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State v. Nelson

Court of Appeals of Louisiana, Second Circuit

February 1, 2017

STATE OF LOUISIANA Appellant
v.
DARYL MARTISE NELSON Appellee

         On Application for Writs from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 15F18622, Honorable Larry D. Jefferson, Judge.

          ROBERT S. TEW District Attorney, Counsel for Appellant.

          ELLEN R. EADE Assistant District Attorney, KEVIN H. JOHNSON, Counsel for Appellee.

          Before WILLIAMS, LOLLEY and CARAWAY (Ad Hoc), JJ.

          WILLIAMS, J.

         The defendant, Daryl Nelson, was charged by bill of information with possession of marijuana with intent to distribute, possession of cocaine with intent to distribute, and possession of a firearm by a convicted felon. The district court granted the defendant's pretrial motion to suppress evidence seized from his vehicle. The state sought supervisory review of the trial court's ruling and this court granted the writ to the appellate docket as to the suppression of evidence seized from defendant's vehicle. For the following reasons, we recall the writ, deny the state's application in part and affirm the suppression of the evidence.

         FACTS

         The record shows that on the morning of July 22, 2015, a confidential informant advised Officer Scotty Sadler, of the Monroe Police Department Metro Narcotics Unit, that defendant was in possession of a large amount of narcotics. After participating in a previous drug investigation, Officer Sadler was familiar with defendant and his residence at 117 Selman Drive. The informant reported that, on the previous night, defendant had displayed more than 4 ounces of crack cocaine and more than 2 pounds of marijuana while attempting to make a sale and that the narcotics remained in defendant's home. The informant also provided a description of the vehicle driven by defendant and the name of the other drug dealer to whom the drugs were offered for sale the night before. Based on this information, Officer Sadler submitted to the district court an affidavit in support of a search warrant stating that the house at 117 Selman was identified as defendant's residence and had been used to facilitate drug sales.

         After obtaining the search warrant, Officer Sadler went to the residence accompanied by Officer Kris Fulmer to conduct surveillance in preparation for the execution of the warrant. Officer Heckard, another member of the Monroe Police Department Metro Narcotics Unit, set up surveillance behind the residence. Shortly after their arrival, the officers observed a vehicle matching the description provided by the informant pull into the driveway of 117 Selman. The vehicle remained at the house for a few minutes, then left. As the car passed Officers Sadler and Fulmer, they recognized the driver as defendant with an unidentified passenger in the vehicle. The officers contacted DEA Agents Zordan and Cowan, who were nearby in a vehicle with lights and a siren, to stop defendant. Agent Zordan had previously participated in the execution of a search warrant at defendant's residence that resulted in his arrest on a narcotics charge. Officer Sadler wanted to make the stop far enough away from the residence so that no other possible target would be alerted to the police presence and impending search. The defendant's vehicle was stopped approximately one mile from the residence.

         After defendant exited his vehicle, he was detained by Officer Sadler and advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Officer Fulmer moved defendant's vehicle from the roadway. The officers detained defendant at the location of the traffic stop for approximately five to ten minutes to allow the SWAT team time to secure the house. Defendant was driven to the residence by Agent Zordan and Officer Fulmer drove defendant's vehicle to the house. While in defendant's car, Officer Fulmer observed a bag on the front floorboard and touched it with his hand. Defendant had not consented to Officer Fulmer's operation of his vehicle.

         Officer Sadler later testified at the preliminary exam that after returning to the house he again advised defendant of his Miranda rights, requested permission to search his vehicle and that defendant consented to the search. During the search, a bag of marijuana and a handgun were found in defendant's vehicle. As a result of the residence search, police seized marijuana, cocaine, digital scales, Pyrex dishes used to cook crack cocaine, and approximately $10, 000 in cash. Following the search of his residence, defendant was taken to the Metro Narcotics Unit office, was advised of his Miranda rights and made a statement to officers. Defendant was then arrested and charged with possession of marijuana with intent to distribute, possession of cocaine with intent to distribute, and possession of a firearm by a convicted felon.

         Prior to trial, defendant filed numerous motions, including a motion to suppress evidence seeking the exclusion of any statements made to officers and all property seized from his vehicle and residence. Defendant argued in part that he had not given free and voluntary consent to the search of his vehicle, and that all evidence seized as a result of that search should be suppressed. He also moved for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), on the ground that the search warrant affidavit included an intentional false statement. The state opposed the defendant's motions, alleging that he had voluntarily consented to the search of his vehicle after being advised of his Miranda rights and that he failed to show an intentional false statement was made.

         At the hearing on the motion to suppress, defense counsel argued that at the time defendant's vehicle was stopped, he was improperly detained by officers and his vehicle was not mentioned in the search warrant. The defense stated that at the time of the alleged consent to the vehicle search there were approximately 19 to 28 armed officers present. Defendant testified that while he was being detained, he merely told the officers that they had already been in his vehicle when he was asked for permission to conduct a search.

         Officer Sadler testified that at the house, he advised defendant of his Miranda rights and requested permission to search his vehicle. Sadler stated that defendant was nonchalant and commented that it did not matter what he said because the officers would get a warrant and search the vehicle anyway. Another state witness, Agent Cowan, testified that he witnessed Officer Sadler advise defendant of his rights, heard Officer Sadler request permission to search the vehicle, and heard defendant's consent to the search. Agent Zordan testified that he did not recall Officer Sadler's recitation of rights, but that he heard Officer ...


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