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State v. Spriggs

Court of Appeals of Louisiana, Fifth Circuit

April 24, 2019

STATE OF LOUISIANA
v.
BENNIE R. SPRIGGS

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 17-4778, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Anne M. Wallis Jennifer C. Voss

          COUNSEL FOR DEFENDANT/APPELLANT, BENNIE R. SPRIGGS Bruce G. Whittaker

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.

          JOHN J. MOLAISON, JR. JUDGE

         Defendant, Bennie Spriggs, appeals the denial of his motion to suppress evidence following his guilty plea to drug offenses, possession of a firearm by a convicted felon and obstruction of justice with a reservation of his right to appeal the trial court's ruling on the suppression motion, pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). Defendant contends the evidence was obtained unlawfully because the warrantless entry into and initial search of his residence was made by parole officers other than the officer assigned to him, contrary to law, and their visit, ostensibly to determine whether he was in compliance with the conditions of his parole, was a subterfuge for a criminal investigation.

         We affirm the trial court's denial of defendant's motion to suppress, affirm his convictions and sentences, and remand the matter to the trial court to correct a discrepancy between the court minutes and the transcript as to the payment of restitution, which we noted in our review of the record for errors patent.

         At the time of the parole officers' entry into defendant's apartment in June 2017, the law did not require that visits to a parolee's residence, or searches of the residence, be conducted by the parole officer assigned to the parolee. [1] La. R.S. 15:574.4.2(A)(2)(i); State v. Warren, 17-1169 (La.App. 3 Cir. 2/28/18), 239 So.3d 960, 971, citing State v. Sinegal, 17-527 (La.App. 3 Cir. 12/13/17), 2017 WL 6350261 at *8, writ denied, 18-451 (La. 1/8/19), 259 So.3d 1026.

         The record supports the trial court's finding that the visit to defendant's residence was a legitimate compliance check and was not a subterfuge for a criminal investigation. The evidence seized pursuant to the plain view exception to the warrant requirement, and on the basis of a search warrant issued thereafter, was lawfully obtained.

         FACTUAL AND PROCEDURAL BACKGROUND

         The search of defendant's apartment occurred on June 28, 2017, and resulted in defendant being charged by bill of information with possession with intent to distribute heroin (count one), possession of a firearm by a convicted felon (count two), possession with intent to distribute marijuana (count three), possession of Buprenorphine (Suboxone) (count four), possession of Tramadol (count five), and obstruction of justice (count six), in violation of La. R.S. 40:966(A), 14:95.1, 40:966(A), 40:968(C), 40:969(C) and 14:130.1, respectively.

         The hearing on the motion to suppress was held in July 2018. After the motion was denied, defendant withdrew his not guilty pleas and entered a Crosby plea of guilty as charged on all counts, reserving his right to appeal the denial of his motion to suppress.

         The trial court sentenced defendant to imprisonment at hard labor for fifteen years each on counts one, two and three and imprisonment at hard labor for five years each on counts four, five and six, with the sentences on all counts to run concurrently with each other and with any other sentence he is currently serving.

         Defendant was on parole at the time of these offenses, having been convicted of possession with intent to distribute marijuana, possession with intent to distribute cocaine and attempted possession of a firearm by a convicted felon in 2004. His parole supervision was transferred from East Baton Rouge Parish to Jefferson Parish in February 2017, a few months before the events in question. His assigned parole officer in Jefferson Parish, Agent Steven Becnel, had been to his apartment two or three times, during routine visits to monitor his compliance with the conditions of his parole, but Agent Becnel did not participate in the June 28 visit because he was scheduled for office duty that day. He testified that it was normal for other agents to assist an agent who is on office duty.

         Parolees are required by law to refrain from engaging in criminal conduct. La. R.S. 15:574.4.2(A)(1). As a condition of parole, they agree to submit to unannounced visits from their parole officer at their residence or place of employment and to searches of their person, property, residence or vehicle when reasonable suspicion exists that they have engaged in criminal activity while on parole. [2] § 574.4.2(A)(2)(i); State v. Bolden, 09-33 (La.App. 5 Cir. 5/12/09), 13 So.3d 1168, 1172, writ denied, 09-1317 (La. 2/5/10), 27 So.3d 297; State v. Wesley, 28, 941 (La.App. 2 Cir. 12/13/96), 685 So.2d 1169, 1174 writ denied, 97-0279 (La. 10/10/97), 703 So.2d 603.

         BURDEN OF PROOF AND STANDARD OF REVIEW

         In a hearing on a motion to suppress, the defendant has the burden of proving that evidence obtained with a warrant should be suppressed, and the State has the burden of proving the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D); State v. Parnell, 07-37 (La.App. 5 Cir. 5/15/07), 960 So.2d 1091, 1097, writ denied, 07-1417 (La. 1/7/08), 973 So.2d 733.

         The trial court's denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Lewis, 12-902 (La.App. 5 Cir. 6/27/13), 121 So.3d 128, 134, writ denied, 13-1926 (La. 4/17/14), 138 So.3d 618.

         EVIDENCE AT SUPPRESSION HEARING

         On June 28, 2017, three agents with the Louisiana Department of Probation and Parole and a narcotics detective with the Jefferson Parish Sheriff's Office went to defendant's apartment in Harvey, Louisiana. This occurred within a short time after one of the Probation and Parole officers, Agent Douglas Black, was contacted by a sergeant with the New Orleans Police Department's Fourth District Task Force and advised that the Task Force had been conducting surveillance of a residence in Algiers and had observed defendant engaging in what appeared to be illegal narcotics activity there, including selling narcotics in hand-to-hand transactions. Algiers is part of Agent Black's area of supervision, and he testified that he is the person who is generally contacted when the police learn that someone who may be engaged in criminal conduct in Algiers is on probation or parole.

         Agent Black and other Probation and Parole agents attempted to contact defendant at the residence in Algiers, but he did not appear there. His address of record with the Probation and Parole office was in Harvey, ...


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