State v. Martinez

874 So. 2d 272, 2004 WL 895886
CourtLouisiana Court of Appeal
DecidedApril 27, 2004
Docket04-KA-38
StatusPublished
Cited by3 cases

This text of 874 So. 2d 272 (State v. Martinez) 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. Martinez, 874 So. 2d 272, 2004 WL 895886 (La. Ct. App. 2004).

Opinion

874 So.2d 272 (2004)

STATE of Louisiana
v.
Juaquin R. MARTINEZ.

No. 04-KA-38.

Court of Appeal of Louisiana, Fifth Circuit.

April 27, 2004.

*274 Paul D. Connick, Jr., District Attorney, 24th Judicial District Court, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Holli A. Herrle-Castillo, Harvey, LA, for Defendant/Appellant.

Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.

CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

On May 7, 2003, the Jefferson Parish District Attorney filed a bill of information charging the defendant, Juaquin R. Martinez, with possession of cocaine in violation of LSA-R.S. 40:967(C). The defendant was arraigned on May 16, 2003 and pled not guilty. On October 20, 2003, the defendant's motion to suppress evidence was denied. On that same date, the defendant withdrew his plea of not guilty and tendered a plea of guilty under State v. Crosby, 338 So.2d 584 (La.1976). The trial court subsequently sentenced the defendant to imprisonment at hard labor for two years, suspended the sentence, and placed the defendant on active probation for two years. On October 24, 2003, the defendant filed a motion for appeal that was granted.

FACTS

The following facts and testimonies were presented at the hearing on the motion to suppress. Detective Daniel Jewell was the arresting officer. He testified that he had been employed by the Jefferson Parish Sheriff's Office narcotics division for approximately two years and that, during his four years with the New Orleans Police Department, he had made hundreds of drug arrests.

In regards to this case, Detective Jewell testified that his office had received an anonymous complaint regarding numerous people coming and going from 4120 Trenton Street Apartment No. 3 in Metairie, Louisiana. Based on this information, Detective Jewell and his partner conducted surveillance on the apartment on April 1, 2003. During the 45 minute surveillance, *275 Detective Jewell observed five subjects going to the apartment and staying approximately two to five minutes. He explained that this behavior was consistent with the purchase of narcotics.

Detective Jewell then testified that the defendant, Juaquin R. Martinez, was the sixth person to approach the apartment. After the defendant left the apartment, Detective Jewell's partner stayed and continued the surveillance and Detective Jewell followed the defendant who walked about three blocks away to Independence Street. Detective Jewell stated that he never lost sight of the defendant, nor did the defendant approach any other residences.

Detective Jewell then stopped the defendant and identified himself as a police officer. Detective Jewell thought the defendant had possibly purchased narcotics from someone in the apartment. The detective questioned the defendant about his ID, what he was doing in the apartment, and whether he knew the people there. The defendant could not give him a good answer and kept looking around. Detective Jewell thought the defendant was about to flee.

Detective Jewell testified that the defendant kept sticking his hands in his pockets and his waistband after being told numerous times not to. He also testified that the defendant "could not hold an object in his hand without dropping it." When the detective asked the defendant to produce his identification, Detective Jewell noticed that the defendant was very nervous and sweating profusely, even though it was rather cool.

Based on the defendant's attitude and the way he carried himself and knowing from experience that narcotics and weapons went "hand-in-hand", Detective Jewell conducted a pat down for weapons because he was concerned for his safety. Detective Jewell heard a "distinctive crunch of plastic", which he associated with being a cigarette wrapper, when he got to the lower, right part of the defendant's leg around the sock and ankle area. When Detective Jewell touched the wrapper, the defendant bent down and moved the detective's hand away from his ankle. Detective Jewell testified that every time he went near the defendant's ankle, the defendant would move his hands near the ankle. Because of these actions, Detective Jewell was concerned for his safety.

Once he was able to actually pat the area around the ankle, Detective Jewell felt a small, rock-like object. He testified that he did not have to manipulate the object to feel it and it was "very distinctive" and he "immediately recognized it." Detective Jewell then lifted the defendant's pant leg and saw the top of the plastic sticking out of his sock. Detective Jewell then seized a small piece of crack cocaine and the defendant was placed under arrest.

On cross-examination, Detective Jewell admitted that he did not see any hand-to-hand transactions or drugs change hands during his 45 minutes of surveillance and he did not stop the other five people who left the apartment.

The trial court denied the defendant's motion to suppress the evidence finding that the detective had a reasonable suspicion to stop and talk to the defendant and that under the totality of the circumstances, the detective was entitled to conduct the pat-down because he reasonably suspected he was in danger. The defendant now appeals the trial court's denial of the motion to suppress.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant argues that the trial court erred in denying the motion to suppress *276 the evidence. He contends the officer had no reasonable suspicion to stop him after he left the apartment. He also argues that, even if the officer had reasonable suspicion to stop him, the officer was not justified in patting him down. Further, he asserts that even if the stop and pat-down for weapons were legal, the retrieval of the cellophane wrapper containing the crack rock was not.

The Fourth Amendment to the United States Constitution and La. Const. Art. 1, § 5 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 question a person where there is reasonable suspicion to believe that the person is committing, has committed or is about to commit a crime was established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also: State v. Keller, 403 So.2d 693, 696 (La.1981); State v. Duran, 96-602 (La.App. 5 Cir. 3/25/97), 693 So.2d 2, 3, application dismissed, 97-1485 (La.1/9/98), 705 So.2d 1087.

The requirements for a valid Terry stop and for any search incident to the stop was codified in LSA-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.
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.

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Bluebook (online)
874 So. 2d 272, 2004 WL 895886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-martinez-lactapp-2004.