State v. Bell

709 So. 2d 921, 1998 WL 76214
CourtLouisiana Court of Appeal
DecidedFebruary 25, 1998
Docket97-KA-1134
StatusPublished
Cited by57 cases

This text of 709 So. 2d 921 (State v. Bell) 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. Bell, 709 So. 2d 921, 1998 WL 76214 (La. Ct. App. 1998).

Opinion

709 So.2d 921 (1998)

STATE of Louisiana
v.
Kirk M. BELL a/k/a Kirk Bell.

No. 97-KA-1134.

Court of Appeal of Louisiana, Fifth Circuit.

February 25, 1998.

*922 Paul D. Connick, Terry M. Boudreaux, Thomas J. Butler, Vincent Paciera, Jr., District Attorney's Office, Parish of Jefferson, Gretna, for Plaintiff/Appellee State of Louisiana.

Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, for Defendant/Appellant Kirk M. Bell.

Before BOWES, WICKER and GOTHARD, JJ.

BOWES, Judge.

The defendant, Kirk M. Bell, was convicted of possession with intent to distribute cocaine, a violation of La. R.S. 40:967 A, and he was sentenced to 15 years at hard labor with credit for time served. Pursuant to a multiple bill filed by the state, the defendant was adjudicated a third felony offender. The trial court vacated the original 15 year sentence and imposed an enhanced sentence of life imprisonment without parole, probation, or suspension of sentence. Defendant now appeals. We affirm the defendant's conviction and sentence.

FACTS

The following facts were developed from trial testimony.

Detective Antonio Frere of the Jefferson Parish Sheriff's Office testified that on September 12, 1996 at approximately 9:40 p.m. he was working with his partner Det. Myron Gaudet. The detectives were patrolling, in an unmarked car, what they described as the "high crime area" of Bunche Village off of Airline and Jefferson Highways in Jefferson Parish.

When the officers turned the corner onto Calhoun Street, a location known to them for street level narcotic activity, they saw two men flagging down a pickup truck. As they drove closer, they saw a third man approach the passenger side of the truck. The two men were having a conversation with the occupants of the truck through the driver's side window. The third man, the defendant, was leaning in the passenger window. As the officers got closer one of the two men leaning in the driver's window saw the officers.

*923 Detective Gaudet turned on the blue flashing lights on the unmarked car. The two men walked off towards the west, the truck drove off, and the defendant walked off towards an alleyway. Detective Frere watched the defendant walk away and saw the defendant throw a brown object with a white lid onto the street. Detective Frere ordered the defendant to stop and he kept on walking. Detective Frere then commanded the defendant, "Police, Stop. Come here." The defendant came towards the detective, at which time the detective advised the defendant that he was being detained for further investigation and handcuffed him.

The detective then went and seized the object the defendant had thrown which was a plastic pill bottle containing 15 off-white rocklike objects wrapped in plastic. The rocklike substance was later identified as crack cocaine.

On appeal, the defendant raises four assignments of error.

1. He alleges that the trial court erred in denying the motion to suppress evidence.
2. Second he argues that the evidence presented at trial was insufficient to support a verdict of guilty.
3. Third, he argues that the trial court erred in finding him to be a third felony offender.
4. Last, he alleges that the mandatory minimum sentence of life imprisonment imposed is constitutionally excessive under the facts of his case.

In addition, we will conduct a review for errors patent on the face of the record.

I.

MOTION TO SUPPRESS

In his first assignment of error, the defendant argues that the trial court erred by failing to grant his motion to suppress the evidence, which he argues was obtained after an illegal arrest.

In determining whether the ruling on a defendant's motion to suppress is correct, an appellate court on review is not limited to the evidence adduced at the hearing on the motion, but may also consider pertinent evidence given at the trial. State v. Byes, 94-611 (La.App. 5 Cir. 12/28/94), 648 So.2d 1073.

The defendant argues that trial court erred in denying the motion to suppress because the evidence was abandoned in response to a detention which was not justified by reasonable cause.

La. Const. Art. 1, Sec. 5 provides in part:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search.

The Louisiana Supreme Court has held that the police may not make a warrantless arrest of a citizen without probable cause that the citizen has engaged in criminal conduct and, furthermore, that evidence recovered as a result of an unconstitutional search or seizure will not be admissible. State v. Tucker, 626 So.2d 707 (La.1993). If evidence is abandoned by a citizen and then recovered by the police as a direct result of an unconstitutional seizure, that evidence may not be used in a resulting prosecution against the citizen. State v. Tucker, supra.

It is different, however, if a citizen abandons or otherwise disposes of property prior to any unlawful intrusion into the citizen's right to be free from governmental interference. In this situation, such property may be lawfully seized and used against the citizen in a resulting prosecution. In this latter case, there is no expectation of privacy and, thus, no violation of a person's custodial rights. State v. Belton, 441 So.2d 1195, 1199 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Tucker, supra.

An individual is "seized" when the individual is actually stopped or when there is an "imminent actual stop." State v. Belton, and State v. Tucker, supra. An "actual stop" occurs only when an individual submits *924 to a police show of authority or is physically contacted by police. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). An "actual imminent stop" occurs when an "actual stop" is "virtually certain" to result from the police encounter. State v. Tucker, supra at 713. Furthermore,

In determining whether an `actual stop' of an individual is `imminent,' we find that the focus must be on the degree of certainty that the individual will be `actually stopped' as a result of the police encounter. This degree of certainty may be ascertained by examining the extent of police force employed in attempting the stop.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Louisiana Versus Emile Pierce
Louisiana Court of Appeal, 2022
State of Louisiana v. Adrian Anton Dorsey
Louisiana Court of Appeal, 2022
State of Louisiana v. Uganon Sha Richard
Louisiana Court of Appeal, 2022
State v. Bell
259 So. 3d 497 (Louisiana Court of Appeal, 2018)
State v. Smith
204 So. 3d 1003 (Louisiana Court of Appeal, 2016)
State of Louisiana v. Robert E. Smith
Louisiana Court of Appeal, 2016
State v. Castillo
167 So. 3d 624 (Louisiana Court of Appeal, 2014)
State v. Hager
148 So. 3d 615 (Louisiana Court of Appeal, 2014)
State v. Phillips
130 So. 3d 416 (Louisiana Court of Appeal, 2013)
State v. Hackett
122 So. 3d 1164 (Louisiana Court of Appeal, 2013)
State v. Pollard
106 So. 3d 1194 (Louisiana Court of Appeal, 2012)
State v. Holmes
106 So. 3d 1076 (Louisiana Court of Appeal, 2012)
State v. Barnes
92 So. 3d 9 (Louisiana Court of Appeal, 2011)
State v. Proctor
80 So. 3d 527 (Louisiana Court of Appeal, 2011)
State v. Stewart
65 So. 3d 771 (Louisiana Court of Appeal, 2011)
State v. Jones
975 So. 2d 73 (Louisiana Court of Appeal, 2007)
State v. Anderson
945 So. 2d 768 (Louisiana Court of Appeal, 2006)
State v. Hebert
930 So. 2d 1039 (Louisiana Court of Appeal, 2006)
State v. Fleming
902 So. 2d 451 (Louisiana Court of Appeal, 2005)
State v. Guillard
902 So. 2d 1061 (Louisiana Court of Appeal, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
709 So. 2d 921, 1998 WL 76214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bell-lactapp-1998.