State v. Barney

708 So. 2d 1205, 1998 WL 76192
CourtLouisiana Court of Appeal
DecidedFebruary 25, 1998
Docket97-KA-777
StatusPublished
Cited by28 cases

This text of 708 So. 2d 1205 (State v. Barney) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barney, 708 So. 2d 1205, 1998 WL 76192 (La. Ct. App. 1998).

Opinion

708 So.2d 1205 (1998)

STATE of Louisiana
v.
Otis BARNEY.

No. 97-KA-777.

Court of Appeal of Louisiana, Fifth Circuit.

February 25, 1998.

*1206 Gregory A. Miller, Norco, for Defendant/Appellant.

Harry J. Morel, Jr., District Attorney, Kurt F. Sins, Assistant District Attorney, Hahnville, for Plaintiff/Appellee.

Before GAUDIN, WICKER and DALEY, JJ.

DALEY, Judge.

Otis Barney appeals his conviction of possession of cocaine, a violation of LSA-R.S. 40:967. On appeal, he assigns as error the trial court's denial of his Motion to Suppress Evidence. We find that the trial court erred in denying his Motion to Suppress. We reverse and remand for further proceedings.

On February 3, 1997, the District Attorney for the Parish of St. Charles filed a Bill of Information charging defendant, Otis Barney, with possession of cocaine, a violation of LSA-R.S. 40:967. He filed a Motion to Suppress the Evidence, which was heard and denied on April 9, 1997. On the same day, Barney pled guilty according to State v. Crosby[1], reserving his right on appeal to raise the trial court's failure to grant his Motion to Suppress. After waiving sentencing delays, he was sentenced to two years in prison, sentence suspended, and two years active probation.

FACTS

The following facts are gleaned from the arresting officer's report and the transcript of the hearing on the Motion to Suppress. The sole witness to testify at the hearing was Officer Farrell of the St. Charles Parish Sheriff's Office.

On January 16, 1997, Officers Farrell and Majors of the St. Charles Parish Sheriff's Office were on patrol in New Sarpy in two separate marked police units. At approximately *1207 2:00 a.m., they observed Barney standing next to a vehicle in the middle of East Harding Street, when the officers approached in the fully marked vehicles. Upon seeing the police units, Barney fled and was eventually apprehended after running several streets away. The officers testified that they observed Barney attempting to reach in the right rear pocket in his jeans. Officer Farrell testified that he hurriedly grabbed Barney's hands and walked him back to the police unit, where he conducted a pat-down search of Barney and also advised him of his Miranda rights. During the pat-down, Officer Farrell felt an object he thought was a matchbox in defendant's right rear jeans pocket. He retrieved the matchbox, opened it, and discovered several pieces of off-white material, which field-tested positive for cocaine.

ASSIGNMENT OF ERROR ONE

In this assignment of error, defendant contends that the trial judge improperly refused to suppress the evidence seized pursuant to the patdown search. Specifically, he argues that Deputy Farrell did not have reasonable suspicion of criminal activity to justify the initial stop, nor did the officer have an articulable belief that he was in danger so as to justify the subsequent frisk. Additionally, defendant contends that the seizure of the matchbox was unjustified because it was immediately apparent to Deputy Farrell that the matchbox was not a weapon and that a matchbox in and of itself is not contraband. The state responds that Deputy Farrell had reasonable cause to stop and pat defendant down. The state also contends that the seizure of the matchbox was justified and relies on this Court's decision in State v. Stevens, 95-501 (La.App. 5 Cir. 3/26/96), 672 So.2d 986.

The issue before us is, initially, whether the investigatory stop and frisk was legal. If so, the next inquiry is whether the patdown search went past permissible bounds.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. However, LSA-C.Cr.P. art. 215.1, as well as state and federal jurisprudence, gives law enforcement officers authority to stop and interrogate individuals reasonably suspected of criminal conduct. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Charles, 95-498 (La.App. 5 Cir. 12/13/95), 666 So.2d 1147.

Reasonable cause for an investigatory stop is something less than probable cause to arrest; it requires that officers have sufficient knowledge of the facts and circumstances to justify an infringement of an individual's right to be free of government interference. State v. Belton, supra; State v. Barnes, 592 So.2d 1352 (La.App. 5 Cir.1991). An unparticularized hunch is insufficient to establish reasonable grounds to stop a person. State v. Jackson, 26,138 (La.App. 2 Cir. 8/17/94), 641 So.2d 1081. The reputation of an area as one of "high crime" is an articuable fact upon which the police officer may rely and is relevant in the determination of whether there is reasonable cause to conduct an investigatory stop. State v. Miskel, 95-584 (La.App. 5 Cir. 1/30/96), 668 So.2d 1299.

Flight, a furtive gesture, nervousness, or startled behavior at the sight of a police officer is not, by itself, sufficient to justify an investigatory stop. However, this type of conduct may be a factor leading to a finding of reasonable suspicion. Further, presence in a high crime area, coupled with nervousness or flight or suspicious actions upon approach of the officers is sufficient to justify an investigatory stop. State v. White, 27,188 (La.App. 2 Cir. 8/23/95), 660 So.2d 515.

Officer Farrell testified that this particular area of New Sarpy was well known as a high crime area in which many narcotics arrests have been made. He testified that he believed a drug deal was "going down", and that after Barney ran, Farrell decided to stop and question him to determine if Barney belonged in the area.

Farrell testified that the car on which Barney was leaning also fled. The officers were unfamiliar with the car. The officers were unable to see the driver, and did not get a *1208 license plate number before or after the vehicle fled. The only behavior Officer Farrell observed was Barney leaning on a vehicle parked in the middle of the roadway, talking to its driver and then departing as the squad cars approached.

Farrell's opinion that this was a high crime area was based upon vague and general statements about the area's reputation. Accepting the officer's opinion that the area was known for crime, coupled with defendant's flight at the approach of the officers, and the officer's experience that such conduct could be indicative of a drug sale, we conclude that under current jurisprudence, the initial investigatory stop was justified.

Next, we must consider whether the officer's frisk of Barney was justified, and whether the scope of that search remained within legal parameters.

In Terry v. Ohio, the Supreme Court stated:

"The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer."

Terry v. Ohio, 392 U.S. at 29, 88 S.Ct. at 1884. Even after a lawful investigatory stop, a police officer is justified in frisking the subject only under circumstances where a "reasonably prudent man ...

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Bluebook (online)
708 So. 2d 1205, 1998 WL 76192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barney-lactapp-1998.