State of Louisiana v. Jean-Luc Arisme

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-269

STATE OF LOUISIANA

VERSUS

JEAN-LUC ARISME

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 34723-10
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Billy Howard Ezell, J. David Painter, and James T. Genovese,
Judges.

CONVICTION AFFIRMED;
REMANDED WITH INSTRUCTIONS.

Alvin D. Hunt
Post Office Box 281
Lake Charles, Louisiana 70601
(337) 310-9111
COUNSEL FOR DEFENDANT/APPELLANT:
Jean-Luc Arisme

John F. DeRosier
District Attorney — Fourteenth Judicial District
Carla S. Sigler
Karen C. McLellan
Assistant District Attorneys
901 Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, Jean-Luc Arisme, entered a Crosby plea to

the amended charge of possession of marijuana with intent to distribute in

connection with a traffic stop. He was given a five-year suspended sentence with

special and general conditions of probation. Defendant‟s guilty plea was entered

after the denial of his motion to suppress the marijuana, and he reserved his right to

appeal all matters pertaining to his motion to suppress. Defendant is appealing

only his conviction pursuant to the trial court‟s denial of his motion to suppress.

For the following reasons, we affirm Defendant‟s conviction, but remand this

matter to the trial court to correct two errors patent.

FACTS AND PROCEDURAL HISTORY

On July 21, 2010, Defendant was observed driving a motor vehicle on

Interstate 10 in Calcasieu Parish by Sergeant Stuart Henderson (Officer

Henderson) of the Calcasieu Parish Sheriff‟s Department. Defendant was stopped

and questioned by Officer Henderson due to improper lane usage (signal violation)

and dark tinted windows. Defendant‟s vehicle had a Florida license plate and was

an Enterprise rental car on which he was listed as an additional operator of the

vehicle. Defendant had a passenger in the vehicle with him. The occurrence was

videotaped via camera on Officer Henderson‟s vehicle.

In speaking with Defendant, Officer Henderson became suspicious when

Defendant was unable to provide the last name of his passenger, and he and the

passenger gave conflicting accounts of their whereabouts on a recent trip to

Houston, Texas. Officer Henderson also stated that he found it unusual and

suspicious for a rental vehicle to have such dark tint on the front windows.

After his investigation, Officer Henderson issued a Notice of Violation to

Defendant, returned his documentation to him, and advised him he was being

released as a courtesy. Immediately thereafter, Officer Henderson asked

Defendant for permission to search the vehicle. According to the audio and video

recording of the stop, Defendant seemingly refused. Following Defendant‟s

apparent refusal, Officer Henderson retrieved his drug dog from his vehicle, and

the dog alerted to a narcotic odor emitting from the rear of Defendant‟s vehicle.

Approximately sixty pounds of marijuana were found in a suitcase in the trunk of

the vehicle. Both Defendant and his passenger were arrested.

On November 18, 2010, Defendant was charged by bill of indictment with

one count of possessing 60 to 2000 pounds of marijuana, a violation of La.R.S.

40:966(F)(1). Defendant entered a plea of not guilty to the charge and

subsequently filed a motion to suppress the evidence seized as a result of the

warrantless search of his vehicle. The trial court heard the motion to suppress, at

which hearing defense counsel waived Defendant‟s presence. The trial court

denied the motion. Thereafter, the State amended the charge against Defendant to

possession of marijuana with the intent to distribute. Defendant entered a Crosby

plea to the amended charge, reserving his right to appeal “all matters pertaining to

those motions to suppress.” The trial court accepted Defendant‟s guilty plea and

sentenced him to five years.1

The trial court suspended the sentence and placed Defendant on three years

of probation with the following conditions of probation: 1) register with probation

and parole and pay a “$60 monthly visit fee and $75”; 2) be subject to random

drug screening; 3) maintain all of the conditions set forth in La.Code

Crim.P. art. 895; and, 4) pay a $250.00 fee to the Southwest Louisiana Crime Lab.

1
According to the sentencing transcript, the trial court did not state whether the five-year
sentence was to be served with or without hard labor; however, that issue is not before the court,
as Defendant is only appealing his conviction and not his sentence.
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Additionally, the trial judge authorized Defendant‟s probation to be transferred to

Tallahassee, Florida, provided Florida would accept his probation.

Defendant filed a timely Motion for Appeal and Designation of Record

which was granted by the trial court. Defendant is now before this court, alleging

trial court error in its denial of his motion to suppress.

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, we note two

errors patent.

First, as a condition of probation, the trial court ordered a $250.00 fee to the

Louisiana Crime Lab, for which a payment plan was not established. In State

v. Wagner, 07-127, pp. 7-8 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208, this

court held in pertinent part:

When the fines and costs are imposed as a condition of
probation, but the trial court is silent as to the mode of payment or the
trial court attempts to establish a payment plan, this court has required
a specific payment plan be established. See State v. Theriot, 04-897
(La.App. 3 Cir. 2/9/05), 893 So.2d 1016 (fine, court costs, and cost of
prosecution); State v. Fuslier, 07-572 (La.App. 3 Cir. 10/31/07),
970 So.2d 83 (fine and costs); State v. Console, 07-1422 (La.App.
3 Cir. 4/30/08), 981 So.2d 875 (fine and court costs).

We view this procedure as no different from payment plans for
restitution. See State v. Dean, 99-475 (La.App. 3 Cir. 11/3/99), 748
So.2d 57, writ denied, 99-3413 (La.5/26/00), 762 So.2d 1101
(restitution only), State v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00),
772 So.2d 128 (restitution, fine, and costs), State v. Stevens, 06-818
(La.App. 3 Cir. 1/31/07), 949 So.2d 597 (restitution, fine, court costs,
and reimbursement to Indigent Defender Board), and State
v. Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255
(restitution, court costs and payments to victim‟s fund, Indigent
Defender Board, and District Attorney).

We, therefore, remand this case to the trial court for
establishment of a payment plan for the fine, noting that the plan may
either be determined by the trial court or by Probation and Parole,
with approval by the trial court. See Stevens, 949 So.2d 597.

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Similarly, the trial court‟s ordering the payment to the crime lab
fund during the period of probation is an insufficient payment plan.
We also remand the case to the trial court for establishment of a
payment plan for these costs, noting that the plan may either be
determined by the trial court or by Probation and Parole, with
approval by the trial court. See Stevens, 949 So.2d 597.

This issue has been similarly resolved in other cases. See State v. LaCombe,

09-544 (La.App. 3 Cir. 12/9/09), 25 So.3d 1002, and State v. Snelling, 09-1313

(La.App. 3 Cir. 5/5/10), 36 So.3d 1060, writ denied, 10-1301 (La. 12/17/10), 51

So.3d 16. Accordingly, we remand this case to the trial court for the establishment

of a payment plan for the fee, noting that the plan may either be determined by the

trial court or by the Department of Probation and Parole with approval by the trial

court. See Stevens, 949 So.2d 597.

Next, according to the sentencing transcript, as a condition of the

Defendant‟s probation, the trial judge ordered that he “register with the probation

and parole and pay $60 monthly visit fee and $75.” The court minutes and the

Conditions of Probation form (signed by Defendant and a probation officer six

days after sentencing) indicate that Defendant was ordered to pay a monthly fee of

$75.00 to the Office of Probation and Parole with $60.00 designated for

supervision and $15.00 for the technology registration fund. However, the form is

not signed by the trial judge, thereby rendering the condition of probation requiring

the Defendant to pay $75.00 ambiguous. It is unclear from the sentencing

transcript whether the $75.00 payment is a one-time payment or a monthly

payment, nor is it clear whether it is included in or is in addition to the $60.00

payment. While the court minutes and Conditions of Probation form offer a

reasonable interpretation, the transcript controls in the case of a conflict between

the minutes and transcript. State v. Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770

So.2d 365, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Therefore, we

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instruct the trial court that, upon remand, it is to clarify the details of the $75.00

payment it imposed as a condition of probation. See State v. Peeler, 05-615

(La.App. 3 Cir. 12/30/05) (unpublished opinion).

ASSIGNMENT OF ERROR

In his lone assignment of error, Defendant contends that “the trial court erred

in finding reasonable suspicion that [he] engaged in any criminal conduct after he

was released from the traffic stop, thus allowing law enforcement to conduct a

second detainment and expanded search not supported by any new articulable

suspicion of illegal activity.”

DISCUSSION

Defendant alleges that the trial court erred in denying his motion to suppress

the evidence seized during the warrantless search of his vehicle. Defendant claims

that after he was “ostensibly” stopped for having dark tinted windows and making

an illegal lane change, Officer Henderson issued to Defendant a Notice of

Violation and told him that he was being released. The video recording (DVD) of

the traffic stop was introduced as exhibit D-1 at the motion to suppress hearing.

The traffic noise makes it difficult to hear what is being said on the DVD, but

Officer Henderson did issue to Defendant a Notice of Violation and told him he

was being released as a courtesy instead of being given a ticket. The actual Notice

of Violation stated, “You are released as a courtesy.”

Immediately after Officer Henderson informed Defendant that he was

released as a courtesy, he told Defendant that he had seen lots of “crazy stuff” and

asked him if he had anything illegal in the car. When Defendant answered, “No,”

Officer Henderson asked to search the vehicle. Defendant denied Officer

Henderson‟s request to search the vehicle, at which time Officer Henderson

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retrieved his dog from the police unit, conducted a sweep of the vehicle, and found

marijuana in the trunk of the vehicle.

In brief, Defendant argues that Officer Henderson failed to acquire a “new”

reasonable suspicion after his release from the traffic stop. According to

Defendant, the original traffic stop was over when the officer released him, and no

new exigent circumstances occurred to justify the enlargement of the search.

Defense counsel summarizes his argument as follows:

This [a]ppeal boils down to this: Mr. Arisme was released and
arrested during the same traffic stop. At the end of the day, Officer
Henderson botched his stop and investigation under
La.C.Cr.P. Art. 215.1(D): he put the horse behind the cart; or in this
case, the dog behind the cart. At the end of his ten minute questioning
of the defendant and his guest passenger, the physical issuing of the
citation and telling Mr. Arisme he was being released as a courtesy,
the stop and investigation, pursuant to La.C.Cr.P. art. 215.1(D) was
over. No new exigent circumstances are presented in the record by
Officer Henderson, nor does he articulate any new rationale to enlarge
his search.

We find that Defendant is precluded from raising this “new” reasonable

suspicion argument on appeal since he failed to raise this argument in either his

written motion to suppress or at his hearing on the motion to suppress. In his

written motion to suppress, Defendant alleged that when the officer stopped him,

the officer lacked reasonable suspicion that he was committing, had committed, or

was about to commit a crime. The written motion to suppress also alleged that the

subsequent search of Defendant‟s vehicle was conducted without probable cause to

search, without consent to search, without a warrant to search, and without an

exception to the warrant requirement. At the hearing on his motion to suppress,

defense counsel argued as follows:

MR. HUNT:

Your Honor, several things. If you watched the video, Your
Honor, it goes almost 10 minutes and 27 seconds of questioning,
walking around the car, looking at the car. Referring back to the tint,

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at no time in that 10 minutes and 27 seconds did he look at the
window directly or ask any questions about the window so it‟s sort of
boot strapping this whole dark tint argument into all the suspicion I
think is [sic] a bit of revisionist history once the report was written. If
this was such a big deal, that should‟ve been brought up in the first 10
minutes and 27 seconds. Then he signs the ticket at 10 minutes and
34 that says we‟re releasing you to go and the next follow-up question
at 10 42 is - -

THE COURT:

He was just stalling. He had already decided he was going to
have the dog check the car. We all know that.

MR. HUNT:

Other than articulating about the energy drink or the passenger
looking ahead and all of these other things, his statement was I just
see a bunch of crazy stuff out here. Well, life is crazy. I see crazy
stuff in my office everyday[,] but that doesn‟t mean anything.

Considering Defendant‟s written motion to suppress and his counsel‟s oral

argument, we find that Defendant did not raise in the trial court the same argument

he is now raising on appeal – that Officer Henderson failed to acquire “new”

reasonable suspicion after the alleged conclusion of the traffic stop by the issuance

of the Notice of Violation.

Louisiana courts have long held a defendant may not raise new
grounds for suppressing evidence on appeal that he did not raise at the
trial court in a motion to suppress. State v. Brown, 434 So.2d 399
(La.1983) (rejecting defendant‟s alternative argument regarding the
denial of his motion to suppress because he had not raised the issue at
trial); State v. Johnson, 07-1040 (La.App. 4 Cir. 9/10/08), 993 So.2d
326 (“failure to raise a ground for suppressing an item of evidence in
a properly filed motion to suppress waives such a basis for exclusion
on appeal”); State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904
So.2d 907, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162
(defendant is limited on appeal to the grounds he articulated at trial
and a new basis for a claim, even if it would be meritorious, cannot be
raised for the first time on appeal); see La.C.Cr.P. art. 841 (providing
that a new basis for an objection cannot be raised for the first time on
appeal).

State v. Montejo, 06-1807, p. 22 (La. 5/11/10), 40 So.3d 952, 967-68, cert. denied,

___ U.S. ___, 131 S.Ct. 656 (2010) (footnote omitted). Therefore, Defendant is

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prohibited from raising the “new” reasonable suspicion argument for the first time

on appeal.

Even if we were to consider Defendant‟s “new reasonable suspicion”

argument, a similar argument was rejected in State v. Burton, 93-828 (La.App.

3 Cir. 2/23/94), 640 So.2d 342, writ denied, 94-617 (La. 4/7/94), 641 So.2d 203.

In Burton, the officers stopped Burton and his passenger for speeding.

Questioning of Burton and his passenger revealed conflicting stories and extreme

nervousness. Either during or after the questioning, one of the officers “filled out a

Consent to Search Form, handed Burton back his driver‟s license[,] and told him to

slow down.” Id. at 344. As Burton walked back to his vehicle, an officer

explained to him what the Consent to Search Form entailed. When Burton refused

to give consent to search, one of the officers radioed for a canine to be brought to

the scene. When the canine alerted to the presence of drugs, the officers searched

the vehicle and found contraband.

In Burton, 640 So.2d at 346, this court addressed an argument similar to the

“new” reasonable suspicion argument raised by Defendant in brief:

Defendants argue in their brief that once the purpose for the
initial stop had concluded and the defendants were told they were
“free to go,” any action taken by the police to search the defendants‟
vehicle was in violation of the defendants‟ right to be free from
unreasonable searches and seizures. Trooper LaFleur filled out the
Consent to Search form before he returned defendant-Burton‟s
driver‟s license and told the defendants they were free to go; he asked
defendant-Burton to look at the Consent to Search form seconds later.
It is obvious that the trooper had the intent to search the defendants‟
vehicle after he had completed the routine duties for a traffic stop.
The fact that the trooper finished the steps for the traffic stop with the
statement “you are free to go” should not be construed to mean that all
proceedings were concluded, that the initial reasonable suspicion had
been dispelled, and that before any further actions could be taken the
police had to re-establish reasonable suspicion on other grounds.

Likewise, in the instant case, Officer Henderson‟s completion of the steps of

the traffic stop with the issuance of the Notice of Violation should not be construed

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to mean that all proceedings were concluded and that Officer Henderson‟s initial

reasonable suspicion had been dispelled. When defense counsel asked Officer

Henderson if he was finished with the investigation of the improper lane change at

the time he gave Defendant the Notice of Violation, Officer Henderson replied,

“When I handed his stuff back, he was free to go. His vehicle wasn‟t going

anywhere though.” At that point, Officer Henderson testified, he already had a

reasonable articulable suspicion that Defendant and his passenger were engaging in

criminal activity. When Officer Henderson initially saw Defendant‟s vehicle, he

noticed dark tint on the windows. Officer Henderson then saw Defendant make an

improper lane change and stopped his vehicle. As Officer Henderson approached

Defendant‟s vehicle, he confirmed that the tint on the vehicle was dark. Upon

speaking with Defendant, Officer Henderson learned that the vehicle was a rental

vehicle. Officer Henderson knew that it was “unusual and suspicious” for a rental

vehicle to have dark tint on the front window. Officer Henderson also learned that

the rental was overdue. While Officer Henderson spoke with Defendant, he

noticed that the passenger stared straight ahead without looking at the officer. He

interpreted the passenger‟s action as nervousness. Officer Henderson also became

suspicious when he asked Defendant to step out of the vehicle, and, before he did

so, Defendant took a “huge gulp” of a Monster energy drink sitting in his console.

Finally, Officer Henderson‟s questioning of both Defendant and his passenger

revealed conflicting accounts of their itinerary for the past few days.

According to Officer Henderson, his decision to bring the dog out had

nothing to do with the Defendant‟s refusal to give consent to search but with all of

his “reasonable suspicion prior to [his] asking [Defendant for consent].” Officer

Henderson further explained:

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I believed there was [sic] drugs in the vehicle. The easiest way
to get in there is with a consent. I had enough, based on my training
and experience, I had enough reasonable articulable suspicion to
believe there was [sic] narcotics in the vehicle. The vehicle was not
free to go at that point. I was going to walk my canine if he refused,
which he did.

It is clear from Officer Henderson‟s testimony that, based on his reasonable

suspicion, he intended to search Defendant‟s vehicle once he completed the routine

duties for a traffic stop. Thus, as this court found in Burton, we find that Officer

Henderson‟s issuance of the Notice of Violation did not mean that all proceedings

were concluded or that Officer Henderson‟s initial reasonable suspicion had been

dispelled. Additionally, as the court found in Burton, Officer Henderson‟s

issuance of the Notice of Violation did not trigger the need for Officer Henderson

to acquire “new” reasonable suspicion before he acted any further.

In brief, Defendant futilely attempts to distinguish the supreme court‟s

decision in State v. Lopez, 00-562 (La. 10/30/00), 772 So.2d 90, wherein the

supreme court found that the marijuana seized in Lopez‟s car should not be

suppressed. In making this finding, the supreme court disagreed with this court‟s

finding that the trooper‟s questioning of Lopez exceeded the original justification

for the stop, which was a speeding violation. Citing Burton, 640 So.2d 342, the

supreme court held that the trooper acquired reasonable suspicion to enlarge the

scope of his investigation when Lopez and his wife exhibited “agitated

demeanor[s]” and gave “conflicting accounts of their itinerary[.]” Id. at 93. In

Lopez, the court further stated that “[t]he arrival of a drug-detection dog on the

scene within minutes of the stop afforded the officer the opportunity to „pursue[ ] a

means of investigation that was likely to confirm or dispel [his] suspicions quickly,

during which time it was necessary to detain the defendant.‟” Id. at 93 (quoting

United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575 (1985)) (second

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and third alterations in original). Noting that the dog‟s sniffing around the exterior

of Lopez‟s vehicle was not a search, the supreme court held that the dog‟s

“subsequent alert,” which was consistent with Lopez‟s extreme nervousness, “gave

the officers probable cause to search for contraband.” Id. (citing United States

v. Place, 462 U.S. 696, 103 S.Ct. 2637 (1983), and United States v. Seals, 987 F.2d

1102 (5th Cir. 1993), cert. denied, 510 U.S. 853, 114 S.Ct. 155 (1993)).

Defendant, in the present case, attempts to distinguish Lopez by arguing that

the investigation in Lopez was still ongoing when the drug dog arrived and Lopez

was being interrogated. Defendant argues that Officer Henderson chose to keep

the dog in the back of the patrol unit during his investigation and did not bring him

out until after the Notice of Violation was issued. We find this distinction

insignificant. As in Lopez, Officer Henderson‟s investigation was still ongoing

when he retrieved the drug dog. As previously discussed, this court‟s decision in

Burton warrants a finding that Officer Henderson‟s investigation of the original

stop did not end upon the issuance of the Notice of Violation. Thus, when Officer

Henderson retrieved his drug dog, he was continuing to investigate his suspicion of

criminal activity that developed as a result of the initial stop. As Officer

Henderson testified, based on his reasonable suspicion, he intended to investigate

further, either by consent to search or by walking the canine.

For the reasons set forth in Burton, we find that Officer Henderson was not

required to acquire new reasonable suspicion after he issued the Notice of

Violation. Rather, we find that Officer Henderson was continuing to investigate

the reasonable suspicion acquired from the initial stop. Thus, even assuming

arguendo that Defendant had properly preserved his “new” reasonable suspicion

argument, that argument and his assignment of error lack merit.

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DISPOSITION

Defendant‟s conviction is affirmed. Additionally, we remand this case to the

trial court for the establishment of a payment plan for the $250.00 fee to the

Louisiana Crime Lab, noting that the plan may either be determined by the trial

court or by the Department of Probation and Parole with approval by the trial

court. And, we instruct the trial court to clarify the details of the $75.00 payment

set forth in the conditions of probation.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS.

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