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State v. Dupart

Court of Appeals of Louisiana, Fourth Circuit

October 16, 2019

STATE OF LOUISIANA
v.
KEVIN DUPART

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 543-895, SECTION "D" Honorable Paul A Bonin, Judge

          Leon Cannizzaro DISTRICT ATTORNEY Donna Andrieu ASSISTANT DISTRICT ATTORNEY Irena Zajickova ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS COUNSEL FOR APPELLEE/STATE OF LOUISIANA

          Sherry Watters LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano

          DANIEL L. DYSART, JUDGE

         This is an appeal of the trial court's denial of defendant, Kevin Dupart's Motion to Suppress the Evidence. On February 22, 2019, Mr. Dupart entered a Crosby plea of guilty[1] to several charges, while reserving his right to appeal the trial court's decision denying this motion.

         After our review of the record and applicable law, we find that the trial court properly denied Mr. Dupart's motion to suppress. Accordingly, and for the reasons that follow, we affirm Mr. Dupart's conviction and sentence.

         FACTS AND PROCEDURAL HISTORY

         By bill of information dated December 19, 2018, Mr. Dupart was charged with several offenses: (1) possession of a firearm or weapon by a felon, a violation of La. R.S. 14:95.1; (2) possession of marijuana in an amount less than fourteen grams, a violation of La. R.S. 40:966(C)(2A); (3) possession of a firearm with an obliterated serial number, a violation of La. R.S. 14:95.7; and (4) illegal possession of a stolen firearm, a violation of La. R.S. 14:69.1. In addition, the State charged Mr. Dupart as a multiple offender, a violation of La. R.S. 15:529.1. The multiple offender charge stemmed from a February 22, 2019 guilty plea to a charge of illegal possession of a stolen firearm and a June 26, 2017 guilty plea to a charge of possession of a controlled dangerous substance (methamphetamine).

         Mr. Dupart entered a plea of not guilty to the charges on January 14, 2019, and filed several motions, including a motion to suppress statements and evidence. A hearing took place on February 22, 2019, at which time the trial court found probable cause and denied the motion to suppress. Mr. Dupart then withdrew his prior plea and entered a plea of guilty to all counts, reserving his right to appeal the ruling on the motion to suppress under Crosby.

         Mr. Dupart waived sentencing delays and was sentenced as follows: as to count one, Mr. Dupart was sentenced to five years in the custody of the Department of Corrections without the benefit of probation, parole, or suspension of sentence, with credit for time served; as to count two, Mr. Dupart was sentenced to fifteen days in the custody of the sheriff with credit for time served; as to count three, Mr. Dupart was sentenced to serve one year in the custody of the Department of Corrections with credit for time served; and as to count four, possession of a stolen firearm, Mr. Dupart was sentenced to serve one year in the custody of the Department of Corrections with credit for time served. The trial court ordered all sentences run to concurrently; all fines and court costs were waived.

         The State then filed a multiple bill of information in accordance with La. R.S. 15:529.1, charging Mr. Dupart as a second offender with respect to the counts three and four, to which Mr. Dupart entered a guilty plea. With respect counts three and four, the trial court vacated the previous sentences and sentenced Mr. Dupart to serve twenty months in the custody of the Department of Corrections on each charge, with credit given for time served and with all sentences to run concurrently.

         This appeal followed.

         Errors Patent

         We have reviewed the record for errors patent and found none. See State v. Lambert, 15-0886, p. 5 n.6 (La.App. 4 Cir. 1/20/16), 186 So.3d 728, 733, writ denied, 16-0335 (La. 2/17/17), cert. denied, 138 S.Ct. 92, 199 L.Ed.2d 187 (2017).

         ASSIGNMENT OF ERROR

         In Mr. Dupart's sole assignment of error, he contends that the trial court erred in denying his motion to suppress.[2] In this regard, he argues that the police officers who arrested him "lacked reasonable suspicion to approach" him, that the conditions were "tantamount to an arrest" and therefore, the officers had "no reasonable grounds for the search" of him or his bag "without a warrant." As such, he argues, without the requisite probable cause, "[t]he investigatory stop . . . tainted the fruits of the search and the taking of the alleged statement."

         Standard of Review

         At the outset, we note our well-settled jurisprudence that an appellate court is to review the district court's findings of fact on a motion to suppress under a clearly erroneous standard, while the review of the district court's ultimate determination of Fourth Amendment reasonableness is de novo. State v. Everett, 13-0322, p. 4 (La.App. 4 Cir. 3/26/14), 709 (citing State v. Dorsey, 00-2331, p. 1 (La.App. 4 Cir. 1/24/01), 779 So.2d 1008, 1009, U.S. v. Seals, 987 F.2d 1102 (5th Cir.1993), cert. denied, 510 U.S. 853, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993)). "On mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo." Id., pp. 4- 5, 156 So.3d at 709 (citing Dorsey, 00-2331, p. 1, 779 So.2d at 1009). Furthermore, a trial court's decision as to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. Id. (citing State v. Wells, 08-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581). When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not disturb those findings unless there is no evidence to support them. Id. (citing State v. Thompson, 11-0915, pp. 13-14 (La. 5/8/12), 93 So.3d 553, 563).

         Search and Seizure ...


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