Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 08-01-2020
Case Style:
State of Louisiana v. Brandon Bell-Brayboy
Case Number: 53,413-KA
Judge: Jeanette G. Garrett
Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
Plaintiff's Attorney: J. SCHUYLER MARVIN
District Attorney
HUGO HOLLAND
JOHN M. LAWRENCE
Assistant District Attorneys
Defendant's Attorney:
Call 918-582-6422 for free help finding a great criminal defense lawyer.
Description:
 |
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
On Rehearing
Because a complete recitation of the facts is required to resolve the
issues presented, we deem it necessary to set forth a thorough statement of
the facts and evidence that were adduced below. On the evening of
Tuesday, February 21, 2017, Louisiana State Police Trooper George
1 State v. Crosby, 338 So. 2d 584 (La. 1976).
2
Strickland, III, was patrolling I-20 in Webster Parish, along with Troopers
Matthew Titus and Brent Peart, who were in separate vehicles. They were
part of a team that patrolled I-20 looking for traveling criminal activity such
as drug and human trafficking.
Shortly after 8:00 p.m., Trooper Strickland saw a 2005 Toyota Solara
automobile with a Georgia license plate traveling eastbound at the speed
limit of 70 mph. The vehicle was being driven by Bell-Brayboy. When he
saw Trooper Strickland, Bell-Brayboy slowed the vehicle to 65 mph. This
action caught Trooper Strickland’s attention and he began to follow the
vehicle. He observed Bell-Brayboy pass two or three commercial vehicles
and then pull back into the right lane. In doing so, he crossed the white fog
line on the right side of the road, which is a violation of La. R.S. 32:79.2
Trooper Strickland stopped Bell-Brayboy for the traffic violation.
During the course of the traffic stop, facts emerged which gave
Trooper Strickland reasonable suspicion to believe that Bell-Brayboy was
engaged in drug trafficking. These facts will be more thoroughly discussed
below. Bell-Brayboy refused to give consent to search the vehicle and a K-9
unit was called. Within 20 to 22 minutes after receiving the call, the K-9
unit arrived. A drug dog performed an open-air search around the vehicle
and alerted on both rear quarter panels. A search of the vehicle was
2 La. R.S. 32:79 provides, in part:
Whenever any roadway has been divided into two or more clearly
marked lanes for traffic, the following rules, in addition to all others
consistent herewith, shall apply.
(1) A vehicle shall be driven as nearly as practicable entirely
within a single lane and shall not be moved from such lane until the driver
has first ascertained that such movement can be made with safety.
3
conducted. Ten kilograms of cocaine and one kilogram of heroin were
recovered from the vehicle. Bell-Brayboy was arrested.
Following his arrest, Bell-Brayboy waived his right to remain silent
and agreed to talk with the officers. He was questioned by Trooper O.H.
“Hank” Haynes, IV, who was assigned to the Drug Enforcement Agency
(“DEA”) Task Force. Bell-Brayboy stated that he was being paid to drive
the vehicle from Houston to Atlanta, Georgia. He did not know what was in
the vehicle, but he knew that it was illegal. Bell-Brayboy turned his
cellphone and passcode over to the officers. He allowed the officers to
examine his cellphone, which contained numerous missed calls from
someone Bell-Brayboy knew only as “Pop,” the individual responsible for
the drugs. Bell-Brayboy also agreed to try to call Pop, but his efforts were
unsuccessful. He said Pop flew him from Atlanta to Houston, where he was
picked up by an unknown male who transported him to a motel. There he
obtained the keys to the Toyota from valet parking. He immediately began
driving the vehicle back to Atlanta. When he reached Atlanta, Bell-Brayboy
was to call Pop, who would tell him where to park the vehicle and BellBrayboy would get his own ride back to his personal car, which he left at the
Atlanta airport. Bell-Brayboy was willing to attempt a controlled delivery of
the drugs with the help of agents in Atlanta, but the officers could not get
enough information to attempt the controlled delivery.
Bell-Brayboy was originally charged in federal court with conspiracy
to possess with intent to distribute cocaine and heroin. A motion to suppress
was filed claiming that Trooper Strickland stopped Bell-Brayboy’s car
without probable cause to believe that a traffic offense had been committed
and that the officer unconstitutionally extended the traffic stop without
4
reasonable suspicion until a drug-sniffing K-9 could be brought to the scene.
Bell-Brayboy argued that the search of the car violated the Fourth
Amendment, so that all of the evidence found and incriminating statements
made afterward should be suppressed.
A hearing was held on the motion before a federal magistrate judge on
July 19, 2017. Trooper Strickland testified at the hearing. He briefly set
forth his law enforcement experience. He detailed the initial observation of
the defendant’s vehicle and the traffic violation which resulted in the stop.
When the stop was initiated, the dash-camera on his vehicle was activated.
Trooper Strickland ran a check on the vehicle’s Georgia license plate
and determined that the vehicle was not stolen, but was registered to a
woman in Georgia. Bell-Brayboy said that the vehicle belonged to his sister.
However, Trooper Strickland never asked for her name. The officer took
Bell-Brayboy’s Georgia driver’s license and asked if he was sleepy. BellBrayboy said that he was “fine.” Trooper Strickland noted that the interior
of the car was very clean, with no personal effects of the driver or the owner.
There was only a University of Alabama backpack in the back seat. BellBrayboy said that he played football for the University of Alabama and had
been in Houston since Friday attending a training session. He said he was
heading back to school in Tuscaloosa, Alabama. Trooper Strickland found it
odd that Bell-Brayboy did not have more luggage for a four- or five-day trip.
During the initial portion of his encounter with Trooper Strickland,
Bell-Brayboy was holding his cellphone, staring at a blank screen. The
phone rang and Bell-Brayboy tried to answer. Trooper Strickland noted that
only a phone number appeared on the screen and not a name. The officer
asked Bell-Brayboy to put the phone down. Bell-Brayboy said he was
5
letting a “friend” know where he was located. Trooper Strickland thought
Bell-Brayboy was deceptive in his answers and was engaged in some type of
criminal activity.
Trooper Strickland returned to his vehicle to investigate further. He
checked Bell-Brayboy’s criminal history, finding an arrest for assault in
Houston. Trooper Strickland also checked the player roster for the current
year at the University of Alabama and did not find Bell-Brayboy’s name.
He did find his name on a roster that was several years old, possibly on a
spring team.
Trooper Strickland determined that he was going to ask Bell-Brayboy
for consent to search the vehicle, and he called Troopers Peart and Titus for
backup before he did so. When the officers arrived, Bell-Brayboy refused to
consent to a search. Officer Clint Smith with the Minden Police Department
K-9 unit was contacted. The State Police K-9 unit was not available that
night. The officers had previously arranged with Officer Smith to fill in if
needed. Officer Smith arrived within 20 to 22 minutes. The drug dog
performed an open-air search and alerted on both rear quarter panels of the
car. A search revealed two aftermarket compartments in the natural voids of
the vehicle. The officers could see contraband and packages wrapped in
duct tape inside the compartments. The compartments had electronic
devices that could not be readily opened. Bell-Brayboy was arrested and the
vehicle was moved to the Minden Police Department, which was a safer
location to continue the search. The officers found ten packages, wrapped in
duct tape, each containing one kilogram of cocaine. They also found a
package containing one kilogram of heroin.
6
On cross-examination, Trooper Strickland said that the stop occurred
on a Tuesday night after a three-day weekend for President’s Day. Trooper
Strickland said that the amount of luggage Bell-Brayboy had did not match
the length of his trip. He saw only a backpack and a bag of snacks. Trooper
Strickland did not think the backpack would have held enough clothes for a
five-day trip. However, the officer never asked if there was luggage in the
trunk.
In addition to checking Bell-Brayboy’s driver’s license and
registration, Trooper Strickland ran a criminal history and checked the
Automated License Plate Recognition (“ALPR”) system, which showed that
the vehicle was observed traveling westbound into Texas on I-10 in Lake
Charles, Louisiana, on Monday, the day before the stop. Trooper Strickland
was asked by defense counsel if he had a “gut feeling” that things were not
right with Bell-Brayboy’s story. Trooper Strickland replied, “Well you say
‘a gut feeling.’ I call it ‘reasonable suspicion.’”
According to Trooper Strickland, based upon his experience and
training, he knew that something was not “adding up.” This impression was
based upon the facts that Bell-Brayboy did not appear on the University of
Alabama player roster; he was not driving his own car; he was on I-20,
which was not the shortest route from Houston to Tuscaloosa; the car was
seen traveling westbound from Lake Charles the day before; and BellBrayboy refused to give consent to search the vehicle. Trooper Strickland
said, “At that point, I really felt like it was narcotics but I couldn’t say for
sure.” Trooper Strickland thought that someone was traveling with BellBrayboy in another car and that would explain the phone call. Trooper
Strickland said that the K-9 unit arrived at the scene within 20 to 22 minutes.
7
While waiting for the K-9 unit, Bell-Brayboy was very talkative. According
to Trooper Strickland, the defendant did not seem nervous at that point.
In addition to the testimony of Trooper Strickland, Trooper Haynes
testified at the hearing about the statement made by Bell-Brayboy after his
arrest. The dash-camera video of the stop was introduced into evidence and
was viewed by the magistrate judge.
The dash-camera video shows that 20 seconds after the officer
initiated the stop, Bell-Brayboy pulled over. Trooper Strickland engaged
Bell-Brayboy in conversation, which is initially difficult to hear because the
defendant was still in his vehicle and there was a lot of noise from the
highway. Bell-Brayboy said that he had been in Houston since Friday. Two
minutes and three seconds into the stop, Bell-Brayboy’s cellphone rang and
Trooper Strickland asked him to put it down and continue their conversation.
Trooper Strickland asked Bell-Brayboy where he stayed in Houston. BellBrayboy replied that he stayed with his trainer, and asked whether the
trooper believed his story. Bell-Brayboy said that he played football for the
University of Alabama. Three minutes and 20 seconds into the stop,
Trooper Strickland returned to his vehicle and began investigating BellBrayboy’s story. At one point, Trooper Strickland is heard talking to
another officer, telling him that Bell-Brayboy was pretty nervous. Trooper
Strickland related Bell-Brayboy’s story that he played football for Alabama
and that he claimed he stayed with his trainer while in Houston. Trooper
Strickland said that he could not find Bell-Brayboy on the player roster. He
related that Bell-Brayboy claimed that he was using his sister’s car and
Trooper Strickland noted that the only luggage in the vehicle was a
University of Alabama backpack. Trooper Strickland told the other officer
8
that it did not make any sense and the officer agreed. Trooper Strickland
stated that Bell-Brayboy was getting pretty choked up when he was
questioned. Trooper Strickland then returned to Bell-Brayboy’s vehicle and
asked him to get out. Trooper Strickland asked for permission to search the
vehicle and Bell-Brayboy refused. He was told that the officer would call
for a K-9 unit.
Other officers can be seen and heard on the video engaged in small
talk about football with Bell-Brayboy. At 15 minutes and 44 seconds into
the stop, an officer is heard to say that the K-9 unit is on the way. At 32
minutes and 31 seconds into the stop, the drug dog begins his open-air sniff.
At 36 minutes into the stop, the dog alerted on the vehicle. The video shows
that the traffic portion of the encounter took 14 minutes and the criminal
portion took 22 minutes, for a total of 36 minutes.
On October 3, 2017, the federal magistrate judge made a report and
recommendation. He found that there was probable cause for the initial stop
by Trooper Strickland, but there was no reasonable suspicion for the
continued detention after completion of computer checks and other tasks
necessary for the traffic stop. The magistrate judge recommended that the
motion to suppress be granted.
The magistrate judge stated that the government argued that
reasonable suspicion for the continued detention existed based upon the
totality of the following facts: (1) the car was registered to a third party; (2)
the interior of the car was clean and void of personal effects and luggage; (3)
Bell-Brayboy appeared nervous; (4) Bell-Brayboy answered a phone call
from a friend whose name was not saved in his phone; (5) Trooper
Strickland was unable to confirm that Bell-Brayboy was on the current roster
9
for the University of Alabama’s football team; (6) Bell-Brayboy’s stated
itinerary was inconsistent with information provided by the ALPR system;
and (7) Bell-Brayboy was not taking the most direct route from Houston to
Tuscaloosa. The magistrate judge then evaluated these factors
“independently and collectively.”
The magistrate judge noted that, even though registry of a car to a
third party might be a factor in establishing probable cause, Trooper
Strickland never asked Bell-Brayboy for his sister’s name to determine if it
matched the name on the registration. The magistrate judge gave no weight
to the third-party vehicle registration.
The magistrate judge also found that the fact that the car was very
clean did not work to establish reasonable suspicion of drug activity stating
that, “Many people keep clean cars.” The magistrate judge noted that
Trooper Strickland did not ask Bell-Brayboy about his lack of luggage.
Then the magistrate judge concluded, “But even if there were no luggage in
the trunk, that circumstance would be entitled to very little weight.”
The magistrate judge next discounted Trooper Strickland’s
observation that Bell-Brayboy was nervous during the traffic stop. The
magistrate judge viewed the dash-camera video and did not observe any
excess nervousness “beyond that normally associated with an uninvited
encounter with a state trooper on the side of a busy highway.”
The magistrate judge discounted Trooper Strickland’s testimony that
it was “odd” that Bell-Brayboy took a call from a “friend” when the screen
on the phone did not show an existing contact. The magistrate judge opined
that people often get new telephones and have to re-enter contact
information. According to the magistrate judge, “It may be that the fact was
10
unusual or even odd, like a person wearing mismatched socks, but Trooper
Strickland did not explain how the fact was suggestive of criminal activity.”
The magistrate judge found that Bell-Brayboy’s statements about
playing football for Alabama were “nothing more than youthful
aggrandizement” and “puffery” aimed at avoiding a traffic ticket, “but did
not do much to create reasonable suspicion of criminal activity.”
The magistrate judge noted that Trooper Strickland never asked BellBrayboy about the fact that the car was seen in Lake Charles on the ALPR
system the day before the traffic stop. The magistrate judge speculated that
Bell-Brayboy may have left Houston on Monday and travelled to a casino in
Lake Charles.
The magistrate judge was also swayed by the fact that Trooper
Strickland did not ask Bell-Brayboy why he was not taking the most direct
route from Houston to Tuscaloosa, concluding that “a driver’s apparent
choice of a less direct route is simply not very indicative of drug trafficking
or other criminal activity.”
According to the magistrate judge, Trooper Strickland thought that
Bell-Brayboy was suspicious, but could not articulate what crime may have
been committed or provide specific facts for why he suspected the driver.
The magistrate judge stated that Trooper Strickland “merely had an
unexplained hunch that something was afoot” and concluded that an officer
must have more than a “mere hunch” that a person stopped is engaged in
illegal activity if he wishes to lawfully detain him beyond the time
reasonably necessary to handle the traffic offense. The magistrate judge
noted that the traffic stop was completed in 14 minutes, but Bell-Brayboy
was detained another 20 to 22 minutes before the drug dog arrived.
11
Accordingly, the magistrate judge found that the additional detention was
unconstitutional and the motion to suppress should be granted.
On November 3, 2017, the federal district court judge adopted the
magistrate judge’s report and recommendation, granted the motion to
suppress, and ordered that all “evidence recovered as a result of an
unconstitutional search and seizure, including Defendant’s incriminating
statements” would be suppressed. This ended Bell-Brayboy’s prosecution in
federal court.
On December 6, 2017, based upon the same incident, Bell-Brayboy
was charged in state court with one count of possession with intent to
distribute more than 400 grams of cocaine and possession with intent to
distribute heroin.3
Just as he did in federal court, Bell-Brayboy filed a
motion to suppress the evidence and statements, claiming there was no
probable cause for the traffic stop and the officer unconstitutionally
extended the traffic stop so that a K-9 unit could search the vehicle. BellBrayboy requested that the motion be granted and that all evidence
following his traffic stop be declared inadmissible.
Even though somewhat repetitive of the facts stated above, it is
important to recite the additional evidence and testimony presented at the
state court motion to suppress hearing in order to illustrate the differences.
The transcript of the federal motion to suppress hearing was admitted into
evidence, along with Trooper Strickland’s dash-camera video of the traffic
stop. Trooper Strickland’s curriculum vitae (“CV”) was introduced. This
3 The prosecution of Bell-Brayboy in state court for the same criminal activity
after the dismissal of charges in federal court does not violate double jeopardy due to the
dual-sovereignty doctrine. That rule provides that a crime under one sovereign’s laws is
not the same offense as a crime under the laws of another sovereign. See Gamble v.
United States, ___ U.S.___, 139 S. Ct. 1960, 204 L. Ed. 2d 322 (2019).
12
evidence had not been used in the proceedings before the federal magistrate.
The CV reflects that Trooper Strickland received a B.A. degree in criminal
justice from Northwestern State University in 2004. He then worked for the
Many Police Department and the DeSoto Parish Sheriff’s Office before
becoming employed by the Louisiana State Police in 2007. He had attended
numerous law enforcement training sessions and had been a Team Leader
for the Criminal Patrols Unit since 2014. During his tenure as Team Leader,
Trooper Strickland had recovered a large amount of narcotics and money,
numerous vehicles and weapons, and had recovered some people who were
being trafficked.
At the hearing, Trooper Strickland’s testimony was much more
detailed than it had been before the federal magistrate. He explained his
training and testified that he had attended a week-long drug interdiction
course in Michigan called the Drug Interdiction Assistant Program. He was
currently working on a four-man team, which included a K-9, looking for
traveling criminals on I-20 that “travel across our state every day.” He
stated that there are narcotics trails from Mexico through hub cities in the
United States, such as McAllen, Houston, and Dallas, Texas, and Atlanta,
Georgia, all the way up the east coast. The normal procedure is that drugs
are transported eastbound and money is transported westbound.
On the evening of February 21, 2017, Trooper Strickland was sitting
on the shoulder of I-20 in Webster Parish watching eastbound traffic. He
observed the 2005 Toyota Solara, driven by Bell-Brayboy, traveling in the
right lane at the speed limit of 70 mph. When Bell-Brayboy saw Trooper
Strickland, he slowed to 65 mph, and this caught Trooper Strickland’s
attention. Trooper Strickland said that he looks for driver reactions when
13
they see a police vehicle. He testified that, normally, people don’t slow
down that much when they are going the speed limit.
Trooper Strickland began following the vehicle, which passed two or
three commercial vehicles, and then pulled back into the right lane, crossing
the fog line, a violation of La. R.S. 32:79. Trooper Strickland pulled the
vehicle over for the traffic violation. The vehicle had a Georgia license
plate. Trooper Strickland ran a computer check on the license plate and
determined that the vehicle was not stolen, but it was registered to a woman
in Georgia. During the course of their conversation, Bell-Brayboy told
Trooper Strickland that the car belonged to his sister.
According to Trooper Strickland, Bell-Brayboy did not look like he
was doing interstate travel in the vehicle. The vehicle was very clean with
no personal effects from the driver or the owner, and the car appeared to be
freshly vacuumed. There was only a bag of snacks in the car and a
University of Alabama backpack in the back seat. There was no luggage or
other effects in the interior of the car. Trooper Strickland said the vehicle
looked like a rental car with no personal items, such as loose change, pens,
or paperwork.
The nature of his conversation with Bell-Brayboy raised Trooper
Strickland’s suspicions. He said that Bell-Brayboy was nervous and choked
on his answers when initially questioned. Bell-Brayboy was holding a
cellphone while talking to Trooper Strickland and was staring at a blank
screen. He never really made eye contact and appeared to be waiting on a
phone call. Trooper Strickland stated that, in his many years in law
enforcement, he has made thousands of traffic stops and usually people
make eye contact. Trooper Strickland saw this as a sign of nervousness.
14
During the course of his conversation with Trooper Strickland, BellBrayboy’s cellphone rang. Bell-Brayboy said that he was letting a friend
know where he was and that he was “okay.” Trooper Strickland noted that
the call appeared on the cellphone screen with only a telephone number and
not the name of the “friend” that would normally be in the contacts list. The
trooper said it would have been normal if Bell-Brayboy had been talking on
the phone. Instead of having made a phone call, the defendant was focusing
on a blank screen, expecting to receive a call. When Bell-Brayboy received
the call, he tried to answer it. Trooper Strickland asked him not to answer
and to continue talking with him. Trooper Strickland testified that drug
traffickers frequently travel in pairs, with one car transporting the narcotics
and another car traveling a mile or so away to keep an eye on the drugs. The
driver of the vehicle transporting the drugs is usually required to check in
regularly. Trooper Strickland concluded that the other vehicle called BellBrayboy when the traffic stop was observed. Trooper Strickland testified
that, in some instances, they are able to apprehend the drivers of both
vehicles.
Bell-Brayboy told Trooper Strickland that he played football for the
University of Alabama and had traveled to Houston on Friday for training.
The traffic stop occurred on Tuesday night. Trooper Strickland thought
Bell-Brayboy would have had more luggage for a multi-day training trip.
On cross-examination, Trooper Strickland said he had no idea if BellBrayboy had luggage in the trunk, but, as it turned out, there was no
luggage.
Trooper Strickland felt that Bell-Brayboy was being deceptive. He
returned to his vehicle and investigated whether Bell-Brayboy was on the
15
University of Alabama football team. He could not find his name on the
current roster of players, but did find his name on a list for a couple of years
in the past, possibly on a practice team. Trooper Strickland also found it odd
that Bell-Brayboy would go to Houston for training because there would
have been plenty of trainers in Alabama. The officer was also aware that
Houston is a known hub for drug activity.
Trooper Strickland noted that the quickest route from Houston to
Tuscaloosa was on I-10 rather than I-20. However, he was aware that drug
traffickers frequently avoid I-10 because it is more heavily patrolled by law
enforcement and interdiction teams. Trooper Strickland ran Bell-Brayboy’s
license plate number on the ALPR system. This inquiry showed that the car
was on I-10 in Gulfport, Mississippi, at 4:05 a.m. on Monday morning,
headed west. The car was also seen heading west on I-12 in Hammond,
Louisiana, I-10 in Lafayette, Louisiana, and I-10 in Lake Charles, Louisiana,
which was the location of the last camera in the system. This information,
indicating a turnaround trip for the car, along with other factors testified to
by the officer, led Trooper Strickland to be suspicious that Bell-Brayboy was
transporting narcotics. In accordance with standard procedure, the officer
called for backup. When Troopers Peart and Titus arrived, Bell-Brayboy
was asked for consent to search the vehicle. He refused to give consent, so
Trooper Strickland called for the K-9 unit.
The K-9 unit from the Minden Police Department arrived within 20 to
22 minutes of the call. The drug dog performed an open-air sniff around the
car and alerted on both rear quarter panels. The car was searched, leading to
the discovery of large amounts of cocaine and heroin, and Bell-Brayboy was
arrested.
16
The defendant did not testify at the hearing. The trial court took the
matter under advisement in order to review the evidence. On October 16,
2018, the trial court issued a lengthy written opinion and denied the motion
to suppress.4
The trial court outlined the facts that were adduced at the
hearing. The trial court found that Trooper Strickland had probable cause to
stop Bell-Brayboy for improper lane usage and had reasonable suspicion that
Bell-Brayboy had committed a crime or was about to commit a crime. The
trial court noted that reasonable suspicion requires a weighing of the totality
of the circumstances and Trooper Strickland acted in good faith and
reasonably concluded, based upon all the factors set forth in his testimony,
that Bell-Brayboy was involved in criminal activity. The obvious next step
was to request a K-9 unit to conduct a roadside open-air sniff. The trial
court found that the time it took for the K-9 unit to arrive at the scene was
not unreasonable, based upon the location of the traffic stop. Accordingly,
the trial court denied the motion to suppress the evidence.
On June 17, 2019, Bell-Brayboy entered pleas of guilty to the charges
against him, reserving his right to appeal the denial of the motion to suppress
the evidence, pursuant to State v.Crosby, supra.
MOTION TO SUPPRESS
Bell-Brayboy appealed the trial court’s denial of his motion to
suppress. In his single assignment of error, he states:
4 The original opinion in this case recites only one paragraph from the opinion.
We cannot help but note that the well-reasoned, thorough, and cogent opinion issued by
the trial court contains 60 footnotes, which extensively reference the evidence, the
parties’ briefs, applicable statutes, and federal and state jurisprudence.
17
There were no reasonable, articulable grounds for arresting
Brandon Bell-Brayboy when he was seized illegally for 22
minutes before the initial free-air dog sniff.[
5
]
He claims in his brief that Trooper Strickland did not have sufficient
information to justify the 22-minute detention and that he “cherry-picked”
facts to support his “hunch” that criminal activity was afoot. Bell-Brayboy
contends that, because he was seized illegally before the free-air dog sniff,
the drugs recovered should be suppressed. These arguments are without
merit.
Legal Principles
The state bears the burden of proving the admissibility of the evidence
seized without a warrant when the legality of a search or seizure is placed at
issue by a motion to suppress evidence. La. C. Cr. P. art. 703(D). The trial
court’s ruling on a motion to suppress is reviewed under the manifest error
standard in regard to factual determinations, as well as credibility and weight
determinations, while applying a de novo review to findings of law. State v.
Prince, 50,548 (La. App. 2 Cir. 4/13/16), 195 So. 3d 6; State v. Delvalle,
46,563 (La. App. 2 Cir. 9/21/11), 73 So. 3d 1026. A trial court’s denial of a
motion to suppress is afforded great weight and will not be set aside unless a
preponderance of the evidence clearly favors suppression. State v. Manning
(“Manning II”), 51,450 (La. App. 2 Cir. 8/9/17), 244 So. 3d 600, writ
denied, 2017-1575 (La. 5/18/18), 242 So. 3d 575; State v. Wells, 2008-2262
(La. 7/6/10), 45 So. 3d 577. The entire record is reviewable for determining
the correctness of a ruling on a motion to suppress. State v. Pena, 43,321
(La. App. 2 Cir. 7/30/08), 988 So. 2d 841.
5 We note that Bell-Brayboy was not under arrest while awaiting the arrival of the
drug dog. He was merely detained.
18
The right of every person to be secure in his person, house, papers,
and effects against unreasonable searches and seizures is guaranteed by the
Fourth Amendment to the United States Constitution and Article I, § 5, of
the Louisiana Constitution. State v. Freeman, 44,980 (La. App. 2 Cir.
1/27/10), 33 So. 3d 222, writ denied, 2010-0535 (La. 10/1/10), 45 So. 3d
1094. The authority and limits of the Fourth Amendment apply to
investigative stops of vehicles. United States v. Sharpe, 470 U.S. 675, 105
S. Ct. 1568, 84 L. Ed. 2d 605 (1985). The stopping of a vehicle and the
detention of its occupants is a seizure within the meaning of the Fourth
Amendment. State v. Burney, 47,056 (La. App. 2 Cir. 5/23/12), 92 So. 3d
1184, writ denied, 2012-1469 (La. 1/11/13), 106 So. 3d 548.
The standard for evaluating a challenge to a routine warrantless stop
for violating traffic laws is the two-step formulation articulated in Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See State v.
Pena, supra. The court must determine whether the officer’s action was
justified at its inception, and whether it was reasonably related in scope to
the circumstances which justified the interference in the first place. United
States v. Shabazz, supra; State v. Pena, supra.
For a traffic stop to be justified at its inception, an officer must have
an objectively reasonable suspicion that some sort of illegal activity, such as
a traffic violation, occurred or is about to occur, before stopping the vehicle.
United States v. Sharpe, supra; State v. Sims, 426 So. 2d 148 (La. 1983). To
satisfy the reasonableness requirement of the Fourth Amendment, police
officers conducting an investigatory stop must have a reasonable suspicion
supported by articulable facts that criminal activity “may be afoot.” United
States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989); State
19
v. Morgan, 2009-2352 (La. 3/15/11), 59 So. 3d 403; State v. Ardison, 52,739
(La. App. 2 Cir. 6/26/19), 277 So. 3d 883.
As a general matter, “the decision to stop an automobile is reasonable
where the police have probable cause to believe that a traffic violation has
occurred.” See Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135
L. Ed. 2d 89 (1996); State v. Waters, 2000-0356 (La. 3/12/01), 780 So. 2d
1053. The standard is a purely objective one that does not take into account
the subjective beliefs or expectations of the detaining officer. Whren v.
United States, supra; State v. Waters, supra. Although they may serve, and
may often appear intended to serve, as the prelude to the investigation of
much more serious offenses, even relatively minor traffic violations provide
an objective basis for lawfully detaining the vehicle and its occupants. State
v. Waters, supra.
In Louisiana, as in other jurisdictions, a car which partially leaves its
lane of travel and crosses the fog line either at the center of a divided
highway or on the right-hand shoulder of the road therefore provides the
police with probable cause to believe that a traffic violation for improper
lane use has occurred. State v. Waters, supra; State v. Prince, supra.
La. C. Cr. P. art 215.1(D) provides, in part:
D. 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[.] [Emphasis supplied.]
In stopping a vehicle on reasonable suspicion, an officer has the right
to conduct a routine license and registration check and may engage in
conversation with the driver and any passenger while doing so. State v.
20
Manning (“Manning I”), 50,591 (La. App. 2 Cir. 5/18/16), 196 So. 3d 626;
State v. Lee, 46,742 (La. App. 2 Cir. 12/14/11), 79 So. 3d 1278; State v.
Pena, supra. In order to further detain a suspect, however, the officer must
have articulable facts giving rise to a reasonable suspicion of some separate
illegal activity that would justify further detention of the suspect. In making
that determination, “the totality of the circumstances — the whole picture —
must be taken into account.” United States v. Cortez, 449 U.S. 411, 101 S.
Ct. 690, 66 L. Ed. 2d 621 (1981). See also United States v. Place, 462 U.S.
696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983); State v. Kalie, 96-2650 (La.
9/19/97), 699 So. 2d 879; Manning II, supra; State v. Arnold, 34,194 (La.
App. 2 Cir. 12/6/00), 779 So. 2d 840.
Based on that whole picture, the detaining officers must have a
particularized and objective basis for suspecting the particular person
stopped of criminal activity. The circumstances must be judged by an
objective standard: would the facts available to the officer at the moment of
seizure or the search warrant a man of reasonable caution in the belief that
the action taken was appropriate? State v. Kalie, supra; Manning II, supra.
Regarding reasonable suspicion, the Supreme Court in Terry stated
that, in determining whether the officer acted reasonably in such
circumstances, due weight must be given, not to his inchoate and
unparticularized suspicion or “hunch,” but to the specific reasonable
inferences which he is entitled to draw from the facts in light of his
experience. The Supreme Court further explained that officers are allowed
to draw on their own experience and specialized training to make inferences
from and deductions about the cumulative information available to them that
“might well elude an untrained person.” United States v. Arvizu, 534 U.S.
21
266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002); State v. Morgan, supra; State
v. Johnson, 2001-2081 (La. 4/26/02), 815 So. 2d 809.
A court making this assessment should take care to consider whether
the police are acting in a swiftly developing situation, and in such cases the
court should not indulge in unrealistic second-guessing. See State v. Miller,
2000-1657 (La. 10/26/01), 798 So. 2d 947, and cases cited therein. Much as
a “bright line” rule would be desirable, in evaluating whether an
investigative detention is unreasonable, common sense and ordinary human
experience must govern over rigid criteria. See United States v. Sharpe,
supra, and cases cited therein. See also Manning I, supra; State v. Prince,
supra. Further, there is no bright line rule for when a detention lasts too
long and each instance must be assessed in view of the surrounding
circumstances. State v. Burney, supra.
If a police officer has a specific suspicion of criminal activity, he may
further detain the individual or the property while he diligently pursues a
means of investigation likely to quickly confirm or dispel the particular
suspicion. United States v. Sharpe, supra; State v. Turner, 13-0180 (La.
3/1/13), 108 So. 3d 753; State v. Williams, 47,750 (La. App. 2 Cir. 4/10/13),
112 So. 3d 1022, writ denied, 2013-1394 (La. 12/2/13), 126 So. 3d 502;
State v. Burney, supra; State v. Lee, supra.
The use of a drug dog as a means of investigation is one way to
confirm or dispel the officer’s reasonable suspicion. A dog sniff of the
vehicle’s exterior surfaces is not a “search” under the meaning of the Fourth
Amendment. United States v. Place, supra; State v. Kalie, supra; Manning
I, supra; State v. Smith, 49,356 (La. App. 2 Cir. 11/19/14), 152 So. 3d 218,
writ denied, 2014-2695 (La. 10/23/15), 179 So. 3d 597. See also Illinois v.
22
Caballes, 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005).
However, at the moment the dog alerts to the interior of the vehicle, officers
have probable cause to search a vehicle without first obtaining a warrant.
State v. Prince, supra.
Discussion
Bell-Brayboy originally contended in his motions to suppress in
federal court and in the state court that the traffic stop was a mere pretext
and illegal. Both courts rejected that argument and found there was probable
cause for the initial stop. On appeal, Bell-Brayboy does not object to the
trial court’s finding on this issue. Rather, he essentially contends that there
was no reasonable suspicion to detain him after the traffic stop in order for
the drug dog to arrive and perform an open-air sniff of his vehicle.
The testimony and evidence adduced at the motion to suppress
hearing under review in this case was more extensive than that presented in
the federal court and established that Trooper Strickland had reasonable
suspicion that Bell-Brayboy was trafficking in illegal narcotics. This
reasonable suspicion justified extending the stop for further investigation.
First, Trooper Strickland outlined his educational background in
criminal justice and his extensive experience and training in detecting drug
trafficking. He also explained the significance of drug hub cities, such as
Houston, and the manner in which drugs and money are transported east and
west. He explained how drug trafficking works and the various tools and
methods that are employed. His experience and training allowed him to
make inferences from and deductions about the cumulative information in
this case that might have eluded an untrained person.
23
After stopping Bell-Brayboy for a traffic violation, Trooper Strickland
noted that the vehicle was registered to a woman in Georgia. When he
approached Bell-Brayboy, it was obvious that the vehicle was not his. The
trooper also noted the clean state of the car, with no personal effects from
the owner or the driver. It appeared to have been recently vacuumed,
contributing to the trooper’s conclusion that the vehicle looked like a rental
car. Bell-Brayboy said that the car was his sister’s and, even though Trooper
Strickland never asked for a name to verify that information, many other
factors quickly developed which showed that Bell-Brayboy was being
deceptive, leading to the formation of reasonable suspicion that he was
engaged in criminal activity.
These factors included the defendant’s nervousness and lack of eye
contact when he was initially stopped. Although the magistrate judge
reviewed the video of the traffic stop and did not observe any excessive
nervousness, we also reviewed the video and note that, in the initial
exchange between Trooper Strickland and Bell-Brayboy, the defendant was
still in the vehicle. He cannot be seen and his answers cannot be heard due
to traffic noise from the highway. In the present motion to suppress, the trial
court found Trooper Strickland to be credible in his assessment that BellBrayboy was nervous when initially stopped. There is no evidence in the
record to dispute that finding.
An additional factor supporting reasonable suspicion was BellBrayboy’s behavior concerning his cellphone. Trooper Strickland testified
that Bell-Brayboy was holding his cellphone, staring at a blank screen,
immediately after the stop. He said that he was letting a “friend” know
where he was. Trooper Strickland noted that Bell-Brayboy was not making
24
a phone call, but was waiting to receive one. When the phone rang shortly
after the traffic stop, the trooper noticed that only a phone number appeared
on the screen. The name of the “friend” was not in Bell-Brayboy’s contact
list on the phone. The magistrate judge found there were innocuous
explanations for the fact that no name appeared on the screen and concluded
that Trooper Strickland did not explain how that fact was indicative of drug
activity. By contrast, at the present hearing in the state trial court, Trooper
Strickland provided an explanation. He testified that drug traffickers
frequently travel in pairs. One person transports the drugs and the other
keeps an eye on the drugs. The person transporting the drugs is required to
check in frequently. Trooper Strickland stated that, based upon his
experience, he suspected that the person or persons accompanying BellBrayboy saw the traffic stop and called to see what was happening.
In oral argument on rehearing, defense counsel argued that it was
significant that Trooper Strickland did not identify any passing car he
suspected was the companion vehicle. We find that this fact was not
significant given the circumstances of the traffic stop. It was made at night,
in the rain, with heavy traffic passing on a busy interstate highway, and the
trooper’s attention was focused on Bell-Brayboy.
The next factor leading to the development of reasonable suspicion
was the discovery that Bell-Brayboy was lying about playing for the
University of Alabama, casting doubt on his story that he had been in
Houston for training. Trooper Strickland investigated this story and found
that Bell-Brayboy was not on the current roster of players.6
The trooper
6 The fact that the defendant may have played on a practice team in the past did
not support his story of currently playing on the team or seeking training.
25
observed that Bell-Brayboy did not have any luggage, as would be expected
if his story was true. The trooper also found it significant that the defendant
said he had gone to Houston, a known drug-hub city, for training, when
there should have been plenty of trainers available at the University of
Alabama.
Next, Trooper Strickland discovered that Bell-Brayboy’s vehicle was
not in Houston the day before, but was seen traveling all the way across
south Louisiana, beginning in the early morning hours the day before the
traffic stop. In federal court, Trooper Strickland testified only that the
vehicle was observed in Lake Charles the day before. In the hearing on the
present motion to suppress, Trooper Strickland testified that the vehicle was
initially seen in Gulfport, Mississippi at 4:05 a.m. on Monday, the day
before the traffic stop, heading west. The car was also seen heading west on
I-12 in Hammond, Louisiana, on I-10 in Lafayette, and finally on I-10 in
Lake Charles, where the last camera in the system is located. Even though
Trooper Strickland did not question the defendant regarding this
information, he found that these facts indicated that the vehicle was making
a turnaround trip. This information also undermines the magistrate judge’s
speculation that Bell-Brayboy may have traveled from Houston to “a casino
in Lake Charles” the day before the traffic stop.
Trooper Strickland found it significant that Bell-Brayboy, who
claimed he was traveling from Houston to Tuscaloosa, was on I-20 rather
that I-10, which is a more direct route. At the federal motion to suppress
hearing, the magistrate judge found that choosing a less direct route was not
indicative of drug activity. In the hearing in the present case, Trooper
Strickland explained that drug traffickers try to avoid I-10 because it is more
26
heavily patrolled with interdiction teams than I-20. Therefore, the choice of
a longer route avoiding I-10 was significant. Also, unlike his testimony in
the federal court hearing, in this case, Trooper Strickland was unequivocal
that he suspected Bell-Brayboy of drug trafficking.
None of the trooper’s suspicions were shown to be incorrect. The
defendant’s story about being in Houston on a four- or five-day training trip
was fabricated. The subsequent search of the trunk after the defendant was
placed under arrest revealed that there was no luggage there. As shown on
the video of the stop and eventual arrest, the defendant continued to be
preoccupied with the cellphone. The phone contained numerous calls from
the unidentified person Bell-Brayboy knew only as Pop. Had the trooper
been incorrect about anything, the defense, of course, could have utilized
this to impeach him. On the record before us there was simply no evidence
to discredit Trooper Strickland’s testimony. The trial court’s decision to
find his testimony credible is entitled to deference by this court.
Bell-Brayboy did not testify at the hearing on the motion to suppress
to refute any of the testimony given by Trooper Strickland.7
In the present case, Trooper Strickland not only gave the court more
information than was presented in the federal court, he also gave more
detailed explanations of why those facts were significant to him and led him
to have reasonable suspicion that Bell-Brayboy was engaged in drug
trafficking. Trooper Strickland knew that Bell-Brayboy was lying about
playing football for the University of Alabama and other factors indicated
7 La. C. Cr. P. art.703(E)(1) provides, in part, that the defendant may testify in
support of a motion to suppress without being subject to examination on other matters.
The defendant’s testimony cannot be used by the state except for the purpose of attacking
the credibility of the defendant’s testimony at the trial on the merits.
27
that Bell-Brayboy had not been in Houston for five days of training, as he
claimed. The facts discussed above quickly developed during the traffic
stop and, when viewed and evaluated by a trained law enforcement officer,
led to the reasonable suspicion that Bell-Brayboy was transporting narcotics.
The defendant argues that, because Trooper Strickland did not
question Bell-Brayboy about the third-party registration; his lack of luggage;
why his name did not appear on the University of Alabama team; why the
vehicle was seen early the day before, traveling west across the state of
Louisiana; and why he was traveling on I-20 instead of I-10, the most direct
route from Houston to Tuscaloosa, that the trooper did not diligently pursue
a means of investigation likely to quickly dispel or confirm his suspicion.
We are not persuaded by the defendant’s argument that the trooper was
required to question Bell-Brayboy about each factor of his story that did not
add up after the officer had already developed reasonable suspicion that the
defendant was engaged in criminal activity and knew that he was being
untruthful. As discussed above, Trooper Strickland provided explanations of
why those factors, coupled with his training and experience, gave him
reasonable suspicion that Bell-Brayboy was transporting illegal drugs. The
facts presented here show an ample basis for Trooper Strickland’s
reasonable suspicion, not an inchoate or unparticularized suspicion or hunch.
He then chose to call a drug dog to do an open-air sniff. As set forth above,
the use of a drug dog as a means of investigation is one way to confirm or
dispel the officer’s reasonable suspicion. This was the means of
investigation Trooper Strickland diligently pursued to quickly confirm or
dispel his suspicion, rather than engaging in pointless questioning of a
person he knew was being deceptive.
28
Defense counsel argued before this court on rehearing that finding that
Trooper Strickland developed reasonable suspicion of criminal activity
without further questioning the defendant would necessarily result in giving
officers free rein to abuse Fourth Amendment rights. We reject this
argument. Reasonable suspicion will always be required for a detention and
that standard was not breached here. Under the facts of this case, Trooper
Strickland did not violate the defendant’s constitutional rights in his choice
of a means of investigation.
The original opinion found that that Trooper Strickland did not have
reasonable suspicion and essentially echoed the reasoning of the magistrate
judge without considering the additional testimony and evidence presented
in this matter. That analysis was based on incomplete information and
examined in isolation several factors which, in this case, combined to
establish reasonable suspicion to detain Bell-Brayboy. The original opinion
went to great lengths to posit “innocuous explanations” for the defendant’s
behavior and criticized Trooper Strickland. This approach is inappropriate
and failed to consider the “totality of the circumstances,” as the Supreme
Court has frequently advised must be done. United States v. Arvizu, supra.
The original opinion’s approach was similar to that rejected in Arvizu, where
a lower court evaluated separately each factor observed by an officer which
he contended established reasonable suspicion to stop a vehicle. The lower
court found each factor susceptible to an innocent explanation and entitled to
“no weight.” The Supreme Court in Arvizu observed that Terry “precludes
this sort of divide-and-conquer analysis.” The Louisiana Supreme Court has
also cited Arzivu in finding that the assessment by a reviewing court of the
cumulative information known to an officer or officers avoids a “divide-and-
29
conquer analysis” by which the whole becomes less than the sum of its parts
because each circumstance examined individually may appear “readily
susceptible to an innocent explanation.” State v. Johnson, supra.
The original opinion in this case also relied upon Rodriguez v. United
States, 575 U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015), in finding
that Bell-Brayboy’s detention was illegal. Rodriguez is factually
distinguishable from the present case. That case held that police may not
routinely extend an otherwise completed traffic stop absent reasonable
suspicion in order to conduct an open-air sniff by a drug dog. In Rodriguez,
the defendant was stopped for veering onto the shoulder and then jerking the
vehicle back onto the roadway. He was issued a warning ticket, the traffic
stop was concluded, and there was no reasonable suspicion of any other
criminal activity justifying continued detention. The officer asked for
permission to run the drug dog around the car. Permission was refused, but
the officer did so anyway. The dog alerted, leading to the discovery of
illegal narcotics.
In Rodriguez, the traffic stop was completed and there was a total lack
of reasonable suspicion of further criminal activity when the officer used the
drug dog. By contrast, in the present case, factors began to develop
immediately which quickly led to the development of reasonable suspicion
that Bell-Brayboy was involved in drug trafficking. Rodriguez is
inapplicable once reasonable suspicion is established. Manning I, supra.
The original opinion noted in dicta that, if Bell-Brayboy sought
federal habeas relief in this matter, the federal court would be unlikely to
countermand its decision that the search of the defendant’s car was
unconstitutional. If Bell-Brayboy applies for and is granted habeas review
30
from this decision, the federal court would not be reviewing its prior
decision, but would be required to review the more extensive evidence and
testimony adduced in the present case, the trial court ruling, and this ruling.
Further, this argument was not raised below and is not before us on appeal.
We also find that the length of Bell-Brayboy’s detention was not
unreasonable.8
In assessing the reasonableness of the duration of the
investigative detention, the Supreme Court has focused on the diligence of
the detaining officers. The Supreme Court said that a court making this
assessment should take care to consider whether the police are acting in a
swiftly developing situation and, in such cases, the court should not indulge
in unrealistic second-guessing. United States v. Sharpe, supra. See also
Manning II, supra; State v. Prince, supra; State v. Burney, supra.
9
In this
case, Trooper Strickland promptly requested a drug dog approximately 14
minutes after the initial stop, and the dog arrived 22 minutes later. The total
time from the initial stop until the drug dog alerted was 36 minutes.
Trooper Strickland had reasonable suspicion that Bell-Brayboy was
involved in drug trafficking and he legally detained him while awaiting the
drug dog to investigate that suspicion. Bell-Brayboy’s Fourth Amendment
rights were not violated. Therefore, the evidence seized from the car and the
8 During oral argument on rehearing, defense counsel acknowledged that the
length of time it took for the drug dog to arrive at the scene was not an issue and that the
time was not unreasonable. However, since the original opinion of this case criticized the
amount of time, we deem it necessary to address the issue.
9 Although there is no bright-line rule for how long is too long for an
investigatory detention, numerous courts in our state have considered this question. The
following periods of detention similar to or greater than those in the present case have
been found to be reasonable: State v. Miller, supra, 34 minutes; State v. Turner, supra,
60 minutes; State v. Williams, supra, 39 minutes; State v. Burney, supra, 70 minutes;
State v. Lee, supra, 30-40 minutes; State v. Lawrence, 45,061 (La. App. 2 Cir. 3/3/10), 32
So. 3d 329, writ denied, 2010-0615 (La. 10/8/10), 46 So. 3d 1265, 30 minutes; State v.
Chinn, 11-893 (La. App. 5 Cir. 4/24/12), 94 So. 3d 838, writ denied, 2012-1171 (La.
11/2/12), 99 So. 3d 663, 34 minutes.
31
statements made by Bell-Brayboy after his arrest are admissible. The trial
court did not err in denying the defendant’s motion to suppress.
ERROR PATENT
Our error patent review indicates that, at sentencing, the trial court
failed to specify that the 15-year sentence for possession of 400 grams or
more of cocaine be served without benefit of parole, probation, or
suspension of sentence. La. R.S. 40:967(F)(1)(c), which was in effect at the
time these offenses were committed, provided:10
F. Other penalties for possession.
(1) Except as otherwise authorized in this Part:
(c) Any person who knowingly or intentionally possesses four
hundred grams or more of cocaine or of a mixture or substance
containing a detectable amount of cocaine or of its analogues as
provided in Schedule II(A)(4) of R.S. 40:964, shall be
sentenced to serve a term of imprisonment at hard labor of not
less than fifteen years, nor more than thirty years and to pay a
fine of not less than two hundred fifty thousand dollars, nor
more than six hundred thousand dollars.
La. R.S. 40:967(G) stated:
With respect to any person to whom the provisions of
Subsection F are applicable, the adjudication of guilt or
imposition of sentence shall not be suspended, deferred, or
withheld, nor shall such person be eligible for probation or
parole prior to serving the minimum sentences provided by
Subsection F.
When the district court fails to order service of a sentence without
benefits, but a determinative time period is statutorily mandated, the
sentence is to automatically be served without benefits for the required time
period. La. R.S. 15:301.1; State v. Johnson, 46,405 (La. App. 2 Cir.
8/10/11), 70 So. 3d 1097. Here, Bell-Brayboy was sentenced to serve 15
10 La. R.S. 40:966(F) and (G) were repealed by La. Acts 2017, No. 281, § 3.
32
years at hard labor for La. R.S. 40:967(F)(1)(c), the minimum sentence;
therefore this sentence is automatically required by law to be served without
benefits. We also note that this does not increase the amount of time that
Bell-Brayboy will be required to serve, because he was ordered to serve 15
years at hard labor, without benefits, for the charge of possession with intent
to distribute heroin under the version of La. R.S. 40:966(A)(1) in effect at
the time of the commission of these offenses.
We further note that, in his bill of information, Bell-Brayboy was
charged with violation of La. R.S. 40:967(F)(1)(c), which prohibits
possession of 400 grams or more of cocaine. The words “with intent to
distribute” is not contained in the statute. The possession of such a large
amount of cocaine is indicative of an intent to distribute and the defendant
was fully informed of the charge against him and the penalty. The inclusion
of the additional language constitutes harmless error.
Outcome: On rehearing, we affirm the ruling of the trial court, denying the
motion to suppress filed by the defendant, Brandon Bell-Brayboy.
Plaintiff's Experts:
Defendant's Experts:
Comments: