State v. Martin

738 So. 2d 98, 1999 WL 346247
Louisiana Court of Appeal·Decided June 1, 1999·No. 99-KA-123·Published·Cited by 36 cases

Opinion

738 So.2d 98 (1999)

STATE of Louisiana
v.
Dwayne MARTIN.

No. 99-KA-123.

Court of Appeal of Louisiana, Fifth Circuit.

June 1, 1999.

*100 Frederick Kroenke, Louisiana Appellate Project, Baton Rouge, Louisiana, Attorney for Appellant Dwayne Martin.

Paul D. Connick, Jr., District Attorney, Rebecca J. Becker—Counsel of Record, Terry Boudreaux, Frank A. Brindisi, Kia Habisreitinger, Assistant District Attorneys, Gretna, Louisiana, Attorneys for Appellee State of Louisiana.

Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.

CANNELLA, Judge.

Defendant, Dwayne Martin, appeals from his Crosby[1] plea to possession of cocaine with intent to distribute and his sentence to 5 years imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. For the reasons which follow, we affirm the conviction and sentence and remand.

On the evening of October 1, 1997, Agent Michael Crossen and Sergeant Joe Williams of the Jefferson Parish Sheriffs Office were assigned to "Narcotics Overtime Complaint Duty." Officers assigned to this duty respond to citizen complaints in high-crime drug areas. Earlier that morning, Sergeant Williams had received a complaint from a citizen who stated that several black males were dealing narcotics in and around Ivory Nolan's lounge at 1322 Pailet Street in Harvey, a high-crime area. Sergeant Williams, Agent Crossen, and several other officers went to the lounge at approximately 8:30 p.m. that evening to investigate these complaints.

The officers were wearing "Raid" jackets, which are marked "Police," and have police badges on them. Sergeant Williams and Agent Crossen went inside the lounge, while the other officers remained outside. As Agent Crossen entered the lounge, he made "eye contact" with a black male, the defendant, at the bar. The defendant looked at Agent Crossen with a "surprised" or "startled" expression and clenched his hand. Agent Crossen started moving toward the defendant with the purpose of further investigation. As he neared the defendant, he observed the defendant attempting to place his clenched fist into the right pocket of his pants. Agent Crossen then "took control" of the defendant's hand and asked the defendant what was in his hand. The defendant told Agent Crossen that he had crack cocaine in his hand. The defendant opened his closed fist, revealing a clear plastic bag containing several rocks of off-white objects that field-tested positive for the presence of crack cocaine. Agent Crossen arrested the defendant, advised him of his Miranda[2] rights, and took the defendant to the detective bureau, where the defendant gave a statement.

The defendant was charged by bill of information with possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A). He was arraigned and pled not guilty. He filed a motion to suppress evidence, confession and identification, which the trial judge denied after a hearing. On the same day, the defendant pled guilty under Crosby, reserving his right to raise on appeal the trial court's denial of his motion to suppress. The trial judge then sentenced the defendant to serve 5 years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant appealed.

ASSIGNMENT OF ERROR NUMBER ONE

In his sole assignment of error, defendant contends that the trial court erred in denying the motion to suppress the evidence. More particularly, defendant contends *101 that the initial investigatory stop was unlawful and therefore, the evidence was illegally seized and should have been suppressed. Defendant first argues that the investigatory stop was illegal because Officer Crossen lacked reasonable suspicion of criminal activity.

The State responds that, under the totality of the circumstances, the officer had reasonable suspicion to justify the investigatory stop. The state further argues that the officer had a reasonable belief that the defendant was armed and dangerous and he was, therefore, justified in "taking control" of the defendant's hand.

The Fourth Amendment to the United States Constitution and Article 1, Section 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). However, the right of law enforcement officers to stop and interrogate a person reasonably suspected of criminal activity is recognized by La.C.Cr.P. art. 215.1, as well as state and federal jurisprudence. See: Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Robertson, 97-2960, p. 2 (La.10/20/98), 721 So.2d 1268, 1269; State v. Sanders, 97-892, p. 11 (La. App. 5th Cir. 3/25/98), 717 So.2d 234, 240, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774.

The Terry "reasonable suspicion" test has been codified in La.C.Cr.P. art. 215.1, which provides in pertinent part:

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.[3]

Police must have a particularized and objective basis for suspecting criminal activity of the person who has been stopped. State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881. An unparticularized hunch is insufficient to establish reasonable grounds to stop a person. State v. Huntley, 97-0965, p. 3 (La.3/13/98), 708 So.2d 1048, 1049; State v. Barney, 97-777, p. 4 (La.App. 5th Cir. 2/25/98), 708 So.2d 1205, 1207.

When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, "giving deference to the inferences and deductions of a trained police officer." Huntley, 708 So.2d at 1049. The reputation of a neighborhood as a high-crime area is also an articulable fact upon which an officer may legitimately rely in making a determination as to reasonable suspicion for an investigatory stop. State v. Ayche, *102 98-191, p. 9 (La.App. 5th Cir. 7/28/98), 717 So.2d 1218, 1222, writ denied, 98-2853 (La.2/26/99), 738 So.2d 1061; State v. Miskel, 95-584, p. 5 (La.App. 5th Cir. 1/30/96), 668 So.2d 1299, 1302. A defendant's presence in a high-crime area, coupled with nervousness, startled behavior, flight or suspicious actions upon the approach of officers, is sufficient to justify an investigatory stop. State v. Barney, 97-777 (La.App. 5th Cir. 2/25/98), 708 So.2d 1205; State v. Ayche, supra. An officer's experience, his or her knowledge of recent criminal patterns and his or her knowledge of an area's frequent incidence of crimes, are factors that may support reasonable suspicion for an investigatory stop. State v. Smith, 96-2161, p. 3 (La.App. 4th Cir. 6/3/98), 715 So.2d 547, 549.

Applying the above jurisprudence to this case, we find that Agent Crossen made a lawful investigatory stop based upon reasonable suspicion of criminal activity.

The stop was made by Agent Crossen, an officer with 9 years of police experience, in a high-crime area. According to Agent Crossen, the Sheriffs Office had received several citizen complaints concerning narcotics transactions in this area and that n

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