State v. Allen

638 So. 2d 394, 1994 WL 226841
Louisiana Court of Appeal·Decided May 31, 1994·No. 93-KA-838·Published·Cited by 26 cases

Opinion

638 So.2d 394 (1994)

STATE of Louisiana
v.
Russell J. ALLEN.

No. 93-KA-838.

Court of Appeal of Louisiana, Fifth Circuit.

May 31, 1994.

*396 Harry J. Morel, Dist. Atty., Gerald A. Rome, Asst. Dist. Atty., Boutte, for plaintiff-appellee.

Michael G. Riehlmann, New Orleans, for defendant-appellant.

Before BOWES, DUFRESNE and WICKER, JJ.

DUFRESNE, Judge.

The defendant, Russell J. Allen, was charged by bill of information with possession of over 28 grams of cocaine, in violation of LSA-R.S. 40:967 F 1(a). After a trial by jury on February 17 and 18, 1993, defendant was found guilty as charged. On July 7, 1993, the judge sentenced defendant as a second felony offender to twenty years at hard labor.

On July 9, 1993, defendant filed a motion for appeal. On October 20, 1993, court appointed counsel filed a motion to withdraw stating "[t]hat she has made a conscientious and thorough review of the record of the trial court and [has] determined that there are no non-frivolous issues to warrant an appeal herein." In accordance with the procedure set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel attached a brief to her motion to withdraw which set forth the procedural history and facts of the case, as well as a statement that counsel had reviewed the record and had found no basis upon which to appeal the defendant's conviction and sentence. Counsel forwarded copies of the motion and brief to defendant by certified mail, and counsel advised defendant of his opportunity to file an appellate brief on his own behalf. In response, defendant filed with this court a motion to extend the due date for his brief from November 20, 1993 to December 20, 1993. On March 18, 1994, a brief was filed by appellate counsel.

FACTS

At trial, Deputy Boyd Frickey of the St. Charles Parish Sheriff's Office testified that on September 10, 1992, he was stopped at a red light on Paul Maillard Road. As he reached over to get a french fry, he noticed that the vehicle on the side of him had an expired brake tag. When the light turned green and this vehicle drove off, Deputy Frickey observed that the temporary license plate was torn and old, leading the officer to believe that it, like the brake tag, was expired.

At this point, Officer Frickey performed a traffic stop and requested that the driver, later identified to be Anthony Allen, exit the vehicle. Both the driver and the passenger, defendant Russell Allen, exited the vehicle from the passenger's side. Defendant then re-entered the vehicle while the driver walked back towards the officer's unit.

At this point, Officer Will Dufrene, who had observed the situation from his unit, arrived. Defendant then exited the vehicle again and looked around. Deputy Frickey ordered defendant to re-enter the vehicle, *397 but defendant ignored his command and then ran for the wooded area north of their location.

Immediately after defendant fled, he started reaching both of his hands towards his groin area. Deputy Frickey dropped his clipboard and pursued defendant on foot. After they ran through a ditch that was partially full of water, defendant, with his hands still in his pants, turned around in an apparent attempt to see the officer's location. At that point, Officer Frickey managed to get close enough to defendant to push him to the ground. Fearing that defendant was trying to get a gun out of his pants, Deputy Frickey straddled defendant and pinned his shoulder to the ground. In the meantime, Deputy Mark Smith arrived to assist Deputy Frickey. The officers handcuffed defendant's hands behind his back and then rolled him over. As they did so, the officers observed a brown paper bag located on the ground underneath defendant's chest area. Deputy Frickey retrieved the bag, and upon opening it, he observed two plastic bags containing what appeared to be crack cocaine. He also observed a M & M candy bag which was later opened and also found to contain crack cocaine. A preliminary field test was done at the scene, proving the substances positive for the presence of cocaine.

After retrieving the narcotics, Deputy Frickey advised defendant of his rights, placed him under arrest and situated him in the police unit. Deputy Frickey then met with Officer Will Dufrene who had placed the driver under arrest for numerous traffic violations, including no driver's license. At trial, Deputy Frickey identified defendant as the individual he apprehended and found the crack cocaine underneath.

At trial, after being accepted as an expert in forensic science, Kenneth Michael Reine, II, of the Louisiana State Police Crime Lab, testified that he analyzed the white rock like substances retrieved from defendant. The three bags he was given to analyze contained approximately 173 rocks, for a total weight of 40 grams. His analysis of the rock like substances revealed the presence of cocaine.

After the State presented its case, defendant chose to testify in his own behalf; however, his version of events differs from that of the officers involved. According to defendant, when the officer stopped them, he instructed defendant and his brother, Anthony Allen, to exit the car. After defendant got out of the car, the officer yelled at him to get back in. As defendant turned to try to re-enter the vehicle, he observed his brother throw a bag toward the wooded area. According to defendant, he tried to meet the officer's demand to get back into the car; however, as he was maneuvering around his brother, who was still in the process of exiting the vehicle, defendant slipped and fell into the ditch. At that time, the officer tackled defendant to the ground and started hitting him with his service revolver in the back of his head. Defendant turned around and the officer slapped him in his mouth knocking out his two front teeth. Defendant admitted that his hands were in front of him but claimed he was merely using his hands to keep his face from going into the mud. Defendant further testified that he ran because he did not know his brother had narcotics on him, he was scared, and he wanted to avoid being arrested. Throughout his testimony, defendant maintained his claim that it was his brother's cocaine.

After listening to the conflicting versions of events, the jury found defendant guilty of possession of over 28 grams of cocaine.

ASSIGNMENT OF ERROR NO. ONE

The trial court erred in denying the Motion to Suppress Evidence.

DISCUSSION

Defendant asserts a two-fold argument in this assignment. He initially asserts that Officer Frickey had no suspicion whatsoever of any criminal activity on the part of defendant when he issued loud verbal commands to defendant to get back into the car. Defendant seems to assert that this initial portion of the encounter amounted to an illegal investigatory stop and therefore, the cocaine which defendant allegedly later discarded was not legally seized and should have been suppressed.

In the second portion of his argument, defendant asserts that, assuming the court finds Deputy Frickey's initial conduct constitutionally *398 permissible, then Deputy Frickey was without the necessary reasonable suspicion when he subsequently chased and tackled defendant. Defendant further asserts that lacking any articulable reasonable suspicion other than flight, Deputy Frickey's seizure of defendant was illegal, and the resulting recovery of the contraband unconstitutional.

Depu

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State v. Allen, 638 So. 2d 394, 1994 WL 226841 (La. Ct. App. 1994).

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