State v. Flagg

760 So. 2d 522, 2000 WL 485564
CourtLouisiana Court of Appeal
DecidedApril 25, 2000
Docket99-KA-1004
StatusPublished
Cited by28 cases

This text of 760 So. 2d 522 (State v. Flagg) 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. Flagg, 760 So. 2d 522, 2000 WL 485564 (La. Ct. App. 2000).

Opinion

760 So.2d 522 (2000)

STATE of Louisiana
v.
Eric FLAGG (Sentenced as "Eric L. Flagg").

No. 99-KA-1004.

Court of Appeal of Louisiana, Fifth Circuit.

April 25, 2000.

*524 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Ellen S. Fantaci, Frank Brindisi, Martin Belanger, Jr., Assistant District Attorneys, 24th Judicial District, Parish of Jefferson, Gretna, Louisiana, Attorneys for Plaintiff/Appellee.

Edward R. Greenlee, Louisiana Appellate Project, Baton Rouge, Louisiana, Attorney for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and JAMES L. CANNELLA.

GOTHARD, Judge.

In this criminal matter defendant, Eric Flagg, appeals his conviction and sentence. For reasons that follow, we affirm.

The record shows that defendant was charged by bill of information with possession with intent to distribute cocaine, a violation of LSA-R.S. 40:967(A), a charge to which the defendant pled not guilty at arraignment. The defendant filed a motion to suppress, which the trial judge denied. On the day of trial, after a colloquy with the trial judge, the defendant waived his right to a jury trial and was tried by the bench. He was convicted of the lesser and included offense of possession of cocaine, LSA-R.S. 40:967(C), and was subsequently sentenced to serve three years at hard labor.

On the same day defendant was sentenced, the State filed an habitual offender bill of information which alleged the defendant was a second felony offender. Defendant stipulated to the allegations therein. The trial court vacated the original sentence and imposed an enhanced sentence of three years at hard labor. A timely motion for appeal was granted.

At trial, the State presented the testimony of Jefferson Parish Sheriff's Officer David Roddy. Deputy Roddy testified that on the night of June 20, 1998, he and his partner in the Street Crimes Division *525 of the Sheriff's Office, Deputy Beevers, were patrolling certain areas of the Westbank about which complaints had been made. At approximately 10:30 p.m., the officers were proceeding down Rue Louis Phillipe near its intersection with Waters Street. They approached the intersection at a rapid speed. As they turned onto Waters Street, Deputy Roddy observed several black males, including the defendant, congregating in an open field next to a house. According to Deputy Roddy, the defendant was twirling a white T-shirt in one hand, and also appeared to be engaging in a hand-to-hand transaction with one of the other men in the group. As the police unit turned the corner, the defendant started running. Deputy Roddy exited the car, identified himself as a police officer, and ordered the defendant to stop. The defendant continued running, and Deputy Roddy pursued the defendant as he entered the house at 2093 Waters Street.

In the hallway of the house, the defendant threw down the shirt and a bag containing 16 rocks of an off-white substance. The defendant stopped running when he reached a bedroom in the house. Deputy Roddy then arrested the defendant, handcuffed him, and advised him of his Miranda rights.[1] A search incident to the arrest revealed $115.00 in cash in the defendant's pants pocket. The off-white rocks field-tested positive for the presence of cocaine. The scientific analysis report indicated that the rocks weighed 2.7 grams and contained cocaine.

After Deputy Roddy's testimony, the State rested. The defense called three witnesses; the defendant, his mother, and Deputy Beevers, whose testimony substantially corroborated his partner's testimony. Deputy Beevers additionally testified that he was the driver of the police unit that night, and said that he did not see the hand-to-hand transaction because he was concentrating on driving. He said that when Deputy Roddy alerted him to the possible hand-to-hand transaction, he sped up, drove across the lot, and Roddy jumped out of the car to pursue the defendant. While Deputy Roddy chased the defendant, Deputy Beevers interviewed and patted down the other men. He found no contraband on their persons, and the men did not have any money in their hands. Finally, Deputy Roddy said he did not enter the residence at 2093 Waters Street.

The defendant denied that he was chased by the police. He stated that he lived at 2020 Waters Street, about a block from 2093 Waters Street. According to the defendant, he went to 2093 Waters Street after work to visit his friend, Rod Terragano, who lives there. The defendant said that he and a few other men were standing in front of the residence drinking beer. He went inside the residence to the restroom, and then heard the police entering the residence. He further testified that he was removed from the residence by one of the officers, and arrested outside. The defendant denied he was in the empty lot when the police arrived, stated that no one ran into the residence, and said he had "no idea" why the officers would claim he threw down cocaine. The defendant admitted two previous drug convictions involving marijuana.

The defense and the State stipulated that if Rod Terragano were to testify at trial, his testimony would be the same as it was at the suppression hearing held the previous day. At the suppression hearing, Terragano testified that he was in the kitchen of his residence that night when the police arrived. He said he did not see the defendant enter the house, but surmised that the defendant must have come in to use the restroom. Terragano said that by the time he actually saw Flagg, he was under arrest outside of the residence. According to Terragano, he and his uncle were taken out of the residence by the police and one officer entered the house *526 thereafter. Terragano denied that the defendant was chased into the house by the police, and he said that the defendant walked outside of the house voluntarily. Finally, Terragano admitted he had prior convictions of theft and burglary.

The defendant's mother testified that she and her son resided together. She said she saw her son around 5:00 p.m. when he came home from work, and that he left shortly thereafter. Ms. Flagg further testified that she had never seen her son with cocaine, and she had never seen cocaine in her home.

In brief to this court, the defendant assigns one error. He argues the trial court erred when it denied the Motion to Suppress the evidence. In support of that argument, he contends that Deputy Roddy's entry into the Waters Street residence was illegal because neither probable cause nor exigent circumstances existed to justify either the officer's pursuit of him into a private residence or the warrantless arrest inside of the residence. According to the defendant, the contraband he discarded inside of the residence was illegally seized, and should have been suppressed as the product of the officer's unlawful entry.[2] The State responds that the seizure of the cocaine was justified because the defendant abandoned the contraband before he was "seized" by Deputy Roddy.

The Fourth Amendment of the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. 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). A search or seizure conducted without a warrant issued upon probable cause is per se unreasonable, unless justified by a specific exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967);

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Bluebook (online)
760 So. 2d 522, 2000 WL 485564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-flagg-lactapp-2000.