author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana v. Christopher E. BUCKLEY.
    No. 2011-KA-1811.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Robert C. Jenkins, Jr., Cate L. Bartholomew, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

|; Christopher E. Buckley was charged by bill of information with seven counts of forcible rape, violations of Louisiana Revised Statute 14:42.1. One count charged him with the forcible rape of a twenty-one-year-old victim in 2003. The other six counts charged him with forcible rape of the thirteen-year-old daughter of his girlfriend. At the time these offenses occurred, Mr. Buckley was employed as a New Orleans Police Officer.

Prior to trial, the district court severed Count One (relative to the twenty-one-year-old victim) from the remaining counts and proceeded to trial only on the six counts relating to the minor victim. On the third day of his jury trial, Mr. Buckley entered a Crosby plea as to all counts in the bill of information, pleading guilty but preserving his right to appeal several pretrial rulings. Prior to sentencing, the trial court heard victim impact testimony from several -witnesses, including several alleged victims of unadjudicated sexual assaults by Mr. Buckley. The trial court then sentenced Mr. Buckley to serve thirty-five years at hard labor, without benefit of parole, probation, or suspension of sentence, on each of the |2seven counts, all sentences to run consecutively to each other. He now appeals his conviction arguing that the trial court committed pre-trial errors and that he received a constitutionally excessive sentence.

ERRORS PATENT

A review of the record reveals no errors patent on the face of the record.

ASSIGNMENTS OF ERROR

Mr. Buckley raises the following assignments of error:

(1) The trial court erred by denying his motion for change of venue.
(2) The trial court erred by denying his motion to suppress a compelled statement that was taken in conjunction with an administrative hearing.
(3) The trial court erred by denying his written and oral motions for continuance.
(4) The sentence imposed is unconstitutionally excessive.

VENUE

Prior to trial, Mr. Buckley filed a motion seeking a change of venue, asserting that due to highly publicized federal cases involving NOPD officers, “a New Orleans Police Officer must prove his innocence versus the District Attorney proving his guilt.” The trial court denied this motion.

On appeal, Mr. Buckley contends that the trial court erred by denying the motion to change venue because the pre-trial publicity surrounding his case, pre-trial publicity concerning other high-profile criminal cases pending in federal court against members of the New Orleans Police Department, and the alleged negative public sentiment against the NOPD engendered by these federal cases required a change of venue. The federal cases to which the defendant referred, known locally as the Danzinger Bridge Trial and the Henry-Glover Trial, involved the prosecution |3of police officers for crimes allegedly committed by them in the aftermath of Hurricane Katrina.

A defendant is guaranteed an impartial jury and a fair trial. LSA-Const. art. I, § 16; State v. Brown, 496 So.2d 261, 263 (La.1986). To accomplish this end, the law provides for a change of venue when a defendant establishes he will be unable to obtain an impartial jury or a fair trial at the place of original venue. State v. Bell, 315 So.2d 307, 309 (La.1975).

Louisiana Code of Criminal Procedure article 622 provides, in pertinent part:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

In unusual circumstances, prejudice against the defendant may be presumed. Unfairness of a constitutional magnitude will be presumed in the presence of a trial atmosphere that is utterly corrupted by press coverage or that is entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob. See State v. David, 425 So.2d 1241, 1246 (La.1983). Otherwise, the defendant bears the burden of showing actual prejudice. State v. Lee, 2005-2098, p. 32 (La.1/16/08), 976 So.2d 109, 132.

A change of venue requires proof of more than mere public general knowledge or familiarity with the facts of the case. Lee, supra, p. 33, 976 So.2d at 133; State v. Frank, 99-0553, p. 14 (La.1/17/01), 803 So.2d 1, 15. Extensive knowledge in the community of either the crimes or the defendant is not sufficient by itself to render a trial constitutionally unfair. State v. Sparks, 88-0017, p. 16, (La.5/11/11), 68 So.3d 435, 457. A defendant bears the burden of showing the 14existence of prejudice in the collective mind of the community that makes a fair trial impossible. State v. Clark, 2002-1463, p. 17 (La.6/27/03), 851 So.2d 1055, 1070. Whether a defendant has made the requisite showing of actual prejudice is a question addressed to the trial court’s sound discretion, and its decision will not be disturbed on appeal absent an affirmative showing of error and abuse of discretion. Sparks, 88-0017, p. 17, 68 So.3d at 457; Clark, 2002-1463, p. 17, 851 So.2d at 1071.

In State v. Bell, 315 So.2d 307, 311 (La.1975), the Louisiana Supreme Court outlined some relevant factors to be considered in determining whether a change of venue is warranted:

(1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. See, generally, Annotation, 33 A.L.R.3d 17 (1970).

In State v. Lee, supra, the defendant, Derrick Todd Lee, was indicted with first degree murder for a May, 2002 brutal killing of a twenty-two-year-old female in East Baton Rouge Parish. Because DNA evidence allegedly linked Mr. Lee not only to this murder, but also to several other recent murders of young women in the area, it was widely speculated that Mr. Lee was the notorious South Louisiana serial killer that had preyed upon the local community for the past several years. Due to the extraordinary pretrial publicity surrounding the case, Mr. Lee moved for a change of venue. The trial court denied the motion, and Mr. Lee was ultimately convicted and sentenced to death. Id., p. 1, 976 So.2d at 115.

|fiOn direct appeal to the Louisiana Supreme Court after Mr. Lee’s conviction, the Court held that the trial court had not abused its discretion by denying the motion to change venue. The Supreme Court noted that Mr. Lee’s trial counsel had filed into evidence over five thousand pages of printed media reports and newscast transcripts published between July 2002 and January 2004 that related to the South Louisiana serial killer. The Court further noted that 123 of the 125 potential jurors were at least vaguely familiar with the case, and that the trial court had excused thirty-two percent of them for cause due to their inability to put aside them pretrial exposure to publicity. Notwithstanding this evidence and the widespread media attention surrounding the case, the Supreme Court considered the Bell factors and concluded that Mr. Lee had failed to demonstrate “that the undoubtedly high press coverage of the investigation was sufficient to alter the ‘candor and veracity’ of the jurors’s answers during voir dire examination.” Id., p. 40, 976 So.2d at 137. The Supreme Court further stated:

As we have previously observed, “the mere existence of any preconceived notion as to the guilt or innocence of the accused, without more, is insufficient to rebut the presumption of the juror’s impartiality.” State v. Clark, 851 So.2d at 1071.
Id.

In the instant case, Mr. Buckley has presented no evidence of pretrial publicity either in his case or in the two federal criminal prosecutions of NOPD officers arising out of Hurricane Katrina. While he refers to the Danzinger Bridge trial and the Henry Glover trial, he fails to cite with particularity any evidence showing actual prejudice against him and/or the NOPD in the collective mind of the community such that he would be unable to receive a fair trial on charges of | ^forcible rape. We therefore conclude that the trial court did not abuse its discretion by denying Mr. Buckley’s motion for change of venue.

MOTION TO SUPPRESS STATEMENT

Count One of the indictment in this case involves the forcible rape of the twenty-one-year-old victim. Mr. Buckley was initially charged with this crime in 2003. In connection with that charge, Mr. Buckley gave a statement to the police that was the subject of a motion to suppress hearing in that case. The trial court in that case denied the motion to suppress, concluding that the statement was admissible.

The bill of information in the instant case encompassed that charge as Count One, and the 2003 case was then nolle prosequied three days after this bill was filed against Mr. Buckley. After jury selection in the instant case, the State filed a notice of intent to use Mr. Buckley’s 2003 statement to police in the State’s opening argument at trial. Mr. Buckley now challenges the admissibility of his statement.

At the time he gave the 2003 statement, Mr. Buckley was a New Orleans Police officer and was the subject of both a criminal investigation and an administrative investigation. Mr. Buckley contends that the statement was taken in an administrative investigation, and therefore, was inadmissible in his criminal trial.

|7Lt. Troy Savage testified that he took a criminal statement from Mr. Buckley, and that Mr. Buckley was advised of his Mi randa rights prior to giving the statement. Lt. Savage represented that he was handling the criminal investigation into sexual assault while the Public Integrity-Division was doing its own internal investigation as to a potential violation of department regulations. Lt. Savage stated that in criminal investigations, in addition to being Mirandized, police officers are read the “policeman’s bill of rights.” Lt. Savage said an officer is not compelled to give a statement in a criminal investigation. In an administrative investigation, however, an officer is compelled to participate and give statements.

Mr. Buckley’s trial counsel in the instant case admitted during the motion hearing that he was also representing Mr. Buckley in 2003 when he gave the statement in question; that he was present when Mr. Buckley gave the statement; and that Mr. Buckley had waived his rights prior to giving the statement. Mr. Buckley contends that, under Garrity v. State, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), his statement was not freely and voluntarily given as it was taken pursuant to the “policeman’s bill of rights,” and, therefore, could not be used against him in a criminal investigation.

This court set forth the applicable law on the admissibility of inculpatory statements in State v. Butler, 2004-0880 (La.App. 4 Cir. 1/12/05), 894 So.2d 415. The Butler court stated that before the State can introduce an inculpatory statement into evidence, it must affirmatively show that the statement was free and voluntary and was not the result of fear, duress, intimidation, menace, threats, ^^inducements or promises. Id. 2004-0880, p. 4, 894 So.2d at 418; La. R.S. 15:451; La.C.Cr.P. art. 703(D). A trial court’s ruling on the voluntariness of an inculpatory statement is entitled to great deference and will not be disturbed on appeal unless there is no evidence to support the ruling. State v. Davis, 2009-0438, p. 22 (La.App. 4 Cir. 1/13/10), 30 So.3d 201, 213; State v. Williams, 2007-0700, p. 8 (La.App. 4 Cir. 2/13/08), 977 So.2d 1101, 1110.

Louisiana Revised Statute 40:2531 clearly contemplates separate and distinct administrative and criminal investigations. Louisiana Revised Statute 40:2531(B) covers a law enforcement officer’s rights in an administrative investigation. Subsection (B)(5) provides that no statement made by the officer during an administrative investigation shall be admissible in a criminal proceeding. Subsection (B)(7) provides the procedures and time delays for internal departmental investigations, and specifically states that nothing within this paragraph “shall limit any investigation of alleged criminal activity.”

The issue before us is whether the State proved that Mr. Buckley’s statement to Lt. Savage was given freely and voluntarily in a criminal investigation, or whether it was inadmissible because the reading of the “policeman’s bill of rights” made the statement tantamount to one given in an administrative investigation. In Garrity, supra, the Court held that statements given by New Jersey police officers during an administrative investigation violated their Fifth Amendment right against self-incrimination. In that case, the officers were warned that anything they said might be used against them in a State criminal proceeding; that they had the right to refuse to answer questions if the disclosure would tend to incriminate them; and that if they refused to answer, they would be subject to removal from office under |flNew Jersey’s forfeiture-of-office statute. The statements were deemed compelled, and thus inadmissible at trial, because the officers faced departmental discipline (including termination) as a result of invoking their constitutionally-protected right not to respond to questioning.

In the instant case, there is no question that before giving his statement Mr. Buckley was advised of his Miranda rights, in the presence of his attorney, and that he knowingly and intelligently waived those rights. However, Lt. Savage testified that as part of his criminal investigation into the allegations against Mr. Buckley, he also advised Mr. Buckley of his rights under the “policeman’s bill of rights,” La. R.S. 40:25S1(B), which included informing him that no statement made by him during the course of an administrative investigation would be admissible in a criminal proceeding.

The trial court determined that the statement was given to police relative to a sexual assault investigation simultaneous with an internal NOPD investigation. The trial court stated that it had reviewed the waiver-of-rights-of-arrestee form memorialized in the police report, as well as Mr. Buckley’s statement, which showed the rights-of-arrestee form number and the colloquy regarding the waiver of rights. The court found that due to the waiver of his rights, Mr. Buckley provided his statement pursuant to a criminal investigation. The trial court concluded that Mr. Buckley’s statement was admissible because he had waived his Miranda rights with his counsel present, and that “it is of no moment whether or not there was a simultaneous policeman bill of rights read to Mr. Buckley because, first and foremost, he signed and waived his rights pursuant to the rights of arrestee form.” We agree.

| inThe instant case is distinguishable from Garrity. In Garrity the police officers were advised that anything they said in the investigation into a traffic ticket fixing scheme might be used against them, that they had a privilege to refuse to answer a question if it would tend to incriminate them, but that such refusal would subject them to removal from their employment. Thus, the police officers in Garrity were compelled to give their respective statements upon threat of termination. The police officer’s bill of rights in the instant case, found in Louisiana Revised Statute 40:2531(B), does not contain a corresponding threat to an officer’s employment in the event he refuses to answer an incriminating question.

Considering the totality of the circumstances, we find no error in the trial court’s ruling that Mr. Buckley’s statement was given to Lt. Savage freely and voluntarily, and not as the result of intimidation, threats, inducements, or promises.

DENIAL OF CONTINUANCE

In his third assignment of error, Mr. Buckley argues that the trial court erred by denying both his written and oral motions for continuance.

Prior to trial, Mr. Buckley had filed a written motion for continuance asserting that during orientation remarks made to the jury pool, the judge had made certain comments which had tainted the entire jury pool such that Mr. Buckley would be unable to select a fair and impartial jury. On the morning of trial, Mr. Buckley made an oral motion to continue asserting three other grounds: (1) that the State had amended the bill of information, which had made him unable to understand the charges against him; (2) that the State had notified defense counsel at midday on the Friday before trial that it planned to sever count one and proceed to trial only on counts two through seven; and (8) the late disclosure of exculpatory | n evidence— the State’s filing on Friday, May 6, 2011, of a report from the Louisiana State Police that underwear in a rape kit not previously tested for the presence of seminal fluid had been tested the previous week and found negative for seminal fluid. The trial court denied the motions, addressing each ground separately.

“A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.” La.C.Cr.P. art. 712. A trial court’s decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court, and a reviewing court will not disturb such determination absent a clear abuse of discretion. State v. Reeves, 2006-2419, p. 73 (La.5/5/09), 11 So.3d 1031, 1078-1079; State v. Ford, 2009-0392, p. 3 (La.App. 4 Cir. 10/21/09), 24 So.3d 249, 252. In addition, a reviewing court should generally decline to reverse a conviction even on a showing of an improper denial of a motion for a continuance absent a showing of specific prejudice. Reeves, 2006-2419, p. 73, 11 So.3d at 1079.

Generally, a motion for continuance shall be in writing and specifically allege the grounds upon which it is based, and it shall be filed at least seven days prior to the commencement of trial. La. C.Cr.P. art. 707. However, upon written motion at any time and after contradictory hearing, a trial court may grant a continuance upon a showing that granting the motion is in the interest of justice. Id. An oral motion for a continuance is permitted when the grounds that allegedly made the continuance necessary arose unexpectedly. State v. Dangerfield, 2000-2359, p. 7 (La.App. 4 Cir. 4/3/02), 816 So.2d 885, 893.

h2In the instant case, Mr. Buckley filed a written motion for continuance asserting only one ground — that during orientation of the jury pool, prospective jurors had been tainted by incendiary remarks made by the trial court judge. He alleges that the jury pool was tainted by the trial judge advising prospective jurors during general jury pool orientation that they should remove their juror badges before leaving the building at the end of the day because associates of any defendant could be around the courthouse, noting that once a juror left the courthouse he/she was “on [his/her] own.” Mr. Buckley’s counsel advised the trial court that a mistrial was declared in a second degree murder case in another section of the courthouse after these comments made during juror orientation surfaced during voir dire in that case.

In requesting a continuance in the instant case, Mr. Buckley’s counsel presented a partial transcript of the pertinent voir dire in that other trial to the court. During the voir dire in the other case, potential jurors were questioned as to whether the judge’s comments during orientation had resulted in them having concerns for their personal security. Enough of them replied in the affirmative to cause the trial court to grant the defendant’s motion for mistrial. The common thread among the juror responses in that case was that the comment related to their safety upon leaving the courthouse. More than one juror indicated that the fact that they were being questioned to sit on a jury for a homicide case had factored into their concerns for their personal safety.

In the instant case, the record reflects that trial court judge reviewed the transcript of the prior proceeding and determined that the entire jury pool was not tainted. The court allowed the State and the defense the opportunity to 11-¡individually question the jury panel on this issue during voir dire if they chose. A jury was selected, and the State presented considerable evidence before Mr. Buckley pleaded guilty. There is no indication in the record before us that the jury in this case was prejudiced against Mr. Buckley as a result of the comments made to them during orientation.

Considering the totality of the circumstances, the trial court did not abuse its discretion in denying Mr. Buckley’s written motion for continuance.

Regarding his oral motion for continuance made on the morning of trial, Mr. Buckley first contends that due to amendments to the bill of information, neither he nor his counsel knew exactly what Mr. Buckley was charged with. This argument is without merit. The State filed a nolle prosequi of the original bill of information, which charged Mr. Buckley with four counts of forcible rape, and then filed a new bill of information charging him with seven counts of forcible rape. Thereafter, the State amended the bill of information to reflect that three of those seven counts were for forcible rape by oral sexual intercourse, rather than by vaginal intercourse.

The nolle prosequi and the amendments to the bill occurred more than seven days before trial. These grounds did not arise unexpectedly, and if he believed it was warranted, Mr. Buckley’s counsel could have then timely filed a written motion for continuance as provided for in Louisiana Code of Criminal Procedure article 707, rather than waiting until the morning of trial. Therefore, trial court properly could have denied Mr. Buckley’s oral motion for continuance based on the ground that it had not been timely filed in writing. However, the trial court addressed the merits of the motion, noting that defense counsel had previously 114raised this issue. The trial court stated on the record that due to Mr. Buckley’s previous claim that he did not understand the charges against him, the trial court had read the amended bill of information to Mr. Buckley and his counsel at an earlier date in open court, ensuring that Mr. Buckley understood the charges against him.

We find that the trial court did not abuse its discretion in denying Mr. Buckley’s oral motion for continuance on this ground.

Secondly, Mr. Buckley contends that the State did not timely notify him of the severance of counts for trial. The State severed count one (concerning the adult victim) from the remaining counts (concerning the juvenile victim) and notified Mr. Buckley that it intended to try Mr. Buckley only on counts two through seven. Mr. Buckley fails to show how he was prejudiced by such action. As the State pointed out, its action relieved Mr. Buckley of the burden of defending against an accusation by one of the two victims. The trial court did not abuse its discretion by denying Mr. Buckley’s motion for continuance based on this ground.

Third, Mr. Buckley contends that the late disclosure of a lab report prejudiced him. However, the evidence disclosed was exculpatory evidence. On the Friday before trial, the State produced a State Police report showing that no seminal fluid was found on underwear in a rape kit apparently obtained by police from the minor victim. The trial court noted that the new evidence benefitted Mr. Buckley. The trial court did not abuse its discretion by denying the motion for continuance on this ground.

Accordingly, we find no merit to this assignment of error.

EXCESSIVENESS OF SENTENCE

11sIn his final assignment of error Mr. Buckley argues that his sentence is unconstitutionally excessive. Mr. Buckley was sentenced to serve seven consecutive sentences of thirty-five years at hard labor without benefit of parole, probation, or suspension of sentence, totaling two hundred forty-five years. The sentencing range for a conviction of forcible rape is five to forty years at hard labor, with at least two years of the sentence to be served without benefit of probation, parole, or suspension of sentence. La. R.S. 14:42.1. Following sentencing, Mr. Buckley filed a written motion to reconsider sentence asserting that the sentence was unconstitutionally excessive and that the trial court had failed to consider the mitigating circumstances. The trial court denied the motion to reconsider that same date.

Louisiana Constitution article I, § 20 explicitly prohibits excessive sentences. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Every, 2009-0721, p. 7 (La.App. 4 Cir. 3/24/10), 35 So.3d 410, 417. A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Ambeau, 2008-1191, p. 9 (La.App. 4 Cir. 2/11/09), 6 So.3d 215, 221. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Galindo, 2006-1090, pp. 15-16 (La.App. 4 Cir. 10/3/07), 968 So.2d 1102, 1113.

In reviewing a claim that a sentence is excessive, an appellate court must determine whether the trial judge has adequately complied with the statutory guidelines in Louisiana Code of Criminal Procedure article 894.1 and whether the 11fisentence is warranted under the facts established by the record. State v. Wiltz, 2008-1441, p. 10 (La.App. 4 Cir. 12/16/09) 28 So.3d 554, 561. If adequate compliance with Louisiana Code of Criminal Procedure article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious offenders. State v. Bell, 2009-0588, p. 4 (La.App. 4 Cir. 10/14/09), 23 So.3d 981, 984. Louisiana Code of Criminal Procedure article 881.4(D) expressly states that an “appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.”

Although Louisiana law favors concurrent sentences for crimes committed as part of a single transaction, a trial judge retains the discretion to impose consecutive sentences on the basis of other factors, including the offender’s past criminality and violence in the charged crimes. State v. Dempsey, 2002-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040, citing State v. Thomas, 98-1144, p. 1 (La.10/9/98), 719 So.2d 49; La.C.Cr.P. art. 883.

In the instant case, the seven forcible rapes were perpetrated by a New Orleans Police officer, one upon a twenty-one-year-old female, the other six upon a thirteen-year-old female who was the daughter of his girlfriend. The six rapes of the thirteen-year-old victim occurred on three days within a one-week period, and obviously constituted parts of a common scheme or plan. Thus, under Louisiana Code of Criminal Procedure article 883, the sentences | l7for those offenses “shall be served concurrently unless the trial court expressly directs that some or all of them be served consecutively.” Here, the trial court did expressly direct that those sentences be served consecutively, setting forth adequate reasons therefor.

Following Mr. Buckley’s plea, the court heard victim impact testimony over the course of two days. The two victims testified as to how these events had drastically disrupted their lives, and how they were still being impacted at the time they testified. The father and step-mother of the minor victim testified about the difficulty they have had in keeping her on the right path following the rapes. Three other individuals also testified that they had been sexual abuse victims of Mr. Buckley when they were minors. A common theme throughout all of their testimonies was that Mr. Buckley had taken advantage of his position as a law enforcement officer and the youth of his victims to perpetrate these crimes.

In sentencing Mr. Buckley, the trial court noted that it had received and had reviewed a pre-sentence investigation report; it had presided over all of Mr. Buckley’s pretrial matters; and it had listened to three days of testimony (trial testimony and victim impact testimony) prior to sentencing. The trial judge stated that she found Mr. Buckley’s actions to be beyond the realm of common decency. She further stated that Mr. Buckley’s actions in taking advantage of the minor victim, in particular, were a disgrace to his badge, and that he was a disgrace as a human being and as an adult. The trial court, therefore, sentenced Mr. Buckley to thirty-five years at hard labor, without benefit of parole, probation, or suspension of sentence on each count, with the sentences to run consecutively, for a total of two hundred forty-five years.

11sMr. Buckley filed a motion to reconsider sentence, which the trial court denied, stating that she had thought very long and hard before sentencing Mr. Buckley, and had considered the mitigating circumstances. The trial court emphasized that Mr. Buckley had chosen to commit these heinous acts while he was wearing a badge and a uniform. The trial court stressed that Mr. Buckley had been charged with upholding and enforcing the law, and had been entrusted with the responsibility of taking care of the city, yet he had committed these terrible crimes.

Mr. Buckley’s consecutive sentences, which are to be served without the benefit of parole, probation, or suspension of sentence, effectively constitute a sentence of imprisonment for the remainder of his natural life. Considering the facts and circumstances of the instant case, it cannot be said that the sentence as a whole makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, or is grossly out of proportion to the severity of the crime. Nor can it be said that, when the crime and punishment are considered in light of the harm done to society, Mr. Buckley’s total sentence shocks the sense of justice.

We there find no merit to this assignment of error.

CONCLUSION

For the foregoing reasons, Mr. Buckley’s convictions and sentences are affirmed.

AFFIRMED

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . United States v. Bowen, CRIM.A. 10-204, 2012 WL 711901 (E.D.La. Mar. 5, 2012).

      . United States v. Warren, CRIM. 10-154, 2010 WL 3923167 (E.D.La. Sept. 28, 2010) vacated and remanded sub nom. United States v. McRae, 702 F.3d 806 (5th Cir.2012).

      . The record does not contain the transcript of the 2003 statement by Mr. Buckley which the trial court in the instant case reviewed in making its decision. Neither the transcript of the motion to suppress hearing, nor the minute or docket master entries from the date of the hearing, reflects that the transcribed statement reviewed by the trial court at the hearing was introduced in evidence or introduced for record purposes.

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

      . Mr. Buckley entered a plea of guilty pursuant to State v. Crosby, 338 So.2d 584 (La.1976), under which a defendant’s right to appeal is preserved. Although Mr. Buckley did not expressly reserve his right to appeal the trial court’s denial of his oral motion for continuance, we nevertheless address it.

      . That transcript is part of this record.

      . Louisiana Code of Criminal Procedure article 883 provides:
      If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge. BONIN, J.,

license: Public Domain

text:
    STATE of Louisiana v. Leon HOWARD.
    No. 2012-KA-1117.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    John T. Fuller, IV, John T. Fuller & Associates, L.L.C., New Orleans, LA, for Defendant/Appellant, Leon Howard.
    (Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   TERRI F. LOVE, Judge.

|! This appeal arises from the Crosby plea and sentencing of Leon Howard, who reserved his right to appeal the trial court judge’s ruling on his motion to suppress, which the trial court judge previously denied. We find that the trial court judge erred in denying the motion to suppress because the New Orleans police officers’ entry into his home was unjustified because no exigent circumstances existed and the subsequently issued search warrant was partially based on information discovered during the illegal entry. Therefore, the trial court judge erred in not suppressing the evidence found in Leon Howard’s home. Accordingly, we reverse the trial court judge’s ruling on the motion to suppress the evidence, vacate Leon Howard’s guilty pleas and sentences, and remand the case for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Leon Howard was charged by bill of information with possession with intent to distribute marijuana, in violation of La. R.S. 40:966(A)(1), and possession of a firearm by a convicted felon, in violation of La. R.S. M^.l. The record does not indicate if or when an arraignment was held. However, both Mr. Howard and 12the State agree that on or around February 29, 2011, Mr. Howard entered a plea of not guilty.

Subsequently, Mr. Howard filed several pretrial motions including a Motion for Preliminary Hearing and a Motion to Suppress the Evidence. The trial court judge found probable cause to substantiate the charges and denied Mr. Howard’s Motion to Suppress. Mr. Howard filed an application for supervisory writ seeking review of the denial of the Motion to Suppress. This Court denied Mr. Howard’s supervisory writ application due to an adequate remedy on appeal, if convicted.

At trial, Mr. Howard withdrew his prior plea and entered into a plea bargain with the State, whereby Mr. Howard agreed to plead guilty to the charge of possession with the intent to distribute marijuana and to the lesser charge of illegal carrying of a firearm, in violation of La. R.S. 14:95(A), in exchange for the State’s recommendation of a five-year suspended sentence on the drug charge and a six-month suspended sentence on the firearm charge. Upon entering his guilty plea, Mr. Howard reserved his right to appellate review of the trial court judge’s ruling on his Motion to Suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

The trial court judge accepted the plea and sentenced Mr. Howard to five years at hard labor for the charge of possession with intent to distribute marijuana, with credit for time served. The trial court judge suspended the five-year sentence, placed Mr. Howard on active probation for five years, assessed a $1,000.00 fine, and $191.50 in court costs. The trial court judge also accepted the plea for the illegal carrying of a firearm charge and sentenced Mr. Howard to six months at Orleans Parish Prison, with credit for time served. The trial court judge suspended lathe six-month sentence, placed Mr. Howard on six months inactive probation, and assessed a $149.00 fine. The trial court judge ordered that the sentences for both charges run concurrently with each other and any other sentences. Mr. Howard’s timely appeal followed.

TESTIMONY

At the hearing on Mr. Howard’s Motion to Suppress, the only witness to testify was Detective Andrew Roccaforte of the Narcotics Division of the New Orleans Police Department (“NOPD”). Detective Roccaforte stated that he has been a narcotics detective for almost fifteen years and approximated that he conducted thousands of narcotics investigations.

Detective Roccaforte testified that on August 30, 2010, he received information from a confidential informant (“Cl”) that a twenty-seven year old black male named “Leon,” later identified as Mr. Howard, was storing marijuana and cocaine at 423 South Salcedo Street. The Cl stated that Mr. Howard drove a white Cadillac Esca-lade or Cadillac truck and used the vehicle to deliver drugs. The Cl also provided the license plate of the vehicle. Detective Roccaforte testified the Cl is reliable, that he used the Cl for narcotic investigations since 2004, and made numerous arrests and convictions based on tips provided by the CI.

After receiving this information, on September 1, 2010, Detective |4Roccaforte and a few members of his unit set up surveillance on 423 South Salcedo Street. The NOPD officers were all in separate unmarked police cars and in plain clothes. Detective Roccaforte stated that during the surveillance, at approximately 5:80 p.m., he observed Mr. Howard drive up in a white truck, exit the driver’s side of the vehicle, and enter the South Salcedo Street residence. An hour later, Detective Roc-caforte observed Mr. Howard come out of the residence and drive off in the truck. Detective Roccaforte and his team followed Mr. Howard and observed him stop in the 3200 block of Palmyra Street. Subsequently, an unidentified black male, who was sitting on the porch of a nearby house, entered the passenger side of the truck. A few seconds later Detective Roccaforte observed the black male exit the truck. Detective Roccaforte testified that although he could not see inside the truck, the brief exchange between Mr. Howard and the unidentified black male was suspicious.

Detective Roccaforte continued to follow Mr. Howard and observed Mr. Howard stop the truck at a playground at Baudin Street and South Clark Street. On cross-examination, Detective Roccaforte testified that the playground was known for drug activity. He then observed a young black male, approximately twenty years old, walk from the park bleachers and enter the passenger side of the white truck. Thirty seconds later the black male exited the truck and returned to the park bleachers where other men were sitting. Detective Roccaforte testified that based on his past experience in narcotics investigation and the brevity of their encounter, he believed the men engaged in a drug deal.

Thereafter, Mr. Howard drove off and two plain clothes NOPD officers, Detective Chris Henly and Sergeant Jeff Sislo, entered the park with their police credentials displayed to attempt to stop the individual who exited the truck. | sHowever, the young black male fled and successfully evaded the NOPD officers. While fleeing from the NOPD officers, the black male dropped a clear plastic bag containing vegetable matter. The vegetable matter later tested positive for marijuana.

Detective Roccaforte stated on cross-examination that he did not observe a hand-to-hand transaction between Mr. Howard and the second suspect, but again stated that the mannerisms he observed, as well as the short time frame of the exchange was “very, very consistent with a drug dealer making drops,” and was “the reason for the investigation on the individual in the park.”

Detective Roccaforte testified that because the young black male had escaped and there were several people in the park that observed the subject run from the officers, he became concerned that the investigation could be jeopardized. However, Detective Roccaforte stated that he did not observe the individual use his cell phone.

Mr. Howard returned to the neighborhood near the South Salcedo Street residence and began circling the block. When Mr. Howard stopped the truck on Baudin Street, Sergeant Sislo pulled up behind him in an unmarked Crown Victoria. Subsequently, Mr. Howard “kind [of] sped off,” turned on Banks Street, and continued towards Jefferson Davis Parkway. However, Sergeant Sislo eventually stopped Mr. Howard at South Rendon and Banks Street. Detective Roccaforte testified that Mr. Howard was then advised of the nature of their investigation, handcuffed, and placed in the back of the police car.

Thereafter, the NOPD officers relocated to 428 South Salcedo Street with |fiMr. Howard to secure the residence. Detective Roccaforte testified that it was their intention to use Mr. Howard’s keys to open the front door of the residence. However, when Mr. Howard refused to indicate which key would unlock the door, another NOPD officer, Detective Burke, kicked in the front door so they could enter. Detective Roccaforte stated that it was important not to waste time, as he was concerned about someone inside the house destroying evidence. He stated that at no point in conducting their surveillance did the NOPD officers see anyone go inside the South Salcedo Street residence other than Mr. Howard. Detective Roccaforte further admitted that prior to forcing entry, neither he nor the other NOPD officers heard anyone inside the South Salce-do Street residence or anyone fleeing from the residence. Once inside the residence, the NOPD officers observed in plain view, a large amount of marijuana inside an open shoe box, two digital scales, and sandwich bags on top of a bedroom dresser.

After confirming no one was inside the residence, the NOPD officers asked Mr. Howard if they could have his consent to search the residence. Mr. Howard declined, and Detective Roccaforte proceeded to prepare an application for a search warrant. At 8:58 p.m., magistrate commissioner John Blanchard reviewed the application and authorized the warrant to search the South Salcedo Street residence. Detective Roccaforte returned to the residence to execute the search warrant. The NOPD officers found a loaded 9 millimeter handgun with an extended magazine and $243.00 inside the top drawer of the same bedroom dresser where the NOPD officers observed the marijuana. After running the serial numbers, the NOPD officers discovered that the handgun was reported stolen. Mr, |7Howard was subsequently arrested for possession of marijuana with intent to distribute and possession of a firearm by a convicted felon. A field test confirmed that the substance found on the bedroom dresser was marijuana.

On cross-examination, Detective Rocca-forte testified that the information the informant provided was neither sufficient to obtain a search warrant nor probable cause for an arrest. He stated that to establish probable cause he either needed to set up a “controlled buy” or surveillance. On redirect, Detective Roccaforte testified that the application for the search warrant was based on the reliable information provided by the Cl as well as his own observations and belief that Mr. Howard was engaging in illegal drug deals. However, his testimony also indicated that the search warrant was based, in part, on the evidence the NOPD officers discovered in securing the residence. Detective Rocca-forte testified that the application he presented to the magistrate referenced the “one pound of vegetable matter, sandwich bags, and a digital scale lying on the bedroom dresser” that the NOPD officers observed in plain view after entering Mr. Howard’s home.

ERRORS PATENT

The record does not show that Mr. Howard was formally arraigned. However, La.C.Cr.P. art. 555 provides that “[a] failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.” Here, although Mr. Howard did not go to trial on April 2, 2012, the record does not reflect that Mr. Howard made any objection regarding the lack of | ^arraignment. Further, the April 2, 2012 transcript provides that Mr. Howard withdrew his prior pleas of not guilty before pleading guilty to the charges set forth in the amended bill of information. The parties do not dispute that Mr. Howard formerly pled not guilty. Therefore, any error with regard to the trial court judge’s failure to arraign Mr. Howard was waived and/or cured by Mr. Howard’s subsequent Crosby plea. As such, no action is required by this Court. See State v. Brown, 620 So.2d 508, 511-12 (La.App. 4th Cir.1993) (finding that the failure to arraign the defendant was patent error but was harmless, where defendant never objected to the lack of arraignment and did not urge it as grounds for reversal on appeal); State v. Keller, 12-0382, p. 4 (La.App. 4 Cir. 12/12/12), 106 So.3d 696, 699 (finding that no action was required by the appellate court when the defendant made no objection to not being arraigned).

MOTION TO SUPPRESS

As his sole assignment of error, Mr. Howard contends that the trial court judge erred in denying his Motion to Suppress the evidence. Specifically, Mr. Howard asserts that the NOPD officers did not observe him engage in illegal activity; therefore, they lacked sufficient cause to stop and arrest him. Mr. Howard also contends that the search of his home was unlawful because no exigent circumstances existed to justify the warrantless entry. He further avers that the evidence should be suppressed because the application for the search warrant contained information gleaned from the NOPD officers’ allegedly illegal entry into Mr. Howard’s home.

“The trial court is vested with great discretion when ruling on a motion to suppress” and, consequently, the ruling of a trial judge on such a motion will not be disturbed absent an abuse of that discretion. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. “[T]he district court’s findings of fact on a motion to suppress” are reviewed “under a clearly erroneous standard,” and its “ultimate determination of Fourth Amendment reaspnableness is reviewed de novo. State v. Pham, 01-2199, p. 3 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. U.S. Const. Amend. IV; La. Const. Art. 1, § 5; State v. Francis, 10-1149, p. 4 (La.App. 4 Cir. 2/16/11), 60 So.3d 703, 708. However, “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” La.C.Cr.P. art. 215.1(A); see also, 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); State v. Fauria, 393 So.2d 688, 690 (La.1981).

In State v. Dank, 99-0390, pp. 4-5 (La.App. 4 Cir. 5/24/00), 764 So.2d 148, 155, this Court explained the factors a reviewing court must consider in determining whether an investigatory stop was permissible. This Court stated:

“Reasonable suspicion” to stop is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect’s rights. State v. Littles, 98-2517, p. 3 (La.App. 4 Cir. 9/15/99), 742 So.2d 735, 737; State v. Clay, 97-2858, p. 4 (La.App. 4 Cir. 3/17/99), 731 So.2d 414, 416, writ denied, 99-0969 (La.9/17/99), 747 So.2d 1096. Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989; State v. Tyler, 98-1667, P. 4 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 770. In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy that it entails. See State v. Harris, 99-1434, pp. 2-3 (La.App. 4 Cir. 9/8/99), 744 So.2d 160, 162. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914; State v. Mitchell, 98-1129, p. 9 (La.App. 4 Cir. 2/3/99), 731 So.2d 319, 326. The detaining officers must have knowledge of specific, articulable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. State v. Dennis, 98-1016, p. 5 (La.App. 4 Cir. 9/22/99), 753 So.2d 296, 299; State v. Keller, 98-0502, p. 2 (La.App. 4 Cir. 3/10/99), 732 So.2d 77, 78. In reviewing the totality of the circumstances, the officer’s past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. Cook, 99-0091, p. 6 (La.App. 4 Cir. 5/5/99), 733 So.2d 1227, 1231; State v. Williams, 98-3059, p. 3 (La.App. 4 Cir. 3/3/99), 729 So.2d 142, 144. Deference should be given to the experience of the officers who were present at the time of the incident. State v. Ratliff, 98-0094, p. 3 (La.App. 4 Cir. 5/19/99), 737 So.2d 252, 254.

Id.

“Under certain circumstances an informant’s tip can provide reasonable cause to detain and question a suspect.” State v. Rodriguez, 99-914, p. 6 (La.App. 5 Cir. 1/25/00), 761 So.2d 14, 17. Generally, the informant’s tip must contain predictive information regarding the future behavior of the reported suspect, and the tip must be corroborated. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). See also State v. Robertson, 97-2960 (La.10/29/98), 721 So.2d 1268. In applying the totality of the circumstances analysis, independent corroboration by police investigation of the details of an informant’s tip is valuable. State v. Melancon, 03-514, p. 6 (La.App. 5 Cir. 10/28/03), 860 So.2d 225, 229. Even a non-predictive anonymous tip combined with police |n corroboration or independent police observation of unusual suspicious conduct can give police the necessary reasonable suspicion to temporarily detain the suspect. Robertson, 97-2960, p. 5, 721 So.2d at 1270-72; State v. Triche, 03-149, p. 6 (La.App. 5 Cir. 5/28/03), 848 So.2d 80, 85. “[I]f the tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” Alabama, 496 U.S. at 330, 110 S.Ct. 2412, 110 L.Ed.2d 301.

The State contends that it was reasonable for Detective Roceaforte to believe that Mr. Howard was engaged in criminal activity based on his observing the short alleged exchanges between Mr. Howard and the two other black males. The State cites State v. Fearheiley, 08-0307 (La.4/18/08), 979 So.2d 487, in support.

In Fearheiley, an officer observed the defendant engage in an apparent hand-to-hand transaction, but was unable to determine what was exchanged. 08-0307, p. 2, 979 So.2d at 488. The exchange lasted fifteen to twenty seconds “inside one of two cars which had arrived separately ... with no apparent purpose that evening other than facilitating the brief exchange before the parties, who appeared to the officer to have no other connection to each other, went their separate ways.” Id. The defendant stated that he met the other person in order to receive payment on a debt. Fearheiley, 08-0307, p. 2, 979 So.2d at 489. The Court held that the officer had reasonable suspicion for an investigatory stop, noting that the defendant’s “other possible innocent explanations ... did not require the officer to turn a blind eye” to the encounter and ignore his “experience in narcotics investigations.” Id.

In the case sub judice, the NOPD officers utilized a Cl that was reliable in the past. The Cl reported that Mr. Howard was storing drugs at his South Salcedo Street residence, used a white Cadillac truck to deliver the drugs, and provided the 112license plate of the truck. Although the Cl did not provide predicative information such as time frame Mr. Howard would engage in the alleged illegal activity, the NOPD officers were able to corroborate certain details provided by the Cl, such as the description of the vehicle Mr. Howard was driving, the license plate of vehicle, and location of Mr. Howard’s residence. Additionally, Detective Roceaforte observed Mr. Howard make two stops wherein two unknown men entered the passenger side of Mr. Howard’s truck for a short period of time. While the NOPD officers did not actually observe a hand-to-hand transaction, Detective Roceaforte stated that the location that Mr. Howard made the second stop was known for illegal drug activity. Further, the second suspected purchaser fled from the NOPD officers and dropped a bag of marijuana when the NOPD officers attempted to conduct an investigatory stop. Based upon the past reliability of the Cl, Detective Roccaforte’s years of narcotics experience, and the NOPD officers’ observations of Mr. Howard engaging in behavior consistent with selling drugs, like in Fearheiley, the NOPD officers had reason to believe Mr. Howard was engaging in criminal activity. Thus, the NOPD officers were justified in the initial stop and detention of Mr. Howard.

Mr. Howard also contends that the trial court judge erred in denying his Motion to Suppress because no exigent circumstances existed that justified the NOPD officers’ warrantless entry into his residence.

It is a well-established exception that police officers may enter a house without a warrant if they have probable cause to believe there is contraband inside and exigent circumstances that require immediate entry. State v. Jones, 02-1931, pp. 5-6 (La.App. 4 Cir. 11/6/02), 832 So.2d 382. This Court, in State v. Fournette, 08-0254, p. 19 (La.App. 4 Cir. 7/2/08), 989 So.2d 199, 211, described |13the exigent circumstances exception to the warrant requirement, as follows:

There is a justified intrusion of a protected area if there is probable cause to arrest and exigent circumstances. State v. Rudolph, 369 So.2d 1320, 1326 (La.1979), cert. den., Rudolph v. Louisiana, 454 U.S. 1142, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). Exigent circumstances are exceptional circumstances which, when coupled with probable cause, justify an entry into a “protected” area that, without those exceptional circumstances, would be unlawful. Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence. State v. Hathaway, 411 So.2d 1074, 1079 (La.1982).

Fournette, quoting State v. Page, 95-2401, p. 10 (La.App. 4 Cir. 8/21/96), 680 So.2d 700, 709.

In State v. Wright, 02-2354, p. 5 (La.App. 4 Cir. 6/18/03), 850 So.2d 778, 781, this Court discussed factors that might lead officers to conclude a warrantless entry is necessary to prevent the destruction of evidence. These factors include:

(1) The degree of urgency involved and the amount of time necessary to obtain a warrant;
(2) A reasonable belief that the contraband is about to be removed;
(3) The possibility of danger to police officers guarding the site of the contraband while a search warrant is sought;
(4) Information indicating the possessors of the contraband were aware that the police were on their trail; and
(5) The ready destruction of the contraband and the knowledge and efforts to dispose of narcotics and escape are characteristic behavior of persons engaged in narcotics traffic.

Id.

The State asserts that the NOPD officers were entitled to enter Mr. Howard’s residence because they were concerned that the second purchaser, who previously evaded the NOPD officers at the playground, or Mr. Howard’s neighbors, who | Hcould have observed Mr. Howard cuffed outside the house, would notify any occupants of Mr. Howard’s home who would then destroy any evidence while a search warrant was being obtained.

In State v. Williams, 619 So.2d 650, 654 (La.App. 4th Cir.1993), this Court found that the officers’ warrantless entry into a residence was justified to prevent the possibility of other occupants of the residence from destroying evidence. The officers were informed by a confidential informant that two brothers were dealing narcotics from their home. Id., 619 So.2d at 652. As a result of the tip, the officers conducted surveillance of the brothers’ home for a couple of days with the assistance of the informant. Id. During the surveillance, the officers observed several individuals, including the informant, one of the brothers, and two other subjects come in and out of the residence. Id. On the second day of the surveillance, the informant exited the brothers’ residence and signaled to the officers that a drug deal was about to occur. Id. A few minutes later one brother and an accomplice left the residence in separate cars. Id. When the officers observed the brother and the accomplice engage in a hand-to-hand transaction, the officers apprehended both men. Id. The officers then entered and “secured” the brothers’ residence. Id. The Williams Court found the officers’ entry was warranted because the informant “had provided information that additional quantities of cocaine were located in the house, and two days earlier had witnessed [the arrested brother] walk upstairs stating that he was making a deal and would return shortly” and because the officers’ surveillance revealed activity consistent with drug trafficking. Id., 619 So.2d at 654.

However, Williams is distinguishable because the NOPD officers did not observe anyone come in and out of the South Salcedo Street residence other than | iSMr. Howard. Further, the Cl did not report to Detective Roccaforte that Mr. Howard was working in conjunction with anyone else or that Mr. Howard was residing with someone at the South Salcedo Street property. Thus, there was no reason for the NOPD officers to believe that another individual would be at the residence to destroy evidence. Moreover, there is no testimony indicating that either Mr. Howard or the other alleged occupant was aware of the narcotics investigation prior to Mr. Howard’s detention.

The record indicates that when the NOPD officers attempted to conduct an investigatory stop of the second purchaser, Mr. Howard had already left the area. Detective Roccaforte testified that Mr. Howard was getting gas at the Shell station on Tulane and Jefferson Davis when the second purchaser fled the NOPD officers. The NOPD officers did not observe the second purchaser or Mr. Howard use a cell phone to potentially warn the alleged occupant of the investigation. Any alleged exigent circumstances were created by the NOPD officers when they relocated Mr. Howard to the South Salcedo Street residence.

Recently, this Court, in Fournette, found that the entry into a car wash building was illegal where the police officers’ action caused the alleged exigency. 08-0254, p. 8, 989 So.2d at 211. The officers received information from a confidential informant that several subjects were bagging cocaine and marijuana at the car wash and decided to investigate. Id., 08-0254, p. 7, 989 So.2d at 203, quoting State v. James, 07-1103, pp. 2-3 (La.App. 4 Cir. 3/12/08), 980 So.2d 769, 771. After observing two men and a large bag of marijuana through a crack in the garage doors, the officer notified dispatch, and another officer knocked on the front door of the business and announced his presence. Fournette, 08-0254, p. 3, 989 So.2d at 201. When the officers saw several individuals panic and disperse, they | ^entered the building to secure the premises while a search warrant was obtained. Id., 08-0254, p. 8, 989 So.2d at 204, quoting State v. James, 07-1103, p. 4 (La.App. 4 Cir. 3/12/08), 980 So.2d 769, 771-72. This Court found:

[ I]t appears that any exigency that the officers had was caused by Det. Keaton’s decision to pound on the door and try to go inside. Indeed, Det. Keaton testified that the suspects would not have been able to escape the car wash undetected while they obtained a warrant, and there was no indication that the men inside the car wash knew that the officers were outside or had discovered that drugs were inside until Det. Keaton pounded on the door, announced the officers’ presence, and demanded that they open the door. Without exigent circumstances, the officers could not lawfully enter without a warrant. Thus, the officers’ entry was not lawful.

Id. at p. 22, 989 So.2d at 213.

This Court also found in State v. Jones, 02-1931 (La.App. 4 Cir. 11/6/02), 832 So.2d 382, that there were no exigent circumstances to justify the officers’ warrantless entry into a defendant’s residence even though the individual who had just purchased drugs was arrested near the defendant’s home. In Jones, the officers conducted surveillance of a targeted residence for three days over a period of one and a half months. On each occasion they observed suspected drug transactions, and after the first two days, they obtained an arrest warrant for one of the participants. In addition, they began preparing a search warrant application for the residence, but they were waiting for additional information from the third day of surveillance. After watching more suspected drug sales on the third day of the surveillance, the officers stopped one of the participants “near” the residence. After finding contraband and arresting the participant, they then entered the residence to “secure” it while they sought the search warrant and in fact began searching the residence prior to the issuance of the warrant. The trial court judge | ^suppressed the evidence, finding the fact that the participant was arrested “near” the defendant’s residence did not give the officers exigent circumstances to enter the residence prior to the issuance, of the warrant. This Court agreed and upheld the suppression of the evidence. The Jones Court stated, in part:

[ Tjhere is merit to defense counsel’s argument that any “exigent circumstances” in this case were created by the officers’ decisions to wait to get the search warrant and to arrest Raiford [the participant] “near” the residence. Thus, the trial court did not abuse its discretion by finding there were no exigent circumstances which would have allowed the officers to enter the residence prior to obtaining the warrant.

Id. at pp. 6-7, 832 So.2d at 387.

Here, assuming Mr. Howard had an accomplice or someone residing within his South Salcedo Street home, Mr. Howard was blocks away when he was stopped and detained by the NOPD officers. The park where the NOPD officers attempted to stop the second purchaser was also several blocks from Mr. Howard’s residence. Under Jones, mere proximity to the residence where contraband is allegedly stored is insufficient to create exigency for the warrantless entry absent reasonable belief that evidence is being destroyed. Moreover, it was only after the NOPD officers relocated Mr. Howard to the South Salcedo Street residence that any alleged occupant or neighbor would have been made aware of their narcotics investigation. Thus, similar to Fournette, the NOPD officers’ action created the alleged exigent circumstances. Accordingly, the NOPD officers’ subsequent entry into Mr. Howard’s home without a warrant was not justified.

Alternatively, the State asserts that the evidence should not be suppressed because Detective Roccaforte did not base his application for a search warrant on | ^anything found while securing the residence. The State relies State v. Flores, 10-0960 (La.6/18/10), 37 So.3d 997 (per cu-riam ). In Flores, the Louisiana Supreme Court reversed the trial court judge’s grant of a motion to suppress under the inevitable discovery doctrine. Id. at p. 3, 37 So.3d at 998. The Flores Court found that even assuming police entry into the residence occurred without exigent circumstances or consent, suppression of the evidence was not required because the police would have obtained a valid search warrant “[b]ecause nothing the officers observed on the premises after their initial entry affected the decision to obtain a warrant, and because the probable cause basis for the warrant application derived not from their observations on the scene but from wholly independent sources, i.e., from a confidential informant and defendant.” Id. at pp. 1-2, 37 So.3d at 998.

Similarly, in Fournette, 08-254, p. 24, 989 So.2d at 214, this Court held that the police officers’ warrantless entry into the car wash did not taint a subsequently-obtained search warrant. Fournette noted that the only reference contained in the search warrant affidavit to the officers’ entry was the statement that the “officers entered the car wash to secure it while [another officer] obtained the search warrant.” Id. This Court thus held “because the warrant was not based upon any information gleaned from the illegal entry, it was not tainted by that entry, and the inevitable discovery doctrine would apply in this case if the search warrant was lawfully issued.” Id.

In the instant case, however, contrary to the State’s assertion, the information discovered from the NOPD officers’ initial warrantless entry was included in the application for a search warrant. Although the record does not contain a copy of the application for search warrant or the subsequently issued [ ^search warrant, Detective Roccaforte testified at the hearing on the motion to suppress that the items the NOPD officers observed in Mr. Howard’s home were included in the application. The transcript provides:

[ Defense Counsel]: When you apply, for the search warrant, do you indicate that ... when you were securing the residence ... that you observed marijuana in the bedroom? Is that indicated on your application for search?
[Det. Roccaforte]: To make sure I’d look at the search warrant, but I’m pretty certain that, yes, I indicated that in the search warrant.
* * *
[Det. Roccaforte]: Yes. The second paragraph from the bottom of the second page, upon securing [the residence I] observed approximately — I said one pound of vegetable matter, sandwich bangs, and a digital scale lying on the bedroom dresser in plain view.
[Defense Counsel]: So you would agree that that’s in the application that you gave to Judge Blanchard?
[Det. Roccaforte]: Yes.

Thus, because the application was based in part on the evidence discovered from the NOPD officers’ unjustified entry, the subsequently issued warrant to search Mr. Howard’s residence does not cure the illegal entry.

Although the NOPD officers had reason to suspect Mr. Howard’s involvement in illegal narcotics transactions, the NOPD officers’ forced entry into Mr. Howard’s home without a warrant was unjustified. No exigent circumstances existed that would permit the intrusion because the NOPD officers had no reason to believe that anyone other than Mr. Howard lived at the residence and had no information indicating that any alleged occupant of the residence was aware of the narcotics investigation, such that evidence would be destroyed. Moreover, the NOPD officers created any exigency by returning Mr. Howard to his residence. ^Further, because the search warrant was based in part on the items discovered from the NOPD officers’ unjustified entry, the subsequently issued warrant to search Mr. Howard’s residence does not cure the illegal entry. Accordingly, we find that the trial court judge should have suppressed the evidence found at Mr. Howard’s home. We reverse the trial court judge’s ruling on the Motion to Suppress the evidence, vacate Mr. Howard’s guilty pleas and sentences, and remand for further proceedings.

DECREE

For the above-mentioned reasons, we reverse the trial court judge’s ruling on Mr. Howard’s Motion to Suppress because the NOPD officers did not have cause to enter Mr. Howard’s residence without a warrant. Therefore, we vacate Mr. Howard’s guilty pleas and sentences, and remand for further proceedings.

REVERSED; VACATED AND REMANDED.

BONIN, J., dissents with reasons.

BONIN, J.,

dissents with reasons.

1,1 respectfully dissent. Here, there is no question that the evidence seized by the police occurred after the officers had obtained a search warrant; thus, the burden of proof was upon Mr. Howard to establish the violation of the defendant’s reasonable expectation of privacy as protected by the Fourth Amendment. See La.C.Cr.P. art. 70S D. As an objective proposition, the officers had sufficient probable cause to obtain a warrant from a neutral magistrate to search Mr. Howard’s home, but even if there were some deficiency, the defendant’s evidence does not overcome the entitlement of the officers to rely in good faith upon the warrant which they obtained. See United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

And, even assuming that the extenuating circumstances were attenuated at best for the officers’ sweep of Mr. Howard’s home before the issuance of the warrant, they were entitled to preserve the status quo while a warrant was obtained. See State v. Flores, 10-0960, p. 1 (La.6/18/10), 37 So.3d 997, 998. Such a dwelling seizure is not in and of itself unreasonable. See Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). But, in any event, I conclude that Mr. Howard really has no complaint. If there was no threat to the destruction of the contraband drugs, they would have been discovered as a result of the execution of the search warrant. See Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).

Thus, I conclude that Mr. Howard did not carry his burden to show that he was entitled to the suppression of the marijuana evidence. I also am loath to reverse in this particular case where we do not have in evidence before us the affidavit in support of the application for the search warrant which was presented to the magistrate and which was considered by the trial judge at the hearing on the motion.

      . The bill of information alleges that Mr. Howard was previously convicted of attempted armed robbery in Case No. 407-853.

      . This will be addressed in this Court's review for errors patent.

      . The State amended the bill of information to reflect the agreement the same date.

      . There is a discrepancy in the record with regard to the fees imposed by the trial court judge for the firearms charge. The sentencing transcript provides that the trial court judge ordered Mr. Howard to pay $149.00 in connection with the firearms charge, but the minute entry contains the fees assessed for the drug charge. Additionally, both Mr. Howard and the State omit the $149.00 fine from their briefs.

      . In his motion for appeal, Mr. Howard requested that the application for search warrant and the warrant for search, among other things, be made part of the record for appeal. However, when the record was lodged with this Court, the application and search warrant were not included in the record. As a result, on September 25, 2012, this Court issued an order to the Criminal District Court Clerk of Court to forward the missing documents (introduced at the April 1, 2011 hearing as S-l en globo) or advise the Court in writing that the documents cannot be located. Pursuant to this Court's order, the Clerk of the Criminal District Court advised this Court in writing that the referenced documents were not contained in the case file.

      . When the NOPD officers were unsuccessful in detaining the individual in the park, Detective Roccaforte instructed Detective Czapla to go back to South Salcedo Street to keep an eye on the residence.

      . Prior to forcing entry into the residence, the NOPD officers unsuccessfully attempted to open the door with each key on the key ring. The NOPD officers later found the front door key in the white truck Mr. Howard was driving.

      . As noted above, neither the application nor the warrant is contained in the appellate record.

      . Initially the NOPD officers were not aware that Mr. Howard was convicted of a felony and arrested him for possession of a firearm while in possession of illegal narcotics and possession with the intent to distribute marijuana. The NOPD officers subsequently learned that Mr. Howard was previously convicted of armed robbery and added the charge of possession of a firearm by a convicted felon. The State apparently did not prosecute the charge of possession of firearm while in possession of illegal narcotics.

      . But see, State v. Pounds, 00-2118, pp. 6-7, 789 So.2d 721, 724-725, and fn. 11 (La.App. 4 Cir.2001).

      . As previously noted, at the hearing on the motion to suppress the evidence, the State introduced the application and search warrant as State’s Exhibit S-l. These documents, however, are not contained in the record on appeal. The Clerk of the Criminal District Court advised this Court that the referenced exhibit was not contained in the case file.