State v. Brown

370 So. 2d 547
Supreme Court of Louisiana·Decided April 9, 1979·No. 63025·Published·Cited by 28 cases

Opinion

370 So.2d 547 (1979)

STATE of Louisiana, Appellee.
v.
Alphonse BROWN, Appellant.

No. 63025.

Supreme Court of Louisiana.

April 9, 1979.

*549 Bernard Jack Usprich, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., G. Michael Grosz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

TATE, Justice.[*]

The defendant Brown was convicted of possession of heroin with intent to distribute, and sentenced to life imprisonment at hard labor.

The principal issues raised upon his appeal relate to: I. Evidentiary rulings in the hearing on his motion to suppress the heroin as seized unconstitutionally, and the denial of this motion (Assignments of Error Nos. 1, 4, 5, 6, and 8); and II. The admission into evidence on the trial of the merits of irrelevant and prejudicial evidence relating to the "Detroit Profile" of suspected drug carriers (Assignment 7).

We affirm the trial court's denial of the motion to suppress (Part I of the opinion below), but we reverse the conviction because of the admission of irrelevant and grossly prejudicial evidence (Part II below).

I. The Motion to Suppress[1]

The two issues involved in the review of the denial of the motion to suppress concern (a) an evidentiary ruling permitting evidence relating to the drug courier profile and (b) the claim that the motion to suppress was erroneously denied because the drug was seized from the accused as the result of an illegal investigatory stop.

Assignments of Error Nos. 1, 4, & 5 (Motion to Suppress)

Defendant contends the trial court erred in admitting evidence relating to the drug courier profile at the hearing on the motion to suppress.

During cross-examination of one of the officers who arrested defendant at the New Orleans International Airport, the state asked the witness to explain the use of drug courier profiles, and to describe those characteristics of the profile which defendant exhibited while under surveillance at the airport. The witness fully complied without objection by defendant. On redirect, however, when the state indicated that it wanted to go into the profile again, defendant objected to any of the evidence relating to the profile being admitted into evidence (Assignment of Error No. 1). During cross-examination of another of the arresting officers, defendant twice objected to state questions involving the officers' use of the drug courier profile. The trial court overruled the objections both times (Assignments of Error Nos. 4 & 5).

It is now well established that the mere fact that a defendant's behavior while under surveillance at the airport correlates with various elements of a drug courier profile does not by itself provide reasonable cause to stop and detain him for questioning. State v. Washington, 364 So.2d 958 (La.1978); State v. Matthews, 366 So.2d 1348 (La.1978). However, it does not follow that such factors are to be wholly disregarded in determining whether reasonable cause exists. Components of the profile, and defendant's conformance thereto, may be considered, along with other relevant information known to the officer, in evaluating whether he had reasonable cause to stop and detain a defendant. United States v. Smith, 574 F.2d 882 (6th Cir. 1978); United States v. Pope, 561 F.2d 663 (6th Cir. *550 1977). It was therefore admissible at the hearing on the motion to suppress, in order to show reasonable cause for the stop, in conjunction with the other more particularized information as to the accused's criminal conduct.

Assignments of Error Nos. 6 & 8 (Motion to Suppress)

Defendant contends the trial court erred in denying his motion to suppress physical evidence. He argues that the investigatory stop was illegal, thereby tainting his consent to the search and the evidence obtained as a result of that search. Alternatively, defendant argues that his consent to the stop search was ineffective since it was obtained as a result of an illegal arrest.

The testimony at the hearing on the motion to suppress revealed the following facts:

On May 5, 1977, Officer Richard Dennis of the Jefferson Parish Sheriff's Office received a tip from a confidential informant that a 24-27 year old black male by the name of Alphonse Brown would be flying into the New Orleans International Airport the next day from Los Angeles carrying a quantity of heroin. The informant described defendant as a full-bearded black male with a short bush haircut, about 6'1" in height, 200-240 pounds, wearing a three-piece tan or cream colored suit, and sporting a gold tooth in the front of his mouth.

As a result of having received this information, Officer Dennis arrived at the airport designated at about 3:00 a. m. on May 6 in order to maintain a surveillance of all flights coming in from Los Angeles. At about 7:30 that morning, two federal drug enforcement agents joined him in the surveillance.

At approximately 2:30 p. m. of that day, defendant was observed arriving on a non-stop flight from Los Angeles. The three officers noted that defendant, who fit the description provided by the informant, was the last passenger to disembark. Following defendant down the concourse to the baggage area, the agents further noted that defendant appeared nervous, repeatedly looking over his shoulder and from side to side. At the baggage area, the agents observed defendant retrieve one small suitcase.

As defendant was leaving the area, the agents approached and stopped him. They identified themselves as police officers and asked defendant for his driver's license and airplane ticket. These were produced, the license in the name of Alphonse Brown, and the ticket in the name of Joseph Brown.

Defendant was then asked to accompany the agents to an office on the third floor of the airport for further questioning. On the way to the office, defendant was told that he was suspected of carrying narcotics in his suitcase. Defendant replied that he did not have any narcotics, but only some "herbs" in the suitcase. Upon being asked whether he meant marijuana, defendant responded affirmatively.

Subsequently, defendant gave his consent to a search of the suitcase, although there is a conflict in testimony as to when this consent was given. One officer testified that defendant's consent was given on the third floor en route from the elevator to the office; another officer stated that defendant consented to a search inside the office. In any event, the search of the suitcase disclosed a quantity of heroin concealed within a container of Johnson's Baby Powder.

The Fourth Amendment to the Federal Constitution protects people against unreasonable searches and seizures. It is well established in this regard that a law enforcement officer has a right to temporarily detain and interrogate a person whom he suspects is committing, has committed, or is about to commit a crime. La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Robinson, 342 So.2d 183 (La.1977); State v. Perique, 340 So.2d 1369 (La.1976). We have held that reasonable cause for an investigatory stop is something less than probable cause.

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State v. Brown, 370 So. 2d 547 (La. 1979).

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