State v. Jackson

684 So. 2d 1046, 96 La.App. 4 Cir. 1503, 1996 La. App. LEXIS 2911, 1996 WL 697751
Louisiana Court of Appeal·Decided December 4, 1996·No. No. 96-K-1503·Published·Cited by 1 cases

Opinion

liCIACCIO, Judge.

We grant certiorari to review the State’s writ application to consider whether the trial court erred in granting defendant’s motion to suppress the evidence. In granting the motion, the trial judge found that the police did not have probable cause to search the defendant and the warrantless search was unreasonable under the Fourth Amendment. We disagree.

The Fourth Amendment to the United States Constitution protects people against unreasonable searches and seizures. LSA-C.Cr.P. art. 215.1, as well as federal and state jurisprudence, recognizes the right of a law enforcement officer to temporarily detain and interrogate a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Jernigan, 377 So.2d 1222 (La.1979). Pursuant to art. 215.1, when an officer has stopped the person for questioning and he reasonably suspects that he may be in danger, he may frisk the person’s outer clothing for a dangerous weapon and if the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person. Reasonable cause for an investigatory stop is something less than probable cause; nevertheless, the officer must have articulable knowledge of particular facts which, in conjunction with reasonable inferences drawn therefrom, is sufficient to provide reasonable grounds to suspect criminal activity. State v. Bickham, 404 So.2d 929 (La.1981). The totality of the circumstances must be considered in determining the rea[1048]*1048sonableness of the investigatory stop. State v. Belton, 441 So.2d 1195 (La.1983), cert. den., Belton v. Louisiana, 466 ILjaS. 953,104 S.Ct. 2158, 80 L.Ed.2d 543 (La.1984).

In State v. Jernigan, supra, the police station received an anonymous call that a black male wearing a yellow shirt and blue pants and armed with a handgun was sitting in Sander’s bar located at 4218 Thalia Street. A police officer responded to the call and found a person, Jernigan, fitting the description at that location. The officer approached Jernigan, directed him to stand, and immediately conducted a frisk.. While frisking Jer-nigan, the officer felt a gun in his pants pocket. The officer then searched the pocket and retrieved a .38 caliber revolver. In upholding the trial court’s denial of Jemigan’s motion to suppress the physical evidence, the Court held that where the information received from the tipster carried enough indicia of reliability, such as specificity of the information and corroboration by independent police work, the initial detention and subsequent frisk of Jernigan were justified. The Court also held that where the information was correct and presented an immediate and real danger to the public, such as where the crime being investigated involved a handgun, prompt police action was justified to prevent possible serious harm.

Furthermore, in Minnesota v. Dickerson, 508 U.S. 366,113 S.Ct. 2130,124 L.Ed.2d 334 (1993), the Court ruled that officers may seize contraband detected by touch during a pat down search if the search remains within the bounds of a Terry patdown search. The Court stated:

We have already held that police officers, at least under certain circumstances, may seize contraband detected during the lawful execution of a Terry search.... Under [the plain view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 2307-2308, 110 L.Ed.2d 112 (1990); Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 1541-1542, 75 L.Ed.2d 502 (1983) (plurality opinion). If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object — i.e. if “its incrimination character [is not] immediately apparent,” Horton, supra, at 136,110 S.Ct. at 2308 — the plain view doctrine cannot justify its seizure. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).
We think that this doctrine has an obvious application by analogy to eases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. The rationale of the plain view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no “search” within the meaning of the Fourth Amendment — or at least no search independent of the initial intrusion that gave the officers their vantage point.... The same can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.

Minnesota v. Dickerson, 508 U.S. at 374-376, 113 S.Ct. at 2136-2137.

As noted in State v. Johnson, 94-1170, pg. 7, (La.App. 4 Cir. 8/23/95); 660 So.2d 942, 948, writs denied, 95-2331 (La.2/2/96); 666 So.2d 1092 and 95-3044 (La.2/2/96); 666 So.2d 1105.

Only a few Louisiana cases have considered Dickerson. In State v. Parker, 622 So.2d 791 (La.App. 4th Cir.1993), writ denied 627 So.2d 660 (1993), the officer, while conducting a pat-down search, seized a matchbox containing crack cocaine. Because the officer could not tell that the matchbox contained contraband just by [1049]*1049feeling it, this court found that its seizure was not justified by Dickerson. Likewise, in State v. Jackson, 26,138 (La.App.2d Cir. 8/17/94), 641 So.2d 1081, the seizure of cocaine from a matchbox inside the defendant’s pocket was found not to fall within the “plain feel” exception. However, the court also found that the defendant consented to the removal and opening of the matchbox, |4which then revealed the cocaine. In State v. Short, 605 So.2d 1102 (La.1992), decided before Dickerson, the officer seized crack cocaine from the defendant’s watch pocket discovered during a pat-down search. Although this court upheld the seizure, the Supreme Court reversed, merely stating: “The search went beyond a frisk for weapons.” It is unclear, however, if this ruling would be affected by the subsequent ruling in Dickerson.

In Johnson we found that the seizure of a rock of crack cocaine was justified under this exception: “Officer Waguespack testified that when he felt the rock-like substance during the pat-down frisk, he immediately believed the substance to be crack cocaine.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Jackson, 684 So. 2d 1046, 96 La.App. 4 Cir. 1503, 1996 La. App. LEXIS 2911, 1996 WL 697751 (La. Ct. App. 1996).

684 So. 2d 1046 (State v. Jackson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Vessel
131 So. 3d 523 (Louisiana Court of Appeal, 2014)