State v. Littleberry

511 So. 2d 1229, 1987 La. App. LEXIS 10009
CourtLouisiana Court of Appeal
DecidedAugust 19, 1987
DocketNo. 18792-KA
StatusPublished
Cited by4 cases

This text of 511 So. 2d 1229 (State v. Littleberry) 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. Littleberry, 511 So. 2d 1229, 1987 La. App. LEXIS 10009 (La. Ct. App. 1987).

Opinions

FRED W. JONES, Jr., Judge.

Defendant Littleberry was originally charged by bill of information with possession of marijuana with intent to distribute, and he pled not guilty. After an adverse ruling on his motion to suppress, defendant was allowed to withdraw this plea and enter a guilty plea to attempted possession of marijuana with intent to distribute (La.R.S. 14:27 and 40:966 A) reserving his right to appeal the motion to suppress ruling. A presentence investigation was ordered and reviewed.

Defendant was subsequently sentenced to serve three years imprisonment. The sentence was suspended, and defendant was placed on supervised probation for five years subject to conditions.

Defendant appealed, claiming the trial court erred in overruling the motion to suppress and the trial judge did not properly apply the sentencing guidelines to individualize the sentence, resulting in a more [1230]*1230severe sentence being imposed than was warranted. We affirm.

Factual Background

On December 17, 1985, at 12:19 A.M., Deputy Kindrix of the Ouachita Parish Sheriff’s Office was on routine patrol eastbound on New Natchitoches Road just outside of West Monroe. Deputy Kindrix observed defendant walking east on the shoulder of the road with a pouch in his right hand. The deputy passed defendant, turned the patrol car around and went back to the area in which he had seen defendant.

Deputy Kindrix next saw defendant walking out of the ditch at the side of the road. He was no longer carrying the pouch. The deputy exited his vehicle and asked defendant, “Where is that bag or purse you had? ”. Defendant replied, “I don’t know what you are talking about.”

Lt. Scott Rowden arrived at the scene and observed the pouch lying in the ditch approximately 10 to 12 feet from defendant. The pouch contained nine plastic bags of marijuana and three bags containing marijuana gleanings. Defendant was advised of his Miranda rights and placed under arrest. He later made several inculpa-tory statements to authorities.

Motion to Suppress

On April 7, 1986, defendant filed a motion to suppress all evidence seized as a result of his arrest on December 17, 1985. Defendant alleged that:

“1) The police officer who stopped him and arrested him did so without probable cause to believe that defendant had committed a crime or was in the process of committing a crime.
2) Defendant was questioned by the police without first being warned of his right to remain silent or of his Miranda rights.
3) Defendant did not knowingly, intelligently and voluntarily waive his right to remain silent.

In written reasons for judgment, the trial judge found that the seizure did not occur until after the pouch had been abandoned and the inculpatory statements were made after defendant had been Mir-andized. He denied the motion to suppress.

If, prior to the abandonment of the evidence, there is an unlawful intrusion into the defendant’s constitutional right to be left alone, then the evidence is unlawfully seized. An unlawful intrusion occurs when there is an actual stop without reasonable cause or when a stop without reasonable cause is imminent. The legality of a stop which occurs after an abandonment is irrelevant in determining whether the evidence must be suppressed. State v. Chopin, 372 So.2d 1222 (La.1979); State v. Ryan, 358 So.2d 1274 (La.1978); State v. Schaffer, 467 So.2d 1349 (La.App. 5th Cir.1985); State v. Valentine, 464 So.2d 1091 (La.App. 1st Cir.1985); State v. Morrison, 459 So.2d 1320 (La.App. 1st Cir.1984).

The purpose of the Fourth Amendment is not to eliminate all contact between police and the citizenry. Police officers do not need probable cause to arrest or reasonable cause to detain each time they attempt to converse with or approach a citizen. As long as the person remains free to disregard the encounter and walk away, there has been no intrusion upon that person’s liberty or privacy which would require some particularized and objective justification under the Fourth Amendment. State v. Belton, 441 So.2d 1195 (La.1983); State v. Fleming, 457 So.2d 1232 (La.App. 1st Cir.1984).

In State v. Ryan, supra, two police officers observed Ryan walking along a sidewalk clutching a yellow object in his hand. One officer testified that as they passed Ryan in their car, it appeared that Ryan was trying to conceal what he was holding by turning his hand away from the street. Their suspicions aroused, the officers circled the block and came upon Ryan still carrying the object.

One officer testified Ryan dropped the object before his partner jumped out of the car. The other officer testified that he jumped out of the car immediately after seeing that Ryan was still carrying the object. He stated that Ryan threw the [1231]*1231object to the ground as soon as he saw the officer leave the car and start in his direction. The officer walked past Ryan and retrieved the object while his partner stopped Ryan. The object was a manila envelope containing approximately 50 heroin capsules.

The Supreme Court of Louisiana held that the motion to suppress was properly denied. The court stated:

“Even accepting [the officer’s] testimony that the package was not dropped until after he had left the car, there was no violation of [Ryan’s] rights. The officer had the right to move closer for a better view of what he considered suspicious activity; [Ryan] could not expect to carry contraband and drop it with impunity when he sees an approaching police officer. There is no expectation of privacy when property is abandoned, and no constitutional prohibition against seizure of abandoned property by police.

See also State v. Williams, 304 So.2d 311 (La.1974).

In State v. Wheeler, 416 So.2d 78 (La.1982), two officers were parked on a street writing a report. They became interested in the activities of a man standing by a wall about one-half block down the street. During a period of thirty minutes he was approached by several juveniles, each of whom handed the man something and received an item in return from a brown grocery bag near his feet. Before approaching the man, the officers summoned other police officers for assistence, instructing them to cover the suspect’s rear in case he took flight. As the officers walked down the street, the man picked up his bag, dropped it in a garbage can and walked away from them. The suspect was overtaken by one of the officers, apprehended, patted down for weapons, advised of his rights, and placed in the police vehicle. Meanwhile, the other officer retrieved the brown bag from the garbage can. It contained ten small coin envelopes and a plastic envelope containing marijuana and a number of other items.

The court held that the property was abandoned without any unlawful infringement of Wheeler’s rights and the bag was lawfully seized. The officer did not approach Wheeler in a manner or under circumstances which made it seem that some form of detention was imminent until after he disposed of the bag.

In Valentine, supra, two officers were on routine patrol at about 9:30 P.M. on October 6, 1983 when they noticed Valentine walking down the street. One of the officers noticed a small “shining object” in Valentine’s hand.

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Related

State v. Guidry
274 So. 3d 919 (Louisiana Court of Appeal, 2019)
State v. Kelly
576 So. 2d 111 (Louisiana Court of Appeal, 1991)
State v. Williams
531 So. 2d 519 (Louisiana Court of Appeal, 1988)

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Bluebook (online)
511 So. 2d 1229, 1987 La. App. LEXIS 10009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-littleberry-lactapp-1987.