State v. Burton

640 So. 2d 342, 1994 WL 56331
CourtLouisiana Court of Appeal
DecidedFebruary 23, 1994
DocketK93-828
StatusPublished
Cited by13 cases

This text of 640 So. 2d 342 (State v. Burton) 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. Burton, 640 So. 2d 342, 1994 WL 56331 (La. Ct. App. 1994).

Opinion

640 So.2d 342 (1994)

STATE of Louisiana, Respondent,
v.
Samuel BURTON and Alvin McCreary, Relators.

No. K93-828.

Court of Appeal of Louisiana, Third Circuit.

February 23, 1994.
Stay Denied; Writ Denied April 7, 1994.

*344 Todd Samuels Clemons, Paul Peter Reggie, for State.

Jo Fleming, Donald Ray Dobbins, for Samuel Burton and Alvin McCreary.

Before CULPEPPER[*], DECUIR and GUIDRY, JJ.

WILLIAM A. CULPEPPER, Judge Pro Tem.

Defendants, Samuel Burton and Alvin McCreary, were indicted for possession of over four hundred (400) grams of cocaine, a violation of La.R.S. 40:967(C) & (F). Defendants filed a pretrial motion to suppress, which motion was denied by the trial court. Defendants sought review in this court and, on July 29, 1993, this court granted the writ finding the trial court erred in denying defendants' motion to suppress as the evidence was obtained as the result of an illegal search and seizure. The state sought relief in the supreme court. On November 19, 1993, the supreme court granted the writ and remanded the case to the court of appeal for briefing and opinion. 629 So.2d 377. The case is now before us on remand.

Defendants contend by their first assignment of error that the trial court erred in denying their Motion to Suppress when the purpose for which they were initially stopped, speeding, was concluded with the trooper's warning to 1) slow down, 2) return of defendant Burton's driver's license and 3) instructions that the defendants were "free to go".

Trooper Timothy Lafleur, employed by the Louisiana State Police, testified that on October 17, 1992, he and Trooper Savoy stopped a black Mazda RX-7 on Interstate 10 for going 62 miles an hour in a 55 mile an hour zone. Samuel Burton was driving the vehicle and Alvin McCreary was his passenger. Trooper Lafleur testified that he spoke with Burton concerning the speeding violation and while talking to him noticed that his nervousness exceeded that of a normal individual stopped for a traffic violation. In particular Burton's hands were shaking very bad, his stomach was quivering and the carotid artery in the neck was very pronounced and pulsating. Due to this extreme nervousness, Trooper Lafleur continued to question Burton concerning his recent activities. Burton informed Trooper Lafleur that he had left from Houston, Texas, had been there for two days and was there to visit relatives. Burton stated that the passenger, Alvin McCreary, was his cousin, being related somehow on his mother's father's side.

Trooper Lafleur then joined Trooper Savoy who was questioning the passenger, McCreary. McCreary informed the troopers that he had been in the Bahamas for three days and had just returned to Houston where Burton was working. He informed the officers that he and Samuel Burton were cousins, his mother and Burton's mother being sisters. Noting the conflicting stories and the actions of the two individuals, Trooper Lafleur filled out a Consent to Search Form, handed Burton back his driver's license and told him to slow down. At this point Burton began walking back to his vehicle and Trooper Lafleur asked Burton to look at the Consent to Search Form and explained to Burton what the form entailed. Burton did not sign the form and refused to allow the car to be searched, whereupon Trooper Dan Doughtary was radioed to bring a canine unit to the scene. Defendants were informed they were free to leave but the vehicle was to remain at the scene. Defendants elected to stay with the vehicle.

*345 Within approximately fifteen minutes of initially clocking the vehicle, Trooper Doughtary's canine unit arrived and gave a positive alert to the presence of drugs. A search was conducted of the vehicle, which search produced two kilos of cocaine and two nine millimeter handguns with laser sites. Defendants were thereafter placed under arrest.

There are two widely recognized exceptions to the warrant requirement involving searches of automobiles. One is known as the "automobile exception" and is based on probable cause and exigent circumstances. The "automobile exception" has been upheld in U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In Ross, the U.S. Supreme Court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it, may conduct a warrantless search of the vehicle as thoroughly as a magistrate could authorize.

We find Trooper Lafleur had reasonable cause to stop defendant's vehicle upon observing the vehicle travelling 62 miles an hour in a 55 mile an hour zone. The question remains as to whether there was sufficient reasonable cause to detain the vehicle.

Unreasonable searches and seizures are prohibited by both the Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution. An illegal detention of a person is considered an unreasonable seizure. It is well settled that a seizure and search conducted without a warrant issued upon probable cause is per se unreasonable unless the warrantless seizure and search can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Tatum, 466 So.2d 29 (La.1985). La.Code Crim.P. art. 703(D) provides that the State shall bear the burden of proving the admissibility of evidence seized without a warrant.

A form of "seizure" which is permitted without the need of a warrant or probable cause is an investigatory stop made pursuant to La.Code Crim.P. art. 215.1(A). Cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Unlike an arrest which can be made only on probable cause, an investigatory stop may be made under the more relaxed "reasonable suspicion" standard. The right to make an investigatory stop and question the individual detained must be based upon reasonable cause or reasonable suspicion to believe that the person has been, is or is about to be engaged in criminal conduct. La.Code Crim.P. art. 215.1; and State v. Belton, 441 So.2d 1195, 1198 (La.1983). An investigatory stop is no lesser a restriction on a person's liberty of movement than an arrest, but is considered a lesser intrusion because it is briefer than an arrest. State v. Cabanas, 594 So.2d 404, 408 (La.App. 1st Cir.1991), quoting State v. Vincelli, 555 So.2d 21, 24 (La.App. 1st Cir.1989).

In determining whether or not reasonable cause exists to temporarily detain a person, the totality of the circumstances, "the whole picture," must be considered. State v. Belton, 441 So.2d at 1198, and State v. Hall, 581 So.2d 337, 338 (La.App. 3d Cir.1991).

As was noted by this court in State v. Thibodeaux, 531 So.2d 284, 285 (La.App. 3d Cir.1987), reasonable cause for a "Terry stop" is less than probable cause, but the officer must have "articulable knowledge" of particular facts, which in conjunction with reasonable inferences drawn therefrom is sufficient to provide reasonable grounds of past, present or future criminal activity. Id., citing State v. Bickham, 404 So.2d 929 (La. 1981).

A generalized suspicion or hunch that an individual is involved in criminal conduct is not sufficient to detain the individual or his automobile. A police officer must have a particularized suspicion based upon articulable facts. See State v. Thibodeaux, 531 So.2d at 282; State v. Thompson, 543 So.2d 1077, 1081 (La.App.

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Cite This Page — Counsel Stack

Bluebook (online)
640 So. 2d 342, 1994 WL 56331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burton-lactapp-1994.