State v. Lee

520 So. 2d 1229, 1988 WL 9281
CourtLouisiana Court of Appeal
DecidedFebruary 8, 1988
Docket87-KA-619
StatusPublished

This text of 520 So. 2d 1229 (State v. Lee) 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. Lee, 520 So. 2d 1229, 1988 WL 9281 (La. Ct. App. 1988).

Opinion

520 So.2d 1229 (1988)

STATE of Louisiana
v.
Walter LEE.

No. 87-KA-619.

Court of Appeal of Louisiana, Fifth Circuit.

February 8, 1988.

*1230 Bruce G. Whittaker, Gretna, for defendant/appellant.

Louise Korns, of counsel, Office of the District Atty., Ronnie Bodenheimer, Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, for State.

Before KLIEBERT, BOWES and GOTHARD, JJ.

BOWES, Judge.

The defendant, Walter Lee (also known as Walter Lee Bailey), was arrested for knowingly and intentionally possessing a controlled dangerous substance, to wit: less than 28 grams of cocaine in violation of LSA-R.S. 40:967. After several delays, the defendant went to trial and was convicted by a unanimous verdict. He was subsequently sentenced to two years in the Jefferson Parish Correctional Center. We affirm.

The facts of this case are as follows:

On October 14, 1984, at approximately 2:30 a.m., the Jefferson Parish Sheriff's office received a complaint of a black male in the area of 1100 block of Sandalwood carrying a weapon. Several units responded to the call. Sergeant Riseden advised the others that there was a vehicle coming down the streets with its lights off. There were three persons in the vehicle when it was stopped by Sergeant Riseden. All three persons exited the vehicle with their hands up. They were told to turn around and put their hands on the vehicle. Officer Robert Nagy was the second unit which arrived on the scene and he performed a pat-down search for weapons on the defendant. During the search of Walter Lee (Bailey), a small piece of plastic was observed protruding from his pocket and a small bulge in this pocket was felt by the officer as he conducted his "pat-down". When the plastic bag was pulled out of Lee's pocket by the officer, it contained a white powdery substance thought by the officer to be cocaine and verified as such shortly thereafter. Mr. Lee (Bailey) was then arrested. On search of the vehicle, two weapons were discovered, both .38 calibre. Defendant, Walter Lee (Bailey) was arrested and charged with possession of less than 28 grams of cocaine.

Defendant presents only one assignment of error:

1. The trial court erred in denying appellant's motion to suppress the evidence.

*1231 Assignment of Error No. 1

The defendant argues that there was no probable cause for the investigatory stop or, at least, no reason for the officers to believe that the defendant was armed and dangerous. Consequently, he takes the position that the officer's weapon pat-down was unlawful and/or that the cocaine seized as a result of the pat-down was unlawfully seized.

The circumstances under which a police officer may stop a person for questioning are defined by both statute and the Constitution, as well as our state and federal jurisprudence. We are initially guided by LSA-C.Cr.P. Art. 215.1, which holds:

Art. 215.1 Temporary questioning of persons in public places; frisk and search for weapons
A. 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.
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.
C. If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.

In State v. Flowers, 441 So.2d 707 (La. 1983), cert. denied 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984), the Louisiana Supreme Court extensively articulated the standard to be applied in Louisiana for investigatory stops. The court held:

[1-4] The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-1878, 20 L.Ed. 2d 889 (1968). Stopping an automobile and detaining its occupants constitute a "seizure" within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention is quite brief. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person, Terry v. Ohio, supra 392 U.S. at 16, 88 S.Ct. at 1877, and the Fourth Amendment requires that the seizure be "reasonable." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). Because of the limited nature of seizures less intrusive than a traditional arrest, however, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest. Instead, the conduct involved must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures. Terry v. Ohio, supra 392 U.S. at 21, 88 S.Ct. at 1879; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Brignoni-Ponce, 422 U.S. at 880-882, 95 S.Ct. at 2579-2580.
[5-8] In order to assess the reasonableness of such official conduct as a general proposition, it is necessary first to focus on the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interest of the private citizen, for there is no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion which the search or seizures entails. Terry v. Ohio, supra 392 U.S. at 20, 88 S.Ct. at 1879; Camara v. Municipal Court, 387 U.S. 523, 534-535, 87 S.Ct. 1727, 1733-1734, 18 L.Ed.2d 930 (1967). And in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken *1232 together with rational inferences from those facts reasonably warrant that intrusion. United States v. Brignoni-Ponce, supra 422 U.S. at 884, 95 S.Ct. at 2581.

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Related

Beck v. Ohio
379 U.S. 89 (Supreme Court, 1964)
Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Sibron v. New York
392 U.S. 40 (Supreme Court, 1968)
Davis v. Mississippi
394 U.S. 721 (Supreme Court, 1969)
Adams v. Williams
407 U.S. 143 (Supreme Court, 1972)
United States v. Brignoni-Ponce
422 U.S. 873 (Supreme Court, 1975)
Delaware v. Prouse
440 U.S. 648 (Supreme Court, 1979)
Brown v. Texas
443 U.S. 47 (Supreme Court, 1979)
United States v. Cortez
449 U.S. 411 (Supreme Court, 1981)
United States v. Manuel Aguiar, A/K/A Bruce Woods
825 F.2d 39 (Fourth Circuit, 1987)
State v. Keller
403 So. 2d 693 (Supreme Court of Louisiana, 1981)
State v. Lee
485 So. 2d 555 (Louisiana Court of Appeal, 1986)
State v. Bearden
449 So. 2d 1109 (Louisiana Court of Appeal, 1984)
State v. Flowers
441 So. 2d 707 (Supreme Court of Louisiana, 1983)
State v. Wade
390 So. 2d 1309 (Supreme Court of Louisiana, 1980)
Cheadle v. New Mexico
466 U.S. 945 (Supreme Court, 1984)

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Bluebook (online)
520 So. 2d 1229, 1988 WL 9281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lee-lactapp-1988.