State v. Gennaro

71 So. 3d 266, 2011 La. LEXIS 2290, 2011 WL 4643869

Opinion

In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 506-541; to the Court of Appeal, Fourth Circuit, No. 2011-K-1262.

Writ granted. Because the officer, who was alone, in plain clothes, driving an unmarked police unit, and who did not brandish a weapon, testified that he had asked the defendant walking along the sidewalk to stop and come over to the police unit, but that he did not order the defendant to do so, we find no error in the district court’s apparent factual conclusion that an actual stop was not imminent when the defendant discarded the contraband. The officer had not yet used any force, much less come upon the defendant “with such force that, regardless of [his] attempts to flee or elude the encounter, an actual stop ... [was] virtually certain.” State v. Tucker, 626 So.2d 707, 712 (La.1993); see also State v. Jackson, 00-3083 (La.3/15/02), 824 So.2d 1124. Because the defendant discarded the contraband before, rather than after, the officer pursued and then physically restrained him, the officer had legally seized the evidence. The decision of the court of appeal is reversed, and the ruling of the district court on the motion to suppress is reinstated.

JOHNSON, J„ would deny. KNOLL, J., would grant and reinstate the district court’s ruling.