State v. Junegain

478 So. 2d 542
CourtLouisiana Court of Appeal
DecidedOctober 11, 1985
DocketKA 2833
StatusPublished
Cited by11 cases

This text of 478 So. 2d 542 (State v. Junegain) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Junegain, 478 So. 2d 542 (La. Ct. App. 1985).

Opinion

478 So.2d 542 (1985)

STATE of Louisiana
v.
Gary JUNEGAIN.

No. KA 2833.

Court of Appeal of Louisiana, Fourth Circuit.

October 11, 1985.
Rehearing Denied November 26, 1985.

*544 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Michael E. McMahon, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.

Richard Whelton, Jr., Student Practitioner, David Girard, Supervising Atty., New Orleans, for defendant-appellant.

Before WILLIAMS, ARMSTRONG, JJ., and PRESTON H. HUFFT, J. Pro Tem.

*545 WILLIAMS, Judge.

Defendant was charged by bill of information for two counts of possession of stolen property valued over five hundred dollars in violation of LSA-R.S. 14:69. After a motion to suppress was denied, Junegain was tried and found guilty by a six member jury. The defendant was determined to be a habitual offender and was sentenced to twenty years at hard labor under LSA-R.S. 15:529.1. On appeal, Junegain urges four assignments of error.

FACTS

Officer Conrad Baker of the New Orleans Police Department, while working as a security officer at Maison-Blanche, Lake Forest Plaza, on July 25, 1983, observed shortly before 9 P.M., the defendant park a gray 1982 Oldsmobile in the moving lane of traffic directly in front of the store's entrance facing I-10. Officer Baker testified that the car's emergency flashers were engaged and that is what drew his attention to the automobile. The driver, the sole occupant of the car, later identified as the defendant, exited the car and entered the store.

Officer Baker testified that he became suspicious at this point due to an incident two weeks earlier when a black man had parked an automobile in the moving traffic lane at the store's entrance, engaged the emergency flashers, entered the store, stole merchandise, and fled to his car without his being apprehended. Officer Baker stated that since the defendant fit the description of the male who had stolen merchandise earlier and he was using a similar pattern as that of the prior thief, he decided to observe the defendant once he entered the store.

The defendant entered the men's clothing department where Officer Baker observed him kneel down behind a counter and attempt to conceal a pair of socks in his pants leg. The defendant replaced the socks once he was aware of Officer Baker's presence.

Officer Baker then approached the defendant and requested that he accompany him to the store's security office. The defendant consented and was escorted to the security office. Once inside the security office, Baker explained to the defendant that he matched the description of a subject who had committed the crime two weeks earlier. Baker requested that the defendant give his name and identification. The defendant stated that his name was "Elijah Scott", but gave Baker a Charity Hospital Card in the name of Joan Simon, which he carried in a brown wallet in his sock. Baker testified that he then conducted a weapon search of Junegain's outer clothing for his own safety. During the course of the pat-down, Baker felt a hard cylindrical object approximately five inches long in the defendant's sock. Believing the object to be a knife, Baker retrieved it and found it to be a tightly-rolled clear plastic bag of marijuana. The defendant was then placed under arrest for possession of marijuana and advised of his Miranda rights.

Officer Baker conducted a full search of the defendant. A search of the defendant's wallet revealed four marijuana cigarettes, two keys to a General Motors vehicle, and Maison-Blanche clothing tags. He was carrying a black vinyl folder which contained an Oldsmobile owner's manual, credit cards issued in the name of John Meisler, and four checks made to the order of Cactus Beverage. John Meisler's telephone number was obtained by Baker through directory assistance. Meisler was not at home, but Baker spoke to his mother who confirmed that her son's 1982 Oldsmobile had been stolen. Baker then sought the assistance of Officer Jerry Cutrer to determine whether the set of keys discovered in defendant's wallet fit the Oldsmobile that the defendant had parked at the store's entrance. In the course of trying the doorlock, Officer Cutrer, discovered, in plain view, seven ladies' jogging suits on Maison-Blanche hangers in the back seat of the car. It was later determined that the code numbers on the clothing tags recovered from the defendant matched those belonging to the jogging suits found in the automobile. At trial, the Oldsmobile was *546 valued at $9,000.00 and the jogging suits valued at $139.93.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in denying his motion to suppress the evidence because his arrest was not based on probable cause. He alleges that the stop and frisk was improper because the Officer failed to show facts that defendant was armed and dangerous. Since the defendant was arrested on the basis of probable cause, the constitutionality of the stop will not be addressed.

It is well-settled that a search conducted without a warrant issued upon probable cause is per se unreasonable, subject to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Raheem, 464 So.2d 293 (La.1985). One of these exceptions is that an officer may make a search of a person and the area in his immediate control incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Morgan, 445 So.2d 50 (La.App.4th Cir. 1984). This exception is based upon practical considerations such as the need of the arresting officer to discover weapons that may threaten his or others safety and to prevent the possible concealment or destruction of evidence. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). The officer may conduct a search incident to an arrest once he has made the arrest and the arrest is based on probable cause. State v. Marks, 337 So.2d 1177 (La.1976). Therefore, in order to determine whether the seizure of evidence from defendant was proper, the court must determine when the defendant was actually arrested and whether the arrest was based on probable cause. State v. Raheem, supra; State v. Tomasetti, 381 So.2d 420.

In Raheem, the Supreme Court stated: "An arrest occurs when the circumstances indicate an intent to effect an extended restraint on the liberty of the accused, rather than at the precise time an officer tells an accused he is under arrest." 464 So.2d at 296, citing Code of Criminal Procedure art. 201; State v. Tomasetti, supra. In the case at bar, Officer Baker's taking the defendant to the security office, his explanation that he fit the description of the person who had committed an earlier theft, and his reaction to the defendant's production of false identification can only lead to the conclusion that the defendant was under arrest at the time of the patdown. This is not altered by Officer Baker's failure to verbally advise the defendant he was under arrest at the time of the pat-down. State v. Marks, supra.

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478 So. 2d 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-junegain-lactapp-1985.