State v. Howard

787 So. 2d 404, 2001 WL 540562
CourtLouisiana Court of Appeal
DecidedApril 11, 2001
Docket2000-KA-2405
StatusPublished
Cited by6 cases

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Bluebook
State v. Howard, 787 So. 2d 404, 2001 WL 540562 (La. Ct. App. 2001).

Opinion

787 So.2d 404 (2001)

STATE of Louisiana
v.
Jamal HOWARD.

No. 2000-KA-2405.

Court of Appeal of Louisiana, Fourth Circuit.

April 11, 2001.

*406 Harry F. Connick, District Attorney of Orleans Parish, Juliet Clark, Assistant District Attorney of Orleans Parish, New Orleans, for Plaintiff/Appellee.

Christopher A. Aberle, Louisiana Appellate Project, Mandeville, for Defendant/Appellant.

Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr.

McKAY, Judge.

STATEMENT OF THE CASE

The defendant Jamal Howard was charged by bill of information on June 16, 1998, with possession of cocaine, a violation of La. R.S. 40:967(C). The defendant pleaded not guilty at his June 26, 1998 arraignment. The trial court denied the defendant's motion to suppress the evidence on August 5, 1998. On March 18, 1999, this court denied the defendant's application for supervisory writs as to the denial of his motion to suppress.[1] On August 26, 1999, the defendant withdrew his former plea of not guilty and entered a plea of guilty as charged pursuant to State v. Crosby,[2] reserving his right to appeal the denial of his motion to suppress. The trial court sentenced the defendant to two and one-half years at hard labor. That same date the defendant pleaded guilty to being a second-felony habitual offender. The trial court vacated the original sentence, and resentenced the defendant to two and one-half years at hard labor, with credit for time served. On October 14, 1999, this court denied as moot the defendant's writ application relative to the denial of his motion to suppress.[3] On April 19, 2000, this court granted the defendant's writ application for the sole purpose of transferring it to the trial court to be treated as a motion for an out-of-time appeal.[4] The trial court granted the defendant an out-of-time appeal on May 5, 2000.

*407 FACTS

New Orleans Police Officer Eric Gillard testified that he arrested the defendant on May 23, 1998. He and his partner were on patrol in an area known to them for illegal drug activity. As they approached a particular intersection, Officer Gillard observed an irate female uttering obscenities and making obscene hand gestures. She advised the officers that a subject wearing blue jeans and a white T-shirt, whom she knew as "Jamal," had attempted to sell her recovering drug-addict daughter narcotics. The woman advised the officers that she had informed subjects in the area not to sell her daughter any type of narcotics. The officers began canvassing the area, looking for the subject, and located him walking in the 400 block of Warrington Drive with another individual. The officers stopped the two individuals, and as they were patting them down, Officer Gillard observed the defendant attempting to place his right hand into his right pocket three times. The defendant told the officer that the pants he had on belonged to someone named "Chris." As the interview continued, Officer Gillard noticed the defendant nervously looking around, as if he were preparing to take flight. At that point, Officer Gillard handcuffed the defendant, "to avoid any type of confrontation." He began to feel the defendant's right front pocket, and detected small hard objects. The defendant did not respond when Officer Gillard asked him about the objects. Officer Gillard stated that, based on his previous narcotics experience, and in light of the previous citizen complaint, he believed the objects he felt were some type of "contraband." The officer removed the objects from the defendant's pocket, discovering that they were three small plastic-wrapped pieces of what appeared to be crack cocaine.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant claims that the trial court erred in denying his motion to suppress the evidence.

Warrantless searches and seizures fail to meet constitutional requisites unless they fall within one of the narrow exceptions to the warrant requirement. State v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893, 901, cert. denied, Edwards v. Louisiana, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). On trial of a motion to suppress, the State has the burden of proving the admissibility of all evidence seized without a warrant. La. C.Cr.P. art. 703(D); State v. Kirk, 00-0190 (La.App. 4 Cir. 11/15/00), 773 So.2d 259; State v. Jones, 97-2217, (La.App. 4 Cir. 2/24/99), 731 So.2d 389, 395, writ denied, 99-1702 (La.11/5/99), 751 So.2d 234. A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the court has the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Devore, 00-0201 (La.App. 4 Cir. 12/13/00), 776 So.2d 597; State v. Mims, 98-2572 (La. App. 4 Cir. 9/22/99), 752 So.2d 192, 193-194.

The defendant first argues that officers did not lawfully stop him. La. C.Cr.P. art. 215(A) provides that:

A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.

"Reasonable suspicion" to stop is something less than the probable cause required for an arrest, and the reviewing *408 court must look to the facts and circumstances of each case to determine whether a detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect's rights. State v. Jones, 99-0861 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 36-37; State v. Littles, 98-2517 (La.App. 4 Cir. 9/15/99), 742 So.2d 735, 737. Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988, 989; State v. Tyler, 98-1667 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 770. In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy that it entails. State v. Carter, 99-0779 (La.App. 4 Cir. 11/15/00), 773 So.2d 268. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Lipscomb, 99-2094 (La.App. 4 Cir. 9/13/00), 770 So.2d 29, 36; State v. Oliver, 99-1585 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The detaining officers must have knowledge of specific, articulable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. State v. Jackson, 99-2993 (La.App. 4 Cir. 10/18/00), 772 So.2d 808; State v. Dennis, 98-1016 (La.App. 4 Cir. 9/22/99), 753 So.2d 296, 299. In reviewing the totality of the circumstances, the officer's past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. Hall, 99-2887 (La.App. 4 Cir. 10/4/00), 775 So.2d 52; State v. Cook, 99-0091 (La.App. 4 Cir. 5/5/99), 733 So.2d 1227, 1231. Deference should be given to the experience of the officers who were present at the time of the incident. State v. Ratliff, 98-0094 (La.App. 4 Cir. 5/19/99), 737 So.2d 252, 254, writ denied, 99-1523 (La.10/29/99), 748 So.2d 1160.

In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the U.S.

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Bluebook (online)
787 So. 2d 404, 2001 WL 540562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-howard-lactapp-2001.