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Holmes v. Vannoy

United States District Court, E.D. Louisiana

January 10, 2018

UNDRA HOLMES
v.
DARREL VANNOY, WARDEN

         SECTION: “F” (1)

          REPORT AND RECOMMENDATION

          JANIS VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE.

         This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.

         State Court Factual and Procedural Background

         Petitioner, Undra Holmes, is a state prisoner incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On March 21, 2006, Holmes was charged by a bill of information with possession of cocaine with the intent to distribute in violation of La. Rev. Stat. § 40:967(A).[1] On May 1, 2008, a jury found petitioner guilty as charged.[2] On July 7, 2008, the trial court denied petitioner's motion for new trial and sentenced him to twenty years at hard labor, the first two years to be served without the benefit of probation, parole, or suspension of sentence.[3] On March 10, 2009, the Fifth Circuit Court of Appeal affirmed petitioner's conviction and sentence.[4] The Louisiana Supreme Court denied writs without stated reasons on January 8, 2010.[5]

         In the meantime, on July 7, 2008, the state filed a habitual offender bill of information. On April 17, 2009, the trial court found that petitioner was a fourth offender and re-sentenced the petitioner to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence.[6] On December 11, 2012, the Fifth Circuit Court of Appeal affirmed the trial court's judgment adjudicating petitioner to be a fourth time offender but amended the sentence to reflect that only the first two years of petitioner's life sentence was to be served without the benefit of parole.[7]The Louisiana Supreme Court denied writs without stated reasons on June 14, 2013.[8] Petitioner did not seek a petition for writ of certiorari with the United States Supreme Court.

         On November 15, 2013, petitioner filed a motion to correct illegal sentence.[9] The state district court denied the motion on January 14, 2014.[10]

         On January 14, 2014, petitioner filed a counseled application for post-conviction relief with the state district court raising claims of insufficient evidence and ineffective assistance of counsel.[11]On July 14, 2014, the state district court denied petitioner's application as to his ineffective assistance of counsel claims and declined to consider the insufficient evidence claim for procedural reasons.[12]

         On August 28, 2014, petitioner filed an application for supervisory writs with the Fifth Circuit Court of Appeal.[13] On November 5, 2014, the Fifth Circuit found that petitioner's insufficient evidence claim was procedurally barred under La. Code Crim. P. arts. 930(B) and (C) and that petitioner failed to prove that the trial court erred in denying his claims of ineffective assistance of counsel.[14] Petitioner filed an application for writ with the Louisiana Supreme Court on November 28, 2014.[15] On October 2, 2015, the Louisiana Supreme Court denied relief without stated reasons.[16]

         On May 17, 2016, petitioner filed the instant federal application seeking habeas corpus relief in which he asserts the following claims for relief: (1) he was wrongfully found to be a fourth felony offender; (2) the trial court erred in denying his motion to suppress; (3) ineffective assistance of counsel; and (4) the evidence was insufficient to convict him of possession with the intent to distribute.[17]

         The state filed a response conceding that the application is timely and that petitioner exhausted his remedies in the state courts except to the extent that petitioner claims that any of the alleged predicate convictions were obtained in violation of his constitutional rights. The state, however, claims that petitioner's insufficient evidence claim is procedurally barred and that petitioner's remaining claims have no merit.[18]

         Standards of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for pure questions of fact, pure questions of law, and mixed questions of both. The amendments “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002).

         As to pure questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); see also 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”).

         As to pure questions of law and mixed questions of law and fact, a federal court must defer to the state court's decision on the merits of such a claim unless that decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Courts have held that the “ ‘contrary to' and ‘unreasonable application' clauses [of § 2254(d)(1)] have independent meaning.” Bell, 535 U.S. at 694.

         Regarding the “contrary to” clause, the United States Fifth Circuit Court of Appeals has explained:

A state court decision is contrary to clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the [United States] Supreme Court's cases. A state-court decision will also be contrary to clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the [United States] Supreme Court and nevertheless arrives at a result different from [United States] Supreme Court precedent.

Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (internal quotation marks, ellipses, brackets, and footnotes omitted).

         Regarding the “unreasonable application” clause, the United States Supreme Court has held: “[A] state-court decision is an unreasonable application of our clearly established precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 134 S.Ct. 1697, 1705 (2014). However, the Supreme Court cautioned:

Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error. Thus, if a habeas court must extend a rationale before it can apply to the facts at hand, then by definition the rationale was not clearly established at the time of the state-court decision. AEDPA's carefully constructed framework would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law.

Id., at 1706 (citations and quotation marks omitted). Therefore, when the Supreme Court's “cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that the state court unreasonably applied clearly established Federal law.” Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quotation marks and brackets omitted). The Supreme Court has also expressly cautioned that “an unreasonable application is different from an incorrect one.” Bell, 535 U.S. at 694. Accordingly, a state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (“Importantly, ‘unreasonable' is not the same as ‘erroneous' or ‘incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable.”).

         While the AEDPA standards of review are strict and narrow, they are purposely so. As the United States Supreme Court has held:

[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.
If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (citations omitted; emphasis added); see also Renico v. Lett, 559 U.S. 766, 779 (2010) (“AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.”).

         The Supreme Court has expressly warned that although “some federal judges find [28 U.S.C. § 2254(d)] too confining, ” it is nevertheless clear that “all federal judges must obey” the law and apply the strictly deferential standards of review mandated therein. White, 134 S.Ct. at 1701.

         Facts

         On direct appeal, the Louisiana Fifth Circuit Court of Appeal summarized the facts of this case as follows:

         The hearing on the motion to suppress was held on February 12 and 13, 2007. The first witness called by the state was Terry Wilson, a sergeant in the New Orleans Police Department. Sergeant Wilson testified that on July 11, 2005, he received a tip from a reliable confidential informant. Officer Wilson told the court that he had used the confidential informant to arrest other narcotics dealers since 1989. According to the informant, a man named Undra Holmes would be transporting a large amount of cocaine into Orleans Parish. He provided Sergeant Wilson with a description of a car that would be transporting the cocaine and indicated that the transporter kept a large amount of drugs at his residence. According to the informant, the car was a gold Chrysler Concorde and was located at Moe's Auto Repair on North Galvez Street in New Orleans. Sergeant Wilson considered the information to be credible and proceeded to Moe's Auto Repair. When he arrived, he found a gold-four door Chrysler LHS sedan parked on the street.1 After conducting approximately one to one and a half hours of surveillance on the car while it was unoccupied, Sergeant Wilson observed the defendant enter the vehicle and drive away. Sergeant Wilson stopped the car after the occupant had driven approximately two blocks, though he admitted that the occupant had not committed any traffic offenses. The defendant identified himself as Undra Holmes, and was ordered to exit the vehicle. Sergeant Wilson called for a narcotics dog at the scene. The narcotics dog made an indication in the area of the car's radio, which Sergeant Wilson noted was loose. Sergeant Wilson pulled out the radio and discovered a rag inside the well that contained approximately thirty-three grams of crack cocaine. At that time, the defendant was placed under arrest.2 The car also contained a bill from the New Orleans Times-Picayune with the defendant's name and an address on nearby Bartholomew Street in New Orleans.[19] Sergeant Wilson proceeded to this address and the defendant's mother opened the door. The defendant's mother provided Wilson with an address in Metairie where she claimed the defendant resided with his girlfriend.

1 The Chrysler LHS and Chrysler Concorde are both full-size four door sedans.
2 The thirty-three grams of cocaine was placed in the Central Evidence and Property Room in the basement of the New Orleans Police Department, but was lost in the flooding that followed Hurricane Katrina. The defendant was not charged with an offense resulting from this initial traffic stop.

         Lieutenant Robert Gerdes of the Jefferson Parish Sheriff's Office was next to testify. Lieutenant Gerdes told the court that he had received a call from Sergeant Wilson informing him of the defendant's arrest in Orleans Parish and that his mother had provided the police with his residential address in Metairie. Gerdes then contacted Detective David Angelica and Detective Brandon Boylin, who made their way to the address the defendant's mother had provided. Angelica knocked on the door and two women appeared, later identified as Stephanie Thomas and Kiana Chapman. Both Thomas and Chapman signed a consent form allowing police to search the residence. Detectives Angelica and Boylin recovered approximately fifty grams of crack cocaine from a pair of men's jeans located in the bedroom the defendant shared with one of the tenants. They also recovered a digital scale from the bedroom closet, brown paper bags with cut corners, plastic packaging, and paperwork with the defendant's name that coincided with the Metairie address.

         The defendant testified on his own behalf. He told the court that his vehicle was parked on North Galvez Street near Moe's Auto Repair on July 11, 2005. The vehicle was being repaired by Moe's and had been at that location for approximately one month. Shortly after the defendant left the auto repair shop, he was stopped by several police cars on Conti Street. He was forced out of the vehicle by police officers, handcuffed, and made to stand on the sidewalk. The defendant told the court that it took approximately thirty to forty minutes for the canine unit to arrive. He did not see the canine unit make an indication but was arrested, read his Miranda rights, and placed in the rear seat of a police car shortly after the dog began searching the vehicle. On cross examination, the defendant admitted that he had moved from Bartholomew St. to Gibson St. about three weeks before the arrest. When the defendant was asked about the car from which the narcotics had been recovered, he stated that it was a gold Chrysler LHS, not a gold Chrysler Concorde.

         The court denied the defendant's motion to suppress on May 1, 2008. Trial in this matter was held on the same day. The testimony at trial was essentially the same as the testimony elicited at the motion to suppress. The defendant was found guilty as charged by a twelve person jury. On July 7, 2008, the defendant's motion for a new trial was denied and the trial court sentenced him to 20 years imprisonment at hard labor, with the first two years to be served without benefit of parole, probation, or sentence… .[20]

         Petitioner's Claims [21]

         Sufficiency of the Evidence

         Petitioner's first claim is that there was insufficient evidence to convict him of the offense of possession with the intent to distribute cocaine. The state argues that this claim is procedurally barred.

         The state is correct.

         The United States Fifth Circuit Court of Appeals has explained:

A claim that a state has withheld a federal right from a person in its custody may not be reviewed by a federal court if the last state court to consider that claim expressly relied on a state ground for denial of relief that is both independent of the merits of the federal claim and an adequate basis for the court's decision. To satisfy the “independent” and “adequate” requirements, the dismissal must “clearly and expressly” indicate that it rests on state grounds which bar relief, and the bar must be strictly or regularly followed by state courts, and applied to the majority of similar claims. This rule applies to state court judgments on both substantive and procedural grounds.

Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001) (citations omitted). Moreover, where a lower court has rejected a claim on procedural grounds, later opinions upholding that decision are presumed to rely on the same grounds if reasons are not assigned. Id. (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground.”).

         Here, there is no question that the state courts denied this claim on procedural grounds. The state district court found the claim procedurally barred as it was not raised at trial or on appeal, citing La. Code Crim. P. art. 930.4.[22] The Louisiana Fifth Circuit Court of Appeal refused to consider this claim because it had not been preserved for review, holding:

First, we find that relator has failed to demonstrate that the trial court erred in its denial of claim one. The trial court properly surmised that relator was procedurally barred from raising this claim in an application for post-conviction relief under La. C.Cr.P. art. 930.4(B) and (C).[23]

         The Louisiana Supreme Court denied relief without stated reasons.[24]

         It is well-established that La. Code Crim. P. art. 930.4(B) and (C) are independent and adequate state court grounds sufficient to procedurally bar claims from federal habeas review. See, e.g., Ayo v. Cain, Civ. Action No. 13-4580, 2015 WL 8475523, at *6 (E.D. La. Oct. 26, 2015), adopted, 2015 WL 8334524 (E.D. La. Dec. 9, 2015); Brown v. Cain, Civ. Action No. 11-2267, 2011 WL 7042222, at *8 (E.D. La. Dec. 20, 2011), adopted, 2012 WL 123288 (E.D. La. Jan. 17, 2012); Thomas v. Cain, Civ. Action No. 11-2408, 2011 WL 6046536, at *5 (E.D. La. Nov. 17, 2011), adopted, 2011 WL 6028779 (E.D. La. Dec. 5, 2011); Young v. Travis, Civ. Action No. 07-3542, 2011 WL 494811, at *8 (E.D. La. Jan. 13, 2011), adopted, 2011 WL 494802 (E.D. La. Feb. 4, 2011); Jones v. Cain, Civ. Action No. 10-0187, 2010 WL 3312592, at *5-6 (E.D. La. July 29, 2010), adopted, 2010 WL 3312594 (E.D. La. Aug. 19, 2010); Green v. Cooper, Civ. Action No. 06-1657, 2009 WL 87590, at *10 (E.D. La. Jan. 8, 2009).

         Where, as here, the state courts have rejected a petitioner's claim based on an independent and adequate state procedural rule, “federal habeas review is barred unless the petitioner demonstrates either cause and prejudice or that a failure to address the claim will result in a fundamental miscarriage of justice.” Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999). However, “[t]o establish cause for a procedural default, there must be something external to the petitioner, something that cannot fairly be attributed to him.” Johnson v. Puckett, 176 F.3d 809, 816 (5th Cir. 1999) (quotation marks omitted). Here, petitioner has not offered any cause for the default which would excuse the procedural bar imposed by the state courts. “Absent a showing of cause, it is not necessary for the court to consider whether there is actual prejudice.” Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996).

         When a petitioner has failed to meet the “cause and prejudice” test, a federal court should normally consider his claim only if the application of the procedural bar would result in a “fundamental miscarriage of justice.” That exception is a limited one which exists only if a petitioner makes a colorable showing that he is “actually innocent.” See Bagwell v.Dretke, 372 F.3d 748, 757 (5th Cir. 2004); Lucas v. Johnson, 132 F.3d 1069, 1077 (5th Cir. 1998).

         In order to establish that there would be a “fundamental miscarriage of justice, ” a petitioner must “make a persuasive showing that he is actually innocent of the charges against him. Essentially, the petitioner must show that, as a factual matter, he did not commit the crime for which he was convicted.” Finley, 243 F.3d at 220 (citations omitted). However, the United States Supreme Court has cautioned:

To be credible, such a claim [of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.

Schlup v. Delo, 513 U.S. 298, 324 (1995). Here, petitioner presents no new evidence whatsoever, much less any evidence of the type or caliber referenced in Schlup. Therefore, he has not established that any miscarriage of justice will result from the application of the procedural bar.

         For these reasons, Holmes's claim that insufficient evidence supported his conviction is procedurally barred and should not be considered by this Court.

         Motion to Suppress

         Petitioner contends that the trial court erred in denying his motion to suppress. He, however, does not present any argument regarding this claim.

         Defense counsel filed a motion to suppress the evidence.[25] That motion was denied after a hearing.[26] In the first direct appeal, the Louisiana Fifth Circuit Court of Appeal rejected petitioner's claim that the trial court erred in denying the motion to suppress, holding:

The defendant assigns a single error to the proceedings below, namely, that the trial court erred in denying his motion to suppress the evidence. He makes two distinct arguments in support of the assignment. First, the defendant claims that the tip from the confidential informant did not provide Sergeant Wilson the requisite reasonable suspicion to conduct an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Second, he argues that even if Sergeant Wilson had the requisite suspicion to conduct a Terry stop, the evidence should have been suppressed because the defendant's continued detention constituted an illegal seizure.
Investigatory Stops
As aforementioned, the defendant disputes whether the information provided by the confidential informant was sufficient to generate reasonable suspicion for the investigatory stop conducted by police. The defendant argues that the information was insufficient and, therefore, that the evidence against him should have been suppressed.
The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Similarly, the Louisiana Constitution provides that “[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” LA. CONST. art. 1, § 5. As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. Warrantless searches and seizures are considered to be per se unreasonable unless they can be justified by one of the Fourth Amendment's warrant exceptions. See, e.g., State v. Freeman, 97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, 634. The state has the burden of showing that one of the exceptions applies. See, e.g., State v. McHugh, 92-1852 (La.1/6/94), 630 So.2d 1259, 1262. We review a trial court's ruling on a motion to suppress under the manifest error standard. State v. Williams, 08-272, p. 3 (La.App. 5 Cir. 12/16/08), 3 So.3d 526; State v. Higgins, 03-1980, p. 20-21 (La. 4/1/05), 898 So.2d 1219, 1233, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).
Police officers are permitted to conduct warrantless “investigatory stops” upon a person reasonably suspected of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The test for “reasonable suspicion” is whether the police officer had sufficient knowledge of the facts and circumstances to justify an infringement upon the individual's right to be free from governmental interference. See, e.g., State v. Melancon, 03-514 (La.App. 5 Cir. 10/28/03), 860 So.2d 225, 228, writ denied, 03-3505 (La. 4/23/04), 870 So.2d 297. If the police officer did not have reasonable suspicion to conduct the investigatory stop, the stop is illegal and the evidence seized from it must be suppressed. Id. at 229; Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
Tips provided to police by confidential informants can supply sufficient reasonable suspicion to conduct an investigative stop under certain circumstances. The tip must accurately predict the offender's conduct in sufficient detail to support a finding that the informant had reliable information regarding the illegal activity. See, e.g., Id. The tip must also be corroborated by the police. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). If an informer's tip accurately predicts the offender's future behavior it gains an additional modicum of reliability. Id. Predictive ability is not always necessary; a non-predictive tip coupled with police corroboration or independent police observation of suspicious activity can provide the police with the requisite reasonable suspicion to detain a suspect. See, e.g., State v. Francois, 04-1147, p. 7 (La.App. 5 Cir. 3/29/05), 900 So.2d 1005, 1010. An informant's past record for accuracy and reliability is another factor taken into account when determining the reliability of the tip in question. State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, 879, writ denied, 05-0830 (La.11/28/05), 916 So.2d 143.

         The Louisiana Supreme Court has noted:

While probable cause must be determined on the totality of the circumstances, an informant's reliability, veracity and basis of knowledge are “all highly relevant.” Illinois v. Gates, 462 U.S. 213[, 103 S.Ct. 2317, 76 L.Ed.2d 527] (1983); State v. Ruffin, 448 So.2d 1274, 1278 (La. 1984). A confidential informant may provide adequate information to establish probable cause for a warrantless arrest, so long as the basis for the informant's knowledge and the informant's reliability, when examined under the totality of the circumstances, are established.

State v. Fisher, 97-K-1133, p. 8 (La. 9/9/98), 720 So.2d 1179, 1184.

         With these principles in mind, this Court concludes that the police officers had the requisite reasonable suspicion to conduct an investigative stop. In making this determination, we look to two Louisiana cases and one United States Supreme Court case with factual situations similar to the instant case.

         In State v. Anthony, 07-204 (La.App. 5 Cir. 11/27/07), 971 So.2d 1219, a reliable confidential informant informed police that a man nicknamed “Twin” would be delivering crack cocaine to the Oasis Motel located at 70 Westbank Expressway in Gretna. The informant stated that Twin would be driving a newer-model, black Pontiac Grand Prix with chrome rims. Anthony, 971 So.2d at 1223. The police set up surveillance at the Oasis Motel using several unmarked vehicles. Approximately twenty to thirty minutes after the call, police observed a black Grand Prix with three occupants enter the Oasis Motel parking lot. Id. Several police officers approached the vehicle with guns drawn, and one saw a passenger throw a white object into the back seat of the Grand Prix. Id. All three men were detained and later arrested when cocaine and heroin were discovered in the car. Id. at 1223-24. The defendants argued that the trial court erred in denying their motions to suppress because the police did not corroborate the information supplied by the confidential informant before they converged on their vehicle, but this Court disagreed. We concluded that there was “no error in the trial court's denial of defendants' motions to suppress. The police corroboration of the confidential informant's tip gave them reasonable suspicion to justify the stop.” Id. at 1227.

         In State v. Rodriguez, 99-914 (La.App. 5 Cir. 1/25/00), 761 So.2d 14, police found contraband in a vehicle after an investigatory stop arising out of a reliable confidential informer's tip. The tipster informed police that a particular apartment was “involved in wholesale distribution and storage of heroin” and that a resident of the department would be arriving with a large shipment of heroin. Rodriguez, 761 So.2d at 15-16. The informant did not mention the resident's name, nor did he indicate what type of vehicle the resident would be driving. Id. at 16. After conducting surveillance on the apartment complex, the police observed two men exit the apartment pointed out by the informant and enter a vehicle. Id. The two men were not acting suspiciously when they exited the apartment. Put differently, “[t]he only factor causing [the police] to be suspicious of these individuals was that they left that apartment [indicated by the informant].” Id. The police activated their lights and siren and pulled the two men over. The driver immediately fled the scene and managed to escape. The defendant, who was riding as a passenger, attempted to flee and throw away a black bag. However, he was apprehended and placed under arrest after brown powder in the bag tested positive for heroin. Id. The trial court denied the defendant's motion to suppress the heroin, but this Court reversed, with one judge dissenting. We noted that:

[T]he information was so sparse that it was impossible to determine the veracity, basis of knowledge and reliability of the informant and the information given. Also, the predictive aspect of the information was so vague that it did not rise to the level of reasonable suspicion. Id. at 19.

         In Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), an anonymous tipster informed police that a woman named “Vanessa White” would be leaving a particular apartment in a brown Plymouth station wagon with a broken taillight, that she would be going to a local motel, and that she would be in possession of about an ounce of cocaine inside a brown attaché case. White, 496 U.S. at 327, 110 S.Ct. 2412. The officers decided that the tip was credible and proceeded to the spot that the informant had mentioned. Id. The White defendant then exited the apartment noted by the informant, entered the brown Plymouth station wagon with a broken taillight, and began to drive off. She was stopped near the motel and gave officers consent to search her car. The police offers discovered a brown attaché case in the defendant's trunk, which contained a large amount of marijuana. A small amount of cocaine was later recovered from the defendant's purse. Id. The defendant's guilty plea was reversed by the Court of Criminal Appeals of Alabama on the basis that the officers did not have the reasonable suspicion necessary under Terry to justify the investigatory stop of respondent's car, but the United States Supreme Court reversed. Writing for the majority, Justice White admitted that “[i]t is true that not every detail mentioned by the tipster was verified, such as the name of the woman leaving the building or the precise apartment from which she left; but the officers did corroborate that a woman left the [defendant's apartment] building and got into the particular vehicle that was described by the caller.” He concluded:

Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify ...

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