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State v. Baugh

Court of Appeals of Louisiana, Fourth Circuit

January 18, 2017

STATE OF LOUISIANA
v.
MICHAEL BAUGH

         ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 526-729, SECTION "H" Honorable Camille Buras, Judge

         WRIT GRANTED.

          LEON A. CANNIZZARO, JR. DISTRICT ATTORNEY OF ORLEANS PARISH SCOTT G. VINCENT ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH COUNSEL FOR STATE OF LOUISIANA

          DAVID M. ABDULLAH PFIFFER ROSCA WOLF ABDULLAH CARR & KANE APLC COUNSEL FOR DEFENDANT/RESPONDENT

          Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Roland L. Belsome

          JAMES F. MCKAY III CHIEF JUDGE

         On October 14, 2015, the state filed a bill of information charging defendant with first offense possession of marijuana (R.S. 40:966(E)(1)) and battery of a police officer with injury (R.S. 14:34.2(B)(3)). Defendant appeared with counsel and pled not guilty. The defense filed several pretrial pleadings including motions to suppress the statement and evidence and moved for a preliminary examination. The trial court denied the motions to suppress and found probable cause to sustain the charges. The defense filed a motion to reopen the suppression and probable cause determinations, which the court granted. After rehearing the matter, the trial court granted the motion to suppress and found insufficient probable cause. The state's writ application followed.

         STATEMENT OF THE FACTS

         At the January 18, 2015 hearing, Louisiana State Trooper Eric Thaxton testified that on September 18, 2015, at approximately 11:10 p.m., he and his partner, Officer Charles Robertson, responded to a call from NOPD dispatch concerning a suspicious vehicle near Elk Street. The dispatcher advised that loud music was emanating from the truck and that a male wearing a red hat was waving a handgun out of the vehicle. Upon their arrival at the scene, the officers observed a Chevrolet truck with dark tinted windows parked with its engine running on Elk Street near Canal. The truck had no license plate and its front windshield was darkly tinted, preventing the officers from viewing its interior. Given that the truck matched the description of the vehicle provided by the dispatcher[1] and the officers' observations of traffic/registration violations, Trooper Thaxton elected to conduct an investigatory stop.

         Trooper Thaxton approached the vehicle and asked the driver, later identified as defendant, to exit. As defendant opened the vehicle's door, the officers detected the odor of marijuana wafting from inside the truck. Defendant wore a red hat, matching the description of the individual provided by the NOPD dispatch. Defendant told the officers that he had just gotten off of work from the nearby Flax Luxe hair salon. In response to Trooper Thaxton's explanation concerning the stop and claim that he smelled marijuana, defendant replied that the officers lacked probable cause to detain him and maintained the allegation about the smell of marijuana was false. When asked to produce his driver's license, defendant requested permission to retrieve the item from the salon. Trooper Thaxton instructed defendant to check his wallet for the identification and when he did, Trooper Thaxton observed the license. When Trooper Thaxton confronted defendant about the license, defendant stepped back, turned around and attempted to flee on foot.

         Officer Robertson grabbed defendant's right wrist and defendant responded by punching the officer in the face and kicking him in the knee. Defendant ran across the median and, after he disobeyed Trooper Thaxton's order to stop, Trooper Thaxton detonated his Taser, striking defendant and causing him to fall to the ground. When defendant got up and started running towards the sidewalk, Trooper Thaxton "tased" him a second time. The second strike sufficiently subdued defendant and officers handcuffed him.

         The officers then conducted an inventory search of the truck, during which Trooper Thaxton located a pill bottle containing marijuana inside the center console. Hollowed-out cigars were recovered from the driver's side door compartment and a cup containing loose tobacco (presumably removed from the cigar casings) was found in the center console. The inspection sticker affixed to the windshield appeared fraudulent.

         Defendant was placed under arrest for marijuana possession, battery of a police officer and resisting arrest. Traffic citations were issued for the fraudulent inspection sticker, illegal window/windshield tint and the operation of a vehicle without a visible license plate. Officer Robertson testified and corroborated the account provided by Trooper Thaxton concerning the encounter with defendant.

         Pursuant to the defense motion which revealed that it did not possess a recording of the dispatch to cross-examine the officers at the initial hearing, the court recalled the matter. At the hearing conducted September 16, 2016, defense counsel ...


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