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STATE OF LOUISIANA VERSUS STEPHEN PINEDA

iD IZMAR I 3 M'111: 40

NO.ll-KA-746 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 10-5874, DIVISION "'B"
HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING


MARCH 13,2012


MARION F. EDWARDS
CHIEF JUDGE
Panel composed of Judges Marion F. Edwards,
Marc E. Johnson, and Robert A. Chaisson


PAUL D. CONNICK, JR. District Attorney TERRY M. BOUDREAUX ANNE WALLIS JACQUELINE F. MALONEY Assistant District Attorneys Twenty-Fourth Judicial District Parish of Jefferson, State of Louisiana 200 Derbigny Street Gretna, Louisiana 70053 COUNSEL FOR PLAINTIFF/APPELLEE CESAR R. BURGOS ROBERTB. EVANS, III GABRIEL O. MONDINO MARIE J. LEON Burgos & Evans 3535 Canal Street New Orleans, Louisiana 70119 COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED

efendant/appellant, Stephen Pineda ("Pineda"), appeals his conviction and sentence on a charge of possession of cocaine in violation of La. R.S. 40:967(C). Pineda entered a plea of guilty pursuant to State v. Crosby) after a motion to suppress was heard and denied by the trial court. Pineda was sentenced to two years of imprisonment at hard labor that was deferred. He was then sentenced to two years of active probation, in addition to forty hours of community service and a substance abuse evaluation to determine whether treatment would be necessary? Pineda filed an appeal motion that was granted. In Pineda's only assignment of error, he asserts the motion to suppress should have been granted because the information in the anonymous tip received by the arresting officer alone, or coupled with the independent knowledge of the officer or other corroborating factors known to the officer, was insufficient to form
) 338 So.2d 584 (La. 1976). 2lt was further ordered that Pineda's sentence was to be served concurrently with misdemeanor possession of marijuana and possession of drug paraphernalia sentences imposed in case No. 10-5875. Additionally, the record reflects that Pineda's probation officer filed a Motion and Order for Hearing to Revoke Probation on May 17,2011; however, the disposition of the hearing is unknown.

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the basis for reasonable suspicion to justify the stop and detention conducted that led to the arrest. Finding no merit in Pineda's assignment of error, we affirm. Deputy Jessica Lee, of the Jefferson Parish Sheriffs Office Second District Patrol Division, testified that, on November 16, 2010, she was on patrol when she received a call at approximately 11:00 p.m. concerning a possible crime in progress in her area. Deputy Lee testified that a complainant, who wished to remain "confidential," called to report that a red four-door Chevrolet truck containing suspects, who were smoking "illegal drugs," was parked in the back of a parking lot in an apartment complex at 650 Bellemeade. Deputy Lee stated that she was not familiar with the anonymous informant and did not know the informant's name. Deputy Lee further testified regarding the subject location of the truck noting, "[w]e have frequent callers about the activity back there. They are concerned about that apartment complex. We get numerous calls. If anything seems out of place people do call." However, Deputy Lee testified that she could not remember any drug arrests she has made in that area in her three years on patrol of the Second District. Upon receiving this information, and pursuant to protocol that requires an officer response to all calls received, Deputy Lee proceeded to the location identified by the confidential informant and immediately saw the red four-door Chevrolet. Deputy Lee testified that she arrived at the scene about six or seven minutes after receiving the anonymous phone call. Once on the scene, Deputy Lee exited her vehicle and began to approach the truck. The driver (Pineda) and one other passenger were seated inside the red Chevrolet. While approaching the red Chevrolet, Deputy Lee smelled marijuana and observed Pineda throw something out the window. The deputy also heard Pineda state, "I'm done smoking our -3

blunt," a slang word for marijuana. Deputy Lee also testified that she observed both Pineda and the passenger making movements around in the car, and she could see the passenger reach around to the backseat of the vehicle. At that time, a second deputy arrived, and both subjects were asked to step out of the vehicle. While they were exiting the vehicle, Deputy Lee testified that she observed a white baggy in the center console of the car. According to Deputy Lee, she has had experience in conducting arrests for drug-related crimes, and concluded that, in her experience, the white substance appeared to be powder cocaine. Deputy Lee retrieved the bag, later discovered to be cocaine, and Pineda and the passenger were placed under arrest and informed of their rights under Miranda v. Arizona.' A search of the vehicle was then performed, and money and marijuana were seized. At the conclusion of Deputy Lee's testimony, Pineda argued to the trial court that the factors set forth by this Court to determine the credibility and reliability of anonymous tips were not met. Defense counsel argued that reasonable suspicion was lacking for Deputy Lee to report to the subject parking lot and stop Pineda. 4 The trial court denied Pineda's motion to suppress finding as follows: Once she gets a call and once she is dispatched to the scene she as [sic] got to do some investigation, and I think because of the fact that she testified the call was that there was a red pickup truck in the back of the parking lot, four-door red pickup truck, I think she acting within - she had enough reason and suspicion to go at least check it out, and I think once she got on the scene there she testified she could smell marijuana, and the statement made by the defendant. I think once she got on the scene, and once she approached the vehicle and could smell what they believed to be marijuana, and heard the defendant make his statement that he just finished his blunt, and saw inside on the console what appeared to her to be powdered cocaine, I think that is enough on her part.

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3384 U.S. 436, 444,86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).
This argument was based on State v. Atkins, 05-823 (La. App. 5 Cir. 3/14/06), 926 So.2d 591.


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In brief to this Court, Pineda argues that the narcotics used to charge him were seized in violation of his Fourth and Fourteenth Amendment rights under the United States Constitution and Article I,

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