GENOVESE, Judge.
In this criminal case, Defendant, Jean-Luc Arisme, entered a Crosby plea to the amended charge of possession of marijuana with intent to distribute in connection with a traffic stop. He was given a five-year suspended sentence with special and general conditions of probation. Defendant's guilty plea was entered after the denial of his motion to suppress the marijuana, and he reserved his right to appeal all matters pertaining to his motion to suppress. Defendant is appealing only his conviction pursuant to the trial court's denial of his motion to suppress. For the following reasons, we affirm Defendant's
On July 21, 2010, Defendant was observed driving a motor vehicle on Interstate 10 in Calcasieu Parish by Sergeant Stuart Henderson (Officer Henderson) of the Calcasieu Parish Sheriff's Department. Defendant was stopped and questioned by Officer Henderson due to improper lane usage (signal violation) and dark tinted windows. Defendant's vehicle had a Florida license plate and was an Enterprise rental car on which he was listed as an additional operator of the vehicle. Defendant had a passenger in the vehicle with him. The occurrence was videotaped via camera on Officer Henderson's vehicle.
In speaking with Defendant, Officer Henderson became suspicious when Defendant was unable to provide the last name of his passenger, and he and the passenger gave conflicting accounts of their whereabouts on a recent trip to Houston, Texas. Officer Henderson also stated that he found it unusual and suspicious for a rental vehicle to have such dark tint on the front windows.
After his investigation, Officer Henderson issued a Notice of Violation to Defendant, returned his documentation to him, and advised him he was being released as a courtesy. Immediately thereafter, Officer Henderson asked Defendant for permission to search the vehicle. According to the audio and video recording of the stop, Defendant seemingly refused. Following Defendant's apparent refusal, Officer Henderson retrieved his drug dog from his vehicle, and the dog alerted to a narcotic odor emitting from the rear of Defendant's vehicle. Approximately sixty pounds of marijuana were found in a suitcase in the trunk of the vehicle. Both Defendant and his passenger were arrested.
On November 18, 2010, Defendant was charged by bill of indictment with one count of possessing 60 to 2000 pounds of marijuana, a violation of La.R.S. 40:966(F)(1). Defendant entered a plea of not guilty to the charge and subsequently filed a motion to suppress the evidence seized as a result of the warrantless search of his vehicle. The trial court heard the motion to suppress, at which hearing defense counsel waived Defendant's presence. The trial court denied the motion. Thereafter, the State amended the charge against Defendant to possession of marijuana with the intent to distribute. Defendant entered a Crosby plea to the amended charge, reserving his right to appeal "all matters pertaining to those motions to suppress." The trial court accepted Defendant's guilty plea and sentenced him to five years.
The trial court suspended the sentence and placed Defendant on three years of probation with the following conditions of probation: 1) register with probation and parole and pay a "$60 monthly visit fee and $75"; 2) be subject to random drug screening; 3) maintain all of the conditions set forth in La.Code Crim.P. art. 895; and, 4) pay a $250.00 fee to the Southwest Louisiana Crime Lab. Additionally, the trial judge authorized Defendant's probation to be transferred to Tallahassee, Florida, provided Florida would accept his probation.
Defendant filed a timely Motion for Appeal and Designation of Record which was
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we note two errors patent.
First, as a condition of probation, the trial court ordered a $250.00 fee to the Louisiana Crime Lab, for which a payment plan was not established. In State v. Wagner, 07-127, pp. 7-8 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208, this court held in pertinent part:
This issue has been similarly resolved in other cases. See State v. LaCombe, 09-544 (La.App. 3 Cir. 12/9/09), 25 So.3d 1002, and State v. Snelling, 09-1313 (La.App. 3 Cir. 5/5/10), 36 So.3d 1060, writ denied, 10-1301 (La.12/17/10), 51 So.3d 16. Accordingly, we remand this case to the trial court for the establishment of a payment plan for the fee, noting that the plan may either be determined by the trial court or by the Department of Probation and Parole with approval by the trial court. See Stevens, 949 So.2d 597.
Next, according to the sentencing transcript, as a condition of the Defendant's probation, the trial judge ordered that he "register with the probation and parole and pay $60 monthly visit fee and $75." The court minutes and the Conditions of Probation form (signed by Defendant and a probation officer six days after sentencing) indicate that Defendant was ordered to pay a monthly fee of $75.00 to the Office of Probation and Parole with $60.00 designated for supervision and $15.00 for the technology registration fund.
In his lone assignment of error, Defendant contends that "the trial court erred in finding reasonable suspicion that [he] engaged in any criminal conduct after he was released from the traffic stop, thus allowing law enforcement to conduct a second detainment and expanded search not supported by any new articulable suspicion of illegal activity."
Defendant alleges that the trial court erred in denying his motion to suppress the evidence seized during the warrantless search of his vehicle. Defendant claims that after he was "ostensibly" stopped for having dark tinted windows and making an illegal lane change, Officer Henderson issued to Defendant a Notice of Violation and told him that he was being released. The video recording (DVD) of the traffic stop was introduced as exhibit D-1 at the motion to suppress hearing. The traffic noise makes it difficult to hear what is being said on the DVD, but Officer Henderson did issue to Defendant a Notice of Violation and told him he was being released as a courtesy instead of being given a ticket. The actual Notice of Violation stated, "You are released as a courtesy."
Immediately after Officer Henderson informed Defendant that he was released as a courtesy, he told Defendant that he had seen lots of "crazy stuff" and asked him if he had anything illegal in the car. When Defendant answered, "No," Officer Henderson asked to search the vehicle. Defendant denied Officer Henderson's request to search the vehicle, at which time Officer Henderson retrieved his dog from the police unit, conducted a sweep of the vehicle, and found marijuana in the trunk of the vehicle.
In brief, Defendant argues that Officer Henderson failed to acquire a "new" reasonable suspicion after his release from the traffic stop. According to Defendant, the original traffic stop was over when the officer released him, and no new exigent circumstances occurred to justify the enlargement of the search. Defense counsel summarizes his argument as follows:
We find that Defendant is precluded from raising this "new" reasonable suspicion argument on appeal since he failed to raise this argument in either his written motion to suppress or at his hearing on the motion to suppress. In his written motion to suppress, Defendant alleged that when the officer stopped him, the officer lacked reasonable suspicion that he was committing, had committed, or was about to commit a crime. The written motion to suppress also alleged that the subsequent search of Defendant's vehicle was conducted without probable cause to search, without consent to search, without a warrant to search, and without an exception to the warrant requirement. At the hearing on his motion to suppress, defense counsel argued as follows:
Considering Defendant's written motion to suppress and his counsel's oral argument, we find that Defendant did not raise in the trial court the same argument he is now raising on appeal — that Officer Henderson failed to acquire "new" reasonable suspicion after the alleged conclusion of the traffic stop by the issuance of the Notice of Violation.
State v. Montejo, 06-1807, p. 22 (La.5/11/10), 40 So.3d 952, 967-68, cert. denied, ___ U.S. ___, 131 S.Ct. 656, 178 L.Ed.2d 513 (2010) (footnote omitted).
Even if we were to consider Defendant's "new reasonable suspicion" argument, a similar argument was rejected in State v. Burton, 93-828 (La.App. 3 Cir. 2/23/94), 640 So.2d 342, writ denied, 94-617 (La.4/7/94), 641 So.2d 203. In Burton, the officers stopped Burton and his passenger for speeding. Questioning of Burton and his passenger revealed conflicting stories and extreme nervousness. Either during or after the questioning, one of the officers "filled out a Consent to Search Form, handed Burton back his driver's license[,] and told him to slow down." Id. at 344. As Burton walked back to his vehicle, an officer explained to him what the Consent to Search Form entailed. When Burton refused to give consent to search, one of the officers radioed for a canine to be brought to the scene. When the canine alerted to the presence of drugs, the officers searched the vehicle and found contraband.
In Burton, 640 So.2d at 346, this court addressed an argument similar to the "new" reasonable suspicion argument raised by Defendant in brief:
Likewise, in the instant case, Officer Henderson's completion of the steps of the traffic stop with the issuance of the Notice of Violation should not be construed to mean that all proceedings were concluded and that Officer Henderson's initial reasonable suspicion had been dispelled. When defense counsel asked Officer Henderson if he was finished with the investigation of the improper lane change at the time he gave Defendant the Notice of Violation, Officer Henderson replied, "When I handed his stuff back, he was free to go. His vehicle wasn't going anywhere though." At that point, Officer Henderson testified, he already had a reasonable articulable suspicion that Defendant and his passenger were engaging in criminal activity. When Officer Henderson initially saw Defendant's vehicle, he noticed dark tint on the windows. Officer Henderson then saw Defendant make an improper lane change and stopped his vehicle. As Officer Henderson approached Defendant's vehicle, he confirmed that the tint on the vehicle was dark. Upon speaking with Defendant, Officer Henderson learned that the vehicle was a rental vehicle. Officer Henderson knew that it was "unusual and suspicious" for a rental vehicle to have dark tint on the front window. Officer Henderson also learned that the rental was overdue. While Officer Henderson spoke with Defendant, he noticed that the passenger stared straight ahead without looking at the officer. He interpreted the
According to Officer Henderson, his decision to bring the dog out had nothing to do with the Defendant's refusal to give consent to search but with all of his "reasonable suspicion prior to [his] asking [Defendant for consent]." Officer Henderson further explained:
It is clear from Officer Henderson's testimony that, based on his reasonable suspicion, he intended to search Defendant's vehicle once he completed the routine duties for a traffic stop. Thus, as this court found in Burton, we find that Officer Henderson's issuance of the Notice of Violation did not mean that all proceedings were concluded or that Officer Henderson's initial reasonable suspicion had been dispelled. Additionally, as the court found in Burton, Officer Henderson's issuance of the Notice of Violation did not trigger the need for Officer Henderson to acquire "new" reasonable suspicion before he acted any further.
In brief, Defendant futilely attempts to distinguish the supreme court's decision in State v. Lopez, 00-562 (La.10/30/00), 772 So.2d 90, wherein the supreme court found that the marijuana seized in Lopez's car should not be suppressed. In making this finding, the supreme court disagreed with this court's finding that the trooper's questioning of Lopez exceeded the original justification for the stop, which was a speeding violation. Citing Burton, 640 So.2d 342, the supreme court held that the trooper acquired reasonable suspicion to enlarge the scope of his investigation when Lopez and his wife exhibited "agitated demeanor[s]" and gave "conflicting accounts of their itinerary[.]" Id. at 93. In Lopez, the court further stated that "[t]he arrival of a drug-detection dog on the scene within minutes of the stop afforded the officer the opportunity to `pursue[] a means of investigation that was likely to confirm or dispel [his] suspicions quickly, during which time it was necessary to detain the defendant.'" Id. at 93 (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985)) (second and third alterations in original). Noting that the dog's sniffing around the exterior of Lopez's vehicle was not a search, the supreme court held that the dog's "subsequent alert," which was consistent with Lopez's extreme nervousness, "gave the officers probable cause to search for contraband." Id. (citing United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), and United States 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)).
Defendant, in the present case, attempts to distinguish Lopez by arguing that the investigation in Lopez was still ongoing when the drug dog arrived and Lopez was being interrogated. Defendant argues that Officer Henderson chose to keep the dog in the back of the patrol unit during his investigation and did not bring him out until after the Notice of Violation was issued. We find this distinction insignificant.
For the reasons set forth in Burton, we find that Officer Henderson was not required to acquire new reasonable suspicion after he issued the Notice of Violation. Rather, we find that Officer Henderson was continuing to investigate the reasonable suspicion acquired from the initial stop. Thus, even assuming arguendo that Defendant had properly preserved his "new" reasonable suspicion argument, that argument and his assignment of error lack merit.
Defendant's conviction is affirmed. Additionally, we remand this case to the trial court for the establishment of a payment plan for the $250.00 fee to the Louisiana Crime Lab, noting that the plan may either be determined by the trial court or by the Department of Probation and Parole with approval by the trial court. And, we instruct the trial court to clarify the details of the $75.00 payment set forth in the conditions of probation.
