State v. Dotson

598 So. 2d 1220, 1992 La. App. LEXIS 1276, 1992 WL 86215
CourtLouisiana Court of Appeal
DecidedApril 30, 1992
DocketNo. 90-KA-2023
StatusPublished

This text of 598 So. 2d 1220 (State v. Dotson) 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. Dotson, 598 So. 2d 1220, 1992 La. App. LEXIS 1276, 1992 WL 86215 (La. Ct. App. 1992).

Opinions

BYRNES, Judge.

Defendant Thaddeus W. Dotson appeals his conviction and sentence for armed robbery in violation of LSA-R.S. 14:64. We affirm.

On May 29, 1990 Ms. Selena Verrett was walking on her way to work at 6:15 a.m. when she was approached from the rear by the defendant who was riding a bicycle. She started up some steps of a house in order to avoid the defendant but he told her to stop. Because Ms. Verrett saw that the defendant had pulled a gun from under his shirt, she stopped and came back. He demanded her jewelry which she gave him. He also asked if she had any money in her purse and demanded that she give it to him. After obtaining the fifty dollar bill which Ms. Verrett had in her wallet, the defendant rode off on his bicycle. Ms. Verrett tried to flag down a car but was unsuccessful. She then walked to work and called the police to report the robbery. Ms. Verrett described the robber as a small dark man with a smooth face and a “close haircut”. Ms. Verrett further described the robber as being a little taller than her height of five feet, one inch and as having gold teeth.

At 6:00 a.m. on May 31, 1990 Officers James Ward and Leonard Carr of the Fifth District began a roving surveillance of the area where the robbery of Ms. Verrett occurred. One hour later they observed the defendant riding a bicycle approximately fourteen blocks from where Ms. Verrett had been robbed. Because the defendant fit the description of the robber, the officers stopped him and patted him down. Officer Ward felt a gun handle through the defendant’s clothing. He searched the defendant and seized a blue steel revolver. The defendant was then placed under arrest and transported to Central Lockup where he was interviewed by Officer Ward and he made an inculpatory statement after having been advised of his rights. Officer Ward and Detective Craig Rodrigue also went to the victim’s home the same day to conduct a photographic lineup. Ms. Verrett tentatively identified Thaddeus Dotson’s photograph. On June 12, 1990 she positively identified the defendant in a physical lineup, an identification which she repeated in court.

Prior to trial, after a hearing on July 13, 1990 the trial court denied defendant’s motion to suppress the evidence and confession and recessed the motion to suppress the identification. The hearing resumed on July 20, 1990, at which time a judge trial was conducted in case number 344-201 on a charge of possession of a concealed weapon. On July 31, 1990 the trial court denied the motion to suppress evidence. At trial on August 14, 1990 a jury found Thaddeus Dotson guilty of armed robbery and on August 21, 1990 the trial court sentenced the defendant to fifty years at hard labor without benefit of parole, probation or suspension of sentence.

On appeal, Thaddeus Dotson contends that the trial court erred in denying: (1) his motion to suppress the physical evidence and the confession; and (2) his motion to suppress the pretrial identification.

Defendant argues that the police officer’s investigatory stop was without probable cause and constituted an unlawful search and seizure in violation of defendant’s Fourth Amendment rights.

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. LSA-C.Cr.P. art. 215.1. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Chopin, 372 So.2d 1222 (La.1979). Reasonable suspicion required for an investigatory stop is something less [1223]*1223than probable cause required for an arrest. State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Johnson, 557 So.2d 1030 (La.App. 4th Cir.1990). Reasonable cause to stop and question a suspect must be determined on a case-by-case basis. State v. Thomas, 583 So.2d 895 (La.App. 1st Cir.1991). This is determined by the officer’s ability to articulate specific reasons on which he bases his reasonable suspicion. State v. Dickerson, 579 So.2d 472 (La.App. 3d Cir.1991), writ granted in part on other grounds, 584 So.2d 1140 (La.1991).

In view of the totality of the circumstances presented herein, the stop and frisk of the defendant was justified. The victim gave a description of the perpetrator which was substantiated by the police officers’ observations when they conducted a roving investigatory surveillance of the same crime area where the robbery was committed at the same time of day in the early morning between 6:00 and 7:00 a.m. The officers knew that a crime involving a weapon had been committed two days before. They had the description of the suspect consisting of his race, age, hair style and skin color. They knew he had approached the victim on a bicycle. They ruled out and did not stop other bicycle riders they observed based on the description of the suspect. From the description, the officers decided to stop the defendant to interview him. Knowing that the subject was possibly armed, the officers conducted a pat down for their protection and Officer Ward removed a weapon. The officers had reasonable cause to make the stop and conduct the pat down. Once Officer Ward felt the gun under the defendant’s clothing, he had probable cause to seize the weapon and place the defendant under arrest for concealing the weapon, as well as seizing the defendant’s clothing and bicycle.

Thaddeus Dotson also contends that the trial court erred in denying the motion to suppress the pretrial identification.

When reviewing an out-of-court identification procedure for its constitutionality and admissibility in court, the reviewing court must first make a determination of whether an impermissible suggestive procedure was used. A lineup will be considered unduly suggestive if the identification procedure displays the defendant so that the witness’s attention is focused on the defendant. State v. Neslo, 433 So.2d 73 (La.1983); State v. Reed, 483 So.2d 1278 (La.App. 4th Cir.1986); State v. Savoy, 501 So.2d 819 (La.App. 4th Cir.1986), writ denied 502 So.2d 576 (La.1987); State v. Tate, 454 So.2d 391 (La.App. 4th Cir.1984). A lineup is also suggestive if a sufficient resemblance of characteristics and features of the people in the lineup, i.e., build, hair, facial hair, and complexion, does not exist to reasonably test the identification. State v. Nicholas, 397 So.2d 1308 (La.1981); State v. Tate, supra. If only one person has the same characteristic as those describing the perpetrator, the witness’s attention will be focused on that one person. State v. Davis, 385 So.2d 193 (La.1980). However, “strict identity of physical characteristics among the persons depicted in a physical or photographic lineup is not required. All that is required is sufficient resemblance to reasonably test the identification.” State v. Savoy, supra at 821.

In the instant case, the appellant argues that the identification at the physical lineup was unduly suggestive and carried a distinct possibility of misidentification because the defendant was the only person who was included in both the physical and photographic lineups. Defendant asserts that the photographs from the first lineup were not provided to defense counsel. However, the record does not indicate that trial counsel ever requested those photographs.

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Neil v. Biggers
409 U.S. 188 (Supreme Court, 1972)
Manson v. Brathwaite
432 U.S. 98 (Supreme Court, 1977)
State v. Tate
454 So. 2d 391 (Louisiana Court of Appeal, 1984)
State v. Reed
483 So. 2d 1278 (Louisiana Court of Appeal, 1986)
State v. Johnson
557 So. 2d 1030 (Louisiana Court of Appeal, 1990)
State v. Savoy
501 So. 2d 819 (Louisiana Court of Appeal, 1986)
State v. Thomas
583 So. 2d 895 (Louisiana Court of Appeal, 1991)
State v. Chopin
372 So. 2d 1222 (Supreme Court of Louisiana, 1979)
State v. Belton
441 So. 2d 1195 (Supreme Court of Louisiana, 1983)
State v. Davis
385 So. 2d 193 (Supreme Court of Louisiana, 1980)
State v. Lee
545 So. 2d 1163 (Louisiana Court of Appeal, 1989)
State v. Nicholas
397 So. 2d 1308 (Supreme Court of Louisiana, 1981)
State v. Neslo
433 So. 2d 73 (Supreme Court of Louisiana, 1983)
State v. Dickerson
579 So. 2d 472 (Louisiana Court of Appeal, 1991)
State v. Prudholm
446 So. 2d 729 (Supreme Court of Louisiana, 1984)

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Bluebook (online)
598 So. 2d 1220, 1992 La. App. LEXIS 1276, 1992 WL 86215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dotson-lactapp-1992.