d 1195
State v. Hall 581 So. 2d 337
State v. Thibodeaux 531 So. 2d 284
State v. Thompson 543 So. 2d 1077
State v. Thompson 551 So. 2d 1335
State v. Bunnell 517 So. 2d 439
State v. Livings 664 So. 2d 729
State v. Livings 668 So. 2d 367

Opinion text

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-774

STATE OF LOUISIANA
VERSUS
ERIC DARELL COSEY
AKA HENRY CARTER
AKA KENDRICK CARTER

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 297,595
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Oswald A. Decuir, Billy Howard Ezell, and James T. Genovese,
Judges.

FOURTH FELONY OFFENDER CONVICTION AND SENTENCE
VACATED AND SET ASIDE AND THIRD FELONY OFFENDER
CONVICTION AND SENTENCE REINSTATED.

James C. Downs
District Attorney - 9th JDC
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

p. 2

G. Paul Marx
Attorney at Law
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
COUNSEL FOR DEFENDANT/APPELLANT:
Eric Darell Cosey

Beth Smith Fontenot
Louisiana Appellate Project
P. O. Box 3183
Lake Charles, LA 70602-3183
(337) 491-3864
COUNSEL FOR DEFENDANT/APPELLANT:
Eric Darell Cosey

Brian Davis Mosley
Assistant District Attorney
P. O. Box 12127
Alexandria, LA 71315
(318) 484-6100
COUNSEL FOR APPELLEE:
State of Louisiana

Eric Darell Cosey
Richwood Correctional Center
180 Pine Bayou Circle
Monroe, LA 71202
Pro Se

p. 3

Ezell, Judge.

On September 18, 2009, the Defendant, Eric Darrell Cosey, a/k/a Henry

Carter, a/k/a Kendrick Carter, was charged by bill of information, in count one

with possession of cocaine, a violation of La.R.S. 40:967(C), and in count two with

obstruction of justice, a violation of La.R.S. 14:130.1. Following a jury trial, the

Defendant was found guilty as charged on March 17, 2010. The Defendant was

sentenced on March 24, 2010, to serve five years at hard labor for each offense

with the sentences to run consecutively. The trial court also recommended that he

serve the last year of his sentence in a substance abuse program.

Following sentencing, the State charged the Defendant as a fourth felony

offender. On May 3, 2010, the Defendant pled guilty to being a third felony

offender in exchange for his agreement not to seek an appeal, post-conviction

relief, or request any documents in anticipation of seeking same. In breach of the

agreement, the State would proceed with the fourth felony offender charge. The

Defendant‘s sentences were then vacated, and he was sentenced to ten years at

hard labor for each offense, to run concurrently with each other. The Defendant

subsequently withdrew his prior motion for an appeal.

On January 10, 2011, the Defendant filed a motion for an out-of-time appeal

which was granted that same day. The State motioned the trial court to refix the

hearing on the Defendant‘s habitual offender bill charging him as a fourth felony

offender. At a hearing held on February 28, 2011, the trial court found the

Defendant had violated his plea agreement and concluded he was a fourth felony

offender. The Defendant was then sentenced to serve twenty years at hard labor

for each offense, to be served without benefit of probation, parole, or suspension of

sentence.1 The Defendant did not file a motion to reconsider his sentences.

1
The trial court did not state whether the sentences were to run concurrently or
consecutively.

p. 4

The Defendant is now before this court on appeal, arguing that his

convictions violate double jeopardy and that the trial court erred in finding he had

violated his plea agreement. We vacate and set aside the Defendant‘s adjudication

as a fourth felony offender and sentence and reinstate his adjudication as a third

felony offender and sentence.

FACTS

On December 18, 2009, officers observed a vehicle hesitate as it approached

a DWI checkpoint. When the vehicle reached the checkpoint, the Defendant, a

passenger in the vehicle, was seen holding a baggie suspected to contain cocaine.

When instructed to open his hand, the Defendant refused and then put a substance

he was holding in his hand into his mouth. The Defendant refused to spit out the

substance. The Defendant was taken into custody, but the substance was not

recovered. A white powdery substance was observed on his mouth. Officers

subsequently searched the vehicle, and crack cocaine was recovered.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, there are

several errors patent raised and addressed in Assignment of Error Number Three.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the Defendant argues that his convictions for

possession of cocaine and obstruction of justice violate double jeopardy. The

Defendant asserts that the State relied on the same evidence to convict him of both

offenses.

When reviewing a claim of double jeopardy, two tests are used in Louisiana

courts to determine whether double jeopardy exists—the Blockburger test set forth

in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932) and the ―same

evidence test.‖ State v. Archield, 09-1116, p. 4 (La.App. 3 Cir. 4/7/10), 34 So.3d

2

p. 5

434, writ denied, 10-1146 (La. 5/20/11), 63 So.3d 972. The Defendant concedes

on appeal that the Blockburger test is not applicable to his case; thus, the instant

case is analyzed herein using only the same evidence test.

The supreme court explained in State v. Steele, 387 So.2d 1175, 1177

(La.1980) (citation omitted):

If the evidence required to support a finding of guilt of one crime
would also have supported conviction of the other, the two are the
same offense under a plea of double jeopardy, and a defendant can be
placed in jeopardy for only one. The test depends on the evidence
necessary for conviction, not all the evidence introduced at trial.

See also State v. Cotton, 00-850, (La. 1/29/01), 778 So.2d 569, rehearing

granted in part on other grounds, 00-850 (La. 4/20/01), 787 So.2d 278.

The Defendant was convicted of possession of cocaine, a violation of

La.R.S. 40:497. Accordingly, the State had to show that the Defendant knowing

and intentionally possessed cocaine. ―Possession of narcotic drugs can be

established by actual physical possession or by constructive possession. State v.

Trahan, 425 So.2d 1222, 1226 (La.1983).‖ State v. Major, 03-3522, p. 7 (La.

12/1/04), 888 So.2d 798, 802. The supreme court in State v. Toups, 01-1875, pp.

3-4 (La. 10/15/02), 833 So.2d 910, 913, summarized the law on constructive

possession as follows:

A person may be in constructive possession of a drug
even though it is not in his physical custody, if it is
subject to his dominion and control. Also, a person may
be deemed to be in joint possession of a drug which is in
the physical custody of a companion, if he willfully and
knowingly shares with the other the right to control it. . . .
Guilty knowledge is an essential ingredient of the crime
of unlawful possession of an illegal drug. . . .

State v. Trahan, 425 So.2d 1222 (La.1983) (citing State v. Smith, 257
La. 1109, 245 So.2d 327, 329 (1971)). However, it is well settled that
the mere presence in an area where drugs are located or the mere
association with one possessing drugs does not constitute constructive
possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337;
State v. Bell, 566 So.2d 959 (La.1990).

3

p. 6

A determination of whether there is ―possession‖ sufficient to
convict depends on the peculiar facts of each case. Factors to be
considered in determining whether a defendant exercised dominion
and control sufficient to constitute constructive possession include his
knowledge that drugs were in the area, his relationship with the person
found to be in actual possession, his access to the area where the drugs
were found, evidence of recent drug use, and his physical proximity to
the drugs. State v. Hughes, 587 So.2d 31, 43 (La.App. 2 Cir.1991),
writ denied, 590 So.2d 1197 (La.1992); see also Bujol v. Cain, 713
F.2d 112 (5 Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79
L.Ed.2d 187 (1984) (listing above factors as well as a sixth factor:
―evidence that the area was frequented by drug users‖).

See also State v. Jacobs, 08-1068, (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ

denied, 09-755 (La. 12/18/09), 23 So.3d 931.

The Defendant was also charged with obstruction of justice as provided in

La.R.S. 14:130.1(A)(1), which reads:

A. The crime of obstruction of justice is any of the following
when committed with the knowledge that such act has, reasonably
may, or will affect an actual or potential present, past, or future
criminal proceeding as hereinafter described:

(1) Tampering with evidence with the specific intent of
distorting the results of any criminal investigation or proceeding
which may reasonably prove relevant to a criminal investigation or
proceeding. Tampering with evidence shall include the intentional
alteration, movement, removal, or addition of any object or substance
either:

(a) At the location of any incident which the perpetrator
knows or has good reason to believe will be the subject of any
investigation by state, local, or United States law enforcement
officers; or

(b) At the location of storage, transfer, or place of review
of any such evidence.

At trial, several officers with the Pineville Police Department testified about

their involvement with the instant offense that occurred around 1:00 a.m. on June

20, 2009. Officer Timothy Robinson testified that a car approaching the

checkpoint caught his attention when it stopped at the foot of a nearby bridge.

With his flashlight, Officer Robinson motioned the vehicle to come forward. The

vehicle moved forward and stopped again, and then once more, it moved forward

4

p. 7

and stopped. According to Officer Robinson, there was nothing impeding the

vehicle from approaching the checkpoint. Officer Robinson motioned the vehicle

to come forward again, and Officer Vincent Petito was eventually able to make

contact with the driver of the vehicle. Officer Robinson then made his way to the

passenger side of the vehicle where Officer Cody Griffith was making contact with

the passenger, the Defendant herein.

Officer Robinson illuminated the inside of the car with his flashlight and

observed a baggie in the Defendant‘s hand. He asked the Defendant numerous

times to open his hand, but the Defendant refused and clenched his hand shut.

Officer Robinson observed the Defendant put a substance from his hand into his

mouth, chew it, and swallow it. Officer Robinson suspected the substance was

crack cocaine. The officers on the scene attempted to recover the substance from

the Defendant‘s mouth and extracted him from the vehicle. Nothing was recovered

from the Defendant‘s mouth. After he was subdued, Officer Robinson did,

however, observe a white powder substance on the Defendant‘s mouth. Lastly,

Officer Robinson testified that he assisted with logging the evidence recovered

from the scene, and he identified crack pipes found in the vehicle.

Similarly, Officer Griffith explained that during a field sobriety checkpoint,

a passenger in a blue vehicle, the Defendant herein, appeared very nervous and was

holding a clear baggie in his hand. Officer Griffith described the baggie as a ―torn

corner,‖ a manner in which narcotics are known to be stored. Officer Griffith

notified the other officers that there was something in the Defendant‘s hand, and he

instructed the Defendant to open his hand. As Officer Griffith proceeded to the

passenger side of the car, he saw the Defendant‘s left hand come up to his mouth

as if he was trying to swallow something. Officer Griffith instructed the Defendant

to open his mouth and spit it out. The Defendant refused, keeping his jaw

clenched. The Defendant was physically removed from the car by Officer Griffith,

5

p. 8

and he resisted the officers as they tried to handcuff him. Officer Griffith

continued to instruct the Defendant to open his mouth and spit out the substance.

After he was cuffed, the Defendant settled down and began to talk and holler

at the officers. Officer Griffith observed a white residue on the Defendant‘s lips

which, in his experience, indicated that the Defendant may have swallowed crack

cocaine. Officer Griffith did not see the white residue prior to the moment the

Defendant put his hand to his mouth. On cross examination, however, Officer

Griffith stated he was focused on the Defendant‘s hands at that time, not his lips.

Officer Petito testified that while working a field sobriety checkpoint, he

saw a blue Buick Century approach the checkpoint. He made contact with the

driver and began asking routine questions when he overheard other officers yelling

at the Defendant to ―spit it out.‖ It appeared to Officer Petito that the Defendant

had placed something into his mouth which left a white residue all over his mouth.

Sergeant Danny Paul testified he searched the vehicle after the Defendant,

and the driver were arrested. Sergeant Paul went to the driver‘s side of the vehicle

and found what he believed to be crack cocaine on the floorboard. After pointing

it out to the arresting officers, they continued to search the vehicle and recovered

two metal crack pipes from under the seat on the driver‘s side. Sergeant Paul also

observed a white residue on the Defendant‘s lips.

Officer Wes Chandler testified he heard a loud commotion after a vehicle

was stopped at a field sobriety checkpoint. He walked to the vehicle to see what

was going on. Officer Chandler assisted in handcuffing the Defendant and

searching the vehicle. He collected all the evidence, including cocaine found on

the driver‘s side of the vehicle and crack pipes found beneath the driver‘s seat.

Rachal Plaisauce, a forensic chemist with the North Louisiana Crime Lab,

testified that the evidence submitted in the instant investigation was determined to

contain cocaine.

6

p. 9

On appeal, the Defendant contends that the evidence showing he had a

substance in his hand, then put the substance in his mouth and swallowed it, was

used at trial to convict him of both possession of cocaine and obstruction of justice.

Additionally, the Defendant maintains that double jeopardy prohibits a finding that

he exercised dominion and control over the cocaine found on the floorboard,

because such a finding is based on his actions in trying to conceal the substance in

his hand.

There is no evidence in the record to show the Defendant was in actual

physical possession of cocaine. The police did not recover the substance from his

mouth or body, nor did the police test the white residue remaining on the

Defendant‘s mouth after he swallowed the substance. The only evidence of

cocaine possession, constructive possession, was the cocaine found on the

floorboard of the driver‘s side of the vehicle. Accordingly, the evidence that he

had a substance in his hand before putting it in his mouth and swallowing it

showed he was guilty of obstruction of justice only, not actual physical possession

of cocaine.

The Defendant also argues that the only evidence upon which the jury relied

to infer guilty knowledge to convict him of constructive possession of the cocaine

was his actions involving the substance observed in his hand. In support of his

argument, the Defendant refers to State v. Jacobs, 6 So.3d at 319, wherein this

court noted, ―The supreme court in State v. Davies, 350 So.2d 586 (La.1977),

established that evidence of flight, concealment, and attempt to avoid apprehension

is indicative of consciousness of guilt and may be considered by a jury to infer

guilt. See also State v. Richards, 06-1553 (La.App. 3 Cir. 5/2/07), 956 So.2d 160,

writ denied, 07-1129 (La.12/14/07), 970 So.2d 529.‖

Although the evidence showing the Defendant swallowed a substance he

was holding in his hand might be considered as evidence of concealment, this court

7

p. 10

notes that the State presented other evidence for the jury to consider in determining

guilty knowledge and ultimately, constructive possession. The record reflects that

the Defendant refused to reveal what he was holding in hand, clenching his fist

tight. The record also shows that as a passenger in the vehicle, the Defendant had

his access to the area where the cocaine was found. Lastly, he was in close

physical proximity to the cocaine. Accordingly, there is no merit to this

assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error, the Defendant argues that the trial court erred in

finding he violated his plea agreement by filing a motion for an out-of-time appeal.

The Defendant maintains he was not advised that he was waiving any appeal rights

until after he had already entered his guilty plea. The Defendant also contends

there is no written plea agreement in the record—he simply pled guilty to being a

third felony offender without any agreed upon sentence.

In support of his argument, the Defendant refers to State v. Pickens, 98-

1443, pp. 7-8 (La.App. 3 Cir. 4/28/99), 741 So.2d 696, 701, writ denied, 99-1577

(La. 11/5/99), 751 So.2d 232 and writ denied, 01-2178 (La. 4/19/02), 813 So.2d

1081, wherein this court stated:

A defendant may waive his right to appeal, either expressly or
impliedly, but that waiver must be knowing and voluntary. An implied
waiver occurs when a defendant is told of his right to appeal by a trial
court, but he chooses not to take the appeal within the time limits
prescribed by law. It is express if a defendant is told that he has the
right to appeal and he says in court, ―I waive my right to appeal.‖

In addition, when a defendant pleads guilty pursuant to a plea
bargain, jurisprudence traditionally holds that he is waiving only the
right to appeal his conviction. State v. Wilburn, 591 So.2d 1255, 1256
(La.App. 3 Cir. 12/18/91), writ denied, 613 So.2d 970 (La.1993);
State v. Lawson, 95-1604, p. 3 (La.App. 1 Cir. 12/20/96); 684 So.2d
1150, writ denied, 97-191(La.6/13/97); 695 So.2d 986.

8

p. 11

After sentencing and the denial of his oral motion to reconsider sentence, the

Defendant orally moved for an appeal which was granted. The State then filed a

habitual offender bill, charging the Defendant as a fourth felony offender.

At the habitual offender hearing, the Defendant was fingerprinted in open

court for a comparison to prior fingerprints. Following a discussion held off the

record, the trial court confirmed with the Defendant that he wished to enter a guilty

plea to being a third felony, and the following colloquy took place:

THE COURT :

All right, you understand, uh, that by coming to Court and
pleading guilty that you, (1) you‘re not required to plead guilty. You
understand that?

THE DEFENDANT :

Yes, sir.

THE COURT :

Uh, you have a right to have an attorney appointed. You have a
right to plead not guilty[,] and we can proceed to a trial. It would be a
trial by judge alone at your choice. I mean, it would be a trial by
judge alone[,] and the State would have the burden of proving beyond
a reasonable doubt that you were the same person that was previously
convicted of two prior felony convictions within the last ten years.
Do you understand that?

THE DEFENDANT :

Yes, sir.

....

THE COURT :

....

You understand at trial you would be entitled to the assistance
of an attorney. You would be entitled to confront and cross-examine
any witnesses who testified against you. You would be entitled to
subpoena witnesses to testify on your behalf, and you would also have
a right not to be compelled to incriminate yourself. Do you
understand this sentence?

THE DEFENDANT :

9

p. 12

Whatever pretrial time you‘re entitled to then you‘ll be -- you‘ll
receive that as part of your sentence. Do you understand that?

THE DEFENDANT :

(no response)
THE COURT :

Whatever pretrial. I don‘t know how much. I‘m not going to
say it‘s from June such and such.

THE DEFENDANT :

That‘s, that‘s why I‘m trying to, that‘s why I‘m trying to get,
uh, get everything understood right here, Judge Yeager, so I can
understand.

THE COURT :

11

p. 14

Well, we‘re going to understand. You‘re entitled to all the time
that you have served on this charge.

THE DEFENDANT :

All right.

....

THE COURT :

All right. All right, Mr. Lampert, I believe that the -- I‘ve
advised the defendant of his rights related to a trial as a [h]abitual
[o]ffender and I‘m satisfied that he understands his rights, that he
knowingly and intelligently has waived these rights. I believe that his
plea of guilty is free and voluntary and not the result of any force,
threats, or promises, and I will accept his plea of guilty at this time.

All right. See the Sheriff then …

MR. KUTCH :

Your Honor, based on that I had previously made a oral motion
on appeal. I‘m going to withdraw that. This matter is concluded.

The Defendant correctly asserts there is no written plea agreement in the

record. Additionally, the trial court did not distinguish whether the Defendant was

waiving his right to appeal his habitual offender adjudication as a third felony

offender, his sentences, or both. Without a written plea agreement expressly

stating the terms of the plea agreement and the fact that his plea agreement did not

contain a sentencing agreement, we find that the Defendant did not knowingly or

voluntarily waive his right to appeal his sentences. Accordingly, we find the trial

court erred in finding that the Defendant violated his plea agreement; thus, his

adjudication as a fourth felony offender and subsequent sentences are vacated and

set aside, and his adjudication as a third felony offender and sentences is reinstated.

ASSIGNMENT OF ERROR NUMBER THREE

By this assignment of error, the Defendant argues that if this court allows his

adjudication as a fourth felony offender to stand, then certain errors patent exist

with regard to his sentencing as a fourth felony offender. This assignment is

addressed within the court‘s opinion.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the Defendant argues ―that the State failed to

prove beyond a reasonable doubt that he was in possession of CDS II and,

obstruction of justice.‖ The Defendant ―contends that the evidence ‗obtained‘

13

p. 16

under the drivers [sic] side seat of the vehicle in which [sic] was not his and he was

not in immediate or constructed [sic] possession of the contraband found.‖

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however,
the record must reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

In assignment of error number one, we addressed the elements of possession

of CDS, schedule II, and obstruction of justice, and the evidence presented by the

State to prove both offenses. The record contained evidence to satisfy the elements

for both offenses, including constructive possession. Accordingly, there is no

merit to this assignment of error.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error, the Defendant argues that the search and seizure

was constitutionally illegal. The Defendant maintains that the testimony of

officers indicates they observed the hands of the Defendant and the driver when

they approached the vehicle. As such, the Defendant contends that the officers‘

lives were not in danger. The Defendant also asserts that the driver did not consent

to the search of his vehicle.

In support of his argument, the Defendant refers to Terry v. Ohio, 392 U.S.

1, 22, 88 S.Ct. 1868, 1880 (1968), wherein the United States Supreme Court first

14

p. 17

recognized that ―a police officer may in appropriate circumstances and in an

appropriate manner approach a person for purposes of investigating possibly

criminal behavior even though there is no probable cause to make an arrest.‖ This

court in State v. Kinchen, 11-9, p. 9 (La.App. 3 Cir. 6/8/11), 71 So.3d 344, 350-51,

stated:

The Fourth Amendment to the U.S. Constitution guarantees
Defendant's right to be secure in his person and property against
unreasonable searches. However, ―an individual‘s expectation of
privacy in a vehicle and its contents may not survive if probable cause
is given to believe that the vehicle is transporting contraband.‖ United
States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 2172, 72 L.Ed.2d
572 (1982). ―The totality of the circumstances, ‗the whole picture,‘
must be considered in determining whether reasonable cause exists.‖
State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466
U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984) (citing United States
v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).

A form of seizure which does not require a warrant
or probable cause is an investigatory stop made pursuant
to La.Code of Crim.P. art. 215.1(A). Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The right
to make an investigatory stop and question the individual
detained must be based upon reasonable cause or
reasonable suspicion to believe that the person has been,
is, or is about to be engaged in criminal conduct.
La.Code Crim.P. art. 215.1(A) and State v. Belton, 441
So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104
S.Ct. 2158, 80 L.Ed.2d 543 (1984). In determining
whether or not reasonable cause exists to temporarily
detain a person, the totality of the circumstances, ―the
whole picture,‖ must be considered. Belton, 441 So.2d
1195, and State v. Hall, 581 So.2d 337 (La.App. 3
Cir.1991).

A generalized suspicion or ―hunch‖ that an
individual is involved in criminal conduct is not
sufficient to detain the individual or his automobile. A
police officer must have a particularized suspicion based
upon articulable facts. See State v. Thibodeaux, 531
So.2d 284 (La.App. 3 Cir.1987); State v. Thompson, 543
So.2d 1077 (La.App. 2 Cir.), writ denied, 551 So.2d 1335
(La.1989); and State v. Bunnell, 517 So.2d 439 (La.App.
1 Cir.1987). If the police officer has a specific suspicion
of criminal activity, he may further detain the individual
while he diligently pursues a means of investigation
likely to quickly confirm or dispel the particular
suspicion. U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568,
84 L.Ed.2d 605 (1985).

15

p. 18

State v. Livings, 95-251, p. 4 (La.App. 3 Cir. 11/15/95), 664 So.2d
729, 732-33, writ denied, 95-2906 (La.2/28/96), 668 So.2d 367.

In the instant case, that the suspicious activity of the vehicle before the stop,

coupled with the Defendant‘s behavior after the stop, supplied reasonable cause or

reasonable suspicion to believe the Defendant had been, was, or was about to be

engaging in criminal conduct. The vehicle in which the Defendant was a passenger

approached a field sobriety checkpoint in a manner which caught Officer

Robinson‘s attention and raised his suspicion. When the vehicle reached the

checkpoint, Officers Robinson and Griffith noted that the Defendant appeared very

nervous, and they observed a baggie in his hand. Officer Griffith described the bag

as a ―torn corner,‖ a common manner in which narcotics are stored. When

instructed to open his hand, the Defendant refused to comply and eventually

consumed a substance from his hand, leaving a white residue on his lips.

Accordingly, this assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

By this assignment of error, the Defendant argues the State failed to ―enter

other prior guilty pleas to the record‖ at the habitual offender hearing as required

by La.R.S. 15:529.1. The Defendant maintains that the State‘s failure to do so

―resulted in petitioner[‘s] habitual offender sentence as a fourth offender [being]

‗illegal‘ under due process of law[.]‖

This court finds that the Defendant‘s adjudication as a fourth felony offender

and subsequent sentences should be vacated and set aside; thus, this assignment of

error is now moot.

DECREE

The Defendant‘s adjudication as a fourth felony habitual offender conviction

and subsequent sentence is vacated and set aside. The court reinstates the third

felony habitual offender conviction and sentence.

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FOURTH FELONY OFFENDER CONVICTION AND SENTENCE
VACATED AND SET ASIDE AND THIRD FELONY OFFENDER
CONVICTION AND SENTENCE REINSTATED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules-Courts of Appeal. Rule 2-16.3.

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