State v. Denis

691 So. 2d 1295, 1997 WL 126550
CourtLouisiana Court of Appeal
DecidedMarch 19, 1997
Docket96-K-0956
StatusPublished
Cited by33 cases

This text of 691 So. 2d 1295 (State v. Denis) 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. Denis, 691 So. 2d 1295, 1997 WL 126550 (La. Ct. App. 1997).

Opinion

691 So.2d 1295 (1997)

STATE of Louisiana
v.
Lester DENIS.

No. 96-K-0956.

Court of Appeal of Louisiana, Fourth Circuit.

March 19, 1997.

C. Gary Wainwright, Gregory K. Voigt, New Orleans, for Defendant/Relator, Lester Denis.

Harry F. Connick, District Attorney, Stephen D. Enright, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, for Plaintiff/Respondent the State of Louisiana.

*1296 Before SCHOTT, C.J., and PLOTKIN and MURRAY, JJ.

MURRAY, Judge.

Lester Denis was arrested and charged with possession of crack cocaine. The trial court denied his motion to suppress evidence, and he sought relief from this court. After receiving an opposition from the State, we granted Mr. Denis' writ application and summarily reversed the judgment below. The Supreme Court subsequently granted the State's writ application and remanded the matter for briefing, argument and a full opinion.

FACTS

On the evening of July 25, 1995, members of the New Orleans Police Department's Fifth District Task Force were on pro-active patrol in the area of Flood and North Miro Streets. Just before 10:00 p.m., three officers in a marked vehicle saw Lester Denis walking in the 2100 block of Flood Street and motioning with one hand to other pedestrians. Mr. Denis, who was wearing shorts and a T-shirt, appeared to have something clutched in the other hand as he walked with his back to the patrol car. When he noticed the police, Mr. Denis appeared startled, then closed his fist, placed a small object inside the back waistband of his pants, and continued walking in the opposite direction from the police vehicle.

The patrol car pulled to the curb and all three officers got out. As Officers Mark Delpit and Landries Jackson questioned the pedestrians "flagged" by the defendant,[1] Officer Kevin Hunt told Mr. Denis to stop. He complied, and Officer Hunt escorted him to the patrol car where he did a pat-down search. The officer felt a bulge or ballshaped object in Mr. Denis' lower back where he had seemed to place something earlier. Officer Hunt testified that although he asked the defendant what he had, he knew immediately that the object was not a weapon. Mr. Denis replied "nothing" and then pushed off from the car and "attempted to flee."

The testimony concerning this "escape attempt" was conflicting. Officer Hunt initially explained that the defendant had begun to walk away, but he grabbed Mr. Denis and instantly returned him to the car without a struggle. At a second hearing, however, Officer Hunt testified that Mr. Denis had tried to run away, was quickly "retrieved" and then handcuffed with Officer Delpit's assistance. Officer Delpit testified that the defendant struggled to get away and had to be restrained by the two officers.

Once the defendant was again standing against the patrol car, Officer Hunt removed the object previously detected in his waistband: a clear plastic bag containing twentyeight rocks of crack cocaine. Mr. Denis was then placed under arrest.

DISCUSSION

Article 215.1 of the Code of Criminal Procedure provides the standards under which a police officer may stop and frisk an individual in this state:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.

These standards comply with those established under the Fourth Amendment of the U.S. Constitution, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), as well as the greater protections of Article I, Section 5 of the Louisiana Constitution. State v. Cobb, 419 So.2d 1237, 1242 (La.1982); State *1297 v. Bolden, 380 So.2d 40 (La.), cert. denied, 449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980).

In this case, the testimony of the arresting officers establishes that the particular area they were patrolling was selected based upon complaints relayed by City Council members of drug dealing and other unspecified crimes, but there had been no tip concerning any particular suspect(s) or location upon which they were acting. Although Officer Hunt stated he might have had prior contact with the defendant, there was no testimony that either Mr. Denis or the people approaching him were recognized by the officers as having any prior criminal history or reputation. None of the policemen could hear what Mr. Denis was saying as he motioned with one hand, nor could they identify the object in his other hand. No hand-to-hand transaction or exchange of money occurred, and the defendant was not seen opening his hand and pulling anything out of it.

None of the officers testified that Mr. Denis was believed to be engaged in drug dealing. While they said they interpreted Mr. Denis' gestures as attempts to get the attention of the two or three approaching pedestrians, no testimony was elicited to explain why this behavior seemed suspicious, alone or in conjunction with his subsequent actions. To the contrary, the only testimony presented as an articulation of the grounds for the stop came on cross examination of Officer Delpit, who denied having any specific suspicions:

Defense counsel: What, if anything, crime—you saw this man walking—what if any crime—did you have any information that was within your knowledge he was committing?
Officer Delpit: I didn't have any knowledge that he was committing a specific crime.
Defense counsel: So ya'll decided that you would just conduct a pedestrian stop to interrogate this citizen who was walking down the street?
Officer Delpit: Due to the area, the time of night, his actions, we decided to stop and conduct a pedestrian stop.

The testimony thus establishes that the officers decided to stop and question Mr. Denis based solely upon his startled reaction, his apparent placement of the unidentified object into his waistband and his decision to continue walking in the direction away from the patrol car.[2] There was no further testimony elicited to suggest a basis for the officers' suspicion of Mr. Denis.

It is well-established that the level of suspicion which will justify an investigatory stop is less than the probable cause needed for an arrest, and that the totality of the circumstances must be considered in determining whether the standards of Article 215.1 A are met. State v. Allen, 95-1754, pp. 4-5 (La.9/5/96), 682 So.2d 713, 718; see also State v. Lavigne, 95-0204, p. 5 (La.App. 4th Cir. 5/22/96), 675 So.2d 771, 775-76, writ denied, 96-1738 (La.1/10/97), 685 So.2d 140, and cases cited therein. An inchoate, unparticularized hunch is insufficient grounds for detention under Article 215.1 A. State v. Williams, 621 So.2d 199 (La.App. 4th Cir. 1993).

In State v. Ellington, 96-0766 (La.App. 4th Cir. 9/4/96), 680 So.2d 174, this court found that an attempt to conceal an unidentified object when the police are sighted, even "in an area known for high drug activity," was insufficient justification for an investigatory stop. Similarly, in State v.

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Bluebook (online)
691 So. 2d 1295, 1997 WL 126550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-denis-lactapp-1997.