State v. Green

437 So. 2d 302
Louisiana Court of Appeal·Decided August 15, 1983·No. 15151-KA·Published·Cited by 12 cases

Opinion

437 So.2d 302 (1983)

STATE of Louisiana
v.
Franklin L. GREEN.

No. 15151-KA.

Court of Appeal of Louisiana, Second Circuit.

August 15, 1983.
Rehearing Denied September 29, 1983.

*304 William D. Hall, Shreveport, for appellant.

Paul J. Carmouche, Dist. Atty., for appellant.

Sonia D. Peters, Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.

Before PRICE, HALL and JASPER E. JONES, JJ.

PRICE, Judge.

Defendant, Franklin Green, was convicted of possession of a Schedule II controlled dangerous substance. This was his fourth felony conviction and he was subsequently sentenced to life imprisonment as a fourth felony offender under La.R.S. 15:529.1, the habitual offender statute. Defendant appeals his conviction and sentence on the basis of nine assignments of error.

FACTS:

On the afternoon of November 17, 1980, narcotics agent Brice of the Shreveport Police Department received a telephone call from a confidential informant to the effect that drugs were being sold by a pedestrian and two men in a car at the intersection of Sprague and Mary streets in the bottoms area of Shreveport. Brice and two fellow officers went immediately to the scene and found the pedestrian and vehicle described by the informant. Upon seeing Brice's fellow officers step out of their unmarked police van, the pedestrian fled but was eventually captured by the officers. Meanwhile, the driver of the vehicle attempted to move it but was stopped by Officer Brice who ordered the occupants to step out of the car. He searched the passenger and found a pistol on his person and then awaited the return of his fellow officers. Upon his return to the scene, Officer Green searched the driver of the car and found on his person a pistol and a matchbox containing several small pills described by Brice as preludin.

Upon approaching the car, Brice had observed a package being thrown out the driver's window. This package was picked up following the search and found to contain marijuana. Also lying in plain view in the vehicle was a plastic container containing more preludin pills and drug paraphernalia. The suspects were then taken to the station where, according to the testimony of Agent Brice, the defendant, who was the driver of the car, admitted that he was in the process of selling preludin.

After denial of his motion to suppress, the defendant was tried by jury and found guilty of possession of preludin at trial by jury and, upon the state's proof that he was a fourth felony offender, sentenced to life imprisonment under the habitual offender statute. Defendant appeals the conviction and sentence, assigning nine errors by the trial court.

ASSIGNMENT OF ERROR A:

Defendant asserts as his first assignment of error that the trial court erred in denying his motion to suppress as evidence the contraband obtained during the warrantless stop and search which he argues was conducted without probable cause. The specific issue is whether the information in the possession of the arresting officers constituted sufficient probable cause to justify the detention, search, and subsequent arrest of the defendant.

*305 Since the instant search was made without a warrant, the state bears the burden of proving that an exception to the requirement of a search warrant is applicable. State v. Franklin, 353 So.2d 1315 (La.1977).

Probable cause for a warrantless search is to be determined on the same standards applicable to the probable cause the law requires for an arrest without warrant. It exists when the facts and circumstances within the arresting officer's knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. It is to be judged by the probabilities and practical considerations of everyday life on which average men, particularly average police officers, can be expected to act. State v. Smith, 377 So.2d 1220 (La.1979).

To determine that probable cause exists based on information from an unidentified informant, analysis of the facts must establish the informant's credibility as well as the reliability of the information supplied. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Bible, 389 So.2d 42 (La.1980), vacated on other grounds, 453 U.S. 918, 101 S.Ct. 3153, 69 L.Ed.2d 1001, dissented 401 So.2d 966 (La.1981), on remand 406 So.2d 138 (La. 1981). See also Illinois v. Gates, ___ U.S. ___, 103 S.Ct. 2317, 76 L.Ed.2d 527, Supreme Court of the United States, June 8, 1983. Reliability of the reported information may be supported by, among other factors, direct personal observation by the informant or, if the information came indirectly to the informant, detailed reasons with which to evaluate the reliability of both the source and the information. Factors to support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. State v. Bible, supra; State v. Tassin, 343 So.2d 681 (La.1977).

Not only was the tip in the instant case the direct personal observation of the informant, but also accurately described the location of the suspected criminal activity, and the persons and vehicle involved. The information included an accurate detailed description of the color, make, and license number of the subject's vehicle, and the clothing and approximate age of the young black male pedestrian. The officers arrived at the described location approximately four minutes after receipt of the tip and verified the accuracy of the information by their own personal observation.

Agent Brice testified that the informant had previously supplied him with accurate information leading to the issuance of at least twenty warrants for search and seizure of controlled dangerous substances. Some of these had led to subsequent arrests although he could not testify how many. The informant's credibility is further supported by the officers' independent observation of the scene exactly as described in the tip.

The officers also observed that upon their arrival the young pedestrian fled from the scene and Agent Brice observed the defendant throw something from the window of the automobile and attempt to move his vehicle as he approached. We feel that the combination of all the above factors is sufficient to support the credibility of the confidential informant.

Considering the totality of the circumstances, a finding of probable cause is amply supported by the facts in the record. Thus in light of the information available to the police and the danger that failure to seize the evidence at the time of the detention would provide an opportunity for destruction of the evidence, the officers acted with the dispatch required by the circumstances. Consequently, the search and seizure was authorized without a warrant. See State v. Smith, supra.

Even though the gun was not susceptible of destruction as the pills were, there is no question that the police had sufficient information to justify an investigatory stop of the defendant and to conduct the pat-down search for their own personal *306 safety which led to the discovery of the weapon on the person of defendant-passeng

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State v. Green, 437 So. 2d 302 (La. Ct. App. 1983).

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