State v. Duckett

740 So. 2d 227, 1999 WL 548998
CourtLouisiana Court of Appeal
DecidedJuly 27, 1999
Docket99-KA-314
StatusPublished
Cited by22 cases

This text of 740 So. 2d 227 (State v. Duckett) 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. Duckett, 740 So. 2d 227, 1999 WL 548998 (La. Ct. App. 1999).

Opinion

740 So.2d 227 (1999)

STATE of Louisiana
v.
Cory DUCKETT.

No. 99-KA-314.

Court of Appeal of Louisiana, Fifth Circuit.

July 27, 1999.

*228 Paul D. Connick, Jr. District Attorney, Terry M. Boudreaux, Allison Wallis, Frank Brindisi, Assistant District Attorneys, Gretna, Louisiana, Attorneys for Plaintiff/Appellee.

Bruce G. Whittaker, Louisiana Appellate Project, Gretna, Louisiana, Attorney for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, Jr. and SOL GOTHARD and ROBERT L. LOBRANO, J. Pro Tem.

GOTHARD, Judge.

In this criminal appeal defendant, Cory Duckett, appeals his conviction and sentence on drug charges. The record shows that on April 18, 1997, the Jefferson Parish District Attorney filed a two-count bill of information against defendant, charging possession of marijuana with intent to distribute, a violation of LSA-R.S. 40:966 A, and possession of cocaine with intent to distribute, a violation of LSA-R.S. 40:967 A. Defendant was arraigned on October 9, 1997, and pled not guilty to both charges.

Defendant filed various pre-trial motions, including a motion to suppress the evidence, which was denied on August 17, 1998, after the parties submitted the matter on the police report. On the same day, defendant withdrew his pleas of not guilty, and entered guilty pleas pursuant to a plea bargain, reserving his right to appeal the denial of the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). As part of the agreement, the *229 State reduced count 1 of the bill of information to simple possession of marijuana, a misdemeanor. LSA-R.S. 40:966 C. Count 2 was reduced to possession of cocaine.[1] LSA-R.S. 40:967 C. It was understood that the State would file an habitual offender bill of information.

On August 17, 1998, the trial court sentenced defendant to agreed upon terms of six months in parish prison on count 1, and two years at hard labor on count 2, to run concurrently. Subsequently, the State filed an habitual offender bill, which alleged that defendant is a second felony offender. Pursuant to the plea bargain, defendant admitted to the allegations in the habitual offender bill. The trial court vacated the sentence on count 2, and imposed an enhanced sentence of two and one-half years, as previously agreed upon.

Defendant filed a motion for appeal on August 20, 1998. The motion was timely as to defendant's original sentence, but was premature as to defendant's enhanced sentence. However, this procedural defect was cured by the subsequent re-sentencing. See, State v. Strickland, 97-1265 (La. App. 5 Cir. 7/28/98), 716 So.2d 457, writ denied, 98-2779 (La.3/26/99), 739 So.2d 784.

Given that defendant's convictions were obtained by way of guilty pleas, the only factual background in the record is contained in the police report, entered as State's Exhibit 1 at the motion to suppress proceeding. According to the report, Jefferson Parish narcotics officers responded to information from "concerned citizens" that there was a group of people selling and smoking narcotics on the corner of Deanna Street and Betty Street in Marrero. The officers, wearing police raid jackets, arrived in that area at 7:40 p.m. on April 7, 1997.

The officers saw several black men, including defendant, Cory Duckett, loitering in the area. As the officers approached, defendant fled toward a nearby house. The officers retrieved defendant and brought him to a police vehicle. They advised defendant of his Miranda rights, and conducted a pat-down search of his person for weapons. The officers found a plastic sandwich bag containing eight smaller packages of white powder and four clear plastic bags with green vegetable matter. Field tests on these substances were positive for cocaine and marijuana.

The trial court denied the motion to suppress the evidence, giving the following reasons:

This case involves the right of the police officers to stop and interrogate someone that they reasonably believe is suspected of criminal activity.
The police officers need not have probable cause to make such a stop, but only need reasonable suspicion. I believe given all the facts and circumstances that I've read in this report that there was reasonable suspicion here that a crime had been committed or was about to be committed which would allow these police officers to stop and frisk this defendant under Article 215.1 of the Code of Criminal Procedure and Terry versus Ohio. So, for the reasons that I've dictated into the record I deny the motion to suppress by Cory Duckett.

In brief to this court, defendant argues that the cocaine and marijuana were seized illegally, and should have been suppressed. He asserts that the seizure went beyond the scope of an investigatory stop. Alternatively, he contends that the officers effected an arrest without probable cause, and that the evidence should have been suppressed as the fruit of an unlawful search.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit *230 unreasonable searches and seizures. The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal activity is, however, provided for by LSA-C.Cr.P. art. 215.1, as well as by state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Gresham, 97-1158 (La. App. 5 Cir. 4/15/98), 712 So.2d 946, 951, writ denied, 98-2259 (La.1/15/99), 736 So.2d 200. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988.

Reasonable suspicion for an investigatory stop is something less than probable cause, and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. A law enforcement officer must be able to point to specific and articulable facts to justify an investigatory stop, and those facts should be evaluated in light of the circumstances surrounding the incident. State v. Sanders, 97-892 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774. In considering those circumstances, a reviewing court should give deference to the inferences and deductions of a trained police officer "that might well elude an untrained person." State v. Huntley, 97-965 (La.3/13/98), 708 So.2d 1048, 1049, quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

Defendant's motion to suppress the evidence was set for hearing in the trial court on August 17, 1998. On that day, the State and the defense agreed to submit the matter on the police report only, offering no testimony. The trial court denied the motion.

The police report in the instant case states that Sergeant Williams of the Jefferson Parish Sheriff's Office Narcotics Division received information about "individuals selling and smoking narcotics at the corner of Deanna St. & Betty St. Marrero, LA.

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Bluebook (online)
740 So. 2d 227, 1999 WL 548998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-duckett-lactapp-1999.