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    STATE of Louisiana v. Glenetraveronesse COOKS.
    No. 12-KA-237.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2013.

      Thomas F. Daley, District Attorney, Or-enthal J. Jasmin, Assistant District Attorney, Edgard, LA, for PlaintiffiAppellee.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   ROBERTA. CHAISSON, Judge.

^Defendant, Glenetraveronesse Cooks, appeals her convictions for possession with intent to distribute marijuana and possession of a firearm while in possession of a controlled dangerous substance. For the reasons that follow, we affirm defendant’s conviction for possession with intent to distribute marijuana but vacate her conviction and sentence for possession of a firearm while in possession of a controlled dangerous substance.

STATEMENT OF THE CASE

On January 11, 2007, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, in count one, with possession with intent to distribute marijuana, in violation of LSA-R.S. 40:966(A)(1), and in count two, with possession of a firearm while in possession of a controlled dangerous substance, in violation of LSA-R.S. 14:95(E). At her March 19, 2007 [.¡arraignment, defendant pled not guilty. Defendant thereafter filed several pre-trial motions, including motions to suppress the statement and the evidence, which were heard and denied by the trial court.

The matter proceeded to trial before a twelve-person jury. After considering the evidence presented, the jury, on May 26, 2011, found defendant guilty as charged. On September 19, 2011, the trial court sentenced defendant, on count one, to eight years imprisonment in the Department of Corrections, suspended three of the eight years, and placed defendant on probation for three years. In addition, the trial court imposed an eight thousand dollar fine. With regard to count two, the trial court sentenced defendant to five years imprisonment without benefit of parole, probation, or suspension of sentence and imposed a fine of one thousand dollars. The trial court ordered these sentences to run concurrently. Defendant now appeals.

FACTS

Shortly after midnight on September 11, 2006, Sergeant Victor Sehilleci of the Louisiana State Police, was traveling east down Interstate 10 towards U.S. 51 when he encountered a 2006 Dodge Stratus in the left lane traveling at a slow rate of speed, approximately forty-five miles per hour, and impeding the flow of traffic. Sergeant Sehilleci observed the vehicle weave and cross the fog line by about six inches on several occasions. Believing the driver to be either intoxicated or fatigued, Sergeant Sehilleci conducted a traffic stop to assess the condition of the driver.

Upon stopping the vehicle, Sergeant Sehilleci asked the driver, Kewana Drew-ery, to exit the vehicle and to produce her driver’s license and the vehicle registration. As she handed the officer her driver’s license, he noticed that her |4hand was shaking and that she appeared to be nervous. Drewery was unable to produce the vehicle registration, but rather provided the officer with a rental agreement for the vehicle. Upon reviewing the rental agreement, Sergeant Sehilleci noted that the vehicle had been rented on September 10, 2006, at approximately 1:45 p.m., that a third party who was not present at the scene was named as the renter on the agreement, and that Drewery was not listed as an authorized driver. Sergeant Sehilleci further learned that the renter of the vehicle was Jacques Rivers and that Drewery’s trip was a “quick and short turn-around trip” based on the time and date referenced in the rental agreement. When Sergeant Sehilleci then inquired into the nature of their trip, Drewery advised him that they had come from Houston, Texas, where they had been checking on her apartment.

Based on the information gained from the rental agreement as well as his conversation with Drewery, Sergeant Sehilleci decided to speak to defendant, the passenger in the vehicle. When Sergeant Sehille-ci approached the passenger side of the vehicle, defendant was speaking to an unidentified male on the phone. Sergeant Sehilleci asked her to hang up the phone and then proceeded to ask defendant about their trip. Defendant told him that they had been in Baytown, Texas, visiting family. During his conversation with defendant, Sergeant Sehilleci began to “detect the overwhelming odor of green marijuana coming from within the vehicle.” Sergeant Sehilleci then asked defendant if there were any weapons in the vehicle, and she advised him that there was a handgun underneath her seat, which the officer secured for safety purposes. Additionally, upon illuminating the interior of the vehicle with his flashlight, Sergeant Sehilleci noticed an odor neutralizer, four cell phones, and three juveniles sitting in the back seat. After ^securing the weapon in his vehicle, Sergeant Sehilleci spoke to Drewery who again told him that they had gone to her apartment in Houston and did not visit family members. Sergeant Schil-leci then advised Drewery of her Miranda rights and asked her whether there was anything illegal inside the vehicle and whether there was any luggage inside the trunk. According to Sergeant Schilleci, Drewery advised him that there was nothing illegal inside the vehicle and that she had a bag inside the trunk.

Pursuant to the officer’s request, Drew-ery gave her verbal consent to search the vehicle. Upon opening the trunk, Sergeant Schilleci observed “two separate black garbage bags” which contained bales of marijuana. According to the officer, “one of the green bricks had fallen out” and was visible. Further, there were two Ziploc bags containing marijuana, one of which had opened and spilled marijuana inside the trunk.

Sergeant Schilleci then placed defendant and Drewery under arrest and transported them to the St. John the Baptist Parish lockup. While being taken into custody, Sergeant Schilleci heard defendant and Drewery make statements to each other to the effect of “we’re not going to take this charge for him, this is going to be his charge.” Once at the lockup, Sergeant Len Marie of the Louisiana State Police took possession of the evidence, advised defendant and Drewery of their rights, and conducted a brief interview with them. Before interviewing the two women, Sergeant Marie also heard them say, “I’m not taking this charge, I’m not taking his charge.” Both defendant and Drewery denied possession and knowledge of the marijuana. They advised Sergeant Marie that they knew Jacques Rivers, who was listed on the vehicle rental agreement, and further told him about the Lblack truck belonging to Jacques Rivers that was traveling with them. In addition, defendant and Drewery provided Sergeant Marie with a potential address where the black truck could be located.

Sergeant Marie traveled to the address provided by defendant and Drewery, which was an apartment complex near Lapalco Boulevard, in an attempt to locate the black truck. At that time, Sergeant Marie did not see a black truck; however, he returned later in the day and observed a black truck in the parking lot. Sergeant Marie then went to speak to the apartment complex manager who advised him that Jacques Rivers was not renting an apartment at the complex. Sergeant Marie went back to the parking lot to wait by the truck, but it was gone. Sergeant Marie subsequently called Rivers, using the phone number listed on the vehicle rental agreement. Sergeant Marie asked Rivers to come in for an interview, but Rivers refused and hung up the phone. Sergeant Marie was unable to contact Rivers again.

At trial, both defendant and Drewery testified as to the events that occurred on their trip. On September 11, 2006, Drew-ery called defendant and asked her to accompany her to Houston to check on her apartment. Defendant agreed, and Drew-ery picked her up at about 9:30 a.m., in a black Nissan Titan truck owned by Jacques Rivers, a high school acquaintance. On their way to Houston, they decided to stop in Baytown, Texas, to visit defendant’s daughter’s grandmother. While in Baytown, Drewery received a phone call advising her that she had to report to work the next morning at six o’clock. As a result of this phone call, the two women stayed in Baytown for a few hours and then had to return to New Orleans instead of continuing on to Houston. While still in Baytown, Rivers, who [7was apparently also there, called Drew-ery and offered to fill up the truck with gas. When they met at the gas station, Rivers told them that he wanted to drive his truck back home and that they could drive the rental car that he had. At that point, they switched vehicles. According to defendant and Drewery, neither of them ever went into the trunk of the vehicle. Rather, Rivers put Drewery’s bag in the trunk for her.

During her testimony, defendant admitted to owning and possessing the gun, explaining that she had obtained it after Hurricane Katrina for protection; however, she denied any knowledge of the marijuana. Drewery also denied any knowledge of the marijuana and further denied that there was a pungent odor of marijuana inside the car.

SUFFICIENCY OF THE EVIDENCE

On appeal, defendant challenges the sufficiency of the evidence used to convict her of both offenses. With regard to the offense of possession with intent to distribute marijuana, defendant argues that the State failed to prove that she had dominion and control of the marijuana. She maintains that as a passenger in the vehicle rented by a third party, she had no knowledge of the contraband contained in the trunk of the car, and further that her mere presence in the vehicle was insufficient to prove constructive possession.

With regard to the offense of possession of a firearm while in possession of a controlled dangerous substance, defendant raises two arguments. She first asserts that the evidence was insufficient to sustain this conviction because the State failed to establish a nexus between the firearm located in the interior of the vehicle and the marijuana located in the trunk. Next, defendant argues that the verdict of guilty to possession of a firearm while in possession of a controlled dangerous substance | ^violated the prohibition against double jeopardy. Because we find merit to defendant’s double jeopardy argument, we will address that issue first.

The Double Jeopardy Clause of the United States Constitution and the Louisiana Constitution protects defendants from being punished or prosecuted twice for the same offense. United States Constitution, Amendment 5; Louisiana Constitution of 1974, Art. 1, § 15; see also LSA-C.Cr.P. art. 596. The Double Jeopardy Clause clearly “prevents an offender from being convicted of both the underlying offense for a 14:95(E) violation and the 14:95(E) violation itself.” State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, 1329. In State v. Thomas, 99-2219 (La.App. 4 Cir. 5/17/00), 764 So.2d 1104, writ denied, 00-1734 (La.6/22/01), 794 So.2d 780, the appellate court concluded that the defendant’s prosecution for both possession of cocaine with intent to distribute, pursuant to LSA-R.S. 40:967(0, and possession of a firearm while in possession of the same cocaine, pursuant to LSA-R.S. 14:95(E), violated the defendant’s double jeopardy rights. See also State v. Warner, 94-2649 (La.App. 4 Cir. 3/16/95), 653 So.2d 57, writ denied, 95-0943 (La.5/19/95), 654 So.2d 1089; and State v. Woods, 94-2650 (La.App. 4 Cir. 4/20/95), 654 So.2d 809, writ denied, 95-1252 (La.6/30/95), 657 So.2d 1035.

In the instant case, defendant was convicted of possession with intent to distribute marijuana, LSA-R.S. 40:966(A)(1), and possession of a firearm while in possession of that same marijuana, LSA-R.S. 14:95(E). Under the “same evidence” test, if evidence required to support a finding of guilt of one crime also supports a conviction for another offense, the defendant can be placed in jeopardy for only one of the two. State in Interest of S.L., 11-883 (La.App. 5 Cir. 4/24/12), 94 So.3d 822, 829. Employing this test, we find that the prohibition against double jeopardy was violated in this case. In particular, we find that the prosecution for ^possession of a firearm while in possession of marijuana required use of the same evidence presented against defendant under LSA-R.S. 40:966(A). In order to convict defendant of the weapons charge, the State was required to prove possession of a controlled dangerous substance. The one distinct act defendant committed, the possession of marijuana, was the determinative factor in a successful prosecution of either offense. Without the possession of marijuana, either charge would have failed. See State v. Sims, 44,123 (La.App. 2 Cir. 4/15/09), 7 So.3d 1288.

Where multiple punishments have been erroneously imposed in violation of double jeopardy, the proper appellate procedure is to eliminate the effect of the less severely punishable offense. State v. Garcia, 10-755 (La.App. 5 Cir. 5/10/11), 66 So.3d 24, 28. The less severely punishable offense in this case is possession of a firearm while in possession of a controlled dangerous substance, which carries a potential sentence of five to ten years, whereas possession with intent to distribute marijuana has a sentencing range of five to thirty years. See LSA-R.S. 14:95(E), 40:966(B)(3). Accordingly, we vacate defendant’s conviction and sentence for possession of a firearm while in possession of a controlled dangerous substance.

We now turn our attention to the issue of whether the evidence was sufficient to sustain defendant’s conviction of possession with intent to distribute marijuana. In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Sosa, 05-213 (La.1/19/06), 921 So.2d 94, 99. The rule as to circumstantial evidence is that, “assuming every fact to be proved |1nthat the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S.15:438. The reviewing court does not determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether “the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.” State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83; State v. Bazley, 09-358 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 19, writ denied, 11-282 (La.6/17/11), 63 So.3d 1039.

In the instant case, defendant challenges the evidence relating to her conviction for possession of marijuana with intent to distribute, in violation of LSA-R.S. 40:966(A)(1). The crime of possession with intent to distribute marijuana requires proof that the defendant knowingly and intentionally possessed the drug and that he or she did so with the specific intent to distribute it. State v. Cho, 02-274 (La.App. 5 Cir. 10/29/02), 831 So.2d 433, 442, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213. When the specific intent to distribute a controlled dangerous substance is based on circumstantial evidence, the State must prove the amount of the substance and/or manner in which it was carried was inconsistent with personal use. Intent to distribute illegal drugs may be established by proving circumstances surrounding the defendant’s possession which gives rise to reasonable inferences of intent to distribute. State v. Robbins, 43,129 (La.App. 2 Cir. 3/19/08), 979 So.2d 630, 638.

The element of possession may be established by showing that the defendant exercised either actual or constructive possession of the substance. State v. Proctor, 04-1114 (La.App. 5 Cir. 3/29/05), 901 So.2d 477, 482. A person may be in constructive possession of a drug even though it is not in his physical custody, if | nit is subject to his dominion and control. A subject can have constructive possession if he jointly possesses drugs with a companion and if he willfully and knowingly shares with his companion the right to control the drugs. State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 885. Guilty knowledge is an essential element of the crime of possession of contraband, and such knowledge may be inferred from the circumstances. State v. Marshall, 02-1067 (La.App. 5 Cir. 2/25/03), 841 So.2d 881, 887, writ denied, 03-909 (La.9/26/03), 854 So.2d 345.

The mere presence of the defendant in the area where a controlled dangerous substance is found does not constitute constructive possession. However, proximity to the drug may establish a pri-ma facie case of possession when colored by other evidence. State v. Bazley, 60 So.3d at 20. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include: (1) the defendant’s knowledge that illegal drugs were in the area; (2) his relations with the person found to be in actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) the existence of paraphernalia; and (6) evidence that the area was frequented by drug users. State v. Proctor, 901 So.2d at 482.

In State v. Morgan, 557 So.2d 977 (La.App. 4 Cir.1990), writ denied, 564 So.2d 317 (La.1990), the appellate court held that the evidence was sufficient to show constructive possession by the defendant of contraband found in the trunk of the vehicle in which he was a passenger. In concluding that the defendant exercised dominion and control over the illegal substances, the court considered that the defendant had permission to use the vehicle where the contraband was found; the defendant and the owner of the vehicle had a personal relationship; the 112defendant was wearing a beeper and had an address book indicating that he may be involved in drug trafficking; and the defendant was observed stuffing objects under the front seat of the vehicle which were later identified as a small handgun and a small quantity of narcotics.

In State v. Odie, 02-226 (La.App. 3 Cir. 11/13/02), 834 So.2d 483, writ denied, 03-625 (La.6/20/03), 847 So.2d 1219, the appellate court found that the evidence was sufficient to establish that the passenger of the vehicle had constructive possession of the- cocaine found, in the gas tank. In making this determination, the court noted that the defendant was acting abnormally, gave 'information to the police that was inconsistent with that given by the driver, and was surrounded by a gasoline smell as well as an air freshener smell while in the vehicle. The court also considered that rags containing gasoline were found in the cargo area of the vehicle, the gas tank had recently been tampered with, and there were several cans of cocaine in the gas tank.

Likewise, in State v. Robbins, 979 So.2d at 638-639, the appellate court concluded that the evidence was sufficient to prove that the defendant driver had constructive possession of the marijuana found in the trunk of the car, even though the passenger testified at trial that the driver had no knowledge that he had purchased the marijuana and put it in the trunk. In finding constructive possession, the court noted that the trunk of the car was equally accessible by both occupants of the vehicle as they embarked on a trip from Texas to Florida. Further, the marijuana was not hidden in any manner to raise a strong inference that one party may have had the complete control over the drug to the exclusion of the other. The appellate court determined that the defendant’s guilty knowledge could be inferred from the fact that the passenger smelled of marijuana, establishing defendant’s Indirect involvement with the drug. Moreover, the court noted that the men both gave inconsistent details about their trip and their relationship to one another.

In the instant case, we likewise find that the evidence presented by the State was sufficient to show that defendant had constructive possession of the marijuana contained in the trunk of the vehicle in which she was a passenger. At trial, Sergeant Schilleci testified that he stopped the vehicle co-defendant Drewery was driving for traffic violations. After observing the subject vehicle weaving and crossing the fog line on-several occasions, Sergeant Schille-ci believed that Drewery may have been impaired. Upon stopping the vehicle, Sergeant Schilleci noticed that Drewery was very nervous, and that her hand was shaking when she handed him her license. Although typical to display some nervousness, Sergeant Schilleci testified Drewery displayed continued and excessive nervousness throughout the entire traffic stop. Drewery also provided Sergeant Schilleci with a rental agreement indicating that the vehicle had been rented by an absent third party which she was slow to identify. Further, when asked about their travel itinerary, Drewery told Sergeant Schilleci that they had made a quick trip to Houston, Texas, to check on her apartment. During his testimony, the officer stated that the quick trip, excessive nervousness, and rental vehicle obtained by an absent third party were all indicators that someone may be transporting contraband or driving a stolen vehicle.

Sergeant Schilleci then decided to speak with defendant, the front seat passenger of the vehicle. When asked the same questions as Drewery regarding their travel itinerary, their stories contradicted one another. Defendant told Sergeant Schilleci that they had been in Baytown, Texas, visiting family. During their conversation, defendant appeared excessively nervous and was breathing heavily. Additionally, Sergeant Schilleci detected an “overwhelming odor” of 114marijuana emanating from the vehicle. Defendant also turned over a firearm to Sergeant Schilleci when asked if there were any weapons in the vehicle. Moreover, the officer observed four cell phones, an odor neutralizer, and three juveniles in the vehicle.

Sergeant Schilleci advised Drewery of her rights and asked if she would consent to a search of the vehicle. Pursuant to Brewery’s oral consent, Sergeant Schilleci opened the trunk of the vehicle and found the marijuana and a bag containing Brewery’s personal belongings. With regard to the odor of the marijuana, Sergeant Marie testified that when he checked the vehicle Brewery was driving for other evidence, he smelled an odor of marijuana in the vehicle. Sergeant Marie further testified that when he was transporting the seized evidence, the odor of marijuana was so strong that he had to roll down the windows of his police unit and “Febreze” his back seat.

Both defendant and Brewery testified at trial that they had no knowledge of the marijuana in the trunk and that it did not belong to them. Rather, they claimed the drugs belonged to Jacques Rivers, a high school acquaintance. Brewery explained that she had borrowed Rivers’ truck to drive to Houston to check on her apartment and had asked defendant to accompany her. They stopped in Baytown along the way to see family but had to turn around and come back before reaching Houston because Brewery was called into work. Before starting their trip back to New Orleans, both women testified that Rivers called and offered to fill up his truck with gas for their trip back. The women then met Rivers at a gas station where Rivers decided he wanted to drive his truck, so they exchanged cars. According to both defendant and Brewery, they never looked, or went into the trunk of the car. Rather, Rivers placed Brewery’s bag in the trunk for her. Both 11fiwomen testified that while following Rivers back to New Orleans, they never detected the odor of marijuana in the car.

In the present case, the jury obviously found the testimony of the State’s witnesses to be credible and rejected that of defendant and Brewery. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to evaluate the credibility of witnesses, nor to overturn the trial court on its factual determination of guilt. State v. Bazley, 60 So.3d at 21.

Based on the foregoing, we find that the evidence presented by the State was sufficient to establish defendant’s constructive possession of the marijuana contained in the trunk of the vehicle in which she was a passenger. In particular, defendant’s behavior when pulled over and questioned by police, the inconsistent stories concerning their itinerary, the short turn-around trip, the four cell phones, the rental vehicle leased to an absent third party, and the air freshener, tend to support the conclusion that defendant and Brewery had constructive possession over the contraband found in the trunk of the vehicle. Additionally, evidence of defendant’s guilty knowledge may be inferred by the women’s inconsistent stories and the strong odor of marijuana present in the vehicle, as testified to by both Sergeant Schilleci and Sergeant Marie. Lastly, we note that defendant’s intent to distribute can be inferred by the large amount of marijuana, which was inconsistent with personal use, found in the trunk of the vehicle. Accordingly, we find that the State sufficiently proved the elements of the offense of possession with intent to distribute marijuana beyond a reasonable doubt.

DENIAL OF MOTION TO SUPPRESS

On appeal, defendant also challenges the trial court’s denial of her motion to suppress evidence.

|1fiAt the motion to suppress hearing, Sergeant Schilleci testified that on September 11, 2006, around midnight, he was on patrol on 1-10 in St. John the Baptist Parish when he observed a vehicle traveling at approximately forty-five miles per hour in the left lane. The officer also noticed that the vehicle was weaving within the lane and crossing the left fog line. Based on these traffic violations and his belief that the driver may be impaired or fatigued, Sergeant Schilleci initiated a traffic stop of the vehicle.

Pursuant to the officer’s request, the driver, co-defendant Drewery, exited the vehicle and handed Sergeant Schilleci her driver’s license. According to Sergeant Schilleci, Drewery was nervous, and her hands were shaking when she handed him the license. Drewery advised the officer that she had been traveling from Houston, Texas, and she was sleepy. Sergeant Schilleci had also requested the vehicle registration; however, Drewery was unable to produce a registration document, but rather handed the officer a rental agreement for the vehicle. Upon reviewing the rental agreement, Sergeant Schille-ci noted that Drewery was not listed as an authorized driver and that she had to look over the document before being able to provide him with the name of the third party who had rented the vehicle. According to the officer, Drewery continued to display excessive nervousness.

Due to his suspicion regarding the vehicle, Sergeant Schilleci decided to speak with defendant, the front seat passenger. As he walked up to the vehicle, Sergeant Schilleci noticed that defendant was talking on a cell phone. When defendant rolled her window down, Sergeant Schilleci heard a male voice on the phone and asked defendant to please get off the phone. Defendant told the officer that they were coming from Baytown, Texas, where they had visited family 117members. However, Drewery had previously advised the officer that they had gone to Houston to check on her apartment. Sergeant Schilleci also observed three more cell phones on the center console of the vehicle and three children sitting in the back seat. Further, Sergeant Schilleci detected the odor of raw marijuana emanating from the passenger side window as he was speaking with defendant.

At this point Sergeant Schilleci asked the passenger if there were any weapons in the vehicle, and defendant indicated that there was a handgun underneath her seat. The officer secured the weapon and then went to speak to the driver of the vehicle. Once again, Drewery told him that they had gone to Houston to check on her apartment. Based on his experience, Sergeant Schilleci knew that “there was something more to this then [sic] a simple traffic stop.” Sergeant Schilleci then called for assistance, advised Drewery of her rights, and asked her if there was anything illegal in the car. After Drewery replied in the negative, the officer asked for consent to search the vehicle. Drewery verbally gave her consent to search. Sergeant Schilleci then opened the trunk and observed four bundles, approximately forty pounds, of marijuana. The trunk also contained Ziploc bags with loose marijuana, one of which had partially opened and spilled into the trunk. Defendant and Drewery were then advised of their rights and placed under arrest. At the suppression hearing, Sergeant Schilleci testified that upon arresting the two women, he overheard them comment that “we’re not taking this charge for him.”

After considering the evidence presented at the hearing as well as the arguments of counsel, the trial court denied defendant’s motion to suppress. Defendant now challenges that denial. Defendant argues that after stopping the vehicle, Sergeant Schilleci detained her longer than was reasonably necessary to complete the investigation of the traffic violation and to issue a traffic citation. Defendant maintains that the unreasonable extension of the traffic stop amounted |1sto an illegal seizure as the officer had no particularized suspicion of criminal activity. Accordingly, defendant asserts that the illegal seizure vitiated the consent to search; therefore, the trial court erred in denying her motion to suppress. For the reasons that follow, we find no merit to defendant’s arguments.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. War-rantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. State v. Wolff, 09-508 (La.App. 5 Cir. 12/29/09), 30 So.3d 897, 901.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Bellow, 07-824 (La.App. 5 Cir. 3/11/08), 982 So.2d 826, 829.

The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by LSA-C.Cr.P. art. 215.1, as well as by state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred. The standard is purely objective and does not take into consideration the subjective beliefs or expectations of the detaining officer. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); State v. Waters, 00-356 (La.3/12/01), 780 So.2d 1053, 1056; State v. Wolff, 30 So.3d at 901. Further, an officer has the right to conduct a routine license and registration check. State v. Lopez, 00-562 (La.10/30/00), 772 So.2d 90, 93; State v. Preston, 04-269 (La.App. 5 Cir. 7/27/04), 880 So.2d 64, 67.

LSA-C.Cr.P. art. 215.1(D) provides that in conducting a traffic stop “an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity.” If the police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); State v. Lopez, 772 So.2d at 93; State v. Preston, 880 So.2d at 68. There is no bright line rule for when a detention lasts too long. Each instance must be assessed in view of the surrounding circumstances. State v. Stowe, 44,815 (La.App. 2 Cir. 10/28/09), 25 So.3d 945, 950-951.

After reviewing the record in this case, we find no abuse of discretion in the trial court’s ruling which denied defendant’s motion to suppress. Regarding the initial investigatory stop, the record clearly reflects that the subject vehicle was stopped for two traffic violations: impeding the flow of traffic, LSA-R.S. 32:64(B), and improper lane usage, LSA-R.S. 32:79. See State v. Neuman, 01-1066 (La.App. 5 Cir. 4/10/02), 817 So.2d 180, 183. Thus, without regard to Sergeant Schilleci’s subjective intent, the committed traffic infractions gave the officer an objective probable cause basis to stop the vehicle. State v. Wolff, 30 So.3d at 902.

Upon stopping the rental vehicle to conduct the traffic stop, Sergeant Schil-leci asked Drewery to step out of the vehicle to obtain her driver’s license and 12nthe vehicle registration. Sergeant Schil-leci noticed that Drewery was very nervous and that her hand was shaking as she gave him her license. Drewery also provided a rental agreement for the car which listed an unknown third party as the renter. While reviewing Drewery’s license and the rental documents, Sergeant Schil-leci engaged in conversation with Drewery and inquired about the nature of her trip. During this conversation, Drewery told the officer that they were driving back from Houston where they had been checking on her apartment. Sergeant Schilleci then spoke to defendant who informed him that they had been visiting family in Baytown, Texas. While conversing with defendant, Sergeant Schilleci noticed that defendant appeared nervous, had a worried look on her face, and was breathing heavily. Inside the vehicle Sergeant Schilleci also observed four cell phones, air freshener, and detected the “overwhelming” smell of raw marijuana. Sergeant Schilleci also learned that there was a handgun underneath defendant’s seat, which he seized and secured. We further note that the rental vehicle was stopped at 12:53 a.m. and that defendant and Drewery were arrested at approximately 1:04 a.m.

Given these circumstances, we find that the officer did not unreasonably extend the traffic stop. Moreover, the detention was justified by reasonable suspicion due to defendant’s nervous behavior, the conflicting statements made by defendant and Drewery, and the “overwhelming” odor of marijuana emanating from the vehicle while speaking -with defendant. Since the subsequent search of the vehicle conducted pursuant to Drewery’s consent was not preceded by an impermissible seizure, the consent to search, the search, and the seizure of the contraband were lawful and were not fruits of an unlawful detention of defendant. Accordingly, we find that the trial court did not abuse its discretion in denying defendant’s motion to suppress evidence.

\9,ERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review reveals that the trial court failed to impose the requisite probation fee under LSA-C.Cr.P. art. 895.1(E), which provides, in pertinent part:

E. When the court places any defendant convicted of a violation of the controlled dangerous substances law, R.S. 40:966 through 1034, on any type of probation, it shall order as a condition of probation a fee of not less than fifty nor more than one hundred dollars, payable to the Louisiana Commission on Law Enforcement to be credited to the Drug Abuse Education and Treatment Fund and used for the purposes provided in R.S. 15:1224.

Here, defendant was convicted of LSA-R.S. 40:966 and placed on probation. Given that defendant was placed on probation, the trial court was required to order as a condition of probation a fee of not less than fifty nor more than one hundred dollars. Accordingly, we remand the matter with instructions to the trial court to impose the mandatory fee on defendant pursuant to LSA-C.Cr.P. art. 895.1(E).

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence for possession with intent to distribute marijuana but vacate her conviction and sentence for possession of a firearm while in possession of a controlled dangerous substance. We remand the matter to the trial court with instructions to impose the mandatory probationary fee pursuant to LSA-C.Cr.P. art. 895.1(E).

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

      . Co-defendant, Kewana Drewery, was charged in the same bill of information with the same two counts. Cooks and Drewery proceeded to trial together. Drewery has also appealed her convictions.

      . The Pre-Sentence Investigation indicates that defendant was not eligible for Intensive Incarceration/Intensive Parole Supervision pursuant to LSA-R.S. 15:574.4.4 due to her conviction for the LSA-R.S. 14:95E firearm offense.

      . The handgun was located inside a gun case.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . At trial, Cheryl Blades, an expert in the field of chemical analysis of marijuana, testified that she analyzed the evidence seized in connection with this case. She testified that the gross weight of the evidence was approximately thirty-seven pounds and that it tested positive for marijuana.

      .Drewery explained that Rivers knew her car was not working, and he let her borrow his truck to travel to Houston.

      . No explanation was given regarding the reason for Rivers’ presence in Baytown. On cross-examination, Drewery testified that she did not know why Rivers was in Texas, and that she did not know he was going to be there until she received a phone call from him asking if she needed him to fill the truck up with gas.

      . Schilleci noted that sometimes drug couriers will put juveniles in the vehicle in an attempt to "throw law enforcement off.”

      . Sergeant Schilleci testified that a traffic citation was issued to Drewery for violating LSA-R.S. 32:64(B), impeding the flow of traffic, and LSA-R.S. 32:79, improper lane usage.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brett LEMONTE.
    No. 12-KA-657.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2013.

      Thomas F. Daley, District Attorney, Or-enthal Jasmin, Assistant District Attorney, LaPlace, LA, for Plaintiff/Appellee.
    Robert D. Levenstein, Attorney at Law, LaPlace, LA, Prentice L. White, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| ¡After entering a guilty plea pursuant to State v. Crosby, defendant, Brett Lem-onte, has appealed the denial of his Motion to Suppress. For the reasons that follow, we affirm defendant’s conviction, vacate defendant’s sentence, and remand the matter to the trial court for resentencing and for notification of the registration requirements of La. R.S. 15:542, as required by La. R.S. 15:543(A), reserving unto defendant the right to withdraw his guilty plea.

PROCEDURAL BACKGROUND

On October 29, 2010, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, Brett Lemonte, with pornography involving juveniles, a violation of La. R.S. 14:81.1(A)(3). Defendant pled not guilty at arraignment. On February 8, 2011, defendant filed a Motion to Suppress [^Statement and Evidence, claiming that the evidence in the instant case was unconstitutionally obtained pursuant to an unlawful search and seizure. A suppression hearing was held on October 19, 2011, after which the trial court denied defendant’s Motion to Suppress. Subsequent to rendering its ruling, defendant filed an application for supervisory writs with this Court, challenging the trial court’s denial of his Motion to Suppress. This Court denied defendant’s writ application on January 6, 2012. State v. Lamonte, No. 11-1153 (La.App. 5 Cir. 1/6/12) (unpublished writ disposition).

On June 12, 2012, defendant withdrew his prior not guilty plea and entered a plea of guilty as charged under Crosby. Pursuant to the plea agreement, defendant was sentenced to seven years imprisonment with the Department of Corrections, with two years ordered to be served without the benefit of probation, parole or suspension of sentence. The trial court further suspended five of the seven years of imprisonment, and ordered that defendant be placed on active probation for a term of five years upon completion of his prison term. Defendant was also ordered to pay a $3,000.00 fine.

On June 27, 2012, defendant filed a Motion for Appeal which was granted by the trial court. Defendant now appeals the trial court’s denial of his Motion to Suppress.

FACTS

At the hearing on defendant’s Motion to Suppress, Senior Investigator Randall Gohn of the Louisiana Attorney General’s Office, High Tech Crime Unit, ICAC (Internet Crimes Against Children) Task Force, testified that he investigates child pornography and solicitation. In the course of his investigations, Mr. Gohn located a computer IP address containing numerous files of child pornography |4which were readily available to be freely traded. He subpoenaed records from the local telephone company to obtain the name and physical address for this computer’s IP address. Based on the address he obtained from the local telephone company, a search warrant was issued; however, upon execution of the warrant on September 7, 2010, the occupants of the house at the address on the warrant told the officers executing the warrant that they rented this property from a landlord who resided across the street.

The officers subsequently proceeded across the street and knocked on the door of the house they were directed to. Defendant answered the door. Mr. Gohn asked defendant to speak with him regarding an internet crimes investigation. Defendant stated that he would freely speak to the officers without an attorney being present. Mr. Gohn testified that at that time, he verbally advised defendant of his Miranda rights. He also testified that sometime later, defendant was advised of his Miranda rights in writing from an Advice of Rights form which defendant signed and initialed. This form was introduced into evidence. Mr. Gohn asked defendant if he could search his computer and defendant agreed, giving both verbal and written permission. The Consent to Search form signed by defendant was also admitted into evidence. Defendant advised the officers that his computer was located in his bedroom. Mr. Gohn also testified that defendant was not threatened or promised anything in return for his cooperation, was not shackled or manhandled, and was not under arrest at the time of the interview. Mr. Gohn further testified that at no time during the course of his visit at defendant’s home 15did it appear that defendant was under the influence of any mind altering substances, or that he did not understand what was happening.

Mr. Gohn explained that Detective Wayne Lee of the St. Charles Parish Sheriffs Office, Cyber Crimes Unit, searched defendant’s computer, and that an analysis of defendant’s hard drive confirmed that his computer contained child pornography. Defendant then executed a voluntary written statement which was witnessed by Mr. Gohn and signed by defendant. This statement was also admitted into evidence. According to Mr. Gohn, defendant admitted that he was the only person that used the subject computer, that he was the person who had downloaded the child pornography files, and that he was addicted to child pornography. Defendant was then advised that he was under arrest for violating La. R.S. 14:81.1(A)(3), possession and/or distribution of child pornography. After a brief visit with his mother, defendant was transported to the parish prison.

On cross-examination, Mr. Gohn testified that he arrived at defendant’s house sometime in the morning, but could not recall the exact time. He acknowledged that both the Advice of Rights form and the Consent to Search form indicated a time of 6:45 a.m., which he believed to reflect the time defendant was orally advised of his rights; however, Mr. Gohn could not state with certainty the exact time he arrived at defendant’s house. Mr. Gohn also testified on cross-examination that defendant was asked general questions, such as his name, what he did for a living, and whether he lived at the subject residence, prior to the reading of his Miranda rights. Mr. Gohn further testified that he could not remember how |fimuch time had passed between verbally advising defendant of his rights and the presentation of the Advice of Rights form to defendant for his signature; however, Mr. Gohn indicated that it was after he had spoken to defendant for some time.

Detective Lee testified that he assisted Mr. Gohn in a forensic investigation of defendant’s computer which resulted in defendant’s arrest for child pornography. Detective Lee testified that he was present when Mr. Gohn read defendant his rights from a paper form he carries with him, and that the reading of his rights occurred prior to the commencement of any questioning. Specifically, Detective Lee testified on cross-examination that he observed Mr. Gohn sit down with defendant, read him the form, ask him if he understood his rights, and then advised defendant to read the form himself and sign. Detective Lee further testified that defendant’s demeanor did not suggest that he did not understand his rights, or that he did not understand why the officers were at his residence. Additionally, he stated that defendant never asked to speak to an attorney, nor did he indicate that he did not wish to answer the officers’ questions. Detective Lee testified that he was present when defendant signed the Consent to Search form. Detective Lee further testified that after obtaining defendant’s consent, defendant identified his bedroom for the officers, at which time Detective Lee conducted an examination of the computer’s hard drive. Numerous images of child pornography were found on the computer. Detective Lee testified that he had no further involvement in the investigation, and was not present when defendant drafted his statement.

The defense then called defendant’s neighbor, Kirt Robertson, to the stand. Mr. Robertson testified that on the date of the incident in question, he observed police vehicles arrive at defendant’s residence at 7:15 a.m.

17Piane Warner, defendant’s mother, also testified at the hearing on behalf of the defense. She lived with defendant at 144 East Tenth Street in Reserve. Mrs. Warner testified that on the day of defendant’s arrest, she received a phone call between 6:46 and 6:48 a.m. from her tenants informing her that the police had come to their house with a search warrant. After receiving this news, Mrs. Warner returned to her house, arriving at 7:25 a.m.; however, the officers would not let her inside the house. According to Mrs. Warner, an officer told her that defendant was not under arrest, and that he was cooperating. About an hour later, an officer came out of the house and told her that she could go in and “tell her son goodbye.” On cross-examination, Mrs. Warner stated that when she went into her house, “nothing was thrown out of place,” and that only defendant’s computer was taken.

Finally, defendant testified on his own behalf. He stated that the officers arrived at his house around 7:15 a.m. on September 7, 2010 and knocked on every door of the house. When he answered, the officers said that they had received a tip and wanted to talk about something going on. They did not mention child pornography. Defendant permitted the officers to enter his home, explaining that only Mr. Gohn was present in the living room when he was questioned, and that he did not see Detective Lee until Detective Lee went into his bedroom to retrieve his computer. Defendant further testified that Mr. Gohn asked him to show him his bedroom, and did not advise him of his Miranda rights. After showing Mr. Gohn his bedroom, defendant testified that Mr. Gohn went outside and retrieved Detective Lee who then went into his bedroom. Defendant testified that after Detective Lee entered his bedroom, he was handed paperwork that had already been filled out, and was told to sign the forms, which he did; the forms were then quickly pulled away. Defendant stated that neither the Advice of Rights form nor the Consent to Search form was ever read to him, and that he did not read the Lforms himself because they were pulled away quickly. Defendant stated that the officers told him that he was not under arrest, and he believed the officers when they told him that they were there to help him. Defendant further testified that he was intimidated by the officers because they had guns. Defendant explained that he executed the written statement because he was scared, and that Mr. Gohn told him what to write down. Defendant stated that had he been advised of his rights, he would not have spoken to the officers and would not have given the officers consent to search.

On cross-examination, defendant testified that he was twenty years old, that he had graduated from high school, attended Louisiana Technical College, and could read and write the English language. Defendant further testified that he understood what the word “consent” means, but did not read the consent form before signing it. Defendant also testified that the officers asked him if he had a computer, and then directed him to take them to where his computer was located, but never asked him if they could look at his computer. Defendant identified the Consent to Search form and the Advice of Rights form, and acknowledged that the signatures and initials on the forms were his. Defendant admitted that none of the officers ever pointed their guns at him, never threatened, manhandled, or hit him, and never promised him anything in exchange for his cooperation.

After defendant’s testimony, the State recalled Mr. Gohn to the stand. For a second time, Mr. Gohn testified that defendant was advised of his Miranda rights twice, and that he did not interrogate defendant prior to advising him of his rights. According to Mr. Gohn, the first time he read defendant his rights was from memory and the second time was from a form. Mr. Gohn explained that when reading the Advice of Rights form to a suspect, he puts an “X” by every line that is read, and then the suspect is asked if he understood what was read to him, and if |9so, to initial next to each “X”. Mr. Gohn testified that he filled out everything, including each “X”, in defendant’s presence. Mr. Gohn also testified that defendant composed the written statement himself.

At the conclusion of the testimony, defense counsel argued to the court that there was a timing issue in this case. Defense counsel argued that the Advice of Rights form and the Consent to Search form reflect a time of 6:45 a.m.; however, contradictory testimony was presented which established that the officers did not arrive at defendant’s residence until 7:15 a.m. Thus, defense counsel asserted that the forms were filled out prior to the officers’ arrival and quickly placed in front of defendant to sign, giving credence to defendant’s testimony. Defense counsel reiterated that defendant testified that he was never advised of his rights, and since Miranda warnings were never given, defendant’s written statement should be suppressed. Defense counsel further argued that defendant’s consent to search was not freely given and the reason the officers prohibited defendant’s mother from entering the house was because she would have told defendant not to sign the Advice of Rights and Consent to Search forms.

After hearing the testimony and oral argument of counsel, the trial court denied defendant’s Motion to Suppress, specifically stating that he did not find defendant’s allegation that Miranda rights were never given to be credible. He further found that the consent was not “made under duress or with anything less than constitutionally protected levels being present.”

Following the trial court’s ruling, defendant filed a timely writ application with this Court challenging the denial of his Motion to Suppress. This Court denied relief, finding as follows:

The trial court’s ruling on the admissibility of a statement, and its conclusions on the credibility and weight of the testimony relating to the voluntariness of the confession or statement, are entitled to | ipgreat weight and will not be overturned unless unsupported by the evidence. State v. Franklin, 03-287, p. 4 (La.App. 5 Cir. 9/16/08), 858 So.2d 68, 70, writ denied, 03-3062 (La.3/12/04), 869 So.2d 817; State v. Parks, 08-423 (La.App. 5 Cir. 11/25/08), 2 So.3d 470, 481, writ denied, 09-0142 (La.10/2/09), 18 So.3d 101. Voluntariness of defendant’s consent to search is a question of fact to be determined by the trial judge from a review of the totality of the circumstances. State v. Isaacs, 95-173 (La.App. 5 Cir. 6/28/95), 658 So.2d 29, 32, writ denied, 95-1948 (La.1/5/96), 666 So.2d 299.
After review of the writ application and the attachments thereto, we cannot find that the court erred in denying the Motion to Suppress Statement and Evidence.

State v. Lamonte, No. 11-1153 (La.App. 5 Cir. 1/6/12) (unpublished writ disposition).

On appeal, defendant argues that the trial court erred in denying his motion to suppress. Defendant claims that after realizing the search warrant they obtained was not valid, the police used intimidation and coercion to obtain his consent to enter his residence and search his computer. Defendant contends that the police entered his house without a valid warrant and then coerced him into signing a partially completed Consent to Search form. Defendant further asserts that he was not properly “Mirandized,” and that consent to search his computer was not constitutionally obtained prior to the officers performing the search. Additionally, defendant maintains that he was forced to answer questions without an attorney present. Defendant concludes that his Motion to Suppress should have been granted based on inconsistencies in the police report and the fact that officers were searching a different residence than the one listed in the warrant, without a valid exception to the warrant requirement.

In response, the State argues that the evidence obtained in this case was the result of an exception to the warrant requirement, namely, a valid consent to search. The State further maintains that the “law of the case” doctrine is applicable to this particular issue, where this Court previously found that the trial court did not err in denying defendant’s Motion to Suppress.

\ULAW AND ANALYSIS

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises. La. R.S. 15:451; State v. Mollette, 08-138 (La.App. 5 Cir. 11/25/08), 2 So.3d 461, 467, writ denied, 09-155 (La.10/16/09), 19 So.3d 472. A determination of whether a waiver of constitutional rights was knowing and voluntary is made on a case-by-case basis, and such a determination rests upon the totality of the circumstances. State v. McGee, 04-963 (La.App. 5 Cir. 1/11/05), 894 So.2d 398, 407, writ denied, 05-593 (La.5/20/05), 902 So.2d 1050. There is a presumption against waiver which the State must rebut. Tague v. Louisiana, 444 U.S. 469, 471, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980). The State must specifically rebut the defendant’s allegations when claims of police misconduct in eliciting a confession are raised. State v. Blank, 04-204 (La.4/11/07), 955 So.2d 90, 103, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).

The trial court’s admissibility of a statement, and its conclusions on the credibility and weight of the testimony relating to the voluntariness of the confession or statement, are entitled to great weight and will not be overturned unless unsupported by the evidence. State v. Allen, 06-778 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 752, writ denied, 08-2432 (La.1/30/99), 999 So.2d 754.

The Fourth Amendment of the U.S. Constitution and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755, cert. denied, 01-2269 (La.9/20/02), 825 So.2d 1156. If evidence is derived from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585. It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well delineated exceptions. State v. Stone, 94-155 (La.App. 5 Cir. 7/26/94), 641 So.2d 652, 655, writ denied, 95-631 (La.1/6/97), 685 So.2d 129.

Consent to search constitutes one of the exceptions to the probable cause and warrant requirements of the Fourth Amendment when it is freely and voluntarily given by a person who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected. State v. Nicholas, 06-903 (La.App. 5 Cir. 4/24/07), 958 So.2d 682, 687. When the State relies on consent to justify a warrantless search, it has the burden of proving the consent was freely and voluntarily given. State v. Enclave, 03-353 (La.App. 5 Cir. 9/16/03), 858 So.2d 8, 15.

Voluntariness of a defendant’s consent to search is a question of fact to be determined by the trial judge from a review of the totality of the circumstances. Id. The factual determinations of the trial court on the issue of voluntariness of a consent to search are entitled to great weight on appellate review. Id. Furthermore, the trial court’s determination as to the credibility of witnesses is to be accorded great weight on appeal. Id.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La.C.Cr.P. art. 703(D).

In this case, because the search warrant did not reflect defendant’s correct address, the officers who searched defendant’s residence did not utilize the warrant 11sto justify their search of defendant’s computer. Instead, at the hearing on the motion to suppress, Mr. Gohn testified that upon learning of defendant’s correct address, the officers knocked on defendant’s door and were greeted by defendant who allowed them into his home and voluntarily agreed to speak with them concerning their ongoing investigation. Mr. Gohn testified that prior to asking defendant any questions regarding the substance of the crime, he orally advised defendant of his Miranda rights. Mr. Gohn and Detective Lee both testified that defendant agreed to speak with them and was not threatened, coerced, or promised anything in return for his cooperation. The officers further testified that defendant understood his rights. The testimony indicates that defendant was then asked if he would give the officers permission to search his computer, and he agreed, providing both written and verbal consent to search prior to the officer’s retrieval of his computer.

Further, in addition to orally advising defendant of his Miranda rights, and verbally obtaining his consent to search his computer, both a Waiver of Rights form and a Consent to Search form were signed and initialed by defendant. Defendant then authored and signed a voluntary statement concerning the materials recovered.

At the suppression hearing, defendant provided conflicting testimony from that of the officers as to the events that occurred prior to his arrest. Defendant testified that no one advised him of his constitutional rights. He further claimed that he did not sign the Consent to Search form until after the officers had seized his computer, and that he did not have the opportunity to read the Advice of Rights and Consent to Search forms because they were quickly pulled away from him after his signature was obtained.

| |4A trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Flagg, 01-65 (La.App. 5 Cir. 7/30/01), 792 So.2d 133, 138, writ denied, 01-2534 (La.9/20/02), 825 So.2d 1159. In denying the motion to suppress, the trial judge specifically found the testimony of defendant that he was not advised of his Miranda rights to be not credible. Mr. Gohn specifically rebutted defendant’s allegations that he was not advised of his Miranda rights, i.e., that he signed the forms without reading them or being advised of their meaning, and that the Consent to Search form was not signed until after the computer was already-searched, explaining that each right was read to defendant and defendant initialed each right.

Moreover, although defendant alleges that the inconsistencies in the police report as to the time of the search should have “presented a constitutional red flag,” the alleged inconsistencies were explained at the motion hearing. Specifically, the forms at issue indicate a time of 6:45 a.m., which defense witnesses allege differ from the time officers arrived at defendant’s home. Mr. Gohn explained, however, that he did not check his watch when he -wrote down the time, and that he believed the time on the forms was reflective of the time at which defendant was orally advised of his rights. Additionally, the alleged inconsistencies would not vitiate consent because both Mr. Gohn and Detective Lee testified that regardless of the time documented on the forms, defendant was not interrogated about the alleged crime until after he was read his Miranda rights. The officers also testified that consent to search was obtained prior to conducting the search of defendant’s computer and before defendant executed the written statement. Mr. Gohn testified that defendant voluntarily agreed to cooperate with the officers, voluntarily signed the completed forms, and voluntarily made the written statement. Further [^defendant testified that he could read and write, graduated from high school, and was attending Louisiana Technical College.

Considering the totality of the factual circumstances involved in this case, and the law applicable to this case, as discussed above, particularly the jurisprudential rule that the trial court’s determination as to the credibility of witnesses on a motion to suppress is to be accorded great weight on appeal unless unsupported by the evidence, we find no error in the trial court’s denial of defendant’s Motion to Suppress. This assignment of error is accordingly without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920 and State v. Oliveaux, 312 So.2d 337 (La.1975).

As noted above, in conformity with his plea agreement, defendant was sentenced to seven years imprisonment with the Department of Corrections, with two years ordered to be served without the benefit of probation, parole or suspension of sentence. The trial court further suspended five of the seven years of imprisonment, and ordered that defendant be placed on active probation for a term of five years upon completion of his prison term. Defendant was also ordered to pay a $3,000.00 fine.

At the time of the commission of this offense, La. R.S. 14:81.1 provided, in pertinent part:

E. (1) Whoever commits the crime of pornography involving juveniles shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than two years or more than ten years, without benefit of parole, probation, or suspension of sentence. (Emphasis added.)

|1fiIn State v. Sampognaro, 08-371 (La.App. 5 Cir.1/27/09), 9 So.3d 878, this Court held that suspension of sentence is not available under La. R.S. 14:81.1. In Sampognaro, this Court vacated the defendant’s sentence and remanded the matter for resentencing. Accordingly, pursuant to our holding in Sampognaro, we find that defendant herein received an illegally lenient sentence.

Under La.C.Cr.P. art. 882, this Court has the authority to correct an illegal sentence at any time despite the failure of either party to raise this issue on appeal. State v. Campbell, 08-1226 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, 1078, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842. An illegally lenient sentence imposed pursuant to a plea bargain is an absolute nullity if the plea bargain has a negotiated sentence prohibited by law. Id. A defendant does not have a constitutional or statutory right to an illegal sentence. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 797.

Considering the foregoing, defendant’s illegal sentence, which is prohibited by law, is hereby vacated. Because defendant’s sentence was a part of his plea bargain, we remand this matter for resen-tencing in accordance with the law, reserving unto defendant the right to withdraw his guilty plea.

Further, defendant’s conviction of pornography involving juveniles pursuant to La. R.S. 14:81.1 is defined as a sex offense by La. R.S. 15:541(25)(e). La. R.S. 15:543 mandates that the trial court notify a defendant convicted of a sex offense in writing of the registration requirements for sex offenders set forth in La. R.S. 15:542. The record before us does not indicate that the trial court provided defendant with the required notification of the registration requirements of La. R.S. 15:542, as required by La. R.S. 15:543(A). Accordingly, in resentencing defendant, the trial court is instructed to comply with these requirements.

| ^CONCLUSION

For the foregoing reasons, defendant’s conviction is affirmed. Further, we vacate defendant’s sentence, and remand the matter to the trial court for resentencing and for notification of the registration requirements of La. R.S. 15:542, as required by La. R.S. 15:54S(A), reserving unto defendant the right to withdraw his guilty plea.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED WITH INSTRUCTIONS

      . State v. Crosby, 338 So.2d 584 (La.1976). A Crosby plea is a guilty plea that is entered conditioned upon review of the denial of a pretrial motion or upon review of trial irregularities. At the time of the plea, the defendant should affirmatively reserve the right to seek review of the disputed issues; if the review is successful, the guilty plea may be withdrawn.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Because the house number contained on the original search warrant differed from defendant’s address, Mr. Gohn testified that it was not utilized to search defendant’s home.

      .Also, on the Advice of Rights form, defendant initialed next to Mr. Gohn’s three handwritten entries at the top right hand corner confirming that he was not under the influence of drugs or alcohol, could read, write and understand English, and had a high school education.

      . La. R.S. 14:81.1(A)(3) provides:
      A. Pornography involving juveniles is any of the following:

      (3) The intentional possession, sale, distribution, or possession with intent to sell or distribute of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.


author: HANS J. LILJEBERG, Judge.

text:
    U.S. BANK NATIONAL ASSOCIATION, as trustee for Long Beach Mortgage Loan Trust v. Jacob D. LEWIS, Sr.
    No. 12-CA-416.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2013.

      McGlinchey Stafford Law Firm, Michael D. Ferachi, Jonathan G. Wilbourn, Kimberly D. Higginbotham, Attorneys at Law, Baton Rouge, LA, for Plaintiff/Appellee.
    Jacob D. Lewis, Sr., Oakdale, LA, In Proper Person, Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2Pefendant, Jacob D. Lewis, Sr., appeals from a judgment of the district court denying his request for a preliminary injunction to enjoin the sale of his property seized by executory process. For the reasons stated herein, we dismiss the present appeal.

FACTS AND PROCEDURAL HISTORY

On January 25, 2011, a verified petition for executory process was brought by U.S. Bank, National Association, as Trustee for Long Beach Mortgage Loan Trust 2001^1 (“U.S. Bank”), alleging that petitioner was the holder of a promissory note executed by Jacob D. Lewis, Sr. and secured by an Act of Mortgage in favor of Long Beach Mortgage Company on certain property in St. Charles Parish. Both documents were annexed to the petition. Petitioner alleged that the note was in default and that the terms provided for acceleration of the amount due, the entire balance of $21,135.27, together with interest and attorney’s fees. Further, based on a confession of judgment contained in the mortgage document which allowed for seizure and sale by executory process, petitioner prayed that an order of executory process issue directing the Sheriff of St. Charles Parish to seize and sell the property according to | Jaw. On January 28, 2011, the district court ordered the issuance of a Writ of Seizure and Sale of the described property.

On March 29, 2011, a petition for injunction was filed in this matter by Rayfield Lewis, individually and as agent for Jacob D. Lewis, Sr., alleging that Jacob Lewis, Sr. was the owner of the property made the subject of the petition for executory process. Mr. Lewis alleged that the described property had been seized by the Sheriff and further alleged that an injunction of the sale of the property was warranted, because U.S. Bank was not entitled to proceed via executory process for several stated reasons. On the date the matter was set for hearing, Mr. Lewis also filed a motion to strike the allegations of U.S. Bank’s petition for executor process, and he also sought to dismiss the complaint for failure to state a cause of action.

A hearing was held in the district court on May 6, 2011. Rayfield Lewis testified that the subject property was owned by his son, Jacob, who had been incarcerated since 2004. Mr. Lewis stated that he had been paying the note initially, but that he discontinued payments when the note was taken over and increased by another institution. At the conclusion of the hearing, the district court found no basis to enjoin the sale.

By judgment rendered on May 6, 2011, the district court dismissed the petition for injunction with prejudice and also denied the motion to strike. The record further indicates that the subject property was advertised, noticed and then sold at Sheriffs Sale on May 25, 2011, and the record indicates that the sale was proper in all respects.

DISCUSSION

Jacob Lewis, Sr. now devolutively appeals from the May 6, 2011 judgment of the district court denying injunctive relief, arguing that U.S. Bank lacked legal standing to bring the foreclosure action and further failed to provide original ^documents evidencing proof of petitioner’s claim. U.S. Bank argues in response that all of the evidentiary requirements of executory process were met and, further, that Rayfield Lewis had no standing to enjoin the sale of this property. In addition, U.S. Bank contends that the appeal of the district court judgment was untimely and further that the appeal is moot as the record contains evidence that the sale of the property occurred prior to the filing of the appeal. Because we find merit in U.S. Bank’s argument that Mr. Lewis’ appeal is untimely, we are without jurisdiction to address the remaining issues presented in this appeal.

It is well settled that a devolutive appeal may only be taken within sixty days of either: 1) the expiration of the delay for applying for a new trial, if no application has been filed timely; or 2) the date of the mailing of notice of the court’s refusal to grant a timely filed application for a new trial. LSA-C.C.P. art. 2087; Falkins v. Jefferson Parish School Board, 97-26, p. 2 (La.App. 5 Cir. 5/9/97), 695 So.2d 1005, 1006. Absent a timely motion for appeal, the appellate court lacks jurisdiction over the appeal. Guillot v. Consolidated Freightways, 588 So.2d 113, 114 (La.App. 5 Cir.1991); Harper v. Eschenazi, 04-863, p. 5 (La.App. 5 Cir. 12/28/04), 892 So.2d 671, 674.

In the present case, the judgment dismissing Mr. Lewis’ petition for injunction was rendered on May 6, 2011. The record reflects that notice of judgment was mailed on May 20, 2011. The motion for appeal was not filed until February 6, 2012. Clearly, Mr. Lewis’ motion for appeal was not filed within the delays for taking a devolutive appeal under LSA-C.C.P. art. 2087. This Court is without jurisdiction to rule on an untimely appeal. Accordingly, for the reasons set forth above, this appeal is dismissed.

APPEAL DISMISSED.

      . Mr. Lewis is also referred to in the record as "Raphael Lewis.”


author: THIBODEAUX, Chief Judge.

text:
    Steve THIBODEAUX, Indiv. and d/b/a C & B Construction v. KAUFMAN TRAILERS, INC.
    No. 12-885.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.
    Rehearing Denied March 27, 2013.

      Jonathan Clyde Vidrine, West & Vid-rine, Ville Platte, LA, for Plaintiff/Appel-lee, Steve Thibodeaux, Indiv. and d/b/a C & B Construction.
    Douglas Daniel Brown, Hammond, LA, for Defendant/Appellant, Kaufman Trailers, Inc.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   THIBODEAUX, Chief Judge.

hln this redhibition action, Kaufman Trailers, Inc. appeals the trial court’s judgment granting Steve Thibodeaux, d/b/a C & B Construction, rescission of a sale and return of the purchase price of a trailer. Kaufman asserts that Mr. Thibodeaux never proved ownership of the trailer and that even if ownership was proven, Mr. Thibo-deaux continued to use the trailer despite its defects, negating his claim for rescission. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUE

We will consider whether the trial court erred in granting a rescission of sale and return of the purchase price of the trailer to Mr. Thibodeaux.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Thibodeaux is in the dirt construction business, and his company is C & B Construction. In 2006, Mr. Thibodeaux decided to purchase a hauling trailer for business use. He testified that he wanted to purchase a “Pintle Hitch Trailer capable of hauling a piece of equipment, the maximum width allowed without a permit.” Mr. Thibodeaux contacted Kaufman, and the parties ultimately contracted for the manufacture and sale of a trailer with a width of 102 inches.

Kaufman charged Mr. Thibodeaux $13,080.00 for the trailer. Mr. Thibodeaux placed a down payment of $3,649.50 and financed the remainder of the purchase for forty-eight months with BB & T Leasing Corporation. He testified pthat, with tax and interest, his total investment in the trailer amounted to $18,765.16.

Kaufman delivered the trailer to Mr. Thibodeaux’s business, C & B Construction. Mr. Thibodeaux immediately noticed that the width of the trailer did not meet his specifications. Notably, Kaufman manufactured and delivered a trailer'that was slightly over ninety-nine inches in width. Before using the trailer, Mr. Thi-bodeaux contacted Kaufman about the width differential. He testified that Kaufman ignored his complaint.

Following Kaufman’s refusal to rescind the sale or replace the trailer, Mr. Thibo-deaux was forced to hire others to haul the piece of equipment for which the trailer was purchased. He testified that he was able to use the trailer for other purposes but not for its intended purpose. He also claimed that the deficiency in the trailer’s width inconvenienced his business greatly.

Following a bench trial, the trial court found that Kaufman sold the trailer knowing that the defect existed at the time of sale and, thus, was in bad faith. The trial court ordered Kaufman to pay Mr. Thibo-deaux $18,765.76, plus interest from the date of judicial demand as well as $7,500.00 plus legal interest in attorney fees. Kaufman appeals the trial court’s judgment. Mr. Thibodeaux neglected to file an answer to the appeal but requests, in brief, attorney fees for work performed on this appeal.

III.

LAW AND DISCUSSION

Standard of Review

The existence of redhibitory defects is a question of fact, and the trial court’s con-elusions about them should not be set aside absent manifest error. Parker v. Dubus Engine Co., 563 So.2d 355 (La.App. 3 Cir.1990). An appellate court may not set aside a trial court’s finding of fact absent manifest error or unless the fact finder is clearly wrong. Lewis v. State, Through Dep’t of Transp. and Dev., 94-2370 (La.4/21/95), 654 So.2d 311; Thomas v. Albertsons, Inc., 28,950 (La.App. 2 Cir. 12/11/96), 685 So.2d 1134, writ denied, 97-0391 (La.3/27/97), 692 So.2d 395.

Redhibition

Redhibition is defined in La.Civ. Code art. 2520, and is “the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” La. Indus. v. Bogator, Inc., 605 So.2d 213, 216 (La.App. 2 Cir.1992). The existence of such a defect gives a buyer the right to obtain rescission of the sale or a reduction in the price. La.Civ.Code art. 2520.

Indeed,

“In situations where new vehicles present such defects as would- render their use inconvenient and imperfect to the extent that the buyer would not have purchased the automobile had he or she known of the defects, the buyer is entitled to a rescission of the sale instead of merely a reduction in the price.”

Jones v. Winnebago Indus., Inc., 47,137, p. 7 (La.App. 2 Cir. 5/16/12), 92 So.3d 1113, 1118.

Ownership of the Vehicle

Kaufman argues that Mr. Thibo-deaux has no valid claim for rescission because he failed to establish ownership of the trader. The trial court disagreed, finding that Mr. Thibodeaux purchased the trailer and had it shipped to his company, C & B Construction. In cases, such as this one, where the fact finder |4concIudes that a party carried his burden of proof, a credibility determination can be implied from that finding

An appellate court cannot reverse a trial court’s factual findings that are based on a reasonable credibility evaluation if the record “furnishes a reasonable factual basis for the trial court’s finding.” Marange v. Custom Metal Fabricators, Inc., 11-2678, p. 7 (La.7/2/12), 93 So.3d 1253, 1258 (quoting Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973)). When, as here, “there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are reasonable.” Id.

Contrary to Kaufman’s claims, Mr. Thibodeaux’s testimony that he owned the trailer is corroborated by documentary evidence introduced at trial. Indeed, the invoice for the trailer indicates a sales price, the “sales order” and “salesperson” data, and it notes that the trailer was shipped to C & B Construction, a company owned by Mr. Thibodeaux. Moreover, BB & T is listed as the lienholder, a position that only affects its priority status as a lender, it does not affect ownership, as Kaufman argues. These documents, combined with Mr. Thibodeaux’s uncontrovert-ed testimony regarding the purchase of the trailer and his relationship to C & B Construction, led the trial court to conclude that Mr. Thibodeaux met his burden of proving ownership of the trailer. We find no manifest error in that determination.

Defects in the Trailer

Kaufman argues that the trial court erred in granting rescission of the sale of the trailer and that, at best, Mr. Thibo-deaux is entitled to a reduction in the purchase price. We disagree. Specifically, Kaufman asserts that because Mr. | .^Thibodeaux continued to use the trailer despite the defect in its width, he accepted the trailer with defects and is not entitled to rescission. We find that Kaufman’s argument is without merit.

“The existence of redhibitory defects is a question of fact which will not be disturbed in the absence of manifest error.” Jones, 92 So.3d at 1118. “Moreover, a manufacturer is presumed to have knowledge of defects in the object it produces.” Id. (citing La.Civ.Code art. 2545). If a purchaser buys a new vehicle with defects, and those defects render the use of that vehicle inconvenient or imperfect to the extent that the buyer would not have purchased the vehicle if he had known of the defects, the buyer is entitled to a rescission of the sale instead of merely a reduction in the purchase price. Id.

Here, Mr. Thibodeaux specifically ordered a trailer from Kaufman with a deck width of 102 inches. Instead, Kaufman delivered a trailer with a deck width of approximately ninety-nine inches. Mr. Thibodeaux notified Kaufman immediately upon discovering the defect. Indeed, Mr. Thibodeaux testified that the width of the trailer was pertinent to his business and that he ordered the trailer with that particular width to meet a specific business need. Kaufman rebuked his claims for a refund. Faced with no other option, Mr. Thibodeaux filed suit and used the trailer as best he could. Thus, we find no error in the trial court’s judgment rescinding the sale and ordering a return of the purchase price.

Attorney Fees on Appeal

Mr. Thibodeaux asserts that he is entitled to attorney fees for work performed on this appeal. The issue of attorney fees is not properly before this court as no answer to the appeal was timely filed pursuant to La.Code Civ.P. art. 2133. Thus, we will not consider the argument.

_1¿V.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the trial court. Costs of this appeal are assessed against Kaufman Trailers, Inc.

AFFIRMED.

      . We note that Mr. Thibodeaux’s calculation of the total cost of the trailer is $.60 less than the amount awarded by the trial court. Since Kaufman has not complained about this discrepancy, we will not address it further.

      . In light of our finding that the trial court properly evaluated Mr. Thibodeaux’s testimony and the corroborating documentary evidence supporting his testimony to make a credibility determination, Kaufman’s argument regarding “best evidence” is inconsequential.