State v. Butler

117 So. 3d 87, 2013 WL 2131761, 2013 La. LEXIS 1147
Supreme Court of Louisiana·Decided May 17, 2013·No. No. 2012-K-2359·Published·Cited by 25 cases

Opinions

PER CURIAM.

| /Writ granted. The decision of the court of appeal is reversed and this case is remanded for consideration of errors pre-termitted on original appeal.

In reversing defendant’s conviction and sentence for simple possession of cocaine in violation of La.R.S. 40:967(C), State v. Butler, 11-0985 (La.App. 4 Cir. 10/3/12), 101 So.3d 121, the court of appeal conducted a multi-tiered analysis of circumstances during which, at the approach of a three-unit police caravan, a SUV with illegally tinted windows sped away from curbside. Meanwhile, defendant, who had been leaning inside the passenger window of the vehicle, then took to the sidewalk and pedaled away on his bicycle as several bystanders on the corner retreated inside a neighborhood store. The appellate court determined that the police lacked either probable cause to make an arrest or reasonable suspicion to make an investigatory stop when they ordered defendant to return to the scene and place his hands on one of the police units, at which point “no reasonable person ... could have believed he was free to leave,” id., 11-0985, p. 10, 101 So.3d at 129, and at which point one of the officers then pulled up defendant’s sagging pants to get a better feel of his groin area during a patdown search and fortuitously brought into view a small packet of [88] marijuana stuffed into one of defendant’s socks. The court of appeal further observed that, even assuming the police had reasonable suspicion for an investigatory stop, and further assuming “arguendo that being in a reputedly high crime area of the city is enough to justify a frisk of any individual stopped for questioning by the police,” id., 11-0985 at 13, 101 So.3d at 130, no authority existed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) or its progeny for the officer to pull up defendant’s pants as part of a self-protective frisk for weapons. On that premise, the court of appeal held that the fortuitous discovery of the marijuana packet did not fall within the plain view doctrine justifying the lawful acquisition of probable cause. The trial court had therefore erred in denying defendant’s motion to suppress the marijuana and the rocks of cocaine subsequently found concealed in the band of his baseball cap and the coin pocket in his pants after the officer continued and intensified the search. The court of appeal accordingly reversed and remanded.

The state seeks review of that decision on the premise that, in fact, there was probable cause to arrest defendant, who, by using the sidewalk to pedal away on his bicycle, violated a municipal ordinance defining a 60-day misdemeanor offense. See New Orleans Municipal Code 154-1416 (“No person 15 or more years of age shall ride a bicycle upon any sidewalk in the city nor will bicycles be allowed on sidewalks in the business district.”); La. C.Cr.P. art. 213(A)(1) (police officer may arrest without a warrant for a misdemeanor offense committed in his presence); see also Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001) (“If an officer has probable cause to believe an individual has committed even a very minor criminal- offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”). Thus, although the officers involved thought they were executing a “suspicious person Lstop” as part of a proactive patrol of the area in which they were looking for “high profile criminals,” the state argues that in reality they were conducting a seizure based on probable cause, tantamount to an arrest for Fourth Amendment purposes, and could therefore subject defendant to a full body search for weapons or contraband incidental to that seizure without particularized concern for officer safety, although the offense for which the officers ultimately arrested defendant was not the offense for which they stopped him on probable cause.

The state relies on this Court’s decision in State v. Sherman, 05-0779, p. 11 (La.4/4/06), 931 So.2d 286, 293, which adopted the rule, under somewhat similar circumstances, that “if probable cause to arrest plus the making of a custodial arrest justifies a search of the person, then a search should be allowed when there is probable cause to arrest but no arrest.” Sherman thus upheld a search conducted by experienced narcotics officers who happened upon defendant standing next to his stalled motorcycle parked partially on the roadway in violation of one or more traffic regulations. The officers did not arrest defendant for any traffic violation, including his failure to have an operator’s license for his motorcycle, but nonetheless went inside his pocket and then arrested him for possession of the cocaine they found on his person. In upholding the search, we underscored that “the subjective intentions of the officers does not determine the reasonableness of a warrantless search incidental to arrest, where the officer did not have an intent to arrest for the offense for which probable cause objectively existed.” Sherman, 05-0779 at 15, 931 So.2d at 296 (discussing Whren v. United States, 517 U.S. [89]*89806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996) (“[T]he fact that the officer does not have the state of mind which is hy-pothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.... Subjective | intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”) (internal quotation marks and citation omitted)); cf. Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966) (“Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.”); Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980) (“Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than visa versa.”); State v. Melton, 412 So.2d 1065, 1068 (La.1982) (“When there is probable cause but no formal arrest, a limited search to preserve evidence is justified.”) (citing Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973)).

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State v. Butler, 117 So. 3d 87, 2013 WL 2131761, 2013 La. LEXIS 1147 (La. 2013).

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