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State v. Cowans

Court of Appeals of Louisiana, Fifth Circuit

July 6, 2018

STATE OF LOUISIANA
v.
LANCE COWANS

          ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 15, 54, DIVISION "D" HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Joel T. Chaisson, II Louis G. Authement

          COUNSEL FOR DEFENDANT/APPELLANT, LANCE COWANS Frank G. DeSalvo

          Panel composed of Judges Jude G. Gravois, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore

          HANS J. LILJEBERG JUDGE

         Defendant, Lance Cowans, appeals his convictions for possession of between sixty and two thousand pounds of marijuana (count one), and for possession of Schedule II controlled dangerous substances (count three). Following the denial of defendant's motion to suppress evidence and statements, [1]he entered into the guilty plea on April 27, 2017, under the provisions of State v. Crosby, 338 So.2d 584 (La. 1976), reserving his right to appeal the adverse ruling on the motion to suppress.[2] For the following reasons, we reverse the trial court's denial of defendant's motion to suppress and enter an order granting the motion to suppress evidence and statements. We vacate defendant's convictions and sentences and remand the matter to the trial court.

         PROCEDURAL HISTORY

         Defendant, Lance Cowans, was arrested on February 1, 2015, along with Juan Salinas. Defendant was charged with possession of more than sixty but less than two thousand pounds of marijuana in violation of La. R.S. 40:966(F) (count one), and possession of Schedule II controlled dangerous substances[3] in violation of La. R.S. 40:967(C) (count three).[4] On April 7, 2015, defendant was arraigned and entered a plea of not guilty. On February 18, 2016, defendant, Juan Salinas, filed motions to suppress evidence and statements, later adopted by defendant. The State filed an opposition on July 29, 2016. On June 7, 2016, the trial court heard the motion to suppress and took the matter under advisement. The parties filed additional briefing and on September 7, 2016, the trial court denied the motion to suppress evidence and statements without reasons.

         On April 27, 2017, defendant withdrew his plea of not guilty and pleaded guilty to counts one and three pursuant to State v. Crosby, supra. In accordance with the plea agreement, the trial court sentenced defendant on count one to 15 years of imprisonment with the Department of Corrections, suspended seven of the 15 years, and placed defendant on active probation for five years. The trial court also sentenced defendant on count three to five years in the Department of Corrections, to run concurrently with the sentence on count one. On May 8, 2017, defendant filed a motion for an appeal pursuant to Crosby, which was granted on May 12, 2017.

         FACTS

         Because there was no trial, all facts were elicited at the hearing on the motions to suppress evidence and statements, which took place on June 7, 2016.

         At the June 7, 2016 suppression hearing, Agent Christopher Kenny and Agent George Carcabasis with the United States Drug Enforcement Administration ("DEA") testified that in late 2014, they were investigating a suspect, Ricardo Hernandez, alleged to be involved in drug trafficking between the Houston and the Greater New Orleans area. As part of this investigation, Agent Kenny used a reliable confidential informant ("CI") and in October 2014, he monitored the CI's meeting with Hernandez and two unknown individuals in the parking lot of an Applebee's Restaurant in Kenner, Louisiana. The CI and other individuals discussed the purchase of a large quantity of cocaine to be delivered from Houston to a "stash house" near Baton Rouge. During the meeting, the original suspect indicated that Salinas, one of the unknown individuals present at the time, was "the main guy in charge," and that his relatives owned the drugs. The original suspect also indicated Salinas was present to make sure everything ran smoothly. Hernandez and the other individuals wanted the CI to show or provide them with money before they would deliver the drugs. This did not occur, and the agents did not see any drugs or money exchanged during the meeting.

         The agents similarly testified that following the meeting, they maintained surveillance of the vehicle, a blue Ford F-150 truck with a Texas license plate, containing Hernandez and the two other unknown individuals. Agent Kenny ran the license plate and learned that the vehicle was registered to Salinas. Officers observed the vehicle go to 836 Fox Lane, a residence in St. Rose in St. Charles Parish, later determined to be defendant's home. The residence was located on a dead-end street in an area where mostly families lived. The suspects stayed at the residence for only 15 to 20 minutes. Next, they drove to a parking lot at a nearby restaurant and sat in the truck for approximately an hour. Agents then observed the truck return to Fox Lane for 15 minutes. An undercover agent observed flashlights around the residence and shed area behind the residence.

         Agent Kenny testified that the Fox Lane residence was previously unknown to them, but after their surveillance, they suspected it was a stash house for drugs. The truck and the men then drove away on I-10 heading west. Agents maintained surveillance on the truck in order to determine whether the suspects would stop at a stash house in Baton Rouge. When the truck passed the Baton Rouge area, they requested that a local police unit stop the truck in West Baton Rouge Parish in order to identify the occupants. During the stop, agents learned Salinas' identity. No one was arrested, the vehicle was not searched, and the agents ceased surveillance. Because they believed the truck may be used for drug trafficking in the future, agents entered the truck's license plate number into the Louisiana license plate camera recognition system maintained by the Louisiana State Police. The system would alert the agents if the truck returned to Louisiana.

         Several months later, on February 1, 2015, the agents received an email alert indicating the truck was travelling eastbound on I-10 near Lake Charles. Agent Kenny testified that they assumed the truck would return to Fox Lane as this was the only previous place they saw the truck visit. He and Agent Carcabasis attempted to locate the truck on the interstate, but they were unsuccessful. Agent Carcabasis contacted the St. Charles Parish Sheriff's Office ("SCPSO") for assistance. They provided the vehicle's description and license plate information. They also informed the SCPSO that the truck was possibly a "load vehicle" (one used to transport narcotics) and that based on prior surveillance, it might be headed to Fox Lane.

         Sergeant Paul Walker of the SCPSO was on patrol when he observed the truck and its driver near Fox Lane at a Brother's Food Mart. Sgt. Walker then alerted the other units that he saw the vehicle drive down Fox Lane. The DEA agents met with Detective Allan Tabora of the SCPSO, as well as other SCPSO officers, in an empty parking lot near the intersection of Fox Lane and Airline Highway. As the group discussed their next move, several officers observed the truck disregard a stop sign at the intersection of Airline Highway and Fox Lane.

         Detective Tabora and Detective Danny April with the SCPSO performed a traffic stop. Agents Kenny and Carcabasis spoke with the driver, Salinas. Agent Kenny testified that Salinas related that he travelled from Houston, stopped to eat at Ruth's Chris Steakhouse in Baton Rouge, visited his friend on Fox Lane for about 15 to 20 minutes, and was headed back to Houston. Agent Kenny thought that it was odd that someone would drive for hours to see a friend and stay for only 15 to 20 minutes. He also testified that he noticed Salinas' hands were shaking and very dirty. Salinas explained that his front tire was "messing up" and he had to fix it. Agent Kenny testified that he observed the tire and it appeared to be fine. Agent Kenny described Salinas' demeanor as "very nervous."

         Detective Tabora also spoke with Salinas and testified that he was nervous and stuttering. He asked Salinas when he arrived in St. Rose and Salinas responded noon; however, Detective Tabora noted that it was only 11:45 a.m. when they made the traffic stop. Salinas provided his license, insurance, and proof of registration, and eventually, he was asked to step out of the truck. Detective Tabora testified that six law enforcement officers were present at the traffic stop, including four SPCSO officers and two DEA agents.

         Detective Tabora testified that, based on the information provided by the DEA agents, as well as Salinas' nervous behavior and statements regarding his travel itinerary, he requested a canine to perform an open-air sniff of the truck.[5]Detective Tabora testified that Salinas then provided consent to search the truck. During the search, the agents and officer located several items, which they explained were commonly used to attempt to conceal the odor of illegal drugs. They located an excessive amount of fabric softener sheets in the center console, in a pocket behind the front seat and in the back seat. They also found coffee grinds throughout the truck and fish remains in the bed of the truck. They did not find any illegal drugs.

         According to Detective Tabora, several officers relocated to the Fox Lane residence during the traffic stop to further investigate. Based on the items found in the truck during the traffic stop, as well as Salinas' statements and demeanor, Salinas was detained in handcuffs and placed in the back of a unit pending the outcome of the investigation at Fox Lane. Detective Tabora testified that Salinas was advised of his Miranda[6] warnings at some point either on Airline Highway or shortly thereafter.

         Meanwhile, after receiving a briefing of the ongoing events at the scene of the traffic stop, Lieutenant Marlon Shuff and Sergeant Bradley Walsh with the SCPSO went to 836 Fox Lane, along with other detectives and patrol officers in their division, to continue the investigation by conducting a "knock and talk" at the residence. Lt. Shuff knocked on the door of the residence, but no one answered. A short time later, defendant exited the residence located next door and identified himself.[7] Lt. Shuff recalled that he could immediately tell that defendant was nervous, and he asked defendant if they could go inside the residence, but defendant declined, stating they could talk in the front yard. Lt. Shuff testified that he and defendant were located in an area between defendant's house and the neighboring property, and the two houses were very close to one another.

         Sgt. Bradley Walsh, with the SCPSO special investigations division, testified that he also left the traffic scene to go to Fox Lane and attempt contact with the homeowner. Sgt. Walsh witnessed another officer knock at the door, but no one answered. At that point, he saw defendant come out of the neighbor's residence next door, where Lt. Shuff made contact with him. Sgt. Walsh started walking towards them. As he got closer to them, he could see between the two residences and saw what appeared to be a garage behind defendant's house. He continued to walk towards the backyard of the residence and saw that the structure had multiple bays with roll-up doors, which were open.

         Sgt. Walsh explained that he went to the back structure to do a protective sweep to make sure no one else was in the area behind the residence. He agreed on cross-examination that he had no information anyone else was at the residence as defendant told the officers he was the only one at the residence. Sgt. Walsh testified that in any type of investigation, it was common practice to do a protective sweep of the area for officer safety.[8] He agreed that defendant did not give him permission to do the sweep of his backyard, nor did he ask. Sgt. Walsh agreed he had no reason to believe a dangerous person might be present, and officers did not have probable cause to obtain a search warrant for the Fox Lane residence at that time.

         As Sgt. Walsh approached one of the open garages, he noticed a tire sitting upright two to three feet inside of the entrance to the garage. He could see that a section of the tire had been cut out. He could also see a "sawzall" lying next to the tire, as well as freshly cut rubber from the tire. He testified that, as he stood outside the garage, he could see the "gleanings of vegetable matter" throughout the inside of the tire. On cross-examination, he admitted that he first saw discolored matter inside the tire and had to enter the garage in order to determine that it looked like marijuana. He returned to the front yard to advise Lt. Shuff regarding what he observed in the garage. Lt. Shuff went into the backyard and into the garage, and upon close inspection of the tire, observed a small amount of green vegetable matter, which field tested positive for marijuana.

         Sgt. Walsh helped take photographs of the premises that day, which he identified in court.[9] He agreed that the marijuana gleanings he saw inside the tire were not depicted in the photographs. The garage structure in the photographs had a concrete floor that did not extend or connect to a driveway outside of the structure. The driveway in the front of the house led into an enclosed carport. The garage in the back of the property was not visible from the front door or the driveway in the front of the property.[10]

         Lt. Shuff testified that, based on the information received from the DEA, the traffic stop and the discovery of the tire containing the green vegetable matter, they approached defendant and told him they were securing his residence in order to obtain a search warrant. Defendant cooperated and after unlocking the door, restrained his two dogs, which were inside. The officers then conducted a protective sweep of the inside of the residence.

         Once inside the residence, Lt. Shuff and Sgt. Walsh both testified to smelling a strong odor of marijuana. As Sgt. Walsh walked down the hallway towards the bedrooms, another officer came out of the last bedroom and reported finding a large amount of marijuana in the shape of a tire. Defendant was arrested and Mirandized after the marijuana was found in the house. After the officers spoke with defendant inside the ...


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