
    STATE v. Frank J. DUPRE.
    No. KA00-1393.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 2000.
    
      Paula Corley Marx, Lafayette, LA, Counsel for the Defendant-Appellant.’
    Honorable Earl Taylor, District Attorney, Opelousas, LA, Counsel for Plaintiff-Appellee.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   11 SAUNDERS, Judge.

The Defendant, Frank J. Dupre, was convicted of possession of cocaine with the intent to distribute and possession of a firearm by a convicted felon. He was sentenced to serve ten years at hard labor without the benefit of parole, probation or suspension of sentence and ordered to pay a $1,000.00 fine for his conviction of possession of a firearm charge by a convicted felon. After being adjudicated a habitual offender, the Defendant was sentenced to serve thirty years at hard labor without the benefit of probation or suspension of sentence for possession of cocaine with the intent to distribute. The Defendant was subsequently granted this appeal.

In the Defendant’s first assignment of error, he claims the trial court erred in denying his motion to suppress. Specifically, he claims the officers were not justified in stopping his vehicle for the alleged violation of the seatbelt law, La.R.S. 32:295.1. He contends that any evidence obtained as a result of the stop should have been excluded from introduction at trial. In support of his position, the Defendant cites State v. Barbier, 98-2923 (La.9/8/99); 743 So.2d 1236. The State contends it “cannot formulate an argument in opposition to that of Petitioner and must concede that the officer did not have lawful justification to stop and search defendant’s vehicle.” For this reason, the State agrees that the Defendant’s conviction must be vacated. Because the parties are in agreement on the disposition of this case, we accordingly vacate and set aside the Defendant’s convictions, habitual offender adjudication and sentences. We further reverse the trial court’s denial of Defendant’s Motion to Suppress and we order the evidence seized as a result of the stop suppressed. The case is remanded to the trial court for further disposition consistent herewith. Having set aside the Defendant’s sentence, the remaining issues are rendered moot.

bDECREE

For the foregoing reasons, Defendant’s conviction and sentence are reversed and set aside and the Defendant’s Motion to Suppress is granted.

REVERSED AND REMANDED.

AMY, J., CONCURS IN THE RESULT AND ASSIGNS REASONS.

LAMY, J.,

concurring in the result.

I concur in the majority’s determination that the defendant’s convictions must be vacated and the sentence set aside. However, as I stated in State v. Antoine, 98-369 (La.App. 3 Cir. 10/28/98); 721 So.2d 562, writ denied, 99-0095 (La.11/24/99); 750 So.2d 978, it is my appreciation that a seat belt conviction arising under this statute should be reversed, but that the evidence obtained, which is under consideration here, is not that typically associated with the exclusionary rule. As in Antoine, the stop for the seatbelt violation in this case, which occurred in 1996, was made by an officer faced with an ambiguous statute that had not, at that time, been interpreted by a reviewing court. Further, an Attorney General’s opinion existed, interpreting the statute to permit a stop solely for the failure to wear a seat belt. See Op.Atty. Gen. No. 95-336 (August 17, 1995). Thus, although courts have subsequently determined that La.R.S. 32:295.1, as it then existed, precludes a stop solely for the failure to wear a seat belt, the “stop was conducted at a time when the only persuasive authority as to the interpretation of the statute was the opinion of the Attorney General, an opinion under which the stop would have been valid.” Antoine, 98-369, p. 16; 569. Accordingly, I do not see that the goals of the exclusionary rule are advanced by suppression of the evidence in this case. See City of New Orleans v. Lyons, 342 So.2d 196 (La.1977). See also Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), wherein the United States Supreme Court found the exclusionary rule ^inapplicable to a situation in which an officer made a warrantless search pursuant to a statute that was subsequently deemed unconstitutional.

Notwithstanding the above observation, I agree with the majority that a reversal is required in this case due to the Louisiana Supreme Court’s decision in State v. Barbier, 98-2923 (La.9/8/99); 743 So.2d 1236, a case released subsequent to Antoine . Following that portion of Barbier in which the Court determined that La.R.S. 32:295.1 prohibits the stop of a vehicle solely for a seatbelt violation, the Court found that the trial court erred in failing to suppress evidence seized as a result of the unlawful stop. The Court stated that the evidence resulting from the unjustified stop was “tainted by the impropriety” and, thus, should have been excluded. Id. at p. 7; 1240. While the Court made this determination, the applicability of the exclusionary rule, or lack thereof, was not the focus of the supreme court’s analysis. Importantly, however, the trial court’s denial of the defendant’s motion to suppress was reversed. As I observe that the defendant in the instant matter is positioned similarly to the defendant in Barbier, a position adopted by the State as it has filed a brief in this case declaring that it can formulate no argument to oppose the defendant’s argument, I agree that the evidence seized as a result of the stop must be suppressed and the convictions reversed.

For these reasons, I respectfully concur.  