State v. Curtis

681 So. 2d 1287, 1996 WL 566889
Louisiana Court of Appeal·Decided October 2, 1996·No. 96-K-1408·Published·Cited by 29 cases

Opinion

681 So.2d 1287 (1996)

STATE of Louisiana
v.
Alvis CURTIS.

No. 96-K-1408.

Court of Appeal of Louisiana, Fourth Circuit.

October 2, 1996.

*1288 Harry F. Connick, District Attorney, Allison L. Monahan, Assistant District Attorney, Seth Rutman, Law Clerk, New Orleans, for the State.

Before BARRY, BYRNES and MURRAY, JJ.

BYRNES, Judge.

We grant the State's writ application requesting a review of the trial court's ruling granting the defendant Alvis Curtis' motion to suppress evidence. We reverse and remand.

Sergeant Bruce Little received information from a reliable confidential informant who stated that two black males were trafficking in heroin in front of Bernell's Grocery Store, at the intersection of Gibson and Sere Streets in the St. Bernard Housing Development in New Orleans. The informant specifically described the clothing worn by both men, their physical appearance, and their approximate ages. The informant also said that one individual, later identified as the defendant, would hold the heroin and the other individual would hold the money.

Based on this information, Sergeant Little along with Officers Mayberry, Fitzpatrick, Green and Bush approached the intersection of Gibson and Sere Streets from different directions. As they approached the intersection, they saw two individuals who "exactly matched" the descriptions furnished by the informant. Officer Mayfield testified that the two men began to walk away when the officers approached, but they were stopped by the officers and told to place their hands against the exterior wall of the building. Officer Green recognized the defendant as the person he had previously arrested for a heroin offense. As the suspects had their hands against the wall, the defendant attempted to reach toward the lower part of his right leg. Officer Fitzpatrick prevented the defendant from reaching his leg, then patted him down and felt a "bulge in the sock area of his right leg." Officer Fitzpatrick retrieved a cigarette pack which had been ripped open and saw a white paper inside of which were tin foil packets. The packets contained a white powder, which the officers believed was heroin. The defendant was then arrested and *1289 transported to the police station where he gave an incriminating statement.

The defendant, Alvis Curtis, was charged by bill of information on April 17, 1995, with possession of heroin, a violation of La. R.S. 40:966. Mr. Curtis entered a plea of not guilty on April 28, 1995. On May 3, 1996, a bench trial began and the minute entry indicates that the defendant reurged his request to suppress evidence, after the attorneys' arguments.[1] The trial court granted the defendant's motion to suppress the evidence, finding that the officers did not have reasonable suspicion to justify the stop of the defendant and were not justified in patting him down. The State's writ application followed.

A law enforcement officer may stop a person in a public place whom he reasonably believes is committing, has committed, or is about to commit an offense. La.C.Cr.P. Art. 215.1. If an officer stops a person pursuant to art. 215.1, the officer may conduct a limited pat down frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. La.C.Cr.P. art. 215.1(B).

"Reasonable suspicion" for an investigatory stop is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient articulable facts within his knowledge to justify an infringement of the suspect's rights. State v. Matthews, 94-2112 (La.App. 4 Cir. 4/26/95), 654 So.2d 868; State v. Vance, 93-1389 (La.App. 4 Cir. 2/25/94), 633 So.2d 819. In assessing the reasonableness of an investigatory stop, the court must balance the need to search and seize against the invasion of privacy the search and seizure entails. State v. Tucker, 604 So.2d 600 (La.App. 2 Cir. 1992), affirmed in part, reversed in part on other grounds, 626 So.2d 720 (La.1993); State v. Washington, 621 So.2d 114 (La.App. 2 Cir.1993), writ denied, 626 So.2d 1177 (La. 1993). The intrusiveness of a search is not measured so much by scope as it is by whether it invades an expectation of privacy that society is prepared to recognize as reasonable. Twenty-Three Thousand Eight Hundred Eleven and No/100 ($23,811) Dollars in U.S. Currency v. Kowalski, 810 F.Supp. 738 (W.D.La.1993).

In reviewing the totality of circumstances, the officer's past experience, training and common sense may be considered in determining his inferences from the facts at hand were reasonable. State v. Jackson, 26,138 (La.App. 2 Cir.1994), 641 So.2d 1081. The reputation of an area is an articulable fact upon which an officer can rely and which is relevant in the determination of reasonable suspicion. State v. Richardson, 575 So.2d 421 (La.App. 4 Cir. 1991), writ denied, 578 So.2d 131 (La.1991). Flight, nervousness, or a startled look at the sight of a police officer may be one of the factors leading to a finding of reasonable cause to stop under La.C.Cr.P. art. 215.1. State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Noto, 596 So.2d 416 (La.App. 4 Cir.1992), State v. Preston, 569 So.2d 50 (La.App. 4 Cir.1990). In State v. Thornton, 611 So.2d 732 (La.App. 4 Cir.1992), conduct constituting the charge of illegally carrying a gun in violation of La. R.S. 14:95, was based on the defendant's having concealed it in his pocket. In Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the United States Supreme Court held that an anonymous tip, corroborated by police surveillance, could supply enough reliability to support an investigatory stop. See also State v. Morales, 583 So.2d 129 (La.App. 4 Cir. 1991).

In State v. Ricard, 94-0975 (La.App. 4 Cir. 7/14/94), 640 So.2d 880, in a high crime area the defendant appeared to be intoxicated and ignored the officers' order to stop. The defendant clenched his hand and attempted to put it into his coat pocket. Believing that the defendant was reaching for a gun, the officer grabbed the defendant's hand and opened it, finding a cocaine pipe. This court found that the officers articulated specific *1290 reasons for suspecting that the defendant had a weapon, and the evidence was legally seized.

In State v. Ganier, 591 So.2d 1328 (La. App. 4 Cir.1991), police officers were patrolling a housing project in New Orleans known to be a center of drug trafficking. The defendant saw the officers, turned "suspiciously", began to walk away slowly, and then began to run. The officers chased the defendant until he was apprehended. This court found that two factors were sufficient to justify a stop of the defendant: the area's reputation for drug trafficking, and the suspicious actions of the defendant. This court noted:

... Drug activity and crimes which it generates have become a major problem endangering innocent people and severely taxing police resources. Although an innocent individual who has nothing to hide from police might flee so that such flight would be irrational, the action of fleeing in itself is inherently suspicious and justifies an investigation by a police officer exercising common sense. This is not a ca

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State v. Curtis, 681 So. 2d 1287, 1996 WL 566889 (La. Ct. App. 1996).

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