State v. Anderson

696 So. 2d 105, 1997 WL 269521
Louisiana Court of Appeal·Decided May 21, 1997·No. 96-K-0810·Published·Cited by 18 cases

Opinion

696 So.2d 105 (1997)

STATE of Louisiana
v.
Dwight ANDERSON.

No. 96-K-0810.

Court of Appeal of Louisiana, Fourth Circuit.

May 21, 1997.

Harry F. Connick, District Attorney, Gordon Rountree, Assistant District Attorney, New Orleans, for plaintiff-relator.

Before BARRY, KLEES and ARMSTRONG, JJ.

KLEES, Judge.

Dwight Anderson was arrested and charged with possession of cocaine. The trial court granted his motion to suppress and the State sought relief from this Court. Finding "no abuse of discretion by the Trial Court" we denied the application. The Supreme Court subsequently granted the *106 State's writ application and remanded this matter for briefing, argument and opinion.

FACTS

At approximately 8:00 p.m. on November 29, 1995, officers on patrol observed two men standing in front of a food store at the corner of Clio and S. Liberty Streets. One of the men, later identified as the defendant Dwight Anderson, was showing something in his cupped hand to the other man. When Anderson looked up and saw the approaching officers, he became startled, drew back his hand, and placed his hand in his pocket. Anderson began to walk away, and the officers detained him. An officer frisked him and discovered two plastic bags in his pocket, one of which contained substances which felt to the officer like rocks. The officer retrieved the bags, which were both found to contain rocks of crack cocaine. The officers then placed the defendant under arrest.

When it suppressed the evidence seized from the defendant, the trial court noted that the officers did not have probable cause for the defendant's arrest to search him. The State argues, however, that the evidence was seized as a result of a patdown search pursuant to an investigatory stop. The State further argues that because it was immediately apparent that one of the bags felt during the patdown contained cocaine, the officer was justified in reaching into the pocket and seizing the bag.

In State v. Williams, 95-1971 (La.App. 4th Cir. 11/16/95), 665 So.2d 112, this court discussed a detention based upon reasonable suspicion of criminal activity:

The authorization for a temporary stop by a police officer of a person in a public place is set forth in La.C.Cr.P. art. 215.1, which provides in part:
A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Smith, 94-1502 (La.App. 4th Cir. 1/19/95), 649 So.2d 1078; State v. Carey, 609 So.2d 897 (La.App. 4th Cir.1992). As this court noted in Smith:
A police officer has the right to stop a person and investigate conduct when he has a reasonable suspicion that the person is, has been, or is about to be engaged in criminal conduct. La.Code Crim.Proc.Ann. art. 215.1 (West 1991); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983). Reasonable suspicion for an investigatory stop is something less than probable cause; and, it must be determined under the facts of each case whether the officer had sufficient articulable knowledge of particular facts and circumstances to justify an infringement upon an individual's right to be free from governmental interference. State v. Albert, 553 So.2d 967 (La.App. 4th Cir.1989); State v. Smith, 489 So.2d 966 (La.App. 4th Cir. 1986).
The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Belton, 441 So.2d 1195 (La.1983), cert. den. Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). An investigative stop must be justified by some objective manifestation that the person stopped is or is about to be engaged in criminal activity or else there must be reasonable grounds to believe that the person is wanted for past criminal conduct. State v. Moreno, 619 So.2d 62, 65 (La.1993).

State v. Smith, 94-1502 pp. 4-5, 649 So.2d at 1082. In addition, once an officer has reasonable suspicion to detain a suspect, paragraph B of art. 215.1 provides:

When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.
*107 See also State v. Hunter, 375 So.2d 99 (La.1979). "The officer need not be absolutely certain that the person is armed, but the officer must be warranted in his belief that his safety or that of others is in danger." State v. Smith, 94-1502 p. 5, 649 So.2d at 1078, 1082.

State v. Williams, 95-1971 pp. 6-8, 665 So.2d at 115-116.

In State v. Edwards, 530 So.2d 97 (La.App. 4th Cir.1988)[1], officers were on patrol in an area known for narcotics activity when they saw the defendant and a companion standing on a corner. The defendant was showing his companion an object clenched in his hand. The defendant fled as the officers approached. The officers pursued the defendant, and he entered a sweetshop, where they saw him remove a gun from his waistband and place it under a door. The trial court granted the motion to suppress evidence. On review this Court found the officers' actions would have caused a reasonable person to believe he was seized[2], and because the officers did not possess reasonable suspicion of criminal activity, they were without authority to seize the discarded object. The Court stated:

Although a defendant's furtiveness may be highly suspicious and is a factor to be considered in this determination (sic), his flight, nervousness, or startled look at the sight of a police officer, without any relationship to a violation of criminal law, is insufficient to justify an investigatory stop. [citations omitted]
Applying these principles to the admittedly close facts in the instant case, we conclude that the police officers did not have reasonable cause to make an investigatory stop of the defendant based on a suspicion that he had engaged in a narcotics transaction. Although the defendant's running from the scene upon seeing the officers is a factor to be considered, this flight was is (sic) still insufficient to justify an investigatory stop where the officers did not know what was in defendant's hand, saw no exchange of money, and had not recognized either the defendant or his companion as a known drug dealer.

State v. Edwards, at 98.

In State v. Ricard, 94-0975 (La.App. 4th Cir. 7/14/94), 640 So.2d 880, the defendant was observed in a high crime area arguing with four females. The officers stopped and exited their vehicle; the defendant saw them and began stumbling away as if drunk or intoxicated. The defendant ignored the officers' order to stop. The defendant's hand was clenched, and he attempted to put it in his coat pocket.

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