Date: 06-25-2016

Case Style: STATE OF LOUISIANA Vs. RORY B. DIMES

Case Number: 2016-KA-0129

Judge: Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Edwin A. Lombard

Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: Unavaialable

Defendant's Attorney: Powell Miller

Description: The defendant, Rory Dimes (“Dimes” or “the defendant”), was charged on
19 November 2012 by bill of information with one count of a felon in possession
of a firearm, one count of possession with intent to distribute heroin, and one count
of possession of oxycodone, to which he entered pleas of not guilty at his
arraignment. On 29 November 2012, he filed a motion to suppress evidence,
statement, and identification, as well as a motion for preliminary examination,
exculpatory and impeachment information, and an omnibus motion for discovery.
On 24 September 2013, the trial court denied the motion to suppress the
evidence. A jury trial was held on 22 September 2014 and the defendant was found
guilty as charged as to all three counts. At his 3 October 2014 sentencing, Dimes
was sentenced (a) to twenty years at hard labor without the benefit of parole,
probation, or suspension, but with credit for time served, to run concurrently with
the other counts herein and with other sentences on Count One (felon in possession
of a firearm); (b) to fifty years at hard labor to run concurrently with the other
counts herein and with other sentences without the benefit of probation or
suspension, but and with credit for time served on Count Two (possession with
intent to distribute heroin); and (c) to five years at hard labor to run concurrently

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with the other counts herein and with other sentences, but with credit for time
served, on Count Three (possession of oxycodone).
At a 13 January 2015 multiple bill hearing, Dimes entered a plea of guilty
as a fourth offender with respect to Count Three. The trial court vacated his earlier
sentence on Count Three and sentenced him to forty years at hard labor, with credit
for time served, to run concurrently with other sentences, pursuant to La. R.S.
15:529.1.
On 10 September 2015, the trial court granted the defendant an out-of-time
appeal pursuant to his pro se application for post-conviction relief.
FACTS
Probation and Parole Agent Amy Giselson testified at trial.1 She stated that
during the daytime of 24 September 2012, she performed a residence check with
Agent Amy Richard at the defendant‟s home in conjunction with the defendant‟s
status as a probationer. After she and Agent Richard knocked on the door and
received no answer, they began walking back to their car. Dimes called out to
Agent Giselson, and she and Agent Richard turned around to see the defendant and
Penny Hicks, Dimes‟ girlfriend, standing in the doorway.
Dimes invited the agents into the house, and the agents walked through the
residence. As the agents walked through the bedroom area, Agent Giselson
observed approximately $1,900.00 in cash on the bedside nightstand. Agent
Giselson testified that the defendant was unemployed at the time of this residence
check. Accordingly, she asked the defendant how he obtained the money, and he
1 Her testimony was substantially similar to her testimony at the hearing on Dimes‟ motion to suppress the evidence.

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responded that he won it playing dice.2 Agent Giselson stated that Dimes‟
response gave her reasonable suspicion to believe that he was engaged in criminal
conduct because he was not supposed to be gambling.
Agent Giselson further testified that because she had reasonable suspicion to
believe that the defendant was engaged in criminal conduct, she began a search of
his residence. She opened the top drawer of the defendant‟s bedside nightstand
and found a black semi-automatic handgun and over $25,000.00. After this
discovery, she handcuffed the defendant and advised him that he was in violation
of his parole for possessing a firearm. Agent Richard took control of the firearm
and made it safe. The agents escorted Dimes and Ms. Hicks downstairs and
notified a supervisor so that additional probation and parole officers could be
dispatched to the residence. Agent Giselson stated that her supervisor gave the
officers permission to search the remainder of the residence.
In her continued search of the residence, Agent Giselson searched a pair of
men‟s pants that were on a chair near the side of the bed where the agents found
the large sums of money. In the pants, which Ms. Hicks identified as the
defendant‟s, Agent Giselson found four white pills with the imprint of “512” that
she testified were later identified as oxycodone pills. She testified that Agent
Richard also located a white pill imprinted with “512” on the floor between the bed
and the chair. Agent Richard also found approximately seventeen grams of heroin
2 At trial, when asked whether the defendant indicated where he was playing dice, Agent Giselson responded that the defendant did not. Regarding rules for parolees, Agent Giselson explained that “[p]arolees are to refrain from engaging in criminal conduct and playing dice is gambling, which is illegal conduct.” On cross-examination, when asked whether she asked the defendant whether he won the money playing dice on the streets, Agent Giselson responded, “No sir, I did not and he did not say anything about a casino and so it is reasonable for me to believe that he was engaged in criminal conduct.”

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in an oven mitt, and Agent Justin Green found methadone and a scale in the
kitchen cabinet.
Agent Giselson testified that Dimes was read his Miranda rights.3 The
defendant elected to fill out the waiver of rights form, and he also made a written
statement that the drugs were his, and the firearm was for his personal protection.
The agent testified that she spoke to Ms. Hicks, who also stated that the firearm,
drugs, and cash were not hers.
Probation and Parole Agent Amy Richard testified regarding her
participation in Dimes‟ residence check and arrest. Her testimony was
substantially similar to that of Agent Giselson with regard to the search of the
defendant‟s bedroom. With regard to her search of the kitchen, Agent Richard
stated that she began her inspection by attempting to open the kitchen cabinets, but
two oven mitts were tacked on the front of the cabinets. The mitt on the right was
flat, while the mitt on the left “was kind of open making a pouch;” when she put
her hand inside the mitt she “retrieved a large bag of white powder.”
Agent Richard testified that she subsequently opened the kitchen cabinets
and observed “various paraphernalia, a box, a little wooden box that opened up just
to have little vials of things that looked l[ike] oils or chemicals.” Additionally, she
stated that “[t]here were Ziploc bags that were filled with just a white substance, a
powdery substance, that [she] believed was not drugs” but looked like baking soda.
She also observed Ziploc bags that were filled with Kool-Aid and a bottle of
Mannitol. Agent Richard identified the objects she found during her search of the
defendant‟s kitchen, including two small scales and a calculator.
3 Agent Richard testified at trial that she was present when Agent Giselson read the defendant his Miranda rights.

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Kori Keaton testified as a previous detective with the project safe
neighborhood for the special operations division of the New Orleans Police
Department (“NOPD”) that would conduct narcotics investigations. Mr. Keaton
testified that on the date of the residence check, he received a telephone call from
probation and parole that one of their parolees was detained at 1918 Amelia Street,
New Orleans, with a firearm and some narcotics. He stated that he located to the
residence to gather facts from the parole agents and recover evidence. With
respect to the defendant‟s case, Mr. Keaton testified that he recovered five white
pills imprinted with “512”, which “is typical of oxycodone.” He also recovered a
clear plastic bag that contained what he believed was heroin, “and then it was
proved positive through a NIK kit by Parole Officer Justin Green.” He also
collected a bottle of Mannitol.
Mr. Keaton testified that he interviewed Dimes and asked him how long he
resided at that residence, to which he replied “two to three years.” He also asked
the defendant whether Ms. Hicks‟ children (who were not present during the
residence check) were his, and he responded in the negative. He stated that he
asked the defendant whether the firearm found on the nightstand in the bedroom
belonged to him, and he replied that it did, “reiterat[ing] that Ms. Hicks didn‟t have
anything to do with the guns or the drugs.” Additionally, Mr. Keaton asked Dimes
what was in the clear plastic bag, and he responded that it was heroin. Mr. Keaton
identified in open court the voluntary written statement made by the defendant, as
well as the waiver of rights form.
James Huey, an employee of the Orleans Parish Sheriff‟s Office
telecommunications department who manages the inmate phone system and is the
custodian of the phone records, also testified. Mr. Huey reviewed a call detail

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sheet that was generated with respect to the defendant, and a recording was played
for the jury.4
NOPD Officer George Jackson testified as an expert in taking, examination.
and comparison of fingerprints. Officer Jackson testified that the fingerprints he
examined on Dimes‟ bill of information matched the fingerprints on the
defendant‟s other certified packets of conviction.
ERRORS PATENT
A review pursuant to La. C.Cr.P. art. 920(2) reveals one error patent. With
respect to Count One, felon in possession of a firearm, the transcript evidences that
the trial court failed to impose a fine for the violation of La. R.S. 14:95.1.
Accordingly, we are required to remand the matter to the trial court for imposition
of the mandatory fine. See State v. Patin, 14-0510 (La. App. 4 Cir. 5/20/15), 171
So.3d 959.
DISCUSSION
Dimes‟ asserts in his sole assignment of error that the evidence seized, after
a warrantless search, should have been suppressed. Specifically, he argues that the
presence of a large amount of cash in his apartment, which he earned playing dice,
was not sufficient to provide reasonable suspicion, and Agent Giselson assumed
that he had obtained the cash as a result of criminal activity.
The Fourth Amendment to the United States Constitution and Article I, § 5
of the Louisiana Constitution protect people against unreasonable searches and
seizures. Ordinarily, when evidence is seized without a warrant, the burden is on
the state to demonstrate that a search is justified by some exception to the warrant
4 The recording is not part of the record on appeal. However, such is immaterial as it was not assigned as error. See La. C.Cr.P. art. 920.

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requirement. La. C.Cr.P. art. 703 D; State v. Bell, 09-0574, p. 4 (La. App. 4 Cir.
12/9/09), 28 So.3d 502, 506 (citation omitted).
Pursuant to La. C.Cr.P. art. 895 A(4), as a condition of probation, the
probationer must “[p]ermit the probation officer to visit him at his home or
elsewhere.” Additionally, pursuant to La. C.Cr.P. art. 895 A(13)(a), a probationer
agrees to warrantless searches by a probation officer when the officer has reason to
believe that the person is involved in criminal activity:
When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall: * * * (13)(a) Agree to searches of his person, his property, his place of residence, his vehicle, or his personal effects, or any or all of them, at any time, by the probation officer or the parole officer assigned to him, with or without a warrant of arrest or with or without a search warrant, when the probation officer or the parole officer has reasonable suspicion to believe that the person who is on probation is engaged in or has been engaged in criminal activity. Dimes concedes that parolees have a diminished expectation of privacy,
citing State v. Malone, 403 So.2d 1234, 1240 (La. 1981); see also State v. Marino,
00-1131, p. 4 (La. App. 4 Cir. 6/21/01), 804 So.2d 47, 52. “This reduced
expectation of privacy is based on a probationer‟s conviction and agreement to
allow a probation officer to investigate his activities in order to confirm that the
probationer is in compliance with the provisions of his probation.” State v. Fields,
12-0674, p. 9 (La. App. 4 Cir. 6/19/13), 120 So.3d 309, 317 (citing State v.
Thomas, 96-2006, p. 2 (La. App. 4 Cir. 11/06/96), 683 So.2d 885, 886).
Accordingly, this reduced expectation of privacy “allows reasonable warrantless

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searches of their persons and residences by their probation or parole officer, even
though less than probable cause may be shown.” State v. Jones, 12-0438, p. 8 (La.
App. 4 Cir. 3/13/13), 119 So.3d 9, 15 (citing Malone, 403 So.2d at 1238).
This court has recognized that a probationer is not subject to the
unrestrained power of the authorities, and “a search of the probationer may not be a
subterfuge for a police investigation.” Fields, 12-0674, p. 9, 120 So.3d at 317
(quoting Thomas, 96-2006, p. 2, 683 So.2d at 886). However, “a probation officer
may conduct a warrantless search of a probationer‟s property when „the officer
believes such a search is necessary in the performance of his duties, and must be
reasonable in light of the total atmosphere in which it takes place.‟” Id. “In order
to determine reasonableness we must consider „(1) the scope of the particular
intrusion, (2) the manner in which it was conducted, (3) the justification for
initiating it, and (4) the place in which it was conducted.‟” Id.
Dimes argues that the third consideration, the justification for initiating the
warrantless search, is at issue in this case, as having a large amount of money from
playing dice is insufficient evidence of criminal activity and therefore could not
justify a warrantless search of his residence. He contends that Agent Giselson
assumed that playing dice was illegal pursuant to La. R.S. 14:90 A rather than legal
pursuant to La. R.S. 14:90 C.5 Because there was a chance that the defendant won
5 La. R.S. 14:90 provides, in pertinent part:
A. (1)(a) Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit. (b) Whoever commits the crime of gambling shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both. (2) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than twenty thousand dollars, or imprisoned with or without hard labor, for not more than five years, or both when:

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the money legally, he submits that Agent Giselson did not have reasonable
suspicion to conclude that he had been engaged in criminal activity. Dimes further
argues that Agent Giselson failed to ask him whether he played dice at a casino or
at an unlicensed venue. He asserts that her assumption that the game was illegal
was unreasonable, and therefore, the evidence seized pursuant to the warrantless
search should have been suppressed.
At the preliminary hearing in Jones, supra, a probation and parole officer
testified that while conducting a routine residence check on the defendant, Jones,
the door was answered by a Ms. Kathy Guy, who was the mother of Rondell Guy
(another probationer) as well as Jones‟ custodian. Upon being asked about Jones
and Rondell Guy, Ms. Guy directed the officers upstairs towards the bedrooms.
When the officers entered Jones‟ bedroom, they observed Jones and a juvenile
asleep in bed, with Jones sleeping on the left side of the bed. The officers asked
the juvenile to step out of the room for officer safety. After the juvenile left the
room, the officers handcuffed Jones and relocated him downstairs.
The officers conducted a search of the bedroom, at which time they
discovered a loaded 9 mm handgun under the left side of the mattress and a box of
(a) R.S. 14:90 is violated. (b) Five or more persons are involved who conduct, finance, manage, supervise, direct, or own all or part of an illegal gambling business. (c) Such business has been in or remains in substantially continuous operation for a period of thirty days or more or, if the continuous operation is for less than thirty days, has a gross revenue of two thousand dollars in any single day. * * * C. The conducting or assisting in the conducting of gaming activities or operations upon a riverboat at the official gaming establishment, by operating an electronic video draw poker device, by a charitable gaming licensee, or at a parimutuel wagering facility, conducting slot machine gaming at an eligible horse racing facility, or the operation of a state lottery which is licensed for operation and regulated under the provisions of Chapters 4 and 11 of Title 4, Chapters 4, 5, 7, and 8 of Title 27, or Subtitle XI of Title 47 of the Louisiana Revised Statutes of 1950, is not gambling for the purposes of this Section, so long as the wagering is conducted on the premises of the licensed establishment.

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38 caliber ammunition under the left side of the bed. Thereafter, the officers
discovered a grinder (used for marijuana) and a small scale on the dresser. The
officer who discovered the gun testified that six individuals lived at the residence,
and he did not ask to whom the gun belonged. At the hearing on Jones‟ motion to
suppress the evidence, another officer who assisted in the residence check testified
that one of the reasons for the check was “because the defendant had violated his
probation by living at the same address as Rondell Guy, another probationer.”
Jones, 12-0438, p. 5, 119 So.3d at 14. Jones pled guilty to attempted possession of
a firearm by a felon.
On appeal, Jones argued, inter alia, that the trial court erred in denying his
motion to suppress the evidence because the officers had no authority to conduct a
warrantless search of his residence absent the reasonable suspicion of criminal
activity. Jones conceded that the officers had information that he violated his
probation at the time of the residence check. With regard to the officers‟ search of
his bedroom, this court found that “[i]t was not until the officers searched the
defendant‟s belongings that Officer Bertrand stated that he discovered the
paraphernalia.” Id., p. 13, 119 So.3d at 18. We recognized that “[h]ad the officers
initially observed the grinder and the scale on Jones‟ dresser upon entering the
bedroom, the evidence would have fallen under the plain view exception and given
the officers reasonable suspicion to believe the defendant was engaged in criminal
activity to conduct a search.” Id.
However, “[n]either testimony from the officers nor evidence introduced at
the hearing indicated that there was reason to believe the defendant was involved
in criminal activity prior to the search.” Id., p. 14, 119 So.3d at 18. Rather, “[t]he
only reasons articulated for visiting the defendant‟s residence and conducting the

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search was for a routine residence check and because the defendant was living with
another probationer,” which this court found to be “insufficient grounds for a
search of the defendant‟s personal effects under La. C.Cr.P. [a]rt. 895(A)(13)(a).”
Id., p. 14, 119 So.3d at 18-19. Additionally, we held that “the state did not provide
documentation at the hearing that the defendant agreed to a search of his residence
without the requisite reasonable suspicion as a condition of his probation,” and
therefore, “the state [] failed to prove the warrantless search of the defendant‟s
room was reasonable under the circumstances.” Id., p. 14, 119 So.3d at 19.
Ultimately, however, the Jones court concluded that although the state failed
to prove that the search was reasonable under the circumstances, the evidence
seized was admissible pursuant to the inevitable discovery doctrine, and affirmed
the trial court‟s denial of Jones‟ motion to suppress. On application for rehearing,
we amended the opinion for clarification “to delete any suggestion that the search
incident to arrest exception [wa]s applicable,” emphasizing that “the search
incident to arrest exception does not apply here because the defendant was
handcuffed and downstairs.” Id., p. 20, 119 So.3d at 22-23. Further on rehearing,
we reiterated that “[t]he probation officers did not have the requisite reasonable
suspicion of criminal activity when the officers initially arrived at the defendant‟s
residence,” and the officers “only knew that the defendant was living with another
probationer, a violation of his probation.” Id., p. 20, 119 So.3d at 22-23.
Therefore, “without reasonable suspicion of criminal activity, a warrantless search
of his personal effects was unjustified.” Id., p. 20, 119 So.3d at 23. The Jones
court further clarified that although the officers observed the drug paraphernalia
after the discovery of the gun and ammunition, because the paraphernalia was in
plain view, the officers would have inevitably discovered the evidence seized

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under Jones‟ mattress and bed, and the trial court‟s denial of Jones‟ motion to
suppress was not an abuse of discretion.
In Fields, supra, the defendant, a convicted felon, was visited by probation
officers performing a residence check after Fields failed to appear for his first
meeting with the probation officer assigned to him. When the officers knocked on
the door of the residence identified by Fields, a male voice asked who was there,
and the officers answered, “Probation.” Fields, 12-0674, p. 5, 120 So.3d at 315.
The officers asked the man to open the door, and the officers entered, asking Fields
why he missed his appointment. Fields responded that he had forgotten about it.
The officers noticed a female who was later identified as Fields‟ girlfriend standing
in the hallway. One of the officers asked which bedroom belonged to Fields, and
the girlfriend responded that “they could not go in there.” Id. The officers
explained their right to perform the residence check, and one of the officers entered
the bedroom as the defendant advised the officers that he would be changing his
address because he and his girlfriend were not getting along. As the officer entered
the bedroom, he observed the handle of a pistol in plain view between the mattress
and the box spring of the bed; he secured the weapon, which was loaded. Fields
stated that he knew to whom the weapon belonged, and he volunteered to “take the
charge.” Id., p. 6, 120 So.3d at 315. Approximately nine pair of men‟s shoes and
several men‟s shirts were in the bedroom. Fields was convicted of being a
convicted felon in possession of a firearm, adjudicated a second felony offender,
and sentenced to ten years.
On appeal, Fields argued, inter alia, that the trial court abused its discretion
in denying his motion to suppress the evidence. In considering the assignment of
error, we recognized that although Fields indicated at the time of the officers‟

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residence check that he would be moving, at the time of the officers‟ visit, he was
still residing with his girlfriend at the address he provided, as evidenced by the
men‟s clothing in the bedroom. The Fields court found that, as part of the officers‟
residence check to determine whether the defendant was living there, the officers
observed the handle of the pistol in plain view, and at that point, pursuant to the
plain view doctrine, the officers had the right to seize the weapon. Accordingly,
the court found that because Fields did not have a reasonable expectation of
privacy, for the pistol was observed in plain view and the officers had the right to
seize the weapon without a warrant.
In Malone, supra, the defendant was on probation, and his probation officer,
John Laird, arrived at Malone‟s residence to make his first residence check and
knocked on the front door. After receiving no answer, Mr. Laird returned to his
automobile that was parked in the defendant‟s driveway. As the officer returned to
his vehicle, he observed “a garden hose stretching from defendant‟s house into a
wooded area.” Malone, 403 So.2d at 1236. Mr. Laird was aware that “there was
considerable cultivation of „contraband‟ being done in the area,” and he “followed
the hose into the wooded area where he discovered what appeared to be growing
marijuana.” Id. After other officers arrived and Malone was read his Miranda
rights, the defendant conceded “he had harvested one or two plants for himself;” he
was arrested for probation violation.
On appeal, the Supreme Court recognized that the probation officer “was
following established and permissible procedure when he went to visit defendant”
and “had no prior information that defendant was engaging in prohibited activity
nor did he learn of the activity at an earlier visit and return later to search for
contraband,” although he was aware that contraband was being cultivated in the

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area. Id. at 1239. In finding that the trial court properly denied the motion to
suppress the evidence, the Court held:
[Mr. Laird] was suspicious when he saw a garden hose attached to a faucet on defendant‟s house leading to a wooded area. He had a right to be knocking on defendant‟s door and have his car parked in defendant‟s driveway. The garden hose was in his view from the driveway. We have no doubt that subjectively defendant may have expected the marijuana plants not to be discovered they were located in a wooded area and one had to cross a fence to reach their location. Nevertheless, once Mr. Laird (with his knowledge of marijuana cultivation in the area and his knowledge of defendant‟s past involvement with drugs) saw the garden hose leading into the woods, he had sufficient reason to follow the hose and learn why it was in that strange location. He certainly had an articulable and reasonable explanation for going into the woods to trace the garden hose.
Although Mr. Laird did cross a fence before he discovered the marijuana plants, the search was not especially intrusive. Laird did not force open a locked door or rummage for several hours through defendant‟s possessions. We certainly do not consider this search to be a subterfuge for criminal investigation. The search was not initiated at the suggestion of the police; they only became involved following a phone call from the parole officer. Indeed the search which resulted in finding the marijuana was completed before the police were contacted. [Emphasis supplied.]
Id. at 1240 (footnote omitted).
Pursuant to La. C.Cr.P. art. 895 A(13)(a), a probation officer must have
“reasonable suspicion to believe that the person who is on probation is engaged in
or has been engaged in criminal activity.” However, if officers observe an object
that has an incriminating nature which is immediately apparent, the object may be
seized without a warrant pursuant to the plain view doctrine. Jones, 12-0438, pp.
13-14, 119 So.3d at 19 (citing State v. Norals, 10-0293, p. 5 (La. App. 4 Cir.
7/30/10), 44 So.3d 907, 910); see also Fields, 12-0674, p. 11, 120 So.3d at 318.

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In the case before us, the large amount of cash on the nightstand was within
plain view. We find the large sum of money that Dimes asserted was a result of
playing dice was “immediately apparent” to have an incriminating nature; thus, the
money falls under the plain view exception. See Jones, 12-0438, pp. 13-14, 119
So.3d at 19 (citing Norals, 10-0293, p. 5, 44 So.3d at 907).6 Additionally, “[w]hen
a search is conducted for probation violations, the state‟s burden is met when it
establishes that there was a reasonable suspicion that criminal activity was
occurring.” State v. Ross, 13-2069 (La. 9/18/13), 127 So.3d 908.
Although Agent Giselson‟s residence check was not premised on a suspicion
that Dimes was engaged in criminal activity, as was the case in Jones, the large
amount of cash on Dimes‟ dresser in plain view was sufficient to establish a
reasonable suspicion that criminal activity was occurring. Agent Giselson testified
that she was suspicious when she saw the large amount of money because she was
aware that the defendant was unemployed at the time of her visit. Upon being
questioned by Agent Giselson as to the source of the cash, Dimes responded that
the money was obtained as a result of playing dice, which, although Agent
Giselson did not ask Dimes whether it was obtained legally or illegally, could have
been obtained via illegal gambling. Additionally, at trial, Agent Giselson testified
that the defendant “did not say anything about a casino.”
Further, the Supreme Court‟s reasoning in Malone is applicable. In Malone,
the mere presence of a garden hose leading into a nearby wooded area is not itself
6 Cf. State v. Candebat, 13-0780, pp. 12-13 (La. App. 4 Cir. 1/30/14), 133 So.3d 304, 312 (“The „plain feel‟ exception is analogized to the plain view exception, which does not require an officer to actually know that the object is contraband, but rather only requires that the officer have probable cause to believe that the item in question is contraband.”). “Technically, the „plain view‟ exception to the requirement of having a search warrant is not really an exception since it is premised on the idea that no „search‟ even occurred.” State v. Bridges, 11-1666, n. 4

16
evidence of criminal activity. However, the Court reasoned that the probation
officer, who, like Agent Giselson, “had no prior information that defendant was
engaging in prohibited activity,” had reason to be in the defendant‟s driveway and
had “knowledge of marijuana cultivation in the area” as well as “knowledge of
defendant‟s past involvement with drugs.” Therefore, when the officer “saw the
garden hose leading into the woods, he had sufficient reason to follow the hose and
learn why it was in that strange location.” Malone, 403 So.2d at 1239-40.
Although the search in Malone was arguably less intrusive than in the instant case
(because the probation officer had not yet entered the defendant‟s home), the
probation officer in Malone had to follow the hose, cross a fence, and enter a
wooded area before observing the marijuana plants.
Thus, Agent Giselson‟s knowledge of Dimes‟ admitted unemployment,
together with the large sum of cash in plain view that Dimes averred was from
playing dice, which was possibly a form of illegal gambling, was sufficient to
establish reasonable suspicion of criminal activity, and therefore, the warrantless
search of the defendant‟s residence was valid. Accordingly, we find that the trial
court‟s ruling denying the defendant‟s motion to suppress the evidence should be
affirmed.
As to the defendant‟s motion to supplement the record with the juror verdict
forms because the trial court failed to inform the jury at trial that not guilty was a
possible verdict as to Count Two, we find that this argument lacks merit. The
record was supplemented with the juror verdict forms, which establishes that as to
Count Two, the jurors were provided the option of choosing not guilty as a verdict.
(La. App. 4 Cir. 11/28/12), 104 So.3d 657 (citing State v. Dowling, 387 So.2d 1165, 1169 (La.1980)).

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Additionally, a review of the trial transcript evidences that counsel for Dimes
failed to object to the trial court‟s omission of a possible not guilty verdict as to
count two. Accordingly, the issue was not preserved for this court‟s review on
appeal. See La. C.Cr.P. art. 841 (“An irregularity or error cannot be availed of
after verdict unless it was objected to at the time of occurrence.”).

Outcome: For the foregoing reasons, the trial court‟s ruling denying Dimes‟ motion to
suppress evidence is affirmed. Further all of the convictions and the sentences are affirmed; however, we remand this matter for the imposition of the mandatory fine as to Count One.

Plaintiff's Experts:

Defendant's Experts:

Comments: View Case; LOMBARD, CONCURS IN RESULT