State v. Ellington

680 So. 2d 174, 1996 WL 506337
CourtLouisiana Court of Appeal
DecidedSeptember 4, 1996
Docket96-K-0766
StatusPublished
Cited by24 cases

This text of 680 So. 2d 174 (State v. Ellington) 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. Ellington, 680 So. 2d 174, 1996 WL 506337 (La. Ct. App. 1996).

Opinion

680 So.2d 174 (1996)

STATE of Louisiana
v.
Danny ELLINGTON.

No. 96-K-0766.

Court of Appeal of Louisiana, Fourth Circuit.

September 4, 1996.

Harry F. Connick, District Attorney, Emile A. Bagneris, III, Assistant District Attorney, New Orleans, for Relator.

*175 Frank Joseph Larré, Samuel Beardsley, Jr., Larré & Associates, Metairie, for Respondent.

Before BYRNES, WALTZER and LANDRIEU, JJ.

WALTZER, Judge.

The prosecution complains of the trial court's ruling granting a motion to suppress. We grant the writ and affirm the judgment of the trial judge.

STATEMENT OF THE FACTS

On 21 July 1995, at approximately 11:10 p.m. Police Officer Pincus was traveling in a marked police car near the intersection of St. Louis and Burgundy Streets, when he saw the defendant "briskly place something in his right pant's pocket". At the motion to suppress the evidence, (cocaine was ultimately seized), Officer Pincus explained that he thought this activity was suspicious and that it might be an attempt by the defendant to conceal something in his pocket. The officer further testified that this behavior might "indicate certain crimes such as drug activity, drug concealment ..."; additionally the officer testified that this incident occurred in an area known for drug trafficking and prostitution. Based on these suspicions on "the movements, the characteristic of the way he did it ...", the officer stopped the defendant and conducted a patdown search which revealed a four inch long folding knife in his right rear pants pocket. After the search was conducted, and after the knife was seized, the officer shined a flashlight into the same pocket and found a glass vile containing cocaine residue.

At the conclusion of the hearing, the trial court found that the officer did not have reasonable suspicion of criminal activity to justify the stop, patdown search, and seizure of the contraband.

DISCUSSION

A temporary stop by a police officer of a person in a public place is authorized by LSA-C.Cr.P. art. 215.1; see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct.1868, 20 L.Ed.2d 889 (1968), State v. Williams, 621 So.2d 199 (La.App. 4 Cir.1993); State v. Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990). "`Reasonable suspicion' is something less than 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 facts within his knowledge to justify an infringement of the suspect's rights", State v. Clark, 612 So.2d 232, 233-234 (La.App. 4 Cir.1992).

In State v. Williams, 572 So.2d 756 (La. App. 4 Cir.1990), police officers saw a man walking in a "high drug trafficking area" with a clasped hand. When he became nervous upon seeing the officers, he entered a van which the officer subsequently stopped. Our court found that the officers did not have reasonable suspicion of criminal activity to justify the stop.

In State v. Edwards, 530 So.2d 97 (La.App. 4 Cir.1988), officers on patrol in an area known for narcotics observed the defendant standing on a corner showing a companion an object clenched in his hand. The defendant fled as the officers approached. The officers chased the defendant into a sweetshop where they saw him remove a gun from his waistband and place it under the door. On review of the trial court's granting of the motion to suppress the evidence, this Court found the officers' actions would have caused a reasonable person to believe he was seized and because the officers did not possess reasonable suspicion of criminal activity, the seizure of the discarded object was illegal.

Likewise, in State v. Williams, 621 So.2d 199 (La.App. 4 Cir.1993), the defendant was seen standing in a courtyard of a housing project. When he saw the police officers, "he turned immediately and quickly walked away." The officers also saw him "fooling with his belt area." The trial court denied the defendant's motion to suppress the pipe the officers seized after the defendant was stopped and frisked, but this court reversed the trial court's ruling. This court found that these facts did not justify the initial stop of the defendant, and even if the stop was legal, the officers provided no evidence to justify the subsequent pat-down search.

In the present case, Officer Pincus testified that he saw the defendant standing *176 in an area known for high drug activity and, upon seeing the marked police car, put his hands in his pocket as if attempting to conceal something. These facts are not sufficient to justify the stop of the defendant. The officer did not testify that he saw the defendant engaging in what appeared to be a drug transaction, or that he saw a suspicious object which the defendant attempted to conceal. "A hunch or suspicion of illegal activity or transaction is insufficient to establish reasonable grounds to stop a person." Williams, supra, at 201. Additionally, even if the initial stop had been justified, Officer Pincus was not justified in conducting a pat-down frisk of the defendant. Officer Pincus was authorized to frisk only the outer clothing of a person for a dangerous weapon. LSA-C.Cr.P. 215.1.

CONCLUSION

In the present case, Officer Pincus did not testify to any "particular facts" from which he could reasonably infer that the defendant was armed and dangerous. The officer testified that the defendant's action may have indicated an attempt to conceal drugs, but never testified that he believed that the defendant might have been "armed and dangerous". Accordingly, the pat-down frisk was not justified in this case.

ACCORDINGLY, we grant the writ and affirm the ruling of the trial court.

WRIT GRANTED. JUDGMENT OF THE TRIAL COURT AFFIRMED.

BYRNES, Judge, dissents with reasons.

I respectfully dissent based on my conclusion that the investigatory stop was reasonable, the pat-down frisk of the defendant was justified, and the evidence was properly seized under the totality of circumstances.

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 sigh 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,

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Bluebook (online)
680 So. 2d 174, 1996 WL 506337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ellington-lactapp-1996.