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STATE OF LOUISIANA                                                              *   NO. 2009-KA-0657
VERSUS                                                                          *
                                                                                    COURT OF APPEAL
MICHAEL BROWN                                                                   *
                                                                                    FOURTH CIRCUIT
                                                                                *
                                                                                    STATE OF LOUISIANA
                                                                                *
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 461-947, SECTION “I”
Honorable Raymond C. Bigelow, Judge
Judge Terri F. Love
(Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Paul A.
Bonin)
Leon A. Cannizzaro, Jr.
District Attorney
Nisha Sandhu
Assistant District Attorney
1340 Poydras Street
Suite 700
New Orleans, LA 70112--1221
COUNSEL FOR THE STATE OF LOUISIANA
Sherry Watters
LOUISIANA APPELLATE PROJECT
P. O. Box 58769
New Orleans, LA 70158-8769
COUNSEL FOR DEFENDANT/APPELLANT
CONVICTIONS AFFIRMED SENTENCES AFFIRMED
OCTOBER 14, 2009




The State filed a bill of information charging Michael Brown with
possession with intent to distribute heroin and possession of cocaine.  The
defendant subsequently entered a plea of not guilty and filed a motion to suppress
the evidence.  Appellant maintains that his detention by police amounted to an
arrest for which there was no probable cause and that he was not read his Miranda
rights prior to relinquishing the contraband.   We find that there was sufficient
evidence to support the issuance of the search warrant given the controlled
purchase of cocaine from Appellant at the residence.  We find no abuse of
discretion in the trial court’s credibility determination as to Appellant’s claim that
he was not read his Miranda rights and the court’s denial of the motion to suppress
the evidence.  The Appellant’s convictions and sentences are affirmed.
LEGAL AND PROCEDURAL HISTORY
The State filed a bill of information charging Appellant with possession with
the intent to distribute heroin and possession of cocaine.  Appellant entered a not
guilty plea.  A hearing on motions was later conducted, and the matter was taken
under advisement; the state and defense were to submit memoranda.  The ruling on
motions that was scheduled for September 14, 2005, did not occur due to the after
effects of Hurricane Katrina.  Both parties submitted memoranda to the district
court, and district court issued a subsequent ruling denying the motion to suppress
the evidence.  The motion hearing was later reopened for Appellant’s testimony.
Thereafter, the district court again denied the motion to suppress the evidence.
Following a bench trial, Appellant was found guilty of possession of heroin and
possession of cocaine.  In August 2007, Appellant pled guilty as a second felony
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offender and was sentenced on count one pursuant to La. R.S. 15:529.1 to serve
five years at hard labor.  As to count two, appellant was sentenced to serve three
years at hard labor.  The sentences were ordered to run concurrently with each
other and with any parole time that he might owe.  The district court granted
appellant’s motion for an out-of-time appeal.
FACTUAL BACKGROUND
The record reflects that Officer Jackson was informed by a confidential
informant that someone name “Mike” was selling cocaine from the residence
located at 2314 Clouet Street.  The informant made a controlled buy from “Mike”
at that location while Officer Jackson observed from a surveillance location that
was set up prior.  Thereafter, Officer Jackson obtained a search warrant for the
residence and verified that Michael Brown lived at that location.  Officer Jackson
and Detectives Evans and Jacque later arrived at the residence to execute the
warrant.  After a couple of minutes, the officers observed appellant exit the
residence with another man and leave in a vehicle.  The officers pursued and
stopped the vehicle after a couple of blocks.  Appellant was advised that the
officers had a search warrant for the residence and that he was under investigation
for narcotics violations.  Appellant and the other man were placed in the back of
the police vehicle and taken back to 2314 Clouet Street.  The two men were not
handcuffed; Officer Jacque rode in the back seat with them.
Two of the officers entered the residence and observed four other individuals
in the house.  All four of those individuals were arrested for possession of drug
paraphernalia.  Once the location was secure, Appellant was taken into the house
and given a copy of the search warrant.  He was also advised of his Miranda rights
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and Appellant indicated that he understood those rights.  Officer Jackson then
asked Appellant whether he wanted to declare any narcotics, weapons, or money.
He replied in the affirmative and proceeded to remove from the front of his pants a
plastic bag containing twenty-two foils of heroin and a plastic bag containing one
piece of crack cocaine.  A sum of money was also seized.  No additional
contraband was found during the subsequent search of the residence.
Appellant testified at the motion hearing and stated that the police
approached him in May of 2005 while he sat on his front porch.  The officers
allegedly warned him that they were aware of his drug activity and told him to stop
selling drugs.  Because he was on parole at the time, Appellant heeded the officers’
advice and stopped selling drugs in May.
Appellant further testified that on June 27, 2005, he left the house that night
with his uncle and was headed to the store when he was pulled over by police.  He
testified that the police asked him if he had any drugs, and he replied no.  Appellant
testified that the officers searched the vehicle he was driving.  Appellant and his
uncle were then handcuffed, placed in the back of the police vehicle, and taken
back to the house.  He, his uncle, and the other occupants of the house were placed
in the living room and were individually taken to a back bedroom and questioned
by police.  Appellant was the last to be questioned.  Appellant testified that when
he arrived in the bedroom, the officers unfastened his pants and retrieved the drugs.
Appellant testified that he could not retrieve the drugs himself because he was
handcuffed.  Appellant denied telling the officers he had drugs on his person.
Appellant also testified that he was not informed of his Miranda rights.
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Appellant’s trial was relatively short and consisted of the identification of
the search warrant and evidence seized from Appellant by Officer Jackson.  The
State and defense counsel stipulated that Criminalist Corey Hall was an expert in
the analysis and identification of controlled and dangerous substances.  Counsel for
both parties also stipulated that the two foils that were actually tested gave a
positive result for heroin and that the rock that was seized tested positive for
cocaine.
ERRORS PATENT
Our review of the record reveals that there are no errors patent.
MOTION TO SUPPRESS EVIDENCE
In a single assignment of error, appellant asserts that the district court erred
by denying the motion to suppress the evidence.  At issue is whether Appellant was
properly detained when such detention was based solely on the search warrant and
the seizure of the contraband from his pants.  Appellant avers that his detention by
police amounted to an arrest for which there was no probable cause and that he was
not read his Miranda rights prior to relinquishing the contraband.
There was sufficient evidence to support the issuance of the search warrant,
given the controlled purchase of cocaine from appellant at the residence.  See State
v. Green, 2002-1022 (La. 12/4/02), 831 So. 2d 962; State v. Johnson, 408 So. 2d
1280, 1283 (La. 1982);  State v. Rando, 2003-0073 (La. App. 4 Cir. 4/9/03), 848
So. 2d 19.  A warrant to search premises for contraband, founded on probable
cause, implicitly carries with it the limited authority to detain the occupants of the
premises while a proper search is conducted.  Michigan v. Summers, 452 U.S. 692,
101 S.Ct. 2587 (1981).  Moreover, the controlled buy also provided the police with
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sufficient probable cause to arrest Appellant even though no arrest warrant was
obtained.  See State v. Robertson, 2002-0156, pp. 7-8 (La. App. 4 Cir. 2/12/03), 840
So.2d 631, 636-37.  Thus, Appellant was properly detained by the officers.
Insofar as Appellant asserts that he was not read his Miranda rights, Officer
Jackson testified at the motion hearing that he advised Appellant of his rights prior
to asking him whether he had any contraband to declare.  Officer Jackson recited
those rights in open court.  Also, Officer Jackson indicated that Appellant verbally
stated to him that he understood his rights.  Appellant testified that he was not
advised of his rights.  The district court judge indicated in a written judgment
issued after hearings on Appellant’s motion to suppress evidence that he accepted
the police officer’s testimony as believable.1  A determination of credibility lies
within the sound discretion of the trial court and should not be disturbed unless
clearly contrary to the evidence.  State v. Vessell, 450 So. 2d 938 (La. 1984).  Also,
a trial court's ruling on a motion to suppress is entitled to great weight.  State v.
Craft, 2003-1852, p. 5 (La. App. 4 Cir. 3/10/04), 870 So.2d 359, 363; State v.
Banks, 2000-0525, pp. 6-7 (La. App. 4 Cir.10/17/01), 800 So.2d 28, 33.  The ruling
of a trial judge on a motion to suppress will not be disturbed absent an abuse of
discretion.  State v. Long, 2003-2592, p. 5 (La. 9/09/04), 884 So.2d 1176.  We do
not find that district court abused its discretion in denying the motion to suppress
the evidence.
CONCLUSION
1    During his argument at the conclusion of the motion hearing conducted on March 17, 2006, defense counsel
stated that the police report shows that appellant was not read his rights.  However, the report included in the record
reveals no such declaration.
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Accordingly, we find no abuse of discretion in the district court’s denial of
Appellant’s motion to suppress evidence.  We affirm Appellant’s convictions and
sentences.
CONVICTIONS AFFIRMED SENTENCES AFFIRMED
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