State v. Bradstreet

170 So. 3d 306, 14 La.App. 5 Cir. 953, 2015 La. App. LEXIS 728, 2015 WL 1787857
Louisiana Court of Appeal·Decided April 15, 2015·No. No. 14-KA-953·Published

Opinion

ROBERT M. MURPHY, Judge.

12Pefendant, Daylan Bradstreet, appeals his conviction for possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On March 19, 2013, the Jefferson Parish District Attorney charged defendant, Daylan Bradstreet, with one count of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. After entering a not guilty plea to the charged offense, defendant filed several pretrial motions, including a motion to suppress evidence that was denied on May 1, 2014. On May 20, 2014, a twelve-person jury found defendant guilty as charged. Following the denial of his motion for new trial and, alternatively, to arrest the judgment, defendant was sentenced to 15 years imprisonment at hard labor to be served without benefit of parole, probation, or suspension of sentence. Immediately following sentencing, | odefendant’s written motion to reconsider sentence, filed on May 27, 2014, was denied. On May 27, 2014, defendant also filed a motion for appeal, which was granted by the trial court on May 28, 2014.1 This appeal follows.

FACTS

On February 20, 2013, at approximately 1:00 p.m., Detective William Whittington and Detective John Wiebelt of the Jefferson Parish Sheriffs Office were on proactive patrol2 in the 3700 block of the West-[310] bank Expressway, in Harvey. Detective Whittington testified that the area they were patrolling is known for “drugs, guns, [and] stolen cars.” While traveling eastbound on the lower level of the expressway in their unmarked, yet recognizable, police unit — equipped with a spotlight on the driver’s side door — the officers observed defendant and another individual walking along the expressway near a Burger King. Upon noticing the officers, defendant “warned his friend” of their presence, who then looked back to observe the officers. The duo watched the officers to keep track of their location while “looking around,” which in Detective Wiebelt’s experience he believed was indicative of “someone looking for an avenue of escape or someone who’s going to flee.” Believing their behavior to be suspicious, the officers made a U-turn into the parking lot of a Motel 6, prompting defendant and his companion to “quickly change directions.” The two men then entered Perino’s Boiling Pot restaurant.

Later, upon seeing defendant’s companion exit Perino’s by himself, the officers got out of their vehicle to investigate and questioned him as to defendant’s Lwhereabouts. Defendant’s companion claimed to be alone, which the officers knew to be untrue based on their previous observation. Detective Wiebelt then proceeded inside Perino’s, where defendant was located near the front door. Detective Wiebelt identified himself to defendant as a law enforcement officer3 and asked defendant to step outside. Because defendant began to “look around” and “tensed his body,” Detective Wiebelt grabbed him by the arm and escorted him outside. According to Detective Wiebelt, defendant continued to resist him and became combative. Ultimately, defendant was arrested for resisting an officer and being a felon in possession of a firearm.

When Detective Whittington attempted to approach defendant’s companion to ask him additional questions about defendant, he began to “backpedal.” Detective Whit-tington then tried to grab him and a minor struggle ensued. After restraining the companion, Detective Whittington testified that he heard Detective Wiebelt give “loud verbal commands” to defendant to “stop resisting.” - Backup officers arrived on the scene shortly after defendant had been subdued.

Defendant was placed under arrest and advised of his Miranda4 rights. He was then escorted to the police unit where backup officer, Detective Steven Brens, conducted a pat-down search of defendant’s person for weapons. It was at that time that a handgun fell out of defendant’s pants onto the ground.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court abused its discretion by not suppressing the evidence (gun) as the result of an unreasonable stop by police officers.

DISCUSSION

In his sole assignment of error, defendant argues his motion to suppress should [311] have been granted because the stop and seizure were not based on treasonable suspicion, but on the mere fact that he and his companion entered a restaurant to wait and see what the “people in the car” following them “were up to.” Also, he asserts that the denial of his motion to suppress was based on Detective Wiebelt’s contradictory testimony. Specifically, he maintains that at the motion to suppress hearing, Detective Wiebelt testified that he saw his partner give chase to defendant’s companion before entering Perino’s, while at trial he testified that he was not aware of the companion’s attempt to flee until he returned from Perino’s.

The State responds that Detective Wie-belt had reasonable suspicion to conduct an investigatory stop considering the high crime nature of the area, suspicious and evasive actions of defendant and his companion, and defendant’s demeanor inside Perino’s restaurant. The State further asserts that reasonable suspicion ripened into probable cause to arrest for resisting an officer, and that the handgun was lawfully seized during a search incident to that arrest.

On June 12, 2013, defendant filed a motion to suppress the evidence. The suppression hearing on defendant’s motion was held on May 1, 2014, during which the following testimony was elicited.

Motion to Suppress Evidence Hearing:

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State v. Bradstreet, 170 So. 3d 306, 14 La.App. 5 Cir. 953, 2015 La. App. LEXIS 728, 2015 WL 1787857 (La. Ct. App. 2015).

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