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State v. Rapp

Court of Appeal of Louisiana, Fourth Circuit

February 18, 2015

STATE OF LOUISIANA
v.
CLINTON D. RAPP

Page 104

APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES. NO. 2011-01828, DIVISION " A" . Honorable Kevin D. Conner, Judge.

AFFIRMED.

Charles Joseph Ballay, District Attorney, Joseph E. Roberts, Assistant District Attorney, Belle Chasse, LA, COUNSEL FOR APPELLEE/STATE OF LOUISIANA.

Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, Marrero, LA, COUNSEL FOR DEFENDANT/APPELLANT.

Court composed of Judge Terri F. Love, Judge Paul A. Bonin, Judge Daniel L. Dysart.

OPINION

Daniel L. Dysart, Judge

Page 105

[2014-0633 La.App. 4 Cir. 1] Defendant, Clinton D. Rapp, appeals his conviction by a Plaquemines Parish jury of possession with intent to distribute cocaine and possession with intent to distribute clonazepam. For the reasons that follow, we affirm.

PROCEDURAL BACKGROUND

By bill of information dated May 26, 2011, Clinton Rapp was charged with one count of possession with intent to distribute a Schedule II controlled dangerous substance (cocaine), a violation of La. R.S. 40:967(A)(1), and with possession with intent to distribute a Schedule IV controlled dangerous substance (clonazepam), a violation of La. R.S. 40:969(A)(1). Rapp pleaded not guilty to both charges. He then filed various motions, including several motions to suppress, one of which was based on his contention that the search and seizure of the evidence was unconstitutional. A hearing was held on March 13, 2012, at which time the trial court found probable cause and denied the motions to suppress.

The State then filed a notice of intent to introduce evidence of other crimes pursuant to La. C.E. art. 404(B)(1), in accordance

Page 106

with State v. Prieur, 277 So.2d 126 (La. 1973). The basis of the motion was Rapp's alleged prior sale of cocaine to an informant on February 9, 2011, in addition to evidence of alleged hand to [2014-0633 La.App. 4 Cir. 2] hand transactions on February 16, 2011 which led to Rapp's arrest. A hearing was held on January 15 and 18, 2013; the trial court ruled in favor of the State, allowing it to introduce the evidence.

After several continuances, Rapp proceeded to trial before a Plaquemines Parish jury on February 5-6, 2013. The jury found Rapp guilty as to both counts. Rapp's pro se motion for new trial was denied, and the court held a sentencing hearing on February 18, 2014. The court sentenced Rapp to serve eight years at hard labor on each count, the first two of which were to be served without the benefit of probation, parole or suspension of sentence, both of which were to be served concurrently, and with credit given for time served. Rapp then filed a motion to reconsider the sentence, which was denied. This appeal followed.

FACTUAL BACKGROUND

Plaquemines Parish Sheriff's Office (" PPSO" ) Deputy Adam Barrois, who in February, 2011, was assigned to the Narcotics Division, testified that a complaint was made to the PPSO about Rapp, prompting the PPSO to conduct surveillance on him. According to Deputy Barrois, on the night of February 16, 2011, he observed Rapp leave his mother's house (where Rapp resided) and drive to several different residences where he would remain in the driveway for between 25-30 seconds and during which time someone would come out of the residence, engage in a hand to hand transaction with Rapp and return to the residence. Rapp would thereafter leave and return to his mother's house. Deputy Barrois observed Rapp go in and out of his mother's house several times that evening. Deputy Barrois testified that " [e]ach time ... Rapp left Taylor Lane [his mother's house]," he observed " approximately three" " actions like this" on that evening.

[2014-0633 La.App. 4 Cir. 3] According to Deputy Barrois, a trained narcotics officer, in his experience, Rapp's activities on February 16, 2011 were indicative of narcotics transactions. While he did not see what was exchanged, he " saw something go into the window and something come out of the window." Again, he testified " that's common practice between ... transactions of narcotics."

Similarly, Deputy Barrois testified that, while he was conducting the surveillance, he observed Rapp make several u-turns before pulling into the various driveways. These maneuvers, according to Deputy Barrios, are also indicative of narcotics transactions. He testified that " [a] lot of narcotics dealers ... make u-turns to try and see if people are tailing them."

Based on what he observed, Deputy Barrois communicated information on Rapp to Corporal Chris Johnson. Deputy Barrois did not make any arrests of the individuals with whom Rapp made the transactions because the PPSO is " not looking for street level buyers. [They are] looking for a dealer."

Corporal Johnson, who was employed by PPSO as a narcotics agent in February, 2011, confirmed that a complaint was made to the PPSO that Rapp was selling drugs in the Boothville and Venice areas. On the evening of February 16, 2011, he received information from Deputy Barrois that Rapp was driving to various residences, meeting with people from the residences for 10 to 15 seconds, and making hand to hand transactions with them. According to Corporal Johnson, " a transaction that occurs within five to ten seconds in an exchange ... is usually consistent with a drug transaction." This is particularly

Page 107

true when there are " multiple events ... in an evening; " one event " wouldn't be enough."

On the night prior to February 16, 2011, Corporal Johnson assisted in a routine traffic stop of Rapp, and it was discovered that Rapp had a suspended [2014-0633 La.App. 4 Cir. 4] driver's license. When he located Rapp's vehicle on February 16th, he noted that it had a temporary license plate in the rear window which was not legible and had no expiration date. On these bases, he initiated a traffic stop and activated the lights and sirens on his unmarked vehicle.

Rather than pulling over immediately, Rapp drove approximately a quarter of a mile and then stopped his vehicle. While Corporal Johnson was following him, he saw Rapp being " fidgety in the car," with his " right arm moving around a lot." In Corporal Johnson's experience, this " indicates somebody's usually trying to hide something in the vehicle or they're possibly reaching for a weapon or something of that nature." When Rapp finally stopped his vehicle, he " exited the vehicle very quickly," which to Corporal Johnson indicated someone " trying to create separation from the vehicle to prevent the officer from approaching the vehicle and possibly seizing anything that's inside of it."

Corporal Johnson walked up to the vehicle and observed a clear plastic bag partially tucked into " the slit where the emergency brake is" and found that it contained 11 white rock-like substances, later confirmed to be cocaine. According to Corporal Johnson, this number of rocks is indicative of distribution, rather than personal use. In addition, sixteen white pills were found in the area of the emergency brake. These were determined to be clonazepam. Corporal Johnson found no paraphernalia suggestive of crack cocaine use in Rapp's vehicle when it was searched.

[2014-0633 La.App. 4 Cir. 5] After Rapp was stopped, information was relayed by radio to PPSO Agent Michael Olivier, who prepared a search warrant for Rapp's mother's address. The residence was ...


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