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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA                                                                 *   NO. 2011-KA-1656
VERSUS                                                                             *   COURT OF APPEAL
WARDELL BUSH                                                                       *   FOURTH CIRCUIT
                                                                                   *   STATE OF LOUISIANA
*
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 503-651, SECTION “I”
Honorable Karen K. Herman, Judge
Charles R. Jones
Chief Judge
(Court composed of Chief Judge Charles R. Jones, Judge Max N. Tobias, Jr., Judge
Daniel L. Dysart)
Leon A. Cannizzaro, Jr., District Attorney
Scott G. Vincent, Assistant District Attorney
619 South White Street
New Orleans, LA 70119
COUNSEL FOR APPELLEE
Bruce G. Whittaker
LOUISIANA APPELLATE PROJECT
P.O. Box 791984
New Orleans, LA 70179
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
SEP. 26, 2012




The Appellant, Wardell Bush, appeals his conviction for illegally carrying a
weapon with a controlled and dangerous substance under La. R.S. 14:95(E), and
his sentence of seven years at hard labor without benefit of probation, parole, or
suspension of sentence.   Finding that the district court did not err, we affirm the
judgment of the district court.
The State originally charged Wardell Bush in a two count bill of information
with: 1) possession with intent to distribute cocaine, a violation of La. R.S. 40:967;
and 2) illegal carrying of a weapon while in possession of marijuana, a violation of
La. R.S.  14:95  (E).    The district attorney later dismissed the first count and
amended the second count to add possession of cocaine in addition to marijuana.
After a March  2011 hearing, the district court denied Bush’s Motion to
Suppress Evidence and found probable cause to continue detention or bail until
trial.    In June                                                                        2011, a jury found Bush guilty of carrying a weapon while in
possession of marijuana and cocaine.   He was sentenced to seven years at hard
labor without benefit of probation, parole, or suspension of sentence.   The district
court also ordered Bush pay $35 to the indigent defender program, and stated that
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the court would recommend him for any programs for which he might be eligible.
This timely appeal followed.
The record indicates that on February 2, 2011, Officer Glenn Buckel, Jr.
and his partner, Officer Nicholas Ory, decided to stop a red Jeep Liberty on
Washington Avenue, near Magnolia Street, in New Orleans at approximately 6:20
p.m. The reason for the stop was that the license plate of the vehicle was not
visible.1   The Jeep Liberty pulled to a stop after turning onto South Robertson
Street. When the officers exited their vehicle, Officer Ory went to the driver’s side
of the stopped vehicle, and Officer Buckel went to the passenger’s side. Bush was
the only person in the vehicle.   Officer Ory pointed his flashlight into the vehicle,
and observed that Bush was nervous and was reaching down underneath the
driver’s seat.  Officer Buckel also saw Bush leaning down and looking over his left
shoulder towards Officer Ory.
The officers told Bush why they had stopped him. Bush, however, continued
looking back and reaching downward. In light of the suspicious behavior of Bush,
Officer Ory opened Bush’s door and saw a handgun protruding from under Bush’s
seat, in the immediate area where Bush had been leaning down.   Officer Ory then
asked Bush to exit his vehicle.
Officer Ory took Bush to the back of the vehicle and informed Officer
Buckel of the discovery.   When Officer Ory asked Bush if he had “any paper
work” for the gun, Bush replied, “no.”   Bush said he bought the gun “off a guy off
the street.”   As Officer Ory moved Bush toward the officers’ car, Officer Buckel
retrieved the gun.   He wanted to see if a registered owner could be found, since
1 A temporary tag was subsequently discovered in a rear storage compartment of Bush’s vehicle.
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Bush claimed he bought it “on the street.”   As he leaned over to get the gun,
Officer Buckel saw a clear plastic bag lying on top of and next to the gun.  The bag
contained fourteen individually wrapped white rock-like substances as well as
another clear bag containing “vegetable matter.”   At that point, Officer Buckel
informed Officer Ory of the find, and Officer Ory placed Bush in handcuffs.
Officer Buckel retrieved the gun and “rendered it safe.”   He found nine rounds in
the gun, one of which was in the chamber.   He also retrieved the bag, and Bush
was informed that he was under arrest.
A  subsequent  search  of  Bush’s  person  produced                                     $724  in  various
denominations from Bush’s right pocket.  Bush signed a receipt for the confiscated
money.   Bush also received a citation for his license plate not being visible.   The
parties agreed that the seized contraband tested positive for marijuana and cocaine.
At trial, Bush’s grandmother, Audrey Armour, testified that Bush visited her
earlier in the day, and that Bush was ill.   She recalled seeing the temporary tag on
the back of the car.   However, she did not go to the location where her grandson
was stopped.
Bush’s girlfriend, Crystal Claiborne, testified that she owns the Jeep Liberty.
She testified that the license plate was on the back of her vehicle when Bush
dropped her off at the hairdresser after 5:00 p.m., on the day Bush was arrested.
She further testified that Bush called her when he was arrested, and she told him to
leave her keys in the car.     She testified that she could hear the policemen at the
scene say that Bush would leave the keys in the car.   Ms. Claiborne testified that
she got her cousin to retrieve the vehicle.   According to the testimony of Ms.
Claiborne, her temporary tag was in the rear window when she got her vehicle
back and the tag expired on February 17, 2011.
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Our review of the record reveals that there are no errors patent.
In his sole assignment of error, Bush asserts that the district court erred in
denying his motion to suppress the evidence because the search of his vehicle was
illegal.   He acknowledges the traffic stop and “perhaps” ordering him from his
vehicle were legal.   However, he asserts there was no legal justification for the
subsequent search of his vehicle.  He asserts that “[t]he fact is, the observation of a
lawful weapon secured openly in a vehicle no more justified an intrusion and
search than would the presence on the floorboard of an expensive laptop computer
or phone.”   He further notes that the investigating officers admitted they seized the
gun, not because they thought it was contraband or evidence, but in order to
determine if it was contraband or evidence.
The Fourth Amendment to the U.S. Constitution, applicable to the states
through the Fourteenth Amendment, prohibits unreasonable searches and seizures.
Similarly, La. Const. Art. I, Sec. 5 protects “person, property, communications,
houses, papers, and effects against unreasonable searches, seizures, or invasions of
privacy.”   Searches and seizures conducted without warrants issued on probable
cause are per se unreasonable unless justified by narrowly drawn exceptions to the
warrant requirement. State v. Surtain, 09-1835, p. 7 (La. 3/16/10), 31 So.3d 1037,
1043, citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130 (1993).   In
order to enforce the mandates of the Fourth Amendment and La. Const. Art. I, Sec.
5,  and  discourage  police  misconduct,  evidence  recovered  pursuant  to  an
unconstitutional search or seizure is inadmissible. State v. Hamilton, 09-2205, p. 3
(La. 5/11/10), 36 So.3d 209, 212.   At a suppression hearing, the State bears the
burden of proving the admissibility of evidence seized without a warrant. La.
C.Cr.P. art. 703(D).  A trial court’s determination of a motion to suppress evidence
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is entitled to great weight and will not be set aside absent an abuse of discretion.
State v. Wells, 08-2262, p. 5 (La. 7/6/10), 45 So.3d 577, 581.
Bush’s admission that the traffic stop was legal is correct.   An officer needs
an objectively reasonable suspicion that some sort of illegal activity has occurred
before stopping a vehicle. State v. Hunt, 09-1589, pp. 8-9 (La. 12/1/09), 25 So.3d
746,  753.    When an officer observes what he objectively believes is a traffic
offense, the decision to stop the vehicle is reasonable, regardless of the officer's
subjective motivation. Id.   La. R.S. 47:521 requires temporary license plates to be
visibly placed and attached to the back of vehicles.   See also La. R.S. 47:507
(requiring same of regular license plates).   Officer Buckel testified that Bush’s
vehicle was not showing a license plate.   A temporary tag was found inside the
vehicle.  Therefore, Officers Buckel and Ory legally stopped Bush for violating La.
R.S.  47:521. See State v. White,  08-1002, p.  6-7  (La.  1/21/09),  1 So.3d  439
(Officers  lawfully  stopped  a  vehicle  with  tinted  windows  and  that  was  not
displaying temporary license plate).
Once they stopped Bush, the officers were legally allowed to require Bush
exit his vehicle for officer safety under Hunt, 09-1589, p. 10, 25 So.3d at 753-754
(an officer may order occupants out of a legally stopped vehicle for officer safety).
The officers in the matter sub judice, therefore, were within their rights to ask Bush
to exit the vehicle.
Once Bush’s door was open, Officer Ory saw a handgun protruding from
under Bush’s seat in plain view.   At this point, no search had occurred.   An officer
has the right to take a weapon into custody for his own protection. State v. White,
08-1002, p. 7 (La. 1/21/09), 1 So.3d 439, 443.     When Officer Buckel reached to
retrieve the gun, he discovered the cocaine and marijuana right next to the gun.
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The contraband narcotics were discovered as Officer Buckel was legally retrieving
the gun. Therefore, the search leading to the discovery of the narcotics was not
illegal.
Furthermore, once the illegal narcotics were discovered, Officers Buckel and
Ory had probable cause to arrest Bush for the crime he has been convicted of:
illegally carrying of a  weapon  with  a controlled  and  dangerous substance  in
violation of La. R.S. 14:95(E).  Thus, we find that an illegal search did not occur in
this case.  This assignment of error is without merit.
DECREE
For the foregoing reasons, we affirm the conviction and sentence of Wardell
Bush.
AFFIRMED
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