State v. Miskel

668 So. 2d 1299, 1996 WL 54501
CourtLouisiana Court of Appeal
DecidedJanuary 30, 1996
Docket95-KA-584
StatusPublished
Cited by25 cases

This text of 668 So. 2d 1299 (State v. Miskel) 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. Miskel, 668 So. 2d 1299, 1996 WL 54501 (La. Ct. App. 1996).

Opinion

668 So.2d 1299 (1996)

STATE of Louisiana
v.
Kenneth MISKEL.

No. 95-KA-584.

Court of Appeal of Louisiana, Fifth Circuit.

January 30, 1996.

*1300 John M. Mamoulides, District Attorney, Alison Wallis, Assistant District Attorney, Parish of Jefferson, Gretna, for Plaintiff/Appellee.

Bruce G. Whittaker, 24th Judicial District, Indigent Defender Board, Gretna, for Defendant/Appellant.

Before GAUDIN, GRISBAUM and GOTHARD, JJ.

GOTHARD, Judge.

On January 4, 1995, the defendant, Kenneth Miskel, was charged with possession of *1301 cocaine, a violation of La.R.S. 40:967 C. At his arraignment on February 23, 1995, the defendant entered a plea of not guilty. On May 2, 1995, the trial court denied the defendant's motion to suppress evidence. The defendant then withdrew his former plea of not guilty and entered a plea of guilty as charged while reserving his right to appeal the denial of his motion to suppress evidence in accordance with State v. Crosby, 338 So.2d 584 (La.1976). Thereafter, the trial court sentenced the defendant to two years at hard labor, suspended the sentence, and placed the defendant on two years active probation. For the following reasons, we affirm the trial court's denial of the motion to suppress and amend the defendant's sentence to give him credit for time served prior to the imposition of the sentence.

FACTS

The only evidence presented to the trial court in regards to the motion to suppress was the police report detailing the defendant's arrest. The report sets forth the following facts:

On December 12, 1994, police officers were dispatched to Airline Highway and Shrewsbury in response to a tip from an unknown complainant regarding a possible drug violation. The complainant described a black male suspect who weighed around 250 pounds, was wearing dark sweat pants, and was standing near a dumpster. Upon arriving at the location, the officers observed the defendant, who fit the tipster's description and was standing next to a dumpster.

The officers approached the defendant and asked him to identify himself and to remove his hands from his pockets. The officers then conducted a pat down search for weapons but did not find any. Next, the officers asked the defendant to empty his pockets. In response, the defendant removed a chap stick container from his right front pocket. The officers heard a clicking sound coming from the container as the defendant handed it over. Upon examining the container, the officers discovered three rocks of crack cocaine. The defendant was then placed under arrest.

ASSIGNMENTS OF ERROR

The defendant assigns the following errors: (1) the trial court erred in denying the motion to suppress; and (2) any and all errors patent on the face of the record.

DISCUSSION

The defendant argues that the trial court should have excluded the cocaine from evidence because it was discovered as the result of an illegal search. According to the defendant, the officers' request that he empty his pockets constituted a search; furthermore, this search was illegal because it was performed incident to an arrest that lacked probable cause.

We disagree with the defendant's characterization of the discovery of the cocaine. La.C.Cr.P. art. 201 defines an arrest as the "taking of one person into custody by another." The distinguishing characteristic of an arrest is the "actual restraint" of the person being arrested. Id. Here, the record reveals that there was no actual restraint of the defendant until the officers discovered the cocaine. Therefore, the initial encounter between the police and the defendant involved an investigatory stop, not an arrest. During this stop the police asked the defendant to empty his pockets. The defendant consented and handed over the chap stick container. Upon discovering the cocaine, the police then arrested the defendant. Thus, it is apparent that the police discovered the cocaine as a result of the defendant consensually emptying his pockets during an investigatory stop, rather than as a result of a search incident to an arrest. However, there remains a question as to whether the police were justified in the first instance in conducting the investigatory stop.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized the right of a police officer to stop and interrogate a person based upon the officer's reasonable suspicion that the person has been, is, or is about to be engaged in criminal conduct. The principle of the "Terry" stop has been codified by our legislature in La.C.Cr.P. art. 215.1, which provides in pertinent part:

*1302 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.

Reasonable suspicion for an investigatory stop is something less than probable cause. State v. Belton, 441 So.2d 1195 (La. 1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Chirlow, 617 So.2d 1, 4 (La.App. 5th Cir.1992), writ denied, 620 So.2d 874 (La.1993). Reasonable suspicion must be determined under the facts of each case after considering the totality of the circumstances. Id. This determination is made by analyzing whether the officer had sufficient knowledge of articulable facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. State v. Hartzheim, 93-631 (La.App. 5th Cir. 2/23/94), 633 So.2d 768, 771.

We have previously noted that the "reputation of an area is an articulable fact upon which the police officer may rely and is relevant in the determination of whether there is reasonable cause to conduct an investigatory stop." State v. Carver, 531 So.2d 551, 553 n. 2 (La.App. 5th Cir.1988). This is because "high crime areas are places in which the character of the area gives color to conduct which might not otherwise arouse the suspicion of an officer." State v. Burnett, 513 So.2d 391, 393 (La.App. 4th Cir.1987).

Further, an informant's tip can provide a police officer with reasonable cause to detain and question a suspect. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Jernigan, 377 So.2d 1222, 1224 (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (1980). Even an anonymous tip can provide the basis for an investigatory stop, provided that the tip carries "enough indicia of reliability, such as specificity of the information and corroboration by independent police work, to justify the stop." State v. Jernigan, supra, at 1225.

In State v. Chirlow, supra, we held that an investigatory stop based on information given by a confidential informant was valid. 617 So.2d at 4-5. As in the instant case, in Chirlow the motion to suppress was submitted on the police report of the incident. The report did not indicate that the informant had given information in the past that had been proven to be reliable. However, certain portions of the information were confirmed by police observation.

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Bluebook (online)
668 So. 2d 1299, 1996 WL 54501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-miskel-lactapp-1996.