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State v. Howard

Court of Appeal of Louisiana, Second Circuit

June 24, 2015

STATE OF LOUISIANA, Appellee
v.
GARY D. HOWARD, Appellant

Editorial Note:

This Decision is not final until expiration of the fourteen day rehearing period.

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Appealed fro the First Judicial District Court for the Parish of Caddo, Louisiana. Trial Court No. 318,396. Honorable Craig O. Marcotte, Judge.

LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant.

GARY D. HOWARD, Pro se.

DALE G. COX, District Attorney; JANET L. SILVIE, CLOYCE C. CLARK, III, JESSICA D. CASSIDY, Assistant District Attorneys, Counsel for Appellee.

Before BROWN, LOLLEY & PITMAN, JJ.

OPINION

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[49,965 La.App. 2');">965 La.App. 2 Cir. 1] PITMAN, J.

Defendant Gary Howard was found guilty as charged of possession of marijuana with intent to distribute and not guilty of illegal possession of a weapon while in possession of a controlled dangerous substance. He pled guilty as a second felony habitual offender and was sentenced, pursuant to a plea agreement, to serve 18 years at hard labor, without benefit of probation or suspension of sentence. He appeals and challenges the denial of a motion to suppress the physical evidence seized at the time of his arrest and the sufficiency of the evidence against him. For the reasons stated herein, we affirm Defendant's conviction and sentence.

FACTS

On September 28, 2013, Officers Rodney Medlin and Susan Anderson of the Shreveport Police Department went to the home of Melissa Stewart at 5218 Fairfax, Shreveport, Louisiana, to execute an arrest warrant for Defendant (Ms. Stewart's boyfriend) for violation of his parole and probation. Upon their arrival, Ms. Stewart confirmed that it was her home. They asked if Defendant was there and informed her they had a warrant for his arrest. Ms. Stewart said Defendant was in the back bedroom and stood aside, allowing the officers to enter.

The officers found Defendant in the bedroom, lying in bed naked. Ofc. Anderson picked up a pair of boxer shorts from the floor to give to Defendant so he could dress. When the shorts landed on the bed, she noticed a bag containing four small bags of marijuana, weighing approximately 11 grams, tied to the waistband.

[49,965 La.App. 2');">965 La.App. 2 Cir. 2] Ms. Stewart told the officers that there were no firearms in the house and gave them consent to search. A few feet from the bed was a small closet with the door open. The officers found an unzipped

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purse and a box on the closet shelf. The purse contained a fully loaded .38 caliber Rossi revolver, which Ms. Stewart told the officers belonged to her son. The box contained a smaller box of 50 rounds of ammunition and another bag of marijuana, weighing 7 grams. They also found a box of empty sandwich bags on a television table, some empty 1 x 1 inch bags known as jeweler's bags and an empty prescription bottle. After being advised of his rights, Defendant admitted to police that all of the marijuana found belonged to him for his personal use, but he told them the gun did not belong to him.

Defendant was charged with possession of marijuana with intent to distribute, in violation of La. R.S. 40:966(A)(1), and with illegal possession of a weapon while in possession of a controlled dangerous substance, in violation of La. R.S. 14:95(E).

Defendant filed a motion to suppress the evidence of the marijuana, baggies and handgun seized during his arrest, asserting that the items were seized in violation of his constitutional rights because the police did not have a search warrant to search a third party's home for him and did not have the homeowner's consent to enter the premises.

At the hearing on the motion to suppress, the officers testified to the facts mentioned above, stating that the types of bags found were known to be used for packaging drugs for sale. Ofc. Medlin testified that the four individual bags of marijuana were packaged in a manner consistent with distribution. The trial court concluded that the officers were lawfully in the [49,965 La.App. 2 Cir. 3] house because they had a valid warrant for Defendant's arrest and the homeowner confirmed he was there. The trial court also found that, once the marijuana was observed tied to Defendant's boxer shorts, there was probable cause to search. Ms. Stewart testified that only her son was living with her on the date of Defendant's arrest and that, at times, Defendant would stay with her. She confirmed that she gave the officers consent to enter the house to look for Defendant because they had a warrant for him.

A jury trial began on June 11, 2014, and Ofcs. Anderson and Medlin confirmed that they had a warrant for Defendant's arrest and that Ms. Stewart had told them Defendant was there before she allowed them to enter and search for him. Ofc. Anderson testified that she was the person who picked up the boxer shorts with the bags of marijuana tied to them. She stated that multiple boxes of baggies and baggies of various sizes were found in the room. She testified that they did not find any scales or cash near Defendant. She stated that she found the gun in the purse that was located in the closet. Ofc. Medlin testified that the individual bags of marijuana tied to the boxer shorts and the large bag of marijuana found in the closet indicated to him that Defendant was distributing marijuana.

Lt. Carl Townley of the Caddo Parish Sheriff's Office testified as an expert in narcotics investigations, sales, packaging and use and regarding the charges of possession with intent to distribute versus simple possession. He stated that the 18 grams of marijuana found could be made into either 18 marijuana cigarettes of 1 gram each or 36 cigarettes of one half gram each. He further stated that the average marijuana user smoked approximately 3 grams of marijuana per day, depending upon its grade. [49,965 La.App. 2 Cir. 4] Based on the amount of marijuana found, how it was packaged, the different sized baggies found on the premises and the fact that no device for smoking the marijuana was found, such as a pipe or rolling papers, Lt. Townley concluded that Defendant was

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possessing the marijuana for resale and not for ...


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