State v. Boss

887 So. 2d 581, 2004 WL 2387355
CourtLouisiana Court of Appeal
DecidedOctober 26, 2004
Docket04-KA-457
StatusPublished
Cited by38 cases

This text of 887 So. 2d 581 (State v. Boss) 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. Boss, 887 So. 2d 581, 2004 WL 2387355 (La. Ct. App. 2004).

Opinion

887 So.2d 581 (2004)

STATE of Louisiana
v.
Kelly BOSS.

No. 04-KA-457.

Court of Appeal of Louisiana, Fifth Circuit.

October 26, 2004.

*583 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux — Appellate Counsel, Andrea F. Long — Counsel of Record on Appeal, Frank A. Brindisi — Trial Counsel, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, CLARENCE E. McMANUS.

JAMES L. CANNELLA, Judge.

The Defendant, Kelly Boss, appeals from her conviction for possession of hydrocodone and her sentence to one year imprisonment at hard labor, suspended, with three years active probation and a $2500 fine. For the reasons which follow, we affirm.

On August 25, 2003, the Defendant was charged in a bill of information with possession of hydrocodone in violation of La. R.S. 40:967(C).[1] She initially pled not guilty and filed several pretrial motions including motions to suppress the evidence and her statement. After a hearing on December 15, 2003, the Defendant's motions to suppress were denied. On that same date, the Defendant withdrew her not guilty plea and entered a plea of guilty under Crosby[2] and La.C.Cr.P. art. 893.

FACTS

On July 21, 2003, Lieutenant Emile Larson received a phone call from an anonymous caller (AC) advising that the Defendant was going to sell her wedding ring *584 set to her sister for $2,000 and then obtain illegal narcotics for her husband. The AC identified herself as a member of the Defendant's family.[3] The AC gave Lt. Larson the Defendant's name and described her as a white female with brown hair and gave him the Defendant's approximate height and weight. The AC also described the vehicle that the Defendant would be driving as a grey Mercury Cougar. The AC advised that the ring transaction was going to take place at approximately 3:30 p.m. at the Whitney Bank on Jefferson Highway. She then advised that the Defendant would obtain the drugs after the transaction. Lt. Larson relayed this information to Detective Richard Valley, who had been present in the room during the phone conversation between Lt. Larson and the AC. Detective Valley proceeded to the Whitney Bank and set up surveillance. He observed a car fitting the description given by the AC pull into the parking lot, driven by a person matching the description given by the AC. Detective Valley immediately ran a check on the license plate of the vehicle and learned that it was registered to the Defendant.

Detective Valley watched the Defendant meet with another female in front of the bank. He observed the two engage in a short conversation and then depart in separate vehicles. Detective Valley initiated a moving surveillance of the Defendant, following her to 1804 South Clearview Parkway where she picked up a white male, later identified as Robert Perry (Perry). He followed the Defendant to the 6600 block of Kawanee Avenue where she dropped off Perry, who went inside an address on Kawanee. Detective Valley observed the Defendant circle the neighborhood for approximately five minutes before picking Perry up and driving back to 1804 South Clearview Parkway.

Once the Defendant returned to 1804 South Clearview Parkway, Detective Valley stopped her and advised her of the investigation. He advised the Defendant of her rights and interviewed her. The Defendant initially denied having any illegal narcotics. However, when Detective Valley asked her if she would mind turning out her pockets, the Defendant removed seventeen tablets of hydrocodone and gave them to him. The Defendant was arrested and later gave a taped statement.

The Defendant admitted that she drove Perry to Kawanee Avenue so that he could purchase hydrocodone. She denied selling her wedding rings but admitted that her husband used drugs, namely Vicodin, at the time of the incident.

Pursuant to the plea agreement, the Defendant was sentenced to one year imprisonment at hard labor which was suspended in favor of three years of active probation. She was also ordered to pay a fine of $2,500. The Defendant appeals the ruling, denying her motions to suppress the evidence and her statement.[4]

*585 ASSIGNMENT OF ERROR NUMBER ONE

The Defendant argues that the trial court erred in denying her motions to suppress the evidence and her statement because the officer lacked reasonable suspicion to conduct an investigatory stop when he stopped her vehicle. The Defendant argues that the officer did not have enough information from the anonymous caller to support reasonable suspicion of criminal activity. She argues that there was not enough predictability in the AC's information such as the type of drugs involved, the quantity to be purchased, the location of the purchase, or the time the drug transaction would occur. The Defendant contends that there was no testimony regarding the AC's reliability and basis of knowledge and that the officer did not observe any criminal activity when he conducted surveillance of her and the bank. The Defendant also argues that the officer lacked a reasonable belief that he was in danger to justify a pat and frisk. She contends that he had no justification for searching her because there was no evidence that his safety was threatened.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Duckett, 99-314 (La.App. 5th Cir.7/28/99), 740 So.2d 227, 230.

Law enforcement officers are authorized by La.C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to conduct investigatory stops which allow officers to stop and interrogate a person reasonably suspected of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Gresham, 97-1158 (La.App. 5th Cir.4/15/98), 712 So.2d 946, 951, writ denied, 98-2259 (La.1/15/99), 736 So.2d 200. Investigatory stops require reasonable suspicion of criminal activity. "Reasonable suspicion" is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual's right to be free from governmental interference. State v. Duckett, supra at 230. Absent reasonable suspicion, an investigatory stop is illegal and the evidence seized as a result is suppressible. State v. Triche, 03-149 (La.App. 5th Cir.5/28/03), 848 So.2d 80, 84, writ denied, 03-1979 (La.1/16/04), 864 So.2d 625. Under certain circumstances, an informant's tip can provide reasonable suspicion to detain and question a person. State v. Rodriguez, 99-914 (La.App. 5th Cir.1/25/00), 761 So.2d 14, 17, writ denied, 00-599 (La.4/7/00), 759 So.2d 765. Generally, there must be some corroboration of the informant's tip and the tip must contain predictive information regarding the future behavior of the reported suspect. Alabama v. White,

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Cite This Page — Counsel Stack

Bluebook (online)
887 So. 2d 581, 2004 WL 2387355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-boss-lactapp-2004.