Date: 02-13-2016

Case Style: STATE OF LOUISIANA V. DAMIEN MARQUES MCLENDON, JR. AKA - DAMIEN M. MCLENDON, JR

Case Number: KA-15-0668

Judge: Ulysses Gene Thibodeaux, Shannon J. Gremillion, Phyllis M. Keaty,

Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Plaintiff's Attorney: James R. Lestage, Richard Alan Morton

Defendant's Attorney: Harold Dewey Register, Jr.

Description: On the evening of October 7, 2014, law enforcement officers in
Beauregard Parish were conducting a drug interdiction operation on Highway 190
when Detective Joshua Stanford and Probation Officer Leland Hughes, in an
unmarked vehicle, observed an automobile driven by Defendant Damien Marques
McLendon crossing into Louisiana from Texas. Detective Stanford followed the
vehicle for approximately twelve miles before he saw it “touch” the fog line. Soon
thereafter, Detective Stanford informed Detective Barry Thompson, driving in a
marked police vehicle and accompanied by Detective Thurman Buckley, to initiate
a traffic stop for the alleged traffic violation. Thompson testified that after
following McLendon for approximately thirty seconds, he also saw McLendon’s
vehicle “bump” the fog line. Thompson initiated a traffic stop and requested and
verified McLendon’s license and registration. Although no further infractions
were discovered, Thompson ordered McLendon and his passenger, Carl Marzette,
to exit the vehicle. Detective Thompson testified that Marzette immediately fled.
In doing so, he exposed a bag of cocaine that had fallen from the passenger side of
the vehicle. Marzette was ultimately detained, and he and McLendon were
arrested for felony drug violations.

STANDARD OF REVIEW

A trial court’s ruling on a motion to suppress is reviewed under the
manifest error standard of review for factual determinations, while applying a de
novo standard of review to findings of law. State v. Hemphill, 41,526 (La.App.2
Cir. 11/17/06), 942 So.2d 1263, writ denied, 06-2976 (La. 3/9/07), 949 So.2d 441.
When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court’s ruling, unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion.
State v. Bargeman, 98-617, p. 5 (La.App. 3 Cir. 10/28/98), 721 So.2d 964, 967,
writ denied, 99-33 (La. 5/28/99), 743 So.2d 658.
IV.
LAW AND DISCUSSION
The Occurrence of a Traffic Violation
McLendon first argues the trial court erred in finding that a traffic
violation occurred in light of the contradictory testimony of the officers.
McLendon maintains that while Detectives Stanford and Thompson testified that
they observed McLendon’s vehicle touch or bump the fog line, Officers Hughes
and Buckley, both passengers in Stanford and Thompson’s vehicles respectively,
testified that they did not observe a traffic violation. McLendon characterized this
inconsistency as an “internal contradiction and irreconcilable conflict,” and relies
on State v. Robinson, 02-1869, p. 16 (La. 4/14/04), 874 So.2d 66, 79, cert. denied,
543 U.S. 1023, 125 S.Ct. 658 (2004), which concluded that “in the absence of
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internal contradiction or irreconcilable conflict with the physical evidence, one
witness’s testimony, if believed by the trier of fact, is sufficient to support a factual
conclusion.” While we are not in disagreement with the conclusions reached in
Robinson, we do not find them to be applicable to this case. Here, while
Detectives Stanford and Thompson testified that they witnessed McLendon’s
vehicle either “bump” or “touch” the fog line, Officers Hughes and Buckley
testified that they did not see a traffic violation occur.
We find that although Officers Hughes and Buckley testified that they
did not witness a traffic violation, their lack of knowledge does not constitute an
“irreconcilable conflict” in the testimonies of the detectives and officers at the
hearing. Thus, had Officers Hughes and Buckley testified that no traffic violation
occurred, the contradiction in the testimonies would have presented an
irreconcilable conflict. We, thus, do not find that the trial court abused its
discretion by finding Detectives Stanford and Thompson’s testimony to be credible
and determining that a traffic violation occurred.
Whether the Alleged Violation Constitutes a Traffic Violation
McLendon heavily relies on State v. Vaughn, 448 So.2d 915 (La.App
3 Cir. 1984), in making the assertion that merely touching the fog line constitutes a
de minimis violation for which one cannot justifiably be subjected to a traffic stop.
However, we find that Vaughn is an outlier in an array of Louisiana case law
whose precedent expressly advances the opposite outcome. Louisiana Revised
Statutes 32:79 (a) provides that “whenever any roadway has been divided into two
or more clearly marked lanes . . . [a] vehicle shall be driven as nearly as practicable
entirely within a single lane . . . (emphasis added).” Moreover, La.Code Crim.P.
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art. 215.1 provides that “[a] law enforcement 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.” Finally, under both state and federal constitutions, law
enforcement officers are entitled to make a “Terry Stop” of a person or vehicle
when they reasonably suspect criminal activity. La.Code Crim.P. art. 215.1; Terry
v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
In State v. Waters, 00-356 (La. 3/12/01), 780 So.2d 1053, officers
detained a vehicle and its occupants after the vehicle made contact with the fog
line. The court determined that “even relatively minor traffic violations provide an
objective basis for lawfully detaining [a] vehicle and its occupants.” Id. at 1056.
See, e.g., State v. Richards, 97-1182 (La.App. 5 Cir. 4/15/98), 713 So.2d 514, writ
denied, 98-1452 (La. 10/09/98), 726 So.2d 27; State v. Dixon, 30,495 (La.App 2
Cir. 2/25/98), 708 So.2d 506; State v. McVan, 32,434 (La.App. 2 Cir. 3/11/99), 744
So.2d 641 (court determined that a traffic violation occurred when the vehicle
touched the right-hand fog line). The trial court further emphasized the findings of
the Supreme Court in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769
(1996), in which the objective standard for determining the reasonableness of
vehicular stops based on traffic violations was contemplated. The Supreme Court
resolved that it knew of no principle “that would allow [them] to decide at what
point a code of law becomes so expansive and so commonly violated that
infraction itself can no longer be the ordinary measure of the lawfulness of
enforcement.” Id. at 1777. The Waters court also declined to adopt a threshold
approach. In light of Whren, Waters, and their progeny, we are of the opinion that
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McLendon committed a traffic violation when his vehicle touched the fog line,
and, thus, officers were justified in initiating a traffic stop.
We are also inclined to discuss the legality of the length and extent of
McLendon’s detainment. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330
(1977), held that a police officer may order the driver of a lawfully stopped car to
exit the vehicle. Maryland v. Wilson, 519 U.S. 408, 408, 117 S.Ct. 882, 883
(1997), extended this rule to passengers, providing that “[a]n officer making a
traffic stop may order passengers to get out of the car pending completion of the
stop.” Once a vehicle is detained, however, “a police stop exceeding the time
needed to handle the matter for which the stop was made violates the
Constitution’s shield against unreasonable seizures.” Rodriquez v. United States,
135 S.Ct. 1609, 1612 (2015). Louisiana Code of Criminal Procedure Article
215.1(D) provides:
During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity. However, nothing herein shall prohibit a peace officer from compelling or instructing the motorist to comply with administrative or other legal requirements of Title 32 or Title 47 of the Louisiana Revised Statutes of 1950.
While we recognize Rodriguez, it does not support the conclusion that
McLendon was unlawfully detained. Detective Thompson testified that after
verifying McLendon’s documents, but before returning the documents and issuing
a citation, McLendon and Marzette were asked to exit the vehicle. Detective
Thompson further testified, rather significantly, that Marzette abruptly fled,
exposing a bag of cocaine in the vehicle. We find that but for the actions of
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McLendon’s passenger, the detaining officers likely would not have had the
reasonable suspicion required to prolong the traffic stop. Thus, although
McLendon was initially detained for hitting the fog line, we find that his prolonged
detainment and ultimate arrest was constitutional.
Probation Violation
McLendon finally argues that the trial court erred in determining that
there was a probation violation. However, because we have already determined
that the officers were justified in initiating a traffic stop for a traffic violation, the
question of McLendon’s potential parole violation is moot in relation to his initial
detainment and ultimate arrest. However, we find that despite Officer Hughes’
lack of knowledge, the officers were justified in initiating a traffic stop because of
McLendon’s status as a parolee.
Louisiana Code of Criminal Procedure Article 251.1(A) provides that
“[a] law enforcement officer may stop a person in a public place whom he
reasonably suspects is committing, has committed, or is about to commit an
offense . . . .” Investigatory stops are thus permitted. Officer Hughes testified that
parolees need permits to cross state lines, and to his knowledge at the time,
McLendon did not have such a permit. Thus, having knowledge of McLendon’s
status as a parolee, Officer Hughes had reason to believe that McLendon was
committing an offense when he saw him enter into Louisiana. Louisiana Revised
Statutes 15:574.8 states in pertinent part:
A. Parole officers shall be deemed to be peace officers and shall have the same powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, constables, and police officers have in their respective jurisdictions. They have all the immunities and matters of defense now available or hereafter made available to sheriffs, constables, and police officers in any suit brought against them in consequence of acts done in the course of their employment.
B. If a parole officer has reasonable cause to believe that a parolee has violated or is attempting to violate a condition of his parole and that an emergency exists, so that awaiting action by the committee under R.S. 15:574.7 would create an undue risk to the public or to the parolee, such parole officer may arrest the parolee without a warrant or may authorize any peace officer to do so.
We find that this statute granted officers the authority, had they
desired, to initiate a traffic stop based on the presumed parole violation. This
statute further makes clear, however, that officers had no authority to arrest
McLendon for the same. Because no emergency existed that would have created
an undue risk to the public or to McLendon himself, the officers could not have
executed a warrantless arrest of McLendon on this basis of a suspected parole
violation. Nevertheless, the trial court’s ruling does not appear to be dependent on
McLendon’s suspected parole violation, as police testified, particularly Probation
Officer Hughes, that they conducted a valid traffic stop based solely on
McLendon’s traffic violation.

Outcome: Accordingly, we affirm Defendant’s conviction and the trial court’s
denial of Defendant’s motion to suppress.

AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments: