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STATE OF LOUISIANA                                                            *   NO. 2012-KA-0151
VERSUS                                                                        *
                                                                                  COURT OF APPEAL
VONZO MAGEE                                                                   *
                                                                                  FOURTH CIRCUIT
                                                                              *
                                                                                  STATE OF LOUISIANA
                                                                              *
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 501-226, SECTION “I”
Honorable Karen K. Herman, Judge
Judge Joy Cossich Lobrano
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Max N. Tobias, Jr.,
Judge Joy Cossich Lobrano)
Leon A. Cannizzaro, Jr.
District Attorney
Felicity Strachan
Assistant District Attorney
619 South White Street
New Orleans, LA 70119
COUNSEL FOR THE STATE OF LOUISIANA
Mary Constance Hanes
LOUISIANA APPELLATE PROJECT
P. O. Box 4015
New Orleans, LA 70178-4015
COUNSEL FOR DEFENDANT/APPELLANT
CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS
AMENDED, AFFIRMED




On October 19, 2010, the defendant, Vonzo Magee, was charged by bill of
information with possession of heroin, a violation of La. R.S. 40:966(C)(1).1   The
defendant  pled  not  guilty at  his  arraignment  on  October                                       28,   2010.    After a
suppression and preliminary hearing on January 14, 2011, the trial court denied the
defendant‟s motion to suppress evidence and found probable cause.  The defendant
was found guilty of attempted possession of heroin after a jury trial on September
12-13, 2011.   On September 30, 2011, the trial court sentenced the defendant to
serve four years at hard labor with credit for time served.   On the same date, the
defendant pled guilty to  a  multiple bill, alleging him to  be a second felony
offender.    The  trial  court  vacated  the  original  sentence  and  resentenced  the
defendant as a second felony offender to serve four years at hard labor, without
1    Co-defendants Jonathan Lawrence and Sonja Williams were also charged in the bill of
information.  Lawrence was charged with possession with the intent to distribute cocaine and
possession of a handgun by a convicted felon.  Lawrence was tried with the defendant, Vonzo
Magee.  The jury found Lawrence guilty of possession of cocaine and attempted possession of a
handgun by a convicted felon.  He was sentenced to five years at hard labor on the cocaine
possession charge and seven and one half years at hard labor on the handgun charge.  Lawrence
was multiple billed on the cocaine charge, to which he pled guilty.  His original sentence was
vacated, and he was resentenced to five years at hard labor.  Williams was charged with
possession with the intent to distribute cocaine and possession of a handgun by a convicted felon.
The cocaine charge was amended to possession of cocaine, to which she pled guilty.  She was
sentenced to five years at hard labor.  The handgun charge was dismissed.  Williams was
multiple billed on the cocaine charge, to which she pled guilty.  Her original sentence was
vacated, and she was resentenced to five years at hard labor.
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benefit of probation, parole or suspension of sentence.   The defendant was also
ordered to pay $35.00 to the Indigent Defense Fund.   Thereafter, the defendant
filed oral motions for new trial and for reconsideration of sentence.   The trial court
denied both motions.  This appeal followed.
In September 2010, Detective Raymond Veit, with the New Orleans Police
Department Narcotics Unit, was part of a multi-jurisdictional narcotics task force.
As part of the task force, he was involved in the investigation of possible narcotics
trafficking.   The investigation involved the surveillance of 4026 Baudin Street.
The specific target was Jonathan Lawrence, who resided at 4026 Baudin Street.2
Det. Veit obtained a search warrant for the premises on September 15, 2010, and
executed the warrant on September 17, 2010.   A surveillance of the residence was
conducted before the warrant was executed.  During the surveillance on September
17, 2010, the detective observed Lawrence and the defendant leave the residence
and get into a white Cadillac SUV.   Lawrence was in the driver‟s seat, and the
defendant was in the front passenger seat.   The officers decided to stop the vehicle
before executing the search warrant.   Once the vehicle was secured, Det. Viet,
Detective Ashton Gibbs and Detective Vincent executed the search warrant.   The
officers knocked on the door and announced themselves.    Upon entering the
residence, they found a woman, later identified as Sonya Williams, in the front
bedroom.    Shortly thereafter, the other officers  arrived at the residence with
2                                                                                                 Det. Veit was the only officer who testified at the suppression hearing.  He testified that he
obtained a search warrant for the Baudin address after being informed by a confidential
informant that Jonathan Lawrence was selling heroin from that residence.  A controlled purchase
of heroin from Lawrence was conducted.  Surveillance of the residence was set up prior to the
controlled purchase.  Another police officer, Detective Ashton Gibbs, followed Lawrence from
the Baudin Street residence to the site of the controlled purchase. Det. Gibbs continued the
surveillance and followed Lawrence back the Baudin Street residence after the controlled
purchase.  Det. Veit testified that the substance purchased during the controlled buy tested
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Lawrence and the defendant.   All three were advised of their Miranda rights.   The
officer  asked  Lawrence  if  he  had  any  contraband  or  weapons  in  the  house.
Lawrence acknowledged that there was crack cocaine in the rear bedroom.   The
officers also found a fully loaded .45 caliber handgun and currency in the amount
of fourteen hundred dollars underneath the mattress in the front bedroom.   A black
digital scale and a couple of boxes of sandwich baggies were also found in the
residence.   Lawrence was placed under arrest, and in a search incident to arrest, a
key to the Baudin Street residence was found in his pants pocket.   Williams was
charged with possession of crack cocaine because individually wrapped pieces of
cocaine were found in a coin purse in her possession.
Detective Ashton Gibbs, a member of the Gretna Police Department, was
also a member of the narcotics task force.   He was involved in the investigation
and  execution  of  the  search  warrant.    Det.  Gibbs  testified  that  he  observed
Lawrence and the defendant leave the Baudin residence and enter a white Cadillac
SUV.   Lawrence and the defendant left the area.   A short time later, the officer
learned that Lawrence and the defendant had been detained pursuant to a stop.   At
that time, he, Det. Veit and Det. Vincent executed the search warrant.   Upon
entering the residence, the officers encountered  a woman  sitting  in the front
bedroom.  The  woman,  Sonya  Williams,  was  detained  and  later  arrested  for
possession  of  cocaine.    The  other  officers  arrived  with  Lawrence  and  the
defendant.    Det. Veit asked Lawrence if he had any drugs in the residence.
Lawrence showed them that there was cocaine in the rear bedroom.   Det. Gibbs
field tested the substances, which tested positive for cocaine.   A handgun and
positive for heroin.  The rest of the officer‟s testimony at the suppression hearing is the same as
his trial testimony.
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fourteen hundred dollars were found in the front bedroom.   A digital scale and
sandwich baggies were also found in the residence.
Lt. Eric Covell, also a member of the Gretna Police Department and the task
force, was the supervisor for the investigation.   En route to the Baudin Street
address, the officer was informed that Lawrence and the defendant had left the
residence in a white Cadillac Escalade.   A decision was made to stop the vehicle
prior to executing the search warrant.   Lt. Covell assisted the stop of the vehicle
near the intersection of North Carrollton Avenue and Iberville Street.   When the
officer approached the vehicle, he observed both Lawrence and the defendant lean
forward.   He did not know if they were going for a weapon or attempting to hide
something.   Lt. Covell went to the passenger side door and told the defendant to
get out of the vehicle.   After the defendant got out of the vehicle, Lt. Covell patted
the defendant down for safety purposes.   As the officer patted the defendant‟s
pants, a small plastic bag fell out of the defendant‟s right pants leg and onto the
ground.   Lt. Covell stated that the substance appeared to be either cocaine or
heroin.   After a field test, the substance tested positive for heroin.3   The defendant
was arrested and handcuffed.   Both Lawrence and the defendant were transported
to the Baudin Street residence.
Sonya Williams testified that in September 2010, she lived at the Baudin
Street residence with her son.   She stated that she had known Lawrence for only
about one month and that he did not live with her.   However, she admitted that
Lawrence had keys to the house.   Williams testified that on September 17, 2010,
3 It was stipulated at trial that if William Gilbin, of the New Orleans Police Department Crime
Lab, was called to testify, he would state that the substance found on the defendant tested
positive for heroin.
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she was lying in bed, watching television, when the police entered her home.  They
told her they were looking for Lawrence.  The police took her coin purse and found
the cocaine in her purse.   She acknowledged that she was in possession of cocaine.
Williams admitted that she pled guilty to the possession charge and had been
sentenced  to  five  years.    Williams  denied  that  she  or  Lawrence  made  any
statements to the police.   She also denied that the defendant was with Lawrence at
the Baudin Street residence when Lawrence left the house.
A review of the record for patent errors reveals that the trial court sentenced
the defendant prior to ruling on the motion for new trial.   The sentencing transcript
reveals that the defendant filed an oral motion for new trial after the defendant was
adjudicated a multiple offender and resentenced under the multiple bill.
La. C.Cr.P. art. 873 requires that the trial court wait twenty-four hours after
overruling a motion for a new trial to sentence a defendant. Specifically, La.
C.Cr.P. art. 873 provides: “[i]f a motion for a new trial, or in arrest of judgment, is
filed, sentence shall not be imposed until at least twenty-four hours after the
motion is overruled.”
Despite the fact that the court failed to abide by the twenty-four hour waiting
period prescribed by La. C.Cr.P. art.  873, the defendant did not challenge his
sentence on appeal. This Court has held that when a defendant does not challenge
his sentence on appeal, any failure to abide by sentencing delays pursuant to La.
C.Cr.P. art. 873 is harmless error. State v. Collins, 584 So.2d 356, 359 (La. App. 4
Cir. 1991); State v. Boyd, 2008-0659, pp. 7-8 (La. App. 4 Cir. 11/12/08), 999 So.2d
40, 44; see also, State v. White, 404 So.2d 1202, 1204 (La. 1981).
The trial court also committed another patent error when it stated that the
defendant‟s sentence was to be served without benefit of parole.  La. R.S. 15:529.1
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provides that a sentence under the multiple offender statute is to be served without
benefit of probation or suspension of sentence, but it does not preclude parole.
Also, La. R.S. 40:966(C)(1), the underlying statute, does not prohibit parole.  Thus,
the defendant‟s sentence should be amended to delete the prohibition of parole.
In his sole assignment of error, the defendant argues that the trial court
erroneously denied his motion to suppress evidence.   The defendant contends that
the police officer had no reasonable basis to conduct a pat-down.
It is well-settled that an appellate court should review a trial court's ruling
under a deferential standard with regard to factual determinations, while legal
findings are subject to a de novo standard of review.  State v. Hunt, 2009-1589, p. 6
(La. 12/1/09), 25 So.3d 746, 751; State v. Hampton, 98-0331, p. 18 (La. 4/23/99),
750 So.2d 867, 884.   Moreover, a trial court‟s decision relative to the suppression
of evidence is afforded great weight and will not be set aside unless there is an
abuse of that discretion.  State v. Wells, 2008-2262, p. 4 (La. 7/6/10), 45 So.3d 577,
580.   In reviewing a denial of a motion to suppress, an appellate court is not
limited to the evidence adduced at a suppression hearing, but may consider all
pertinent evidence adduced at trial.   State v. Adams, 99-2123, p. 4 (La. App. 4 Cir.
1/24/01), 779 So.2d 113, 117.
In Louisiana, a police 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. article 215.1(A); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968).   Once a person is stopped pursuant to pursuant to
Article 215.1, the officer may conduct a limited pat down frisk for weapons if he
reasonably believes that he is in danger or that the suspect is armed. La. C.Cr.P.
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art. 215.1(B); see also United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581,
1585, 104 L.Ed.2d 1 (1989); State v. Kalie, 96-2650, p. 3 (La. 9/19/97), 699 So.2d
879, 881.
In determining whether the police possessed the requisite minimal level of
objective justification for an investigatory stop based on reasonable suspicion of
criminal  activity,  reviewing  courts  look  at  the  totality  of  the  circumstances,
allowing officers to make inferences from and deductions about the cumulative
information available to them based on their own experience and specialized
training. U.S. v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 751, 151 L.Ed.2d 740
(2002).  An  officer's  past  experience,  training  and  common  sense  may  be
considered in determining if the inferences drawn from the facts were reasonable.
State v. Sylvester, 2001-0607, p. 5 (La. 9/20/02), 826 So.2d 1106, 1109; State v.
Parker, 97-1994, p. 6 (La. App. 4 Cir. 12/9/98), 723 So.2d 1066, 1068.
In the present case, the officers had reasonable cause to stop Lawrence‟s
vehicle.   The officers had a reasonable belief that Lawrence was trafficking heroin
and knew that he used his vehicle during the sales.   The defendant does not contest
that the officers had reasonable cause to stop the vehicle.  He contends that because
he was not the target of the investigation, the officer had no reasonable basis to
conduct a pat down search.
However, Lt. Covell testified that when the officers stopped the vehicle,
both Lawrence and the defendant leaned forward in their seats, suggesting the
possibility that they were reaching for a weapon or trying to hide something.   The
officer stated that he asked the defendant to exit the vehicle and then conducted a
pat down for safety.  The officer noted that many times, those involved in narcotics
trafficking also have weapons.   As the defendant was seen exiting the Baudin
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Street residence with Lawrence, the officers were reasonable in their belief that the
defendant may have also been involved in narcotics trafficking.   Upon conducting
the pat down search, the packet of heroin fell out of the defendant‟s pant leg and
onto the ground.
The courts have consistently upheld an officer‟s decision to conduct a safety
pat down.   In State v. Cure, 2011-2238, pp. 4-7 (La. 7/2/12), 93 So.3d 1268, 1270-
72, the Supreme Court discussed a police officer‟s ability to conduct such pat
downs.
We further agree that as part of the stop, Detectives Bagneris and
Roccaforte had the authority to order both the driver and the passenger to
step out of the car, even assuming that they lacked any particularized and
articulable basis for believing that the occupants posed a risk to their safety.
See [Pennsylvania v.]Mimms, 434 U.S. [106,] at 110-11, 98 S.Ct. [330] at
333[,                                                                                   54  L.Ed.2d  331  (1977)]  (“[W]e  have  specifically  recognized  the
inordinate risk confronting an officer as he approaches a person seated in an
automobile.... Against this important interest, we are asked to weigh the
intrusion into the driver's personal liberty occasioned not by the initial stop
of the vehicle, which was admittedly justified, but by the order to get out of
the car. We think this additional intrusion can only be described as de
minimis.”); Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 886,
137 L.Ed.2d 41 (1997) (“While there is not the same basis for ordering the
passengers out of the car as there is for ordering the driver out [during a
routine traffic stop], the additional intrusion on the passenger [by extending
the rule of Mimms to passengers as well as drivers] is minimal.”); see also 4
Warren R. LaFave, Search and Seizure, § 9.2(d) (4th ed. 2004) (“[O]rdering
a suspect out of a car, which the Supreme Court has approved even with
respect  to  a  routine  traffic  stop,  is  a  generally  permissible  tactic  in
connection with Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968)] stops of vehicles.”) (citing Mimms; footnotes omitted). Mimms and
Wilson are avowedly bright-line rules, see Wilson, 519 U.S. at 413, n. 1, 117
S.Ct. at 885 (“[T]hat we typically avoid per se rules concerning searches and
seizures does not mean that we have always done so; Mimms itself drew a
bright line, and we believe the principles that underlay that decision apply to
passengers as well.”), and they reflect the premise that “ „[t]he risk of harm
to both the police and the occupants is minimized if the officers routinely
exercise unquestioned command of the situation.‟ ” Wilson, 519 U.S. at 414,
117 S.Ct. at 886 (quoting Michigan v. Summers, 452 U.S. 692, 702-03, 101
S.Ct. 2587, 2594, 69 L.Ed.2d 340 (1981)) (footnote omitted).
*                                                                                       *                                                                        *   *
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Moreover, given the  “inordinate risk confronting an officer as he
approaches a person seated in an automobile,” Mimms, 434 U.S. at 110, 98
S.Ct. at 333, and given also that “ „[c]ertainly it would be unreasonable to
require that police officers take unnecessary risks in the performance of their
duties' ” Id. (quoting Terry, 392 U.S. at 23, 88 S.Ct. at 1881), we agree with
the  trial  judge  that  apart  from  any  search-incident  rationale,  it  was
objectively reasonable for Detective Roccaforte to order defendant's hand
unclenched to protect not only himself during the investigation of a narcotics
offense but also Detective Bagneris, who was preoccupied with the driver of
the Camry. The relevant question with respect to self-protective searches
conducted by the police  “is not whether the police officer subjectively
believes he is in danger, or whether he articulates that subjective belief in his
testimony at a suppression hearing,” but whether  “a reasonably prudent
person in the circumstances would be warranted in the belief that his safety
or that of other [persons] was in danger.” State v. Boyer, 2007-0476, p. 20
(La.10/16/07), 967 So.2d 458, 471 (citations omitted); cf. Sylvester, 2001-
0607 at 6, 826 So.2d at 1109 (“[T]he officer's concern for his own protection
and that of his partner justified ordering defendant to open his fist.”) (citing
United States v. Moore, 235 F.3d 700, 704 (1st Cir.2000) (“Weapons such as
knives and razors can ... be concealed inside a closed fist.”)).
In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331
(1977),  two  police  officers  stopped  the  defendant's  vehicle  to  issue  a  traffic
summons for driving with an expired license plate. One of the officers asked the
defendant (the driver and only occupant) to step out of the automobile. As the
defendant stepped out of the vehicle, the police officer noticed a bulge under the
defendant's jacket. Suspecting that the bulge might be a weapon, the officer frisked
the defendant and discovered that the bulge was a loaded revolver.   Reversing the
state court's decision that the officer's ordering the defendant out of the car was an
impermissible seizure of the person, the Court held that “once a motor vehicle has
been lawfully detained for a traffic violation, the police officers may order the
driver  to  get  out  of  the  vehicle  without  violating  the  Fourth  Amendment's
proscription of unreasonable searches and seizures.” Id. at 111 n. 6, 98 S.Ct. at 333
n. 6. The Court recognized that the inquiry in any Fourth Amendment analysis is
whether the search or seizure was reasonable under all of the circumstances, noting
9




that the determination of reasonableness requires a balancing of the public interest
and the individual's right to be free from arbitrary governmental interference.
In regards to the public interest factor, the Court determined that the police
officer's ordering the defendant out of his car in order to establish a face-to-face
observation diminished the substantial possibility that the defendant might have
made unobserved movements and reduced the likelihood of an attack on the
officer. Then turning to the defendant's privacy interest, the Court stated that
because  the  defendant  had  been  lawfully  detained,  the  officer's  ordering  the
defendant out of the car was an incremental intrusion into the defendant‟s personal
liberty which “can only be described as „de minimis.‟ ” Id. at 111, 98 S.Ct. at 333.
The Court concluded that this de minimis intrusion could not prevail over the
justified concern for the officer's safety under the circumstances.
In State v. Cure, supra, the defendant, the passenger in the vehicle, was
asked to step out of the vehicle.   When the defendant got out of the vehicle, the
police  officer  noticed  that  the  defendant‟s  hand  was  clenched.    The  officer
requested the defendant to open his hand, and when he did, the officer found two
packets of heroin in the defendant‟s hand.   The Court noted that the officer‟s
request was reasonable in light of safety concerns during a narcotics investigation.
Similarly, in the present case, the defendant was asked to step out of the
vehicle.   Lt. Covell testified that he conducted a safety pat down because he had
seen the defendant leaning forward in the vehicle when the officers stopped the
car.   The officer knew that the driver was suspected of narcotics trafficking and
that  weapons  are  commonly  found  with  narcotics.    Thus,  the  officer  had  a
reasonable basis for believing that the defendant could be armed and was leaning
forward  in  an  attempt  to  reach  for  a  weapon.    The  officer  was  justified  in
10




conducting the pat down for safety.   The trial court did not err when it denied the
motion to suppress.
This assignment is without merit.
For the reasons stated above, we affirm the defendant‟s conviction.   We
amend  the  defendant‟s  sentence  to  delete  the  prohibition  of  parole  and,  as
amended, affirm the sentence.
CONVICTION    AFFIRMED;    SENTENCE    AMENDED    AND,    AS
AMENDED, AFFIRMED.
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