State of Louisiana Versus Candido Beltran Abrego

STATE OF LOUISIANA NO. 21-KA-166
VERSUS FIFTH CIRCUIT
CANDIDO BELTRAN ABREGO COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 19-4422, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING
December 01, 2021
ROBERT A. CHAISSON
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and Stephen J. Windhorst
AFFIRMED
RAC
FHW
SJW
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Matthew R. Clauss
Joshua K. Vanderhooft
COUNSEL FOR DEFENDANT/APPELLANT,
CANDIDO BELTRAN ABREGO
A. Bruce Netterville
CHAISSON, J.
Defendant, Candido Beltran Abrego, appeals his conviction and sentence for
possession with intent to distribute cocaine. He specifically challenges the trial
court’s denial of his motion to suppress evidence and denial of his “Opposition to
State’s Motion to Seal and Request for Full Disclosure.” In addition, defendant
complains about the imposition of a duplication of records cost. For the reasons
that follow, we find that defendant’s arguments are either without merit or not
properly before this Court for review. As such, we affirm defendant’s conviction
and sentence.
PROCEDURAL HISTORY
On July 30, 2019, the Jefferson Parish District Attorney filed a bill of
information charging defendant with possession with intent to distribute cocaine
weighing twenty-eight grams or greater, in violation of La. R.S. 40:967(A).
Defendant pled not guilty at his arraignment. Thereafter, he filed various pre-trial
motions, including motions to suppress evidence and statement. Following a
hearing, the trial court denied defendant’s motions to suppress.
On November 9, 2020, defendant withdrew his plea of not guilty and, after
being advised of his rights, pled guilty as charged. In accordance with the plea
agreement, the trial court sentenced defendant to five years imprisonment at hard
labor, suspended the sentence, and placed defendant on active probation for three
years subject to various conditions. Defendant now appeals.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, defendant asserts that the trial court erred in
denying his motion to suppress evidence. He contends that the information
provided to the police by the two informants was insufficient to justify the stop of
defendant’s vehicle and that all evidence seized as a result of that illegal stop
should be suppressed.
21-KA-166 1
At the September 2, 2020 suppression hearing, Agent John Wiebelt of the
Jefferson Parish Sheriff’s Office testified regarding the circumstances surrounding
the stop and subsequent arrest of defendant on May 6, 2019. Agent Wiebelt
recounted that in April of 2019, while participating in a joint narcotics operation
with the Homeland Security Investigations Team, the agents received information
that defendant was distributing quantities of cocaine from a residence located at
1930 South I-10 Service Road in Metairie. The agents were also advised that
defendant drove a Chevrolet Silverado with a specific license plate number.
During the course of this investigation, Agent Wiebelt established that defendant
“had ties” to that residence and that the identified vehicle was registered to him.
Further, Agent Wiebelt relayed that during the agents’ surveillance, they saw
defendant “freely come and go” between the residence on the I-10 Service Road
and another residence west of that house located at 535 Hesper Avenue in
Metairie.
According to Agent Wiebelt, on May 6, 2019, he received information from
a different source that defendant would be departing his home between 8:00 p.m.
and 8:30 p.m. with the specific intent to distribute a quantity of cocaine to
someone. Pursuant to that information, Agent Wiebelt and other officers set up
surveillance on defendant’s residence. The officers observed defendant go back
and forth between the two residences in question, exit the residence at 1930 South
I-10 Service Road between 8:00 p.m. and 8:30 p.m., enter his vehicle, and depart
that location.
Shortly thereafter, the officers conducted a stop of defendant’s vehicle using
a “box maneuver.”1 During his testimony, Agent Wiebelt acknowledged that he
did not see defendant commit any traffic violation but decided to conduct an
1
Agent Wiebelt described that one officer drove in front of defendant’s vehicle, with his lights
activated, and stopped, which caused defendant to stop. Other officers stopped their vehicles behind and
possibly to the side of defendant’s vehicle.
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“investigatory stop based on the information [he] had received and his actions
corroborating that.” Once the vehicle was stopped, Agent Wiebelt asked defendant
and the other two occupants to exit the vehicle. After they complied with his
request, Agent Wiebelt observed, from his position standing by the open doorway
to the vehicle, “a cup in the cup holder on the console, no lid, and had a quantity of
cocaine in it in a bag.”
At that point, a canine trained in the detection of narcotics arrived and “hit”
on the vehicle. As a result, the possible cocaine was seized from the vehicle, and
Agent Wiebelt performed a preliminary field test on the substance. Following a
positive result for the presence of cocaine, Agent Wiebelt arrested defendant and
conducted a search of his person incident to arrest. During this search, Agent
Wiebelt located an additional quantity of cocaine, currency, and a cell phone, all of
which were seized.
Agent Wiebelt then obtained search warrants for the two Metairie residences
associated with defendant. He and other officers executed the warrants and found
items of evidentiary value in both homes. Defendant was thereafter transported to
the investigation bureau, and after being advised of and waiving his Miranda2
rights, he provided a recorded statement, in which he claimed ownership of the
seized cocaine and paraphernalia.
During the course of his examination, Agent Wiebelt answered affirmatively
when asked whether the first informant had given him or another officer
information in the past that led to the arrest and/or conviction of other persons.
However, he acknowledged that he did not have personal knowledge of those
arrests and/or convictions. Agent Wiebelt further stated that he worked with
several other officers and agents in this investigation and that they shared
2
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
21-KA-166 3
information regarding the reliability of the informant. During his testimony, Agent
Wiebelt asserted that he did not know the first informant’s motivation or whether
he had been paid for his information.
With regard to the other source, Agent Wiebelt testified that the second
informant had not given him information in the past that led to the arrest and/or
conviction of other persons, and he did not know if that informant had provided
such information to other officers. Further, Agent Wiebelt stated that he did not
know if the second informant was motivated by the promise of money or assistance
in criminal cases.
Agent Jose Garcia, a deportation officer with Immigration and Customs
Enforcement, also testified at the suppression hearing about his involvement in the
case, which consisted of translating defendant’s interview with Agent Wiebelt.
Agent Garcia stated that he translated defendant’s Miranda rights into Spanish,
that defendant initialed next to each right on the form and signed the form,
indicating that he understood his rights and wished to waive them. Further, Agent
Garcia maintained that neither he nor Agent Wiebelt forced, coerced, threatened, or
induced defendant to waive his rights.3
Following argument of the State and defense counsel, the court deferred
ruling and gave both parties time to submit memorandum. Thereafter, the trial
court denied defendant’s motions to suppress evidence and statement. Defendant
now challenges the trial court’s denial of his motion to suppress evidence.
On appeal, defendant contends that the information provided to the police by
the two informants was insufficient to justify the stop of defendant’s vehicle and
that all evidence seized as a result of that illegal stop should be suppressed. He
3
In conjunction with the agents’ testimony, the State offered several exhibits at the suppression
hearing. Specifically, the State presented the applications for and search warrants for both residences
associated with defendant, defendant’s recorded statement and the admonition and waiver of rights form,
the affidavit in support of and search warrant for the seized cell phone, and the affidavit in support of and
the seizure warrant for the currency.
21-KA-166 4
points out that the information provided by the informants was not corroborated,
that the officers did not observe defendant commit a traffic violation or any other
illegal activity prior to the stop, and that the officer who testified at the suppression
hearing could not provide any information as to the informants’ veracity,
reliability, or basis of knowledge.
In response, the State asserts that the police had sufficient reasonable
suspicion to conduct an investigatory stop of defendant and his vehicle. The State
notes that the confidential informant’s tip, along with the anonymous source’s tip,
provided the agents with the requisite reasonable suspicion to conduct the stop
because the confidential informant was reliable, the agents substantially
corroborated the two tips, and the anonymous source’s tip contained predictive
information regarding defendant’s future behavior.
The Fourth Amendment of the United States Constitution and Article 1, § 5
of the Louisiana Constitution protect individuals against unreasonable searches and
seizures. However, the right of law enforcement officers to stop and interrogate
those reasonably suspected of engaging in criminal activity is recognized by La.
C.Cr.P. art. 215.1, as well as by state and federal jurisprudence. Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.
1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The
Terry standard, as codified in La. C.Cr.P. art. 215.1, authorizes police officers to
stop a person in a public place whom they reasonably suspect is committing, has
committed, or is about to commit an offense and demand that the person identify
himself and explain his actions. State v. Molette, 11-384 (La. App. 5 Cir.
11/29/11), 79 So.3d 484, 489. Reasonable suspicion, which is something less than
probable cause to arrest, requires that police officers have sufficient knowledge of
facts and circumstances to justify an infringement of the individual's right to be
free from government interference. Absent reasonable suspicion, an investigatory
21-KA-166 5
stop is illegal, and the evidence seized as a result is inadmissible. State v. Leonard,
11-363 (La. App. 5 Cir. 11/15/11), 80 So.3d 535, 542, writ denied, 12-14 (La.
8/22/12), 97 So.3d 356.
Under certain circumstances, an informant's tip can provide reasonable
suspicion to detain and question a person. State v. Francois, 04-1147 (La. App. 5
Cir. 3/29/05), 900 So.2d 1005, 1010. Generally, the informant’s tip must contain
predictive information regarding the future behavior of the reported suspect, and
the tip must be corroborated. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412,
110 L.Ed.2d 301 (1990); State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d
1268, 1270; State v. Francois, supra. Whether an informant’s tip establishes
reasonable suspicion to conduct an investigatory stop is considered under the
totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983); State v. Barker, 19-223 (La. App. 5 Cir. 12/11/19), 285 So.3d
581, 588.
This Court has held that a tip by an informant can supply reasonable
suspicion if it accurately predicts future conduct in sufficient detail to support a
reasonable belief that the informant had reliable information regarding the illegal
activity. The informant’s ability to predict the person’s future behavior goes to the
informant’s reliability because it demonstrates inside information and a special
familiarity with the person’s affairs. State v. Murphy, 14-437 (La. App. 5 Cir.
10/15/14), 181 So.3d 1, 7. If an informer’s tip accurately predicts the offender’s
future behavior, it gains an additional modicum of reliability. State v. Holmes, 08-
719 (La. App. 5 Cir. 3/10/09), 10 So.3d 274, 279, writ denied, 09-816 (La. 1/8/10),
24 So.3d 857.
In applying the totality of the circumstances analysis, independent
corroboration by police investigation of the details of an informant’s tip is
valuable. Even a non-predictive anonymous tip coupled with either police
21-KA-166 6
corroboration or independent police observation of unusual suspicious conduct can
supply police with the necessary reasonable suspicion to temporarily detain the
suspect. If the tip has a relatively low degree of reliability, more information will
be required to establish the requisite quantum of suspicion than would be required
if the tip were more reliable. State v. Barker, 285 So.3d at 588.
In a hearing on a motion to suppress, the State bears the burden of proof in
establishing the admissibility of evidence seized without a warrant. La. C.Cr.P.
art. 703(D). A trial court is afforded great discretion when ruling on a motion to
suppress, and its ruling will not be disturbed absent an abuse of that discretion.
State v. Rogers, 09-13 (La. App. 5 Cir. 6/23/09), 19 So.3d 487, 493, writ denied,
09-1688 (La. 4/9/10), 31 So.3d 382.
Having thoroughly considered the circumstances of this case, the arguments
of counsel, and the applicable jurisprudence, we find no abuse of discretion in the
trial court’s denial of defendant’s motion to suppress evidence. In the present case,
the officers obtained information from two sources regarding defendant. The first
informant advised the officers that defendant was distributing quantities of cocaine
from a residence located at 1930 South I-10 Service Road in Metairie.4 The agents
were also advised that defendant drove a Chevrolet Silverado with a specific
license plate number. The investigating officers corroborated defendant’s
connection to the specified residence and vehicle and observed him at that address
and driving the vehicle.
4
During his testimony at the suppression hearing, Agent Wiebelt answered affirmatively when
asked whether the first informant had given him or another officer information in the past that led to the
arrest and/or conviction of other persons. However, he acknowledged that he did not have personal
knowledge of those arrests and/or convictions. Agent Wiebelt further stated that he worked with several
other officers and agents in this investigation and that they shared information regarding the reliability of
the informant. The determination of whether probable cause exists for an arrest or reasonable suspicion
for an investigatory stop is a purely objective inquiry that takes into account all of the information known
collectively to the law enforcement personnel involved in the investigation even if some of the
information is not communicated to the arresting officer. Thus, “the arresting officer need not have talked
to the informants or had any knowledge of their reliability” before acting on information provided by
other officers. State v. Elliott, 09-1727 (La. 3/16/10), 35 So.3d 247, 251.
21-KA-166 7
On May 6, 2019, Agent Wiebelt received information from a second source
that defendant would be departing his residence that evening between 8:00 p.m.
and 8:30 p.m. with the specific intent to distribute a quantity of cocaine to
someone. Pursuant to that specific information, the officers set up surveillance on
defendant’s residence. They observed defendant go back and forth between the
two residences associated with him, and then, in accordance with the information
provided by the second source, the agents observed defendant exit the specified
residence within the provided time frame of 8:00 p.m. and 8:30 p.m., enter the
described vehicle, and depart the area. Shortly thereafter, the officers effected a
stop on defendant’s vehicle using a box maneuver.5 After defendant exited the
vehicle, Agent Wiebelt saw, in plain view, what appeared to be cocaine in a cup in
the center console of the car, which further corroborated the information given by
the informants.
Despite the fact that the officers did not observe defendant commit a traffic
violation or any other criminal activity, we find that they had sufficient reasonable
suspicion to conduct the stop.6 We acknowledge that each tip, by itself, would not
have supported the stop of defendant; however, the combination of the two tips,
one of which contained predictive information, along with police corroboration of
the information, gave the officers the requisite reasonable suspicion to conduct the
stop.
5
We note that, under the circumstances of this case, the officers’ method of stopping defendant
did not elevate the matter to an unlawful arrest. The vast majority of courts have held that police actions
in blocking a suspect’s vehicle and approaching with weapons ready, and even drawn, does not constitute
an arrest per se. In State v. Carter, 11-758 (La. App. 5 Cir. 5/31/12), 96 So.3d 1283, 1290-91, this Court
recognized that investigatory stops necessarily involve an element of force or duress and the temporary
restraint of a person’s freedom, and such stops may be accompanied by features normally associated with
an arrest. See also State v. Leonard, 80 So.3d at 543-44.
6
Police do not have to observe what they know to be criminal behavior before investigating.
State v. Morales, 12-454 (La. App. 5 Cir. 12/18/12), 125 So.3d 1141, 1146. Police officers have the
authority to stop someone in a public place if they reasonably suspect that a person is about to commit an
offense, even though no illegal activity has taken place, and no one has approached the defendant’s
vehicle to purchase drugs. State v. Francois, 900 So.2d at 1011.
21-KA-166 8
Having found that the stop of defendant was legal, we find no merit to his
argument that that the evidence seized as a result of that stop should be suppressed
as fruit of the poisonous tree. Accordingly, we find no abuse of discretion in the
trial court’s denial of defendant’s motion to suppress evidence.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, defendant contends that the trial court
erred in denying his “Opposition to State’s Motion to Seal and Request for Full
Disclosure.”
In the present case, the State filed a motion to seal, requesting that the trial
court place its “Notice of Additional Information” under seal. In this notice, the
State disclosed that an officer named in the police report in defendant’s case was
under investigation concerning an allegation of excessive force in an unrelated
matter. The trial court granted the State’s motion to seal. In response, defendant
filed an “Opposition to State’s Motion to Seal and Request for Full Disclosure.” In
that opposition, counsel asserted that the State’s notice had great bearing on the
credibility of a State witness and that the State was attempting to suppress the
information. Defense counsel asked the court to conduct a hearing on the matter
and to thereafter order full disclosure of the information bearing on the credibility
of the State’s case. After a hearing, the trial court denied defendant’s request.
Defendant now challenges this ruling, contending that it effectively denied his
right to attack the credibility of the State’s witness due to the exculpatory evidence
being withheld prior to the motion to suppress.
In the present case, defendant pled guilty. A guilty plea normally waives all
non-jurisdictional defects in the proceedings leading up to the guilty plea and
precludes review of such defects either by appeal or post-conviction relief. State v.
Nelson, 17-634 (La. App. 5 Cir. 5/23/18), 247 So.3d 222, 226. However, a
defendant may be allowed appellate review if at the time he enters a guilty plea, he
21-KA-166 9
expressly reserves his right to appeal a specific adverse ruling in the case under
State v. Crosby, 338 So.2d 584, 588 (La.1976). See State v. Turner, 09-1079 (La.
App. 5 Cir. 7/27/10), 47 So.3d 455, 461.
In the present case, the record reflects that defendant did not reserve his right
to seek review of this issue. Specifically, the transcript of the guilty plea
proceeding and the acknowledgment and waiver of rights form clearly show that
the only ruling defendant preserved for review was the trial court’s denial of his
motion to suppress evidence. Other than the reference in his motion for appeal,
there is no suggestion in the record that defendant reserved his right to appeal the
trial court’s decision on his request for full disclosure pursuant to State v. Crosby,
supra. As such, defendant is not entitled to appellate review on this issue.
ASSIGNMENT OF ERROR NUMBER THREE
In his third assignment of error, defendant contends that he should not have
to pay a duplication of records cost when both the 24th Judicial District and the
Fifth Circuit are paperless courts and the information could electronically be
transferred.
In the present case, the record does not contain any reference to the
complained of cost. Defendant raises this issue for the first time on appeal. A new
issue that has not been submitted to the trial court for consideration usually cannot
be raised for the first time on appeal. State v. Darensbourg, 06-572 (La. App. 5
Cir. 12/27/06) 948 So.2d 1128, 1131, writ denied, 07-317 (La. 11/9/07), 967 So.2d
495. Generally, a court of appeal will not consider an issue which is raised for the
first time on appeal. State v. Johnson, 19-422 (La. App. 5 Cir. 1/29/20), 290 So.3d
301, 304.
Accordingly, this issue is not properly before this Court for review.
21-KA-166 10
ERRORS PATENT REVIEW
Lastly, we have reviewed the record for errors patent and have found none.
See La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v.
Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990).
Accordingly, for the reasons set forth herein, we affirm defendant’s
conviction and sentence.
AFFIRMED
21-KA-166 11
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 1, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-KA-166
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
MATTHEW R. CLAUSS (APPELLEE) THOMAS J. BUTLER (APPELLEE) A. BRUCE NETTERVILLE (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
JOSHUA K. VANDERHOOFT (APPELLEE)
ASSISTANT DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053