State v. Jones

657 So. 2d 262, 1995 WL 297493
Louisiana Court of Appeal·Decided May 17, 1995·No. CR 94-1261·Published·Cited by 22 cases

Opinion

657 So.2d 262 (1995)

STATE of Louisiana, Plaintiff-Appellee
v.
Albert JONES, Defendant-Appellant.

No. CR 94-1261.

Court of Appeal of Louisiana, Third Circuit.

May 17, 1995.

*264 Thomas Martin Yeager, Alexandria, for the State of La.

*265 Joseph Richard Kutch, Pineville, for Albert Jones.

Before DOUCET, C.J., and LABORDE and KNOLL, JJ.

KNOLL, Judge.

Defendant, Albert Jones (Jones), was tried by jury and convicted for possession of cocaine pursuant to LSA-R.S. 40:967(C). The district court sentenced Jones to thirty-six months at hard labor. From this conviction and sentence, defendant presents three assignments of error for appeal: (1) the trial court erred in not suppressing the evidence seized from the defendant at the time of his arrest; (2) the verdict is not supported by the weight of the evidence to prove beyond a reasonable doubt that the defendant knowingly and willfully possessed or attempted to possess a controlled dangerous substance; and (3), the trial court erred in imposing a sentence on the defendant which was excessive, considering his past criminal record and the amount of cocaine actually found in the defendant's possession.[1] We affirm and remand with instructions.

Facts

The record shows the following facts. On November 30, 1993, at approximately midnight, Alexandria Police Officers Johnson and Bruce were driving in their police cruiser along Seventh Street, a high crime and drug area in Alexandria, when they spotted the defendant, Albert Jones. Upon observing Officers Johnson and Bruce, Jones hastily fled, running in the direction of Eighth Street, toward a vacant lot. After watching Jones run away from them, Officer Johnson radioed for assistance to Alexandria Police Officers Fairbanks and Laborde, who were then sitting in their police cruiser parked one block away in front of a vacant lot on Eighth Street. In his radio communication, Officer Johnson informed Officer Fairbanks that a black male wearing dark jeans and a dark jacket was fleeing in the direction of Eighth Street by means of a vacant lot, and had done so immediately after seeing police cruiser. After spotting the defendant running toward them through the vacant lot, Officers Fairbanks and Laborde exited their vehicle. With lighted flashlights drawn, they began running toward the defendant.

During the ensuing footchase, the officers identified themselves to Jones and commanded him to stop and get face down on the ground. However, the defendant, then approximately twenty-five to thirty feet away from the officers, only slowed his rapid pace enough to cast aside a shiny chrome crack pipe with a scorched blackened end and a clear plastic bag containing a substance that resembled crack cocaine. Moments later, Officer Laborde and Officer Bruce apprehended the defendant while Officer Fairbanks retrieved the defendant's abandoned objects. After the defendant's abandoned objects were identified by Officer Fairbanks as drug contraband, the defendant was then arrested. Thereafter, Officer Fairbanks secured the contraband and placed it in a properly marked evidence envelope.

Later, the shiny chrome crack pipe with the scorched blackened end and the clear plastic bag containing a substance that resembled crack cocaine were tested for the presence of crack cocaine. The residue on the crack pipe tested positive for cocaine, but the substance in the clear plastic bag tested negative. Instead, the substance in the clear plastic bag was identified as "foogaboom"—a counterfeit crack cocaine usually made of soap, candles, or any other non-narcotic substances suitable to fool drug purchasers. On January 18, 1994, based upon the presence of the cocaine residue found in the crack pipe, the defendant was charged by bill of information with possession of crack cocaine.

On March 29, 1994, the defendant filed a motion to suppress physical evidence. This motion was set for hearing and denied on May 3, 1994. On May 17-19, 1994, the defendant was tried by jury and convicted for possession of cocaine. During the trial, after proving a sufficient chain of custody, the state introduced the crack pipe and plastic bag into evidence. The state also placed into *266 evidence the laboratory report showing that the crack pipe tested positive for the presence of cocaine residue. Officer Fairbanks testified at trial and described the events leading to the defendant's arrest. After presentation of the state's case-in-chief, the defendant chose not to testify. The defendant was sentenced on June 3, 1994 and his motion to reconsider the sentence was denied on June 17, 1994.

Assignment of Error # 1: Motion to Suppress

The defendant contends that the district court erred when it denied his motion to suppress the physical evidence abandoned by him during the investigatory stop. He argues that the investigatory stop evolved into an unlawful arrest without probable cause pursuant to the holding of State v. Tucker, 626 So.2d 707 (La.1993).

The lawful seizure of abandoned property recovered during an investigatory stop or an arrest depends upon the existence of either a reasonable suspicion or a reasonable cause. See LSA-C.Cr.P. Art. 213 and 215.1 Because the reasonable suspicion needed to conduct a lawful investigatory stop is something less than the probable cause needed for a lawful arrest, it is important to determine whether the property in question was abandoned during an investigatory stop or during an arrest.

In Tucker, the Louisiana Supreme Court held that an investigatory stop could rise to the level of an arrest when an arrest was "virtually certain" to occur. The court promulgated six factors useful for reaching this determination: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of the police officers involved in the encounter. Id. at 712. After weighing these factors, the court in Tucker concluded that the distance of "several feet" between the defendant and the police when the defendant abandoned property, the camouflaged darkness of the night, and the availability of areas to conceal himself in the urban environment of the City of Shreveport precluded a finding that an arrest of the defendant had been "virtually certain" to occur. Id. at 713.

Likewise, the facts of this case also suggest that it was not "virtually certain" or imminent that an arrest of the defendant was going to occur. Jones had a lead of over twenty-five feet when he discarded and abandoned the drug contraband. Jones was also in an open field in the dark hour of midnight wearing dark clothing, and he presumably had ample areas available to him for the purpose of concealing himself from the police. Therefore, we conclude that an arrest of Jones during this investigatory stop was not "virtually certain" to occur.

The investigatory stop initiated by the officers in this case only evolved into an arrest after Jones provided the probable cause by abandoning and discarding drug contraband. Probable cause to arrest exists when the facts and circumstances known to the arresting officer and of which he has reasonable, trustworthy information are sufficient to justify a man of ordinary caution in believing

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State v. Jones, 657 So. 2d 262, 1995 WL 297493 (La. Ct. App. 1995).

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