State v. Davenport

801 So. 2d 380, 1999 WL 735859
CourtLouisiana Court of Appeal
DecidedSeptember 22, 1999
Docket32,329-KA
StatusPublished
Cited by7 cases

This text of 801 So. 2d 380 (State v. Davenport) 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. Davenport, 801 So. 2d 380, 1999 WL 735859 (La. Ct. App. 1999).

Opinion

801 So.2d 380 (1999)

STATE of Louisiana, Appellee,
v.
David Dewayne DAVENPORT, Appellant.

No. 32,329-KA.

Court of Appeal of Louisiana, Second Circuit.

September 22, 1999.

*381 Louisiana Appellate Project by Amy C. Ellender, Mer Rouge, Counsel for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Clifton M. Davis, Tommy J. Johnson, Asst. Dist. Atty., Counsel for Appellee.

Before STEWART, CARAWAY and DREW, JJ.

DREW, Judge.

Defendant pled guilty to the responsive charge of attempted possession of a firearm by a convicted felon, a violation of La. R.S. 14:27 and 14:95.1. At the guilty plea, defendant reserved his Crosby right to appeal the denial of his motion to suppress. The trial court sentenced defendant to serve an agreed sentence of five years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence, to run concurrently with defendant's parole matter. The trial court also suspended the mandated minimum fine of $500.

Defendant now appeals his conviction, urging one assignment of error, the denial of his motion to suppress. Finding no merit in defendant's appeal, his conviction is affirmed.

FACTS

On February 7, 1998, the Shreveport Police Department conducted a "knock and talk" at a residence located at 1613 Easy Street in Shreveport. Encountering defendant on the porch of the residence, the officers frisked him for their safety, finding a .22 caliber pistol on his person. Defendant had a prior conviction for robbery in the 39th Judicial District Court, Parish of Red River and was charged with possession of a firearm by a convicted felon.

*382 DISCUSSION

The only issue before this court is whether the trial court erred in failing to grant defendant's motion to suppress the gun seized from his person. Defendant contends that the trial court erred in failing to suppress the hand gun seized from him as a result of a pat-down search. Specifically, defendant argues that the police were not lawfully on the premises once he demanded that the officers produce a search warrant. Defendant next argues that even if the police were legally on the premises, they did not have legal justification to conduct a physical search.

At the hearing on the defendant's motion to suppress, only Sgt. D.E. McDaniels and Officer Robert Elliot of the Shreveport Police Department testified.

TESTIMONY OF SGT. McDANIELS

McDaniels testified he was involved in a "knock and talk" operation at 1613 Easy Street on February 7, 1998, at approximately 5:15 p.m. The department conducted a "knock and talk" at that location because of intelligence information, observations of street level interdiction officers and neighbors' complaints regarding drug trafficking and a high volume of foot traffic. Approximately one week before this "knock and talk" operation, a subject identified as Davenport fled from officers who had come to that location with "concerns," but less than probable cause.

The officers were in full class A uniforms and a marked police car was parked in front of the house. Two other officers approached the side of the house while he and Officer Elliot approached the front of the house. McDaniels observed two individuals, including defendant, outside the house when he arrived. As they approached, McDaniels testified that there was combative verbiage by defendant who was very aggressive and very forceful. Defendant asked the officers if they had a search warrant. McDaniels testified that defendant was sitting in a chair at the time and he believed the defendant rolled forward because his arms moved. In order to protect himself and other individuals, McDaniels touched defendant's waistline and pockets. McDaniels felt a hard object, the structure of which revealed that it was a gun. At that point, McDaniels yelled "gun" and effected an immediate arrest. He then recovered the loaded .22 caliber pistol, later testifying that it was obvious the object was a weapon when he touched it. McDaniels denied pulling his service revolver, but did recall wrestling with defendant and reaching aggressively for the hidden gun.

The defendant had moved his hand and was loud, angry and aggressive, demanding a search warrant. According to McDaniels, the defendant's actions and words were provoking, especially since he was in such close proximity to defendant.

The officers knew a female was in control of the residence. Officer Elliot was at the door of the residence attempting to contact the owner, Evelyn Robinson, while McDaniels interacted with defendant. Robinson never asked the officers to leave the premises, nor did defendant. After defendant was read his Miranda rights, defendant admitted to wrongfully carrying a weapon and stated, "you got me." However, McDaniels did not include this statement in his report.

On cross examination, McDaniels stated that the defendant did not verbally threaten his person, but committed an act of physical aggression when he raised himself forward in close proximity to the officer. He further explained that he did not search the defendant until after he touched the weapon.

On redirect-examination, McDaniels testified that if defendant had stepped inside *383 the house he would not have approached his person. McDaniels explained that he had no option but to approach the defendant because he was both verbally, and then physically, aggressive and threatening.

TESTIMONY OF OFFICER ELLIOT

Officer Robert Elliot was also involved in the "knock and talk," having received information from a confidential informant that an individual at this specific location was dealing narcotics, known to carry a firearm and on probation. Elliot had previously used this same confidential informant, resulting in a felony arrest. The officer had personally observed individuals on the porch of that location and individuals coming and leaving the residence without staying for any substantial length of time.

The officers were attempting to contact Evelyn Davenport Robinson, the legal owner of the house, to gain her consent to search the house for narcotics. Elliot testified that prior to going to the location, other officers were designated to go to the rear of the house in case someone attempted to flee. A total of five officers were involved in the "knock and talk."

The officers exited their vehicles at the location when they received the go ahead that the other officers were in position in the rear of the house. According to Elliot, defendant began screaming at the officers and asking them if they had a search warrant. Elliot bypassed the defendant and proceeded to the front door. Elliot then made contact through the screen door with Evelyn Davenport Robinson. McDaniels made contact with defendant, who was sitting in a chair on the porch of the house. Elliot testified that defendant addressed the officers in a loud, defensive and hostile manner.

Elliot testified that as he made contact with Evelyn Davenport Robinson, McDaniels was conducting a Terry pat down of the exterior of defendant's clothing. Elliot realized the seriousness of the situation when McDaniels yelled "gun." At that point, Elliot turned around and observed that McDaniels had pushed defendant back into the chair. McDaniels had his left hand on the chest of defendant and his right hand on the gun. Elliot then grabbed defendant's left arm, wrapped his arm around defendant's shoulder area, and pulled him back so McDaniels could remove the gun from defendant's waistband area.

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Cite This Page — Counsel Stack

Bluebook (online)
801 So. 2d 380, 1999 WL 735859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-davenport-lactapp-1999.