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02/26/02 "See News Release 14 for any concurrences and/or dissents."

SUPREME COURT OF LOUISIANA
No. 00-K-3437 STATE OF LOUISIANA v. LEVY BRISBAN
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

KIMBALL, Justice Defendant was convicted of attempted possession of cocaine in violation of La. R.S. 40:967(C) and sentenced as a quadruple offender to twenty years imprisonment at hard labor without benefit of parole, probation, and suspension of sentence. The court of appeal reversed the conviction, finding the trial court erred in denying defendant's motion to suppress and his motion for new trial. For the reasons that follow, we find that the arresting officer was lawfully in a position to observe defendant's companion cutting cocaine on a table littered with narcotics paraphernalia, that there were exigent circumstances allowing the officer to immediately enter the residence to prevent the destruction of the evidence, and that the officer had probable cause to arrest defendant. We further find that the trial court did not abuse its discretion in denying defendant's motion for new trial. Accordingly, we reverse the court of appeal's judgment, reinstate defendant's conviction and sentence, and remand the case to the court of appeal for it to consider defendant's remaining assignments of error it pretermitted on original appeal. Facts and Procedural History

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At approximately 8:30 on the morning of October 25, 1996, New Orleans Police Officer Harry O'Neil made an arrest for a drug offense at Louisiana Guest House located at 2216 Louisiana Avenue. Following the arrest, Officer O'Neil noticed that there was no one on the front porch of the apartment building next door at 2212 and 2214 Louisiana Avenue. According to Officer O'Neil's testimony taken at a subsequent hearing on a motion to suppress, this was significant to him because he customarily spoke with "several older people" who sat on the porch and they had told him "if they are not on the front porch that means that there is drug activity in the area as they don't want to be associated with it." Upon noting that the front porch was empty, Officer O'Neil walked onto the porch of the apartments to check on and talk to one of the individuals who usually sat on the porch. As he walked onto the front porch, he observed through the screen door of the apartment at 2212 Louisiana Avenue a man cutting crack cocaine with a razor blade on a coffee table littered with drug paraphernalia. The officer also saw another man, later identified as the defendant, sitting upright on a sofa behind the coffee table. When Officer O'Neil entered the residence, defendant lay on the sofa and pretended to be asleep. Officer O'Neil arrested both men and, during a search incident to the arrest, discovered two crack pipes containing cocaine residue in defendant's coat pocket. The officer also discovered a metal push rod and a razor blade in defendant's pants pocket. On January 23, 1997, defendant was charged by bill of information with one count of possession of cocaine in violation of La. R.S. 40:967(C). Defendant subsequently filed a motion to suppress the evidence on grounds that it was obtained as the result of an illegal search. After a hearing, defendant's motion was denied by the trial court. Defendant proceeded to trial on October 15, 1997 and a jury convicted him of the lesser offense of attempted possession of cocaine. On April 20, 1998, the

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court sentenced defendant as a quadruple offender to twenty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Following sentencing, defendant filed a Motion for Appeal and a Motion to Reconsider Sentence. The trial court denied the Motion to Reconsider Sentence, but granted the Motion for Appeal. Subsequently, prior to the lodging of the full appellate record, defendant filed a pro se Motion in Arrest of Judgment, or in the alternative, Motion for New Trial based on newly discovered evidence. Specifically, defendant argued that the trial court should grant him a new trial because his counsel was unprepared for trial, and therefore ineffective, and because he had obtained an affidavit signed by his codefendant stating that defendant was asleep when Officer O'Neil entered the residence and had no knowledge of the cocaine being in the house. The court of appeal remanded the matter to the trial court for a hearing on the motion. On May 10, 1999, the trial judge denied defendant's motion without hearing argument or testimony. On appeal, the court of appeal reversed defendant's conviction and sentence and remanded the matter to the trial court for a new trial. The court found that the trial court erred in denying defendant's motion to suppress and his motion for a new trial. Specifically, the court found that the arresting officer never observed defendant committing any crime or participating in his companion's illegal activity. The court reasoned that the officer therefore failed to articulate any reasonable suspicion that the defendant had committed a crime or was in the process of committing a crime, and concluded that the officer had no probable cause to arrest or search defendant. Additionally, the court of appeal found that the officer had no right to be on the porch and the evidence seized from defendant was obtained in violation of defendant's Fourth Amendment rights. Finally, the court, without articulating specific reasons,

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concluded the trial court erred in denying defendant's motion for new trial. The State filed an application for rehearing in the court of appeal, but the application was denied. This court granted certiorari to review the judgment of the court of appeal. State v. Brisban, 00-3437 (La. 11/9/01), __ So.2d __.1 Law and Discussion In its first assignment of error, the State contends that the court of appeal erred in reversing the trial court's denial of defendant's motion to suppress. The State alleges that the court of appeal's findings that Officer O'Neil violated defendant's reasonable expectation of privacy when he entered the front porch of the apartment building and approached the front door of 2212 Louisiana Avenue, and that Officer O'Neil had no probable cause to arrest defendant were erroneous. In response, defendant argues that because Officer O'Neil had no legitimate reason to be on the front porch and because the officer never observed defendant involved in any illegal activity, the court of appeal was correct in concluding that the trial court erred in denying the motion to suppress. The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Similarly, the Louisiana Constitution provides that "[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy." La. Const. art. 1,

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