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STATE OF LOUISIANA                                                      *   NO. 2011-KA-1221
VERSUS                                                                  *
                                                                            COURT OF APPEAL
JOHN W. DOWDELL                                                         *
                                                                            FOURTH CIRCUIT
                                                                        *
                                                                            STATE OF LOUISIANA
                                                                        *
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 476-498, SECTION “B”
Honorable Lynda Van Davis, Judge
Judge Daniel L. Dysart
(Court composed of Judge Paul A. Bonin, Judge Daniel L. Dysart, Judge
Rosemary Ledet)
Leon A. Cannizzaro, Jr.
District Attorney
Scott G. Vincent
Assistant District Attorney
619 South White Street
New Orleans, LA 70119
COUNSEL FOR STATE OF LOUISIANA
Holli Herrle-Castillo
LOUISIANA APPELLATE PROJECT
P. O. Box 2333
Marrero, LA 70073
COUNSEL FOR DEFENDANT/APPELLANT
CONVICTION AND SENTENCE
AFFIRMED; REMANDED FOR CORRECTION
OF RECORD
AUGUST 22, 2012




John W. Dowdell appeals his conviction and sentence arguing that his
motion to suppress evidence should have been granted, and that he did not plead
guilty to a multiple bill.  For the following reasons, we affirm his conviction and
sentence, but order the trial court to amend the January 31, 2011, minute entry to
delete any reference to a multiple bill or enhanced sentence.
PROCEDURAL BACKGROUND:
Defendant  was  charged  with  one  count  of  illegal  possession  of  stolen
property valued over $500.00, a violation of La. R.S. 14:69 B(1)1.   He plead not
1 The docket master mistakenly indicates that the charge was possession of stolen property
valued over $1,500.00.   The defendant was charged under the 2007 statute (prior to the 2010
amendment-2010 La. Acts, No. 585, § 1), which provided in pertinent part:
A.  Illegal possession of stolen things is the intentional possessing, procuring,
receiving, or concealing of anything of value which has been the subject of
any robbery or theft, under circumstances which indicate that the offender
knew or had good reason to believe that the thing was the subject of one of
these offenses.
B.                                                                                             (1) Whoever commits the crime of illegal possession of stolen things, when
the value of the things is five hundred dollars or more, shall be imprisoned,
with or without hard labor, for not more than ten years, or may be fined not
more than three thousand dollars, or both.
(2) When the value of the stolen things is three hundred dollars or more, but
less than five hundred dollars, the offender shall be imprisoned, with or
without hard labor, for not more than two years, or may be fined not more
than two thousand dollars, or both.
(3) When the value of the stolen things is less than three hundred dollars, the
offender shall be imprisoned for not more than six months or may be fined
not more than one thousand dollars, or both. If the offender in such cases has
been convicted of receiving stolen things or illegal possession of stolen things
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guilty.   The State amended the bill of information adding one count of possession
of stolen property valued over $300.00, a violation of La. R.S. 14:69 B (2).   The
trial  court  denied  the  defendant’s  motions  to  suppress  the  evidence  and  the
statement, and thereafter defendant plead guilty to both counts pursuant to State v.
Crosby, 338 So.2d 584 (1976).2   Thereafter, defendant filed a pro se motion to
withdraw his guilty plea arguing that his counsel was ineffective and that his plea
agreement had been violated.  Defendant’s motion was denied by the trial court.
This Court found no error in the judgment of the district court denying the
defendant’s motion to withdraw his guilty plea.   State v. Dowdell,  2009-0728,
unpub. (La. App. 4 Cir. 11/03/09), writ denied, 2010-0158 (La. 9/17/10), 45 So.3d
1040.
Defendant was sentenced to serve seven years at hard labor as to count one
and to serve two years at hard labor as to count two.   The sentences were ordered
to run concurrently and concurrently with any other sentence he may be serving.3
The district court subsequently denied the defendant’s pro se motion to correct an
illegal sentence and for production of documents.
The defendant filed another pro se writ in which he sought a motion for out-
of-time appeal and for production of documents.   Because he was entitled to an
appeal  pursuant  to  State  v.  Crosby,  supra,  this  Court  granted  the  writ  and
transferred the defendant’s pleading to the district court as a motion for out-of-time
two or more times previously, upon any subsequent conviction he shall be
imprisoned, with or without hard labor, for not more than two years or may
be fined not more than two thousand dollars, or both.
2 The plea was also entered in his best interest pursuant to North Carolina v. Alford, 400 U.S. 25,
91 S.Ct. 160 (1970).
3 Although the docket master indicates that the defendant was multiple billed, no multiple bill
was filed.  See discussion under assignment of error number 2.
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appeal.   The instant appeal was filed on behalf of the defendant by appointed
counsel.
FACTUAL BACKGROUND:
Because defendant plead guilty pursuant to State v. Crosby, supra, the only
factual testimony was given at the hearing on defendant’s motion to suppress.
New  Orleans  Police  Department  Detective  Hal  Amos  testified  that  he
investigated the burglary of a residence at 4601 Kendall Drive in New Orleans.
The detective developed the defendant as a suspect, and obtained an arrest warrant
for the defendant John Dowdell.
Two days later, as he was driving while off-duty, Detective Amos spotted
the  defendant.    The  detective  exited  his  vehicle,  approached  the  defendant,
identified himself as a police officer (he was wearing a badge and had a gun), and
directed the defendant to walk toward him.   The defendant did not comply, and
instead  fled  into  a  gutted  and  abandoned  house.    After  requesting  backup,
Detective Amos and other officers entered the abandoned residence which was
located  at 4211 Dreux Avenue, where the defendant had fled.
After the defendant’s arrest and the seizure of numerous items, victims   of
two separate burglaries identified property seized inside the abandoned residence
at 4211 Dreux Avenue.   Detective Amos further determined that the residence was
not owned by or leased to the defendant.
DISCUSSION:
In his first assignment of error, the defendant argues that the State did not
have a search warrant for the house where the stolen items were found or the
consent of the owner to search.   He claims that the validity of the arrest warrant
was not established, and that since the arrest warrant was the basis of the stop, the
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evidence seized should have been suppressed.    The defendant claims that no
information was provided at the hearing to test the warrant, which was later
admitted without testimony and without the trial court’s review prior to ruling.
The State argues that the defendant had no reasonable expectation of privacy
and  was  not  “adversely affected”  by the  alleged  unlawful  entry into  a  third
person’s house to arrest him.   In support the State relies on State v. Barrett, 408
So.2d 903 (La. 1981), which held the defendant was not so adversely affected by
the alleged unlawful entry into a third person’s house to arrest him so as to require
suppression of the evidence seized incidental to the arrest.
In Barrett, police received information that a parole violator, who had a
warrant out for his arrest, was at the home of a third party.   Without a search
warrant, the police entered the home and seized evidence incidental to his arrest.
On review, the paramount consideration by the Louisiana Supreme Court was that
the defendant was the subject of an outstanding arrest warrant.   Because the arrest
warrant was sufficient under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371
(1980), to enter into and arrest the defendant in his own house, the Louisiana
Supreme Court held that the defendant was not entitled to greater protection from
arrest in a third person’s house.
The State further argues that La. Code Crim. Proc. art. 202 provides that an
arrest warrant application need only set out the nature, date, and place of the
offense along with the name of the offender.   The arrest warrant was introduced
into evidence by the State without objection.
Although a defendant is entitled to protection from unreasonable searches
and seizures under both the Fourth Amendment to the United States Constitution
and Article I § 5 of the Louisiana Constitution, these protections apply only if the
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defendant seeking to invoke them has a reasonable expectation of privacy.   This
Court set out the pertinent law in State v. McKinney, 93-1425, pp. 10-11 (La. App.
4 Cir. 5/17/94), 637 So.2d 1120, 1125-26:
A defendant may not assert the exclusionary rule unless his
constitutional  right  to  be  free  from  unreasonable  searches  and
seizures,  as  guaranteed  by  the  United  States  and  Louisiana
Constitutions, has been violated. To establish such a violation, the
defendant must first show that he had a legitimate expectation of
privacy  in  the  area  searched.  U.S.  v.  Ibarra,                                 948  F.2d  903  (5th
Cir.1991).  Whether  a  defendant  has  a  constitutionally  protected
expectation of privacy involves a two part inquiry. A defendant must
first show that he has a reasonable expectation of privacy in the area
searched for the items seized. Second, a defendant must also show
that  society  is  prepared  to  accept  the  expectation  of  privacy  as
objectively  reasonable.  State  v.  Ragsdale,                                       381  So.2d             492,   497
(La.1980); State v. Karston, 588 So.2d 165 (La.App. 4th Cir.1991).
This Court has also held that a defendant retreating into the residence of a third
party without that party’s permission has no reasonable expectation of privacy in
that house.   See State v. Bell, 2009-0574, pp. 11-12 (La.App. 4 Cir. 12/9/09), 28
So.3d 502, 510-511, writ denied, 2009-2819 (La. 3/5/10), 28 So.3d 1005.
In the instant case, the trial court explained its denial of the motion to
suppress the evidence as follows:
Based on the Officer’s testimony I find sufficient probable cause for
the arrest of Mr. John Dowdell for possession of stolen property
valued over  $500.00.   I think that based on the circumstances the
Officer certainly had the right to arrest him for possession of stolen
property considering he ran into the home where all of these stolen
items were allegedly found.
The officer, who had an arrest warrant, legally pursued the defendant into
the abandoned house.  The defendant had no reasonable expectation of privacy in a
third party’s house, and the trial court properly denied the motion to suppress.
In his second assignment of error the defendant argues that he pleaded
guilty as charged with the understanding that the State would not file a multiple
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bill.  He claims, and the State concedes, that the January 31, 2011 minute entry and
the sentence of the court are erroneous.   The State further concedes that the minute
entry and sentence of the court should be amended to delete any reference to the
defendant  being  multiple  billed  or  sentenced  as  a  multiple  offender.    The
Boykin/sentencing  transcript  correctly  indicates  that  the  defendant  was  not
sentenced as a multiple offender.   Where there is a discrepancy between a minute
entry and the transcript, the transcript prevails.   State v. Randall, 2010-1027, p. 3
(La.App. 4 Cir. 6/22/11), 69 So.3d 683, 685, writ denied, 2011-1560 (La. 1/13/12),
77 So.3d 952; State v. Rideau, 2005-0462, p. 34 (La.App. 4 Cir. 12/6/06), 947
So.2d 127, 147.   The State and the defendant seek an order amending the January
31, 2011 minute entry and the sentence of the court to delete any reference to a
multiple bill or to a multiple offender sentence.
CONCLUSION:
The defendant’s motion to suppress the evidence was properly denied.    The
defendant’s conviction is affirmed.   The defendant’s sentence, as set out in the
January 31, 2011 sentencing transcript, is also affirmed.   However, the district
court is ordered to amend the January 31, 2011 minute entry and “sentence of the
court” to delete any reference to a multiple bill or to an enhanced sentence.
CONVICTION AND SENTENCE
AFFIRMED; REMANDED FOR CORRECTION
OF RECORD
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