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State v. Smith

Court of Appeals of Louisiana, Second Circuit

November 19, 2014

STATE OF LOUISIANA, Appellee
v.
SANDY SMITH, JR., Appellant

Page 219

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana. Trial Court No. 304,094. Honorable Craig Marcotte, Judge.

TERESA CULPEPPER CARROLL, Louisiana Appellate Project, Counsel for Appellant.

SANDY SMITH, JR., Pro se.

CHARLES REX SCOTT, District Attorney, JASON BROWN, TOMMY JOHNSON, Assistant District Attorneys, Counsel for Appellee.

Before MOORE, PITMAN and GARRETT, JJ.

OPINION

Page 220

[49,356 La.App. 2 Cir. 1] GARRETT, J.

The defendant, Sandy Smith, Jr., was charged with three counts of possession of marijuana with intent to distribute, in violation of La. R.S. 40:966(A)(1); two counts of illegal carrying of weapons while in possession of controlled dangerous substances (CDS), in violation of La. R.S. 14:95(E); and one count of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. He subsequently entered a Crosby [1] plea, pleading guilty to the charge of possession of a firearm by a convicted felon and two counts of possession of marijuana with intent to distribute, while reserving the right to appeal the denial of his motions to suppress. The other charges were dismissed, and the state agreed not to file a habitual offender bill. On the firearm charge, the defendant was sentenced to 15 years at hard labor, the first 10 years without benefit of parole, probation, or suspension of sentence, and a $5,000 fine. On each of the drug charges, he was sentenced to 30 years at hard labor, plus a $5,000 fine. All sentences

Page 221

were ordered to be served concurrently. The defendant appealed. We affirm the defendant's convictions and sentences.

FACTS

As the result of a citizen complaint, the Shreveport police department initiated an investigation of drug sales at a house located at 3222 Marjorie Street. On February 2, 2012, a confidential informer (CI) was sent to the residence. According to Agent Keith Knox, the CI was given buy funds and [49,356 La.App. 2 Cir. 2] fitted with a listening device.[2] The CI reported that he was sold marijuana by a black male at the residence who called himself " Smitty." A field test of the substance was positive for marijuana.

Based upon information pertaining to this transaction, the officers were able to secure a search warrant for the Marjorie Street house, which was executed on February 3, 2012. Although no one was present when the officers arrived, the lights and television were on, and a lit marijuana cigarette was found in an ashtray in the kitchen. Also discovered in the kitchen were 2,000 grams of marijuana, digital scales, and packaging materials. (Although pills suspected to be ecstasy were discovered, subsequent lab testing did not find CDS in the sample pills tested.) In a bedroom, the officers found 27 grams of marijuana, a 12-gauge pump shotgun, and a loaded .40-caliber handgun. Lying on top of a bedroom dresser near the marijuana and the handgun were two pawn tickets and legal documents from a federal lawsuit by " Sandy Smith, Jr." against the Caddo Parish sheriff. One of the pawn tickets was for " Smith, Sandy Jr." and contained a birth date which matched that given for the defendant in multiple documents in the appellate record. The other pawn ticket was for " Smith, Sandy" and was a renewal of the first ticket with a new maturity date. Both the legal documents and the pawn ticket for " Smith, Sandy Jr." provided an address for Smith at 3157 Edson Street in Shreveport. Also found were photos which included the defendant.

[49,356 La.App. 2 Cir. 3] On February 10, 2012, Agent Knox obtained an arrest warrant for the defendant based upon the evidence recovered at the Marjorie Street house.[3] Reference was made in the supporting affidavit to the defendant's extensive arrest record, which included violent offenses and narcotics violations.

On February 24, 2012, a search warrant was obtained for the Edson Street house. The supporting affidavit by Agent Knox recited the case history of the controlled buy and the search warrant executed at the Marjorie Street house. On that same day, the defendant was observed leaving the Edson Street house with a large cardboard box, which he placed in his car. After he drove away from the residence, a K-9 officer was directed to conduct a traffic stop of the defendant away from the Edson Street residence; this was done due to safety concerns arising from the presence of the firearms at the Marjorie Street house. However, no traffic violations were observed, and the K-9 officer proceeded to execute the outstanding arrest warrant. The K-9 officer caught up to the defendant's vehicle as it turned into a gas station. In an effort to avoid a dangerous confrontation, the K-9 officer approached the defendant at the gas pump as though

Page 222

conducting a traffic stop. The K-9 officer then executed the arrest warrant and took the defendant into custody. The defendant was handcuffed and placed in a police vehicle. Minutes later, the K-9 officer's dog, Mico, was walked around the defendant's car and alerted on the driver's door. Mico then entered the car and alerted on the box the defendant had earlier placed [49,356 La.App. 2 Cir. 4] in the backseat. A search revealed that the cardboard box contained 14 1/2 pounds of packaged marijuana. Cash in the amount of $895 was found on the defendant's person, and $400 was found in the backseat of the car.

The defendant and his car were initially taken to a nearby fire station being used as a staging area by the narcotics agents. He and the car were later transported to the Edson Street house. During the execution of the search warrant for the house, officers discovered 222 grams of marijuana hidden under the bed in the master bedroom. They also recovered a .380 handgun with ammunition and a Taurus .357 magnum handgun loaded with hollow-point bullets.

The defendant was ultimately charged with three counts of possession of marijuana with intent to distribute, two counts of illegal carrying of weapons while in possession of CDS, and one count of possession of a firearm by a convicted felon.

In May 2012, the defendant, who was represented by retained counsel, filed a motion to suppress. He argued that since his car was searched without his permission or a search warrant, all evidence seized from his car should be suppressed. In a supplemental motion to suppress filed in July 2012, the defendant alleged that the agent who swore out the affidavit for the arrest warrant made intentional false statements in the affidavit which prejudiced the court and led to the issuance of the arrest warrant. Therefore, he asserted that the court should suppress all evidence obtained after his arrest and dismiss the charges against him.

[49,356 La.App. 2 Cir. 5] On September 5, 2012, a lengthy hearing was held on the motions to suppress. The state presented the testimony of Agent Knox and Corporal Christopher W. Yarbrough, the K-9 officer. Agent Knox was extensively cross-examined on a number of issues. Additionally, Corporal Yarbrough testified in detail as to his dog's training, certification, and reliability.

On September 11, 2012, the hearing resumed, and documents discovered at the Marjorie Street house were filed into evidence. On that same date, the trial court denied the motions to suppress after providing detailed oral reasons for ruling. As to the defendant's contention that Agent Knox intentionally made false statements in his affidavit supporting the arrest warrant, the trial court specifically found the agent to be credible and, after reviewing the defendant's rap sheet, concluded that there was no actual misrepresentation of the defendant's criminal history. As the judge who signed the arrest warrant, the trial judge stated that he had not relied on the criminal history information anyway. As to the search of the defendant's vehicle, the trial court noted that it had reviewed the entire dashcam video of the arrest and the K-9 search of the car. It found that the police had probable cause to search the car once the K-9 officer's dog alerted on it.

On October 23, 2012, the trial court revisited the motions to suppress after the defendant raised questions about the buy money used in the drug transaction with the CI. Agent Knox testified that the buy money was never recovered after the sale, something which he said was " very common." The ...


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