State v. Lockett

120 So. 3d 886, 2013 WL 3871107
CourtLouisiana Court of Appeal
DecidedJuly 24, 2013
DocketNo. 2012-K-1561
StatusPublished
Cited by7 cases

This text of 120 So. 3d 886 (State v. Lockett) 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. Lockett, 120 So. 3d 886, 2013 WL 3871107 (La. Ct. App. 2013).

Opinions

ROSEMARY LEDET, Judge.

| jThis application for supervisory writ is before this court on remand from the Louisiana Supreme Court. The sole issue presented by this writ is whether the district court correctly denied the defendant’s motion to suppress evidence seized without a warrant from the vehicle in which he was riding as a front seat passenger.

STATEMENT OF THE CASE

On August 23, 2012, the State of Louisiana charged the defendant, Otis Lockett, with one count of being a convicted felon in possession of a firearm, a violation of La. R.S. 14:95.1. At his arraignment, Otis Lockett pled not guilty to the charge. On October 11, 2012, the district court heard and denied Otis Lockett’s motion to suppress the evidence and found probable cause to substantiate the charges. From that ruling, Otis Lockett filed a writ application with this court. This court denied Otis Lockett’s writ, noting that “[i]n the event the Relator ultimately is convicted, he has an adequate remedy on appeal.” State v. Lockett, 12-1561 (La.App. 4 Cir. 1/2/13) (unpub.). The Louisiana Supreme Court granted Otis |2Lockett’s writ application and remanded to this court for “briefing, argument and opinion.” State v. Lockett, 13-0170 (La.4/1/13), 110 So.3d 133, 134 (mem.). On remand, we entertained oral and written argument from both sides. For the reasons that follow, we find no error in the district court’s denial of the motion to suppress and deny Otis Lock-ett’s writ.

STATEMENT OF THE FACTS

The testimony of Sergeant Daniel Anderson, a sixteen-year veteran of the New Orleans Police Department (“NOPD”) and the sole witness at the motion to suppress hearing, established the following facts. At about 10:30 p.m. on June 27, 2012, Sergeant Anderson was sitting alone in his patrol car in the parking lot of the Ideal Food Store, which is near the intersection of Canal and Galvez Streets. While sitting at that location, he noticed “a Pontiac traveling in the far left lane [of Canal Street] rolling at a very, very slow pace, with vehicles that were actually coming up on the bumper and going around the vehicle.” He also noticed that there were two occupants in the Pontiac — a driver and a front seat passenger — and that the Pontiac had a cracked windshield. Sergeant Anderson pulled behind the Pontiac and ran its license plate. He learned that it belonged to Frederick Lockett, who was identified as the driver of the vehicle and as the passenger’s (Otis Lockett’s) nephew.

Based on the traffic infractions, Sergeant Anderson decided to stop the Pontiac and activated his lights and siren.1 The driver of the Pontiac pulled over |sfrom the left lane to the right lane of Canal Street as if he was preparing to stop, but failed to come to an immediate stop. At that point, Sergeant Anderson directed his exterior spotlight on the Pontiac, which illuminated the entire interior of the vehicle. He observed that the passenger — Otis Lockett— was making “quite a bit of furtive move[889]*889ments.” He defined “furtive movements” to mean “actions that are uncommon actions that normal people would not initiate, especially during a traffic stop.” He described the passenger’s furtive movements as turning to the left and reaching to the backseat. On cross-examination, Sergeant Anderson explained:

A. The fact that he [Otis Lockett] turned to the left and reached to the backseat, to me that sends out signals. I am not sure if there are other occupants, people or what.
I have come up on cars and there are four occupants in there when I thought there was two.
I was unable to determine exactly what was going on there, and it did set off alarms.
To me that was very suspicious and unordinary activity, especially during a traffic stop.
# ⅝ ⅜ ⅜ ⅝ ⅜
Q. It sounds like what you saw was a passenger turn to the left and reach towards the back.
Is that fair?
A. I couldn’t see the reach.
It was what it appeared to be.
I wasn’t in the vehicle.
I was travelling behind.
I can only account for what I actually observed.
|4If it looked like he was reaching, did I see his hand reach back there, no I did not.
Q. Okay.
So you just saw the turn of the body?
A. The turning and the movement toward.
If I was in a vehicle and I was reaching to the back, that’s exactly what I would have done.
Q. Okay.
A. Even in my report, I notated that it appeared that he was reaching back there.
Q. Right.
And, so, other than the turning of the body and appearance like the passenger was reaching to the back, did you see any other movements that you would have characterized as furtive?
A. No.

Sergeant Anderson’s testimony was that he did not actually see Otis Lockett reach into the back seat, but Otis Lockett’s movements that he did see were consistent •with that action.

Sergeant Anderson further testified that the passenger’s furtive movements “heightened his alertness.” Given the passenger’s furtive movements coupled with the fact he was outnumbered (he was on patrol alone; the vehicle had two occupants), Sergeant Anderson contacted the dispatcher and requested backup assistance.

Once the Pontiac came to a complete stop, Sergeant Anderson, utilizing his public address system, ordered the driver to exit the vehicle. As the driver exited the vehicle, Sergeant Anderson told him to leave his driver’s door open for the | sofficer’s safety. The driver complied. As he approached the driver, Sergeant Anderson shined his flashlight into the vehicle and observed that the passenger was looking straight down and “doing something with his phone” — either talking or playing a game on it. While he was conversing with the driver right outside the driver’s door and waiting for his backup, Sergeant Anderson testified that he “kept and maintained a constant visual on [the passenger, Otis Lockett].” He stated that his suspicions were raised because the passenger “was moving around a little bit” in his seat and “was just continuously on his [890]*890telephone” as if the officer was invisible. He noted in his report that Otis Lockett appeared nervous. Sergeant Anderson described Otis Lockett as wearing a long-sleeve hoodie with the hood up and long jeans, which he found odd considering it was during “the hot months in New Orleans.”

When the backup officers arrived, Sergeant Anderson directed the driver to the back of the vehicle. While one of the backup officers maintained contact with the driver, Sergeant Anderson and the other backup officer approached the passenger door and asked Otis Lockett to step out of the vehicle. Otis Lockett complied. The officers then directed Otis Lockett to the rear of the vehicle. With both the driver and passenger at the rear of the vehicle, Sergeant Anderson approached the passenger side of the vehicle and surveyed the inside of the vehicle.

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Bluebook (online)
120 So. 3d 886, 2013 WL 3871107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lockett-lactapp-2013.