State v. MARZETT

40 So. 3d 1204, 2009 La.App. 4 Cir. 1080, 2010 La. App. LEXIS 882, 2010 WL 2321056
CourtLouisiana Court of Appeal
DecidedJune 9, 2010
Docket2009-KA-1080
StatusPublished
Cited by18 cases

This text of 40 So. 3d 1204 (State v. MARZETT) 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. MARZETT, 40 So. 3d 1204, 2009 La.App. 4 Cir. 1080, 2010 La. App. LEXIS 882, 2010 WL 2321056 (La. Ct. App. 2010).

Opinions

JAMES F. McKAY III, Judge.

|,STATEMENT OF CASE

Delmon Marzett was charged by bill of information with possession of cocaine. On June 20, 2008, the trial court heard evidence and denied motions to suppress evidence and a statement. On April 20, 2009, Marzett entered a “Crosby”1 plea and waived delays for sentencing. He received a five year sentence. For the following reasons we affirm the judgment of the trial court.

STATEMENT OF FACT

During the afternoon of February 19, 2008, Officer Robert Barrere and his partner, Officer Reno Bax, were working a paid detail at the Guste Housing Project. According to Officer Barrere, signs are posted on the property that state, in his words, “No Trespassing unless you’re with a HANO resident.” He explained the rule that one must be with a resident to be on Housing Authority of New Orleans (“HANO”) property. The officers were instructed by “management” to ensure that no one trespassed on HANO property. While in their vehicle, Officers Bar-rere and Bax saw Delmon Marzett walking up Erato Street in a northbound direction. At this vantage point Erato Street runs through the project, ^between the two main units. Although the two officers had worked at the project for over a year, they had never before seen the defendant. Officer Barrere, while in his police unit, signaled the defendant to approach. He then asked the defendant if he was a resident of the housing project to which he responded “no”. Officer Barrere testified that the defendant appeared to be nervous, was sweating profusely, and kept putting his hands in his pockets. The officer requested that the defendant remove his hands from his pockets, but he did not comply. Officers Barrere and Bax exited their vehicle and asked the defendant to put his hands on the vehicle. As Officer Barrere began patting the defendant down, the defendant turned belligerent, began screaming and “fighting” the officers. Officer Bax helped Officer Barrere restrain the defendant and placed the defendant in handcuffs.

Officer Barrere requested that the defendant produce identification, but the defendant did not have any on his person. The defendant admitted that he had eaten between six and twelve crack rocks. The officers then advised the defendant of his rights and arrested him for criminal trespass, drug incapacitation, and resisting an officer. Subsequent to advising the defendant of his rights, Officer Barrere searched the defendant and discovered a bag containing an off-white, rock-like substance, consistent with crack cocaine. Officer Barrere advised the defendant that an additional drug charge was being added to his arrest charges.

[1207]*1207Officers Barrere and Bax then drove the defendant to the district station to procure a signature on an affidavit from their sergeant. When they arrived at the district station, they opened the back door of the vehicle “for him to get some air.” The defendant “fell out of the vehicle of his own accord.” As Officer Bax helped the defendant up, an additional bag of crack cocaine fell from the defendant’s right hand onto the ground.

[sThe defendant was then taken to University Hospital. While at the hospital the defendant informed the officers that he needed to use the restroom. As the defendant refused to be searched, the officers feared he might possess more contraband, and they asked the doctors to get a portable toilet. However, the defendant refused to use it. As the defendant retreated around a bed, a third bag of crack fell from his pant leg onto the bed. This bag was recovered.

In all, three bags, of what was believed to be crack cocaine, were recovered. Officer Barrere conducted a field test on the suspected contraband in the presence of his sergeant at the police station. The test was positive for crack cocaine.

Officer Reno Bax testified that he was working the detail with Officer Barrere.2 According Officer Bax, “the sole purpose of that detail [was] to cut down on trespassing by non-residents and to provide a general police presence in the area.”

Officer Bax also testified that when they stopped the defendant, he was sweating excessively and could not keep still. Officer Barrere attempted to conduct a pat-down for officer safety, but the defendant “became immediately combative.” During the course of the patdown, Officer Bax noticed that defendant was trying to keep the front of his body close to the police car and was screaming. Officer Bax believed that this action was an indication that defendant was attempting to conceal something.

Officer Bax noted that originally he and Officer Barrere intended to interview the defendant and ask him to leave if he was not a resident. In order to continue the interview, they placed him in handcuffs, hoping to calm him down. Upon being asked for ^identification, the defendant denied having any. He also confessed to having swallowed anywhere from six to twelve rocks of crack cocaine. The defendant appeared very incoherent. At that point, the officers arrested him for criminal trespassing, resisting an officer, and “drug incapacitation due to his statement.”

When Officer Barrere proceeded to try to search the defendant he began struggling again, trying to keep his body close to the car. What appeared to be crack cocaine was recovered from the defendant’s zipper. At that point, the defendant was advised of his rights and the additional charge.

Due to the defendant’s admission to consuming crack cocaine, the officers wanted to take him to the hospital. However, they had to get a signature from their supervisor first, and they drove to the police station. While there, they attempted to give the defendant a chance to get some air. However, the defendant flung himself from the car. When the officers tried to pick the defendant up and place him back in the car, he became combative and shouted. At that point, the defendant “discarded” another plastic bag containing what appeared to be crack cocaine.

On the way to the hospital, the defendant continued being combative and loud, yelling and cursing at the hospital staff. The defendant also stated he needed to go [1208]*1208to the restroom. Worried that the defendant might have more contraband on him, the officers requested a portable toilet. The defendant turned furious when the portable toilet was produced and stated that he no longer had to go. The defendant was asked to lie on a gurney, and he complied. As he lay down, another bag of what appeared to be crack cocaine rolled from his left pant leg and landed at the foot of the bed.

|r,On cross examination, Officer Bax testified that the defendant was stopped because it was illegal for him to be on HANO property if he was not a resident.

ERRORS PATENT

The record reveals no errors patent.

ASSIGNMENT OF ERROR

The defendant argues that the trial court erred in denying his motion to suppress the evidence because the initial stop was made without reasonable cause for a stop. He also argues that there was no reasonable suspicion for a pat down search. Finally, the defendant argues that there was no probable cause to arrest him for trespassing.

DISCUSSION

The stop/detention:

Pursuant to La.C.Cr.P. art.

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State v. MARZETT
40 So. 3d 1204 (Louisiana Court of Appeal, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
40 So. 3d 1204, 2009 La.App. 4 Cir. 1080, 2010 La. App. LEXIS 882, 2010 WL 2321056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marzett-lactapp-2010.