author:
ROSEMARY LEDET, Judge.
      LOVE, J.,

text:
    STATE of Louisiana v. Gerald K. STEWART.
    No. 2013-KA-0779.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, 619 South White Street, New Orleans, LA, for Appel-lee/State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

hln this criminal appeal, the defendant, Gerald Stewart, appeals his conviction and sentence as a multiple offender for attempted possession of heroin. Mr. Stewart’s sole assignment of error is that the district court erred in denying his motions to suppress the evidence and statements. Finding no error, we affirm.

STATEMENT OF THE CASE

On July 13, 2011, the State of Louisiana charged Mr. Stewart with one count of possession of heroin. Mr. Steward pled not guilty. On August 25, 2011, the district court denied Mr. Stewart’s motion to suppress the evidence, but granted his motion to suppress his statements. This court granted the State’s writ, finding that the district court erred in granting Mr. Stewart’s motion to suppress his statements. State v. Stewart, 11-1223 (La.App. 4 Cir. 10/10/11) (unpub.). Mr. Stewart waived his right to a jury trial. On May 25, 2012, the district court found Mr. Stewart guilty of attempted possession of heroin. On June 15, 2012, the district court denied Mr. Stewart’s motion for post-verdict judgment of acquittal and sentenced him to serve five years at hard labor.

LOn October 15, 2012, the State filed a multiple bill charging Mr. Stewart as a second offender. Mr. Stewart pled guilty to the multiple bill. The district court vacated Mr. Stewart’s original sentence and re-sentenced him as a second offender to serve eleven years at hard labor. This appeal followed.

STATEMENT OF THE FACTS

At trial, Officer Everett Briscoe testified that on July 3, 2011, he and his partner, Officer Jon-Rene Sanjurjo, were dispatched to the parking lot of the Rally’s on South Carrollton in Orleans Parish to investigate a single-car accident with injury. Upon arrival the officers attempted to render aid to the driver of the car, Ryan Couget, who was unconscious in the car.

After EMS personnel arrived, Officer Briscoe spoke with a Rally’s employee. The employee pointed out Mr. Stewart, who was walking away from the scene. Officer Briscoe approached Mr. Stewart and asked him where the items that he retrieved from the vehicle were. Mr. Stewart took Officer Briscoe to the passenger side of the vehicle and told the officer that he threw the items on the ground. Officer Briscoe saw a couple of empty pieces of foil lying on the ground next to the car. Once the officer determined that narcotics were possibly involved, he decided to detain Mr. Stewart until they finished the investigation. As Officer Briscoe was placing Mr. Stewart in handcuffs, the officer noticed that Mr. Stewart had something clutched in his hand. Officer Briscoe asked Mr. Stewart what was in his hand. Mr. Stewart then threw down a napkin, which contained pieces of aluminum foil. Officer Briscoe secured Mr. Stewart in his police unit while [^Officer Sanjurjo retrieved the napkin and foils. The foils appeared to contain heroin. Mr. Stewart was ultimately arrested.

On cross-examination, Officer Briscoe testified that Mr. Stewart was one of the people gathered around Mr. Couget’s car when they arrived. Officer Briscoe did not suspect Mr. Stewart of any wrongdoing at that time. Officer Briscoe admitted that at the suppression hearing he testified that Mr. Stewart appeared concerned about the driver’s condition. EMS personnel arrived approximately five minutes after the officers, and Mr. Stewart still remained in the parking lot. According to Officer Briscoe, he asked Mr. Stewart to stop as Mr. Stewart was walking away. Mr. Stewart was not running away, and he was cooperative with Officer Briscoe. When Officer Briscoe asked Mr. Stewart about removing items from Mr. Couget’s car, Mr. Stewart replied that he removed the foil packets and threw them on the ground because he did not want Mr. Coug-et to get into trouble. Officer Briscoe stated that he did not see Mr. Stewart attempt to conceal anything in his pockets or to take anything from his pockets. After Mr. Stewart showed him the foils on the ground, he advised Mr. Stewart of his Miranda rights and handcuffed him. Mr. Stewart also had a backpack, which Officer Briscoe believed his partner searched.

Officer Jon-Rene Sanjurjo testified that Mr. Couget was still in the driver’s seat of the car when they arrived and that Mr. Couget was unconscious but breathing. EMS personnel arrived shortly thereafter. Officer Sanjurjo testified that he found a spoon with crystalized residue and burn marks sitting in a cup in the |4middle console of the car. He stated that Officer Briscoe stopped Mr. Stewart after speaking with a Rally’s employee. According to Officer Sanjurjo, after Mr. Stewart was placed in the police unit, Mr. Stewart repeated the statements he made outside of Mr. Couget’s car regarding removing the empty foils from the car. Officer Sanjurjo testified that he retrieved the empty foils after Officer Briscoe pointed them out to him. He also retrieved the napkin with the foils that Mr. Stewart dropped. On cross-examination, Officer Sanjurjo testified that Mr. Couget admitted to EMS personnel that he had just used “a little bit” of heroin.

The parties stipulated that Glenn Guil-lot, if called to testify, would have been qualified as an expert in narcotics testing and analysis. The parties also stipulated to the contents of Mr. Guillot’s report, which stated that the evidence seized tested positive for heroin.

DISCUSSION

Errors Patent

A review of the record reveals no patent error that requires any action by this court.

Assignment of Error

As noted at the outset, Mr. Stewart’s sole assignment of error is whether the district court erred by denying his motions to suppress the evidence and statements. Mr. Stewart argues that his admissions— that he took the empty foils out of Mr. | sCouget’s car and threw them outside the car and that he did this because he did not want Mr. Couget to get into trouble — were both made while he was in custody. He contends that his statements should have been suppressed because the officer failed to advise him of his Miranda rights before asking him what he took out of the car. He contends that without these admissions, the officers would not have handcuffed him and found the heroin he was holding in his hand. Thus, he contends the heroin was the product of his illegally-taken statements; and the district court erred by denying his motion to suppress it as well.

As noted above, the district court granted his motion to suppress the statements, but this court reversed, finding that Mr. Stewart was not in custody for Miranda purposes at the time he made his admissions that he took the foils out of the car because he did not want Mr. Couget to get in trouble. That ruling was based solely on the suppression hearing transcript. On appeal, this court may also consider the evidence adduced at trial to determine the merits of his claim that the evidence and statements should have been suppressed. See State v. Leger, 06-0011 (La.7/10/06), 936 So.2d 108; State v. Sherman, 04-1019 (La.10/29/04), 886 So.2d 1116. We separately address the suppression of the statements and suppression of the evidence.

Suppression of the Statements

Because Mr. Stewart’s claim that the evidence must be suppressed is based upon his claim that the discovery of the evidence was the product of his illegally-obtained statements, we first must determine whether the district court erred by denying the motion to suppress the statements. This court set forth the standard for determining the admissibility of a defendant’s statement in State v. Barabin, 13-0334, pp. 4-6 (La.App. 4 Cir. 9/11/13), 124 So.3d 1121, 1128, as follows:

As per La.C.Cr.P. art. 703D, the State had the burden of showing that the defendant’s statements were admissible. In addition, La. R.S. 15:451 provides: “Before what [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” See State v. Gradley, 97-0641, p. 9 (La.5/19/98), 745 So.2d 1160, 1166. As noted in State v. Vigne, 2001-2940 (La.6/21/02), 820 So.2d 533, in order for a statement made by a suspect in custody to be admissible at trial, police officers must advise the suspect of his Fifth Amendment rights prior to interrogating him. Generally, a trial court’s ruling on a motion to suppress a statement is entitled to great weight and will not be disturbed unless clearly unsupported by the evidence. Id., at p. 6, 820 So.2d at 537.

An officer does not have to advise a person not in custody of his rights prior to taking his statement in order for his statement to be admissible. In State v. Watson, 99-1448, pp. 18-19 (La.App. 4 Cir. 8/23/00), 774 So.2d 232, 242, this court set forth the standard for when a person must be read his Miranda rights:

The protections of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (1966) are only applicable when a person is the subject of a custodial interrogation. State v. Pomeroy, 97-1258 (La.App. 5 Cir. 5/13/98), 713 So.2d 642. A suspect is “in custody” for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect’s position would have understood the situation to constitute a restraint of freedom of movement of the degree associated with formal arrest. State v. Hammond, 97-1677 (La.App. 4 Cir. 12/30/97), 706 So.2d 530.

In the Barabin case, officers investigating a burglary were directed to the defendant’s residence. While conducting the investigation, the defendant began pacing and walking toward a storage room. Thus, the officers handcuffed the defendant. The officers asked his father if they could search the defendant’s room, and the defendant admitted that the stolen property was in his room. On appeal, the defendant asserted that his admission should have been suppressed because at [7the time he made the admission, he was in custody, as the officers had handcuffed him, and they failed to advise him of his Miranda rights. This court disagreed, noting that “a mere detention does not trigger the need for Miranda warnings, and the use of handcuffs does not necessarily escalate a detention into a state of being ‘in custody’ for Miranda purposes.” Barabin, 13-0334 at p. 6, 124 So.3d at 1124.

This court in Barabin also found that the defendant’s statement was admissible because it was spontaneous and not the product of interrogation. In so finding, this court cited State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179, in which the Louisiana Supreme Court held that an investigatory stop is a lesser form of a detention than an arrest. This court discussed several cases regarding when a detention with the use of handcuffs escalates into an arrest. See State v. Adams, 01-3231 (La.1/14/03), 836 So.2d 9 (finding that a fifteen-minute detention, with the use of handcuffs, while the officers awaited the arrival of a female officer to frisk the defendant, did not transform the stop into a custodial arrest); State v. Palmer, 09-0044 (La.7/1/09), 14 So.3d 304 (finding that the handcuffing of suspects fleeing a house where a search warrant was being executed did not rise to the level of an arrest); and State v. Lazard, 08-0677 (La.App. 4 Cir. 12/10/08), 2 So.3d 492 (finding the handcuffing of the defendant to await the arrival of a drug detection dog was not an arrest).

In the Barabin case, this court also discussed State v. Porche, 06-0812 (La.11/29/06), 943 So.2d 385, in which the court found no custodial arrest even though the officers detained the defendant at the scene of the crime and forced him to relocate to his apartment while in handcuffs to retrieve his identification. The Porche court stated:

Islnherent in the right of the police to conduct a brief investigatory detention is also the right to use reasonable force to effectuate the detention. [Muehler v.] Mena, 544 U.S. [93] at 99, 125 S.Ct. [1465] at 1470 [161 L.Ed.2d 299 (2005) ] (“ ‘Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.’ ”)(quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871-72, 104 L.Ed.2d 443 (1989)); United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993)(“Since police officers should not be required to take unnecessary risks in performing their duties, they are ‘authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of [a Terry ] stop.’ ”) (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985)).

Porche, 06-0312 at pp. 7-9, 943 So.2d at 339-40. The Porche court rejected the defendant’s argument that his detention was an arrest, finding that handcuffing and escorting the defendant to his apartment to get his identification did not escalate the stop to an arrest considering the circumstances of the case, including “the brevity of respondent’s detention in handcuffs before he was lawfully arrested, and the changing nature of the police investigation ... and giving due deference to the decisions made in the field by police officers under the press of ‘tense, uncertain, and rapidly evolving’ circumstances, Graham [v. O’Connor ], 490 U.S. [396] at 397, 109 S.Ct. [1865] at 1872 [1989].” Porche, 06-0312 at pp. 10-11, 943 So.2d at 341.

In State v. Turner, 13-0180 (La.3/1/13), 108 So.3d 753, the Louisiana Supreme Court emphasized that neither a defendant’s belief that he has been arrested nor the use of handcuffs determines whether a defendant has been arrested. On the issue of whether the use of handcuffs escalates a detention into an arrest, the Supreme Court stated:

First, we note that the Trial Court’s de facto arrest analysis begins with a faulty premise, stating the circumstances of the defendant’s detention “would easily leave a reasonable person to labelieve that they were not free to leave and was therefore not within the scope of Terry.” A suspect’s inability to leave merely establishes whether a “seizure” has occurred, not whether a seizure was of the Terry stop or arrest variety. 4 Wayne R. LaFave, Search and Seizure § 9.2(g) (5th ed.2013). Rather, the determination of whether a detention exceeds the bounds of a Terry stop is a fact-intensive inquiry. State v. Miller, 00-1657, pp. 2-3 (La.10/26/01), 798 So.2d 947, 949 (per curiam). In this case, there is no doubt the officer seized the defendant. However, the facts the Trial Court found pertinent — that defendant was detained in a private office for an hour while awaiting the arrival of a K-9 unit and was eventually handcuffed — do not support its conclusion that the officer’s lawful investigatory stop escalated into a de facto arrest unsupported by probable cause.
* * *
Additionally, the Trial Court placed great weight on the fact the officer handcuffed the defendant, stating this was unreasonable and transformed the detention into an unlawful arrest. This Court has stated the use of handcuffs during a putative Terry stop is reasonable if the State can “‘point to some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purposes of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm.’ State v. Porche, 06-0312, p. 8 (La.11/29/06), 943 So.2d 335, 339 (per curiam) (emphasis added) (citations omitted)....

Turner, 13-0180 at pp. 1-3, 108 So.3d at 753-55.

A review of the suppression hearing and trial testimony reveals that Mr. Stewart made the statements at issue before being advised of his Miranda rights. Mr. Stewart contends that he was “in custody” given that the officer approached him, told him to stop, and prevented him from leaving. Further, after asking him what he had taken from the car, Officer Briscoe suspected him of a possible narcotics violation and handcuffed him. Mr. Stewart contends that this was not simply an investigatory stop, but rather he was in custody for constitutional purposes. Mr. Stewart contends that because he made these admissions while in custody and before being advised of his Miranda rights, the statements should have been suppressed. We disagree.

|1(lAs noted in Watson, supra, “[a] suspect is ‘in custody’ for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect’s position would have understood the situation to constitute a restraint of freedom of movement of the degree associated with formal arrest.” Watson, 99-1448 at p. 19, 774 So.2d at 242. Although Officer Briscoe believed that Mr. Stewart took something out of the car, the officer’s actions amounted to only an investigatory stop at that juncture when he stopped and questioned Mr. Stewart. Moreover, the officer testified that it was only after Mr. Stewart told him that he had taken the empty foils out of the car because he did not want Mr. Couget to get in trouble and showed the officer where he had thrown the empty foils that the officer handcuffed Mr. Stewart. Although the statements were made during a detention, it was not a custodial detention as defined by the jurisprudence discussed above. Thus, Officer Briscoe was not required to advise Mr. Stewart of his Miranda rights before asking him what he took from Mr. Couget’s car. The officer’s failure to do so did not render the statements inadmissible.

Suppression of the Evidence

Mr. Stewart also contends that the district court erred in denying his motion to suppress the heroin that he dropped when the officer handcuffed him. According to Mr. Stewart, since his statements were illegally obtained, it follows that the evidence that was seized as a result of the statements was tainted by the illegality. As discussed above, we find the statements were not illegally obtained. Given our finding that Mr. Stewart’s statements were not illegally obtained, the evidence obtained as a result of these statements likewise was not illegally obtained. Accordingly, Mr. Stewart’s sole assignment of error — that the district |ncourt erred in denying his motion to suppress statements and the evidence — lacks merit.

DECREE

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

LOVE, J., Concurs and Assigns Reasons.

LOVE, J.,

Concurs and Assigns Reasons.

hi agree with the majority’s rejection of Mr. Stewart’s argument that his statements were illegally obtained because they were the product of a custodial detention requiring the officer to advise him of his Miranda rights prior to his making them. “Before what [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises.” See La. R.S. 15:451.

Officer Briscoe testified that the Rally’s employee told him that she saw Mr. Stewart go into Mr. Couget’s car, and at first she thought he was attempting to help Mr. Couget. However, the Rally’s employee saw Mr. Stewart take something out of the car, and for that reason she pointed him out to the officer. Officer Briscoe then approached Mr. Stewart and asked him what he took out of the ear. In response, Mr. Stewart walked Officer Briscoe to the passenger side of the car and told the officer that he threw the items on the ground. Officer Briscoe then observed empty foils lying on the ground next to the car.

Although, Officer Briscoe may have believed that Mr. Stewart took something out of the car, based on what the Rally’s employee told him, his | gtestimony shows that his actions established only an investigatory stop when he asked Mr. Stewart what he took out of the car.

Further, it was only after Mr. Stewart voluntarily told the officer he had taken the empty foils out of the car and showed the officer where he threw them that Mr. Stewart was handcuffed. Likewise, there is nothing to suggest that his statements prior to his detention were made “under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises.” Id.

Even though Mr. Stewart’s statements were made during a detention, it did not amount to a custodial detention requiring the officer to advise him of his Miranda rights before asking him what he took from Mr. Couget’s car. Thus, the officer’s failure to advise Mr. Stewart of his Miranda rights did not preclude the statements from being admissible at trial. Accordingly, I concur in the affirmation of Mr. Stewart’s conviction and sentence.

      .Ryan Couget was also charged in the same bill of information with possession of heroin. He pled guilty and was sentenced to four years active probation. He is not a party to this appeal.

      . There is no evidence that the defendant, Mr. Stewart, knew Mr. Couget before this incident.

      . The Rally's employee’s statements were not admitted at trial because the employee refused to testify. However, at the hearing on the motions to suppress, Officer Briscoe testified that he and his partner were notified by one of the employees at the location that she observed Mr. Stewart take something of out of the vehicle after the accident.

      . Officer Briscoe was the sole witness at the suppression hearing. His testimony at the suppression hearing, with minor exceptions, was similar to his trial testimony.

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

      . The district court failed to order that Mr. Stewart’s sentence as a second offender be served without benefit of probation or suspension of sentence as required by La. R.S. 15:529.1G. However, the district court did not suspend the sentence and placed Mr. Stewart on probation. In addition, as per La. R.S. 15:301.1A and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with these restrictions of benefits, even in the absence of the district court’s failure to delineate them. See State v. Barnes, 11-1421 (La.App. 4 Cir. 9/19/12), 100 So.3d 926, writ denied 12-2251 (La.4/1/13), 110 So.3d 575; State v. Phillips, 03-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jarrin R. GAYDEN.
    No. 2013-KA-0105.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Jarrin R. Gayden.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

_jjThe defendant, Jarrin R. Gayden, files this appeal pursuant to State v. Crosby, 338 So.2d 584 (La.1976), arguing that his conviction for possession of marijuana, second offense, in violation of La.Rev.Stat. 40:966(D)(2), is invalid. After review of the record in light of the applicable law and arguments of the parties, we vacate the defendant’s conviction and sentence.

Relevant Facts and Procedural History

On June 13, 2012, Officer Jeremy Wilcox of the New Orleans Police Department (NOPD) was on patrol in the 8800 block of Fig Street in New Orleans when he saw a vehicle stopped in the street with its lights on in the opposite lane, facing the patrol car. Stopping his patrol car and using a spot light for illumination, Officer Wilcox observed the defendant in the driver’s seat “moving around, fidgeting around, like, the center console area.” Jumping out of the patrol car, Officer Wilcox and his partner ordered the three occupants of the stopped vehicle to show their hands. In response to the order, the two passengers immediately complied but the driver (the defendant) put up only his left hand. Officer Wilcox and his partner reached into the vehicle and handcuffed the passengers through the window before ordering them out of the vehicle. As the | ^handcuffed passengers exited the vehicle, Officer Wilcox observed the defendant “shoving something through like the leg of his shorts” although he could not see what the object was. The two passengers were secured and, as Officer Wilcox and his partner approached the vehicle, the defendant put up both of his hands. The officers opened the driver’s side door and ordered him out of the car and, as the defendant stood up, a “little cigar pack” fell out of his shorts. After handcuffing the defendant, Officer Wilcox picked up the cigar box, opened it, and discovered “vegetable-like matter.” The defendant was arrested for possession of marijuana.

On June 28, 2012, the defendant was charged by bill of information with possession of marijuana, second offense, a violation of La.Rev.Stat., 40:966(D)(2). He pleaded not guilty at his arraignment and his appointed counsel filed generic motions for discovery, to suppress, and for a preliminary hearing. The motion hearing was held on August 17, 2012, with Officer Wilcox as the only witness. He specifically testified:

As soon as [the defendant] stood up out of the vehicle, a little cigar pack fell out of his shorts.... We got him cuffed up. Picked it up. Opened it, looked into it. It, you know, was a vegetable-like mater. Looked like marijuana.... We placed him under arrest for possession of marijuana.... It tested positive. And we ended up arresting him for second possession of marijuana.

On cross-examination, Officer Wilcox stated that the vehicle was stopped in the right lane of the street with lights on and he assumed the engine was running “because his keys were still in it” and the defendant had claimed that his delay in complying with the order to put both hands up was because he had been “trying to turn the car off’ with his right hand. Officer Wilcox explicitly conceded that he there was no way to see what was in the cigar box lying on the ground “without picking it up and looking into it.” In response to the trial judge’s question, Officer laWilcox stated that “through the computer system we found out that it was not his first offense for marijuana.” The State then submitted into evidence what it characterized as “a certified packet indicating a prior conviction” for possession of marijuana out of Texas. Defense counsel pointed out, however, that the Texas offense was a “deferred adjudication” which was subsequently dismissed and, consequently, it could not be used to enhance the offense at issue. After listening to arguments on this issue, the trial court denied the motion to suppress, found probable cause, and set a trial date.

That same day, however, the defendant withdrew his not guilty plea and entered a Crosby plea, reserving his right to appeal the trial court’s denial of his motions to suppress statement and evidence. After waiver of all rights and delays, the defendant was sentenced to three years at hard labor, suspended, with credit for time served and placed on three years active probation, with the special condition that he successfully complete the drug court program, pay a $500.00 fine to the Judicial Expense Fund and $201.50 in court costs.

This appeal follows.

Assignment of Error 1

The defendant’s appellate counsel concedes that the officers had reasonable suspicion to stop and frisk him, but argues that the search of the closed cigar pack was not justified because its contents were not immediately apparent and, therefore, it was error for the trial court to deny the defendant’s motion to suppress. In response, the State concedes that the contents of the cigar pack were not readily apparent but asserts that Officer Wilcox was justified in opening the pack and inspecting its contents because he reasonably suspected it contained a weapon or other contraband.

| ¿Applicable Law

It is well-settled that the State has the burden to establish the legality of evidence seized without a warrant and that the trial court’s determinations regarding a motion to suppress evidence are entitled to great weigh. La.Code Crim. Proc. art. 703(D); State v. Hunt, 09-1589, p. 7 (La.12/1/09), 25 So.3d 746, 752. Both the United States and Louisiana Constitutions protect against unreasonable searches and seizures, although “a police office may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime.” State v. Boyer, 2007-0476, p. 17 (La.10/16/2007), 967 So.2d 458, 469 (citations omitted). Search and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable subject only to a few specifically established and well delineated exceptions. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). One exception, as recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) allows a police officer who “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot” to briefly stop the suspicious person and make “reasonable inquiries” aimed at confirming or dispelling his suspicions. Minnesota v. Dickerson, supra, (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868). In addition, under Terry “when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, the officer may conduct a patdown search to determine whether the person is in fact carrying a weapon.” Minnesota v. Dickerson, supra (citation and internal punctuation omitted). However, a police officer is only justified in frisking a subject under circumstances where a reasonably prudent person would be warranted in the belief | sthat his safety or that of others was in danger, thus requiring the officer to articulate particular facts from which he reasonably inferred that the individual was armed and dangerous. State v. Denis, 96-0956 (La.App. 4 Cir. 3/19/97), 691 So.2d 1295, 1299 (quoting State v. Hunter, 375 So.2d 99, 101-102 (La.1979)).

“The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence ...” Minnesota v. Dickerson, supra (citing Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (emphasis added)). Rather, “a protective search ... must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Minnesota v. Dickerson, supra (citations omitted).

Pursuant to the plain view doctrine, a warrantless search is justified under the following circumstances: (1) the police officer is lawfully in the place from which he views the object; (2) the object’s incriminating character is immediately apparent; and (3) the officer has a lawful right of access to the object. State v. Gray, 2013-1326, p. 1 (La.6/28/13), 122 So.3d 531, 533 (citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990))[emphasis added]; see also State v. Sheehan, 99-0725, p. 1 (La.7/2/99), 767 So.2d 1 (even assuming reasonable suspicion to conduct an investigatory stop and an articulable basis to conduct a self-protective frisk for weapons, the seizure and search of the cigarette pack from relator’s shirt pocket exceeded the permissible scope of a Terry pat-down frisk and “amounted to the sort of evidentiary search that Terry expressly refused to authorize .... ” (citing Minnesota v. Dickerson, 508 U.S. 366, 378, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); see also State v. Bridges, 2011-1666, p. 4 (La.App. 4 Cir. 11/28/12), 104 So.3d 657, 661)) (“[i]n order for the plain view exception to apply, there must be prior justification for police intrusion into a | ^protected area and it must be immediately apparent, without close inspection, that the item is contraband.”).

The Louisiana Supreme Court has determined, however, that if a defendant’s actions can be found to have violated a municipal ordinance, even if the ordinance was never considered by the arresting officers, the probable cause analysis and/or reasonable suspicion analysis is gratuitous. State v. Butler, 2012-2359, p. 5 (La.5/17/2013), 117 So.3d 87, 90-91 (even when officers had no subjective intent to arrest for violation of city ordinance, as an objective matter “the officers ultimately did nothing more than what the law entitled them to do by detaining defendant after observing him commit a misdemean- or offense in their presence and searching him for weapons and evidence, without regard to whether they had an articulable and particularized concern for their safety, and then arresting him, albeit not for the offense for which they initially had probable cause.”).

Discussion

According to Officer Wilcox’s testimony, the defendant was handcuffed when the cigar box fell out of his shorts and he could not see its contents without picking it up and looking inside. Clearly, the handcuffed defendant poised no reasonable or articulable threat to the officers and the officer specifically testified that he could not see the contents of the cigar box until he picked it up and opened it. Thus, it is difficult to perceive justification for the search of the cigar box under Terry or the plain view doctrine. Under Butler, however, by stopping his car in the street, the defendant arguably violated municipal code ordinances. See New Orleans, La. Code § 154-878 (Parking not to obstruct traffic) and § 154-861 (Normal parking on roadway). Accordingly, under current Louisiana | ^jurisprudence, the trial court did not err in denying the defendant’s motion to suppress the evidence.

Assignment of Error 2

In the second assignment of error, the defendant argues that a second-offense marijuana conviction cannot be premised on a Texas deferred adjudication that ultimately resulted in a dismissal of the charges. Citing Tex.Code Crim Proc. art. 42.12 § 5(a), the defendant’s appellate counsel asserts that the Texas deferred adjudication is not a conviction but, rather, amounts to an acquittal. In support of this argument, he points to State v. Guilbeau, 03-1327, p. 5 (La.App. 5 Cir. 2/23/04), 869 So.2d 201, 204, for the proposition that a deferred adjudication under the pre-1995 version of La.Rev.Stat. 40:983 (wherein a defendant could be placed on probation and the proceedings dismissed without an adjudication of guilt) was “tantamount to an acquittal.” In response, the State argues that because the statutory provision was repealed in 1995, jurisprudence relating to the statute is not applicable. In addition, the State contends that the defendant offered no proof that he successfully met the terms and conditions of his deferred adjudication in Texas.

Applicable Law

There is no La.Code Crim. Proc. art. 966(D)(2); but see La.Code Crim. Proc. art. 966(E)(2)(a) (penalty provision for second conviction for possession of marijuana).

The Louisiana Code of Criminal Procedure defines “convicted” as “adjudicated guilty after a plea or trial on the merits,” indicating that a conviction requires an adjudication of guilt. La.Code Crim. Proc. art. 934(3).

Similar to Guilbeau cited by appellate counsel, but more relevant in this circuit is State v. O’Brien, 92-2701 (La.App. 4 Cir. 8/19/1993), 623 So.2d 698, |8wherein this court stated “A plea taken under § 40:983 cannot be considered an adjudication of guilt and cannot be used to enhance a future conviction.” 623 So.2d at 698 (citation omitted); see also State v. Jones, 99-0861, pp. 22-23 (La.App. 4 Cir. 6/21/2000), 769 So.2d 28, 43 (summarizing Louisiana 4th Circuit and Supreme Court jurisprudence finding that a plea of guilty to La.Rev.Stat. 40:983 did not constitute a predicate offense for future sentence enhancement or as basis for the charge of being a felon in possession of a firearm).

Relevant Facts

The certified packet submitted by the State as Exhibit 2 at the motion hearing indicates that on January 17, 2009, the defendant was charged in Texas with possession of marijuana. The packet also contains an Order of Deferred Adjudication dated April 1, 2009, indicating that the defendant pleaded guilty to the offense of possession of marijuana and that he was fined $500.00, ordered to pay $253.00 in court costs, and placed on community supervision for a period of four years. Finally, the packet contains a motion to dismiss filed by the Harris County Attorney’s office, indicating that on February 24, 2012, the defendant’s case was dismissed. Discussion

A review of the record indicates that the defendant was charged with willful and unlawful possession of marijuana, “having been previously convicted of possession of marijuana” in Harris County, Texas. The entire record, including the State’s appellate “Statement of the Case,” refers to the defendant’s charge, Crosby plea, and sentence being based on a violation of La. Code Crim. Proc. art. 966(D)(2). There is no reference in the entire record to La. Code Crim. Proc. art. 966(E)(2)(a). This sort of sloppiness is appalling but, becaüse there is no evidence that the defendant was | (¡misled as to the charge against him, the consistent citation to the wrong statutory provision (although egregious) is not grounds for reversal. La.Code Crim. Proc. art. 464.

As to the substance of this assignment of error, whether a “deferred adjudication” from another state can be used as a predicate offense for sentence enhancement in this state, the Louisiana Supreme Court has not yet directly addressed this issue. But see Louisiana State Bar Association v. Reis 513 So.2d 1173, 1176 (La.1987) (“a dismissal of prosecution [pursuant to La. Rev.Stat. 40:983] is tantamount to an acquittal.”). Accordingly, in light of La.Code Crim. Proc. art. 934(3), O'Brien, supra, Jones, supra, as well as Reis, supra, we find it was error for the Texas deferred adjudication to serve as a basis for the defendant’s conviction and sentence in this case.

Conclusion

The defendant’s conviction and sentence for possession of marijuana, second offense, based upon a deferred adjudication as the predicate offense, are vacated and the matter is remanded to the trial court for further proceedings.

VACATED AND REMANDED.

LOBRANO, J., Concurs in the Result.

hi respectfully concur in the result.