State v. Basile

700 So. 2d 1062, 1997 WL 594818
CourtLouisiana Court of Appeal
DecidedSeptember 24, 1997
Docket97-K-1162
StatusPublished
Cited by10 cases

This text of 700 So. 2d 1062 (State v. Basile) 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. Basile, 700 So. 2d 1062, 1997 WL 594818 (La. Ct. App. 1997).

Opinion

700 So.2d 1062 (1997)

STATE of Louisiana
v.
Richard BASILE, et al.

No. 97-K-1162.

Court of Appeal of Louisiana, Fourth Circuit.

September 24, 1997.

*1064 Harry F. Connick, District Attorney of Orleans Parish, David Bravo, Assistant District Attorney of Orleans Parish, New Orleans, for Relator State.

Before BYRNES, JONES and WALTZER, JJ.

WALTZER, Judge.

We are called upon to decide whether a motion to suppress the evidence was properly granted.

STATEMENT OF THE CASE

Richard M. Basile, Rebecca Scaccia and Tyron Wortham were arrested 19 January 1997. The arrest register reflects that Basile, a white male, was arrested for two violations, possession of cocaine (residue), and possession of drug paraphernalia. In the same incident, Scaccia, a white female, was arrested for the identical violations, while Wortham, a black male was arrested for possession of cocaine (residue), possession of drug paraphernalia and attempt distribution of cocaine. The bill of information formally charging Basile, Scaccia and Wortham alleges only that the trio did willfully and unlawfully possess a controlled dangerous substance, to wit: cocaine. On 22 May 1997 the trial court held a preliminary hearing to determine whether there was probable cause for the arrest of Basile and Scaccia.[1] At the conclusion of the hearing the trial judge found insufficient probable cause to substantiate the charges and granted the motion to suppress the evidence.

BACKGROUND FACTS

At the 22 May 1997 hearing Police Officer Bush testified that he and Police Officer O'Neal were on patrol at about 9 o'clock in the morning in the Gert Town area in the 3400 block of Audubon Street. When the patrol car made a right turn on Audubon Street, the officer saw a stopped pick-up truck in the middle of the street. Basile was in the driver's seat; Scaccia was in the passenger seat. Outside the stopped car stood, in the words of Police Officer Bush, "a black male" (Wortham), outside the driver's side window. Basile handed something to the "black male" (Wortham) and the officer believed that a drug transaction had taken place. Police Officer Bush pulled in front of the truck, and "secured" the "black male". Rather than finding drugs or money in Wortham's hands, which might have been indicative of a drug transaction, the officer found in Wortham's right hand the object handed to him by Basile, a wrist watch. While Officer Bush dealt with Wortham and searched him, Basile tried to drive off, but was unable to do so because the truck stalled. Basile's passenger was seen to place a purse underneath the seat. Scaccia and the purse were removed from the car and a search for weapons ensued. The purse revealed what the officer described as a glass crack pipe with cocaine residue, push rods, a pair of scissors and a pocket knife. The officer testified that he also found a crack pipe on "the third person", presumably Wortham, who was searched outside the driver's car window. Other than the items described above nothing else was recovered from anyone, who now stands charged with a violation of La. R.S. 40:967, relative to possession of cocaine. Basile protested that the officer had no cause to arrest them, because they did not buy any narcotics, although they had come to that location for that purpose. Scaccia admitted that the crack pipe taken from her purse was hers. The trio was arrested although nothing was found on Basile.

During the hearing the trial court questioned the witness:

Q.... did he [Wortham] have any rock cocaine on him or any other kind of cocaine?
A. No, sir.
Q. That he could have delivered as a result of any ...
A. We did not find any.
* * * * * *
Q. So, we have a watch that was [sic] changed hands, but we have no rocks of cocaine, and we have some paraphernalia *1065 in a purse? Is that what we have here, and a pipe on a gentleman that is not here today?
A. Yes.
Q. But, no rock cocaine or any cocaine to transfer to make a transaction?
A. We did not find any.

Defense counsel agreed that the initial stop of Wortham was correct, but argued that once the presumed contraband turned out to be no more than a wristwatch, the police had no right to go any further and continue to detain and search anyone. More particularly, there was no cause to search Scaccia's purse. Additionally, counsel for Basile stressed that nothing whatsoever was found on his client.

The State argues that once the officer had reasonable suspicion to believe that the defendants were engaging in a narcotics transaction, they had the right to search Wortham, Basile, Scaccia and Scaccia's purse. The State insists that the "totality of the circumstances" make these searches reasonable under La.C.Cr.P. art. 215.1.

THE LAW

The Fourth Amendment to the United States Constitution and Article 1, Sec. 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. Searches and seizures outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well delineated exceptions. One such exception was recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which held that where a police officer observes unusual conduct which leads him reasonably to conclude in the light of his experience that criminal activity may be afoot the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling his suspicion. Terry further held that when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officers or to others, the officer may conduct a patdown search to determine whether the person is in fact carrying a weapon. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence. If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.

DISCUSSION AND ANALYSIS

The trial judge concluded that there was no probable cause for any search of Wortham or anyone else for that matter.

Officer Bush did not testify that he had gotten a tip that there was going to be a drug transaction at the location in question; there was no contraband in plain view in or out of the automobile; there was no testimony that there was gunfire; there was no consent to search; there was no testimony that the officers saw any suspicious bulges on Wortham, or that either officer knew Wortham from a previous encounter, nor does the testimony show that there were any exigent circumstances during this encounter. The officer did not testify that this was a high crime area notorious for drug activity. The officer testified that the encounter happened at 9 a.m. and that his suspicions were aroused when he saw a black male receive something from a white driver of a truck stopped in the middle of the street. When Officer Bush saw that Wortham had received a wristwatch his suspicion of a drug transaction had not been borne out.

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Bluebook (online)
700 So. 2d 1062, 1997 WL 594818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-basile-lactapp-1997.