State v. Meyers

520 So. 2d 842, 1987 WL 1216
Louisiana Court of Appeal·Decided November 4, 1987·No. CR87-404·Published·Cited by 15 cases

Opinion

520 So.2d 842 (1987)

STATE of Louisiana, Plaintiff-Appellee,
v.
Eric C. MEYERS and Kenneth L. Schafer, Defendants-Appellants.

No. CR87-404.

Court of Appeal of Louisiana, Third Circuit.

November 4, 1987.

*843 Thomas E. Guilbeau, Lafayette, for defendants-appellants.

Donald Landry, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.

Before KNOLL and KING, JJ., and CULPEPPER, J. Pro Tem.[*]

KING, Judge.

The sole issue presented is whether or not the trial court was correct in overruling the defendants' Motion to Suppress evidence obtained by the search of an automobile with a search warrant.

Eric Meyers and Kenneth Schafer (hereinafter defendants), were each charged with one count of possession with intent to distribute marijuana, in violation of LSA-R.S. 40:966(A). The marijuana was seized from the car occupied by defendants pursuant to a search warrant issued after a trained narcotics dog alerted an officer to the trunk of the car after it was stopped for a traffic violation. Defendants filed a Motion to Suppress the marijuana and, after a hearing, the motion was denied. Defendants thereafter each pled guilty to the charge reserving their right to appeal the denial of their Motion to Suppress. We affirm.

FACTS

On March 18, 1986, defendants, Eric Meyers and Ron Schafer, were occupants of a car on I-10 in Lafayette Parish, Louisiana. At 7:50 P.M., State Trooper John Leblanc clocked the car by radar traveling at 69 miles per hour and proceeded to stop the car for speeding. The driver, defendant, Eric Meyers, exited the car and was directed back to the Trooper's unit where he was given a speeding violation ticket. During the issuance of the ticket, Trooper Leblanc noticed that Meyers exhibited a high level of nervousness and perspiration that, in his opinion, exceeded the usual amount for an ordinary traffic stop. As Trooper Leblanc questioned Meyers about where he was coming from, he became evasive and did not know what to say. When asked what he had been doing Meyers froze up. Trooper Leblanc further observed the passenger in the car, defendant, Kenneth Schafer, turn around and look back several times during this short period. After running checks on Meyers' driver's license and the vehicle, Trooper Leblanc asked defendant, Kenneth Schafer, to step out of the car and identify himself. This was at 8:01 P.M. and Trooper Leblanc testified that he made this request, because of the number of looks the passenger directed at the Trooper's unit along with Meyers' apparent nervousness, leading him to believe that something was wrong. As Schafer stepped out of the vehicle, Trooper Leblanc saw that he wore a sport shirt with pockets at the bottom and noticed a large bulge in Schafer's lower right pocket. Trooper Leblanc, fearing that it might be a gun, called for back up assistance. At 8:11 P.M. two backup units arrived, one of which had a K-9 dog with the officer, and when Deputy Haydell alighted from his vehicle his dog came with him. At that time, Trooper Leblanc then asked Schafer what the bulge was in his pocket. Schafer replied, "money" and showed Leblanc a large roll of cash. By this time the dog had alerted to the trunk of the stopped vehicle, which indicated a strong possibility of narcotics therein. Schafer and Meyers then both refused the officers voluntary access to search the trunk of the car at which time the officers advised defendants *844 they were immobilizing the car and would seek a search warrant to search the car. At 8:25 P.M., Officer Leblanc contacted a narcotics officer to help him apply for a search warrant. Lieutenant John Bourque of the Lafayette Parish Sheriff's office and Trooper Leblanc both signed the affidavit for the search warrant which was then presented to a local magistrate who issued a search warrant. At 12:35 A.M., on March 19, 1986, a search was made of the car trunk and approximately three pounds of marijuana was discovered. These criminal charges then resulted.

Defense counsel filed many pre-trial motions, one of which was a Motion to Suppress the evidence which, after a hearing, was denied. Reserving their right to contest the ruling on the motion to suppress, under State v. Crosby, 338 So.2d 584 (La. 1976), the defendants pled guilty to the charges against them. This appeal followed.

LAW

Defendants' assignment of error from the trial court's denial of the Motion to Suppress actually encompasses two issues of law which are:

(1) Did the police officers who detained the defendants, after the traffic citation for speeding had been issued, have reasonable cause to hold defendants pursuant to an investigatory stop?
(2) Was the search warrant issued by the magistrate invalid because it was defective on its face and based on an untruthful affidavit?

Trooper Leblanc's authority for conducting this investigatory stop is based upon La.C.Cr.P. Article 215.1 which provides in part:

"A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or misdemeanor and may demand of him his name, address and an explanation of his actions."

In this case, Trooper Leblanc had probable cause to arrest defendant, Meyers, for the speeding violation; Trooper Leblanc decided against this and issued a ticket instead. In the course of the issuance of the ticket, Trooper Leblanc noticed several events that he felt were out of the ordinary in this traffic stop. Trooper Leblanc stated that Meyers was more nervous than normal; that he was evasive about where he was driving from or what he had been doing; that he was sweating excessively; and that the passenger in the car kept looking back at him. Trooper Leblanc, after finishing with the driver, asked defendant, Schafer, the passenger, to step out of the vehicle so that Leblanc could determine his identity and run a check on him to see if he was wanted.

An investigatory stop is recognized both under La.C.Cr.P. Article 215.1 and Federal jurisprudence. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such a stop is based on reasonable cause, a somewhat lesser standard than probable cause. Reasonable cause to stop and question a suspect must be determined on a case by case basis; this is to be determined by the officer's ability to articulate specific reasons on which he bases his reasonable suspicion. State v. Rodriguez, 396 So.2d 1312 (La.1981).

In Terry v. Ohio, supra, the Supreme Court stated:

"Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that person with whom he is dealing may be armed and presently dangerous; where in course of investigating his behavior he identifies himself as policeman and makes reasonable inquiries; and where nothing in initial stages of encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled to conduct carefully limited search of outer clothing in attempt to discover weapons which might be used to assault him...." Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

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