State v. Morton

993 So. 2d 651, 2008 WL 2917499
CourtLouisiana Court of Appeal
DecidedJuly 29, 2008
Docket08-KA-164
StatusPublished
Cited by20 cases

This text of 993 So. 2d 651 (State v. Morton) 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. Morton, 993 So. 2d 651, 2008 WL 2917499 (La. Ct. App. 2008).

Opinion

993 So.2d 651 (2008)

STATE of Louisiana
v.
Donald MORTON.

No. 08-KA-164.

Court of Appeal of Louisiana, Fifth Circuit.

July 29, 2008.

*653 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Michael Escudier, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.

*654 Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.

EDWARD A. DUFRESNE, JR., Chief Judge.

On June 21, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Donald Morton, with possession of a firearm while in possession of cocaine, a violation of LSA-R.S. 14:95(E).[1] At his arraignment, defendant pled not guilty. During the course of pretrial proceedings, defendant filed a motion to suppress evidence which the trial court heard and denied. The matter thereafter proceeded to trial before a twelve person jury. After considering the evidence presented, the jury found defendant guilty as charged. Defendant then waived delays, and the trial court sentenced him to seven years at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

In the early morning hours of April 20, 2006, Deputy Christopher Thomas, along with other deputies of the Jefferson Parish Sheriffs Office, were patrolling a known high crime area in Marrero. At approximately 3:57 a.m., while driving in the 1200 block of Marshall Drive, Deputy Thomas observed several individuals standing in the street and in a yard. In particular, he noticed one subject sitting on the porch steps in the dark and a couple of other subjects standing on the roadway next to a parked car. As the deputies approached the area in marked police units, these individuals attempted to hide near vehicles and behind anything else that was available to them. The officers assisting Deputy Thomas detained two individuals, Sean and Mark Foucher, who were hiding next to vehicles trying to avoid detection.

Deputy Thomas focused his attention on the individual that he had seen sitting on the steps. This person, later identified as defendant, moved from the porch steps and knelt down next to the steps. Seeing this suspicious activity, Deputy Thomas parked his vehicle, exited it, and instructed defendant to step away from the porch. When defendant did not comply, Deputy Thomas drew his weapon and ordered defendant to come out several more times. Defendant eventually complied with the officer's request. However, prior to his coming out, Deputy Thomas observed defendant reach into his waistband and retrieve a chrome object that he threw on the ground. Defendant then walked towards Deputy Thomas.

Because of safety concerns, Officer Thomas immediately handcuffed defendant and conducted a pat down search of his clothing to check for weapons. During the pat down, Officer Thomas felt a bulge in one of defendant's pockets. When defendant refused to identify the object, Deputy Thomas checked defendant's pocket and retrieved a film canister and a plastic bag containing several off-white rock-like substances. A subsequent field test proved that the substance was positive for crack cocaine. Defendant was then placed in the police car while Deputy Thomas went back to the area where he saw defendant discard the chrome object. While searching that area, the officer found a fully loaded chrome nine millimeter handgun.

Defendant testified in his own behalf both at trial and at the suppression hearing. *655 However, his version of events differs from that of Officer Thomas. According to defendant, in the early morning of April 20, 2006, he was sitting on his porch at 1208 Marshall Drive and his neighbors, the Foucher brothers, were just pulling up in their driveway when the police arrived. Defendant testified that he did not move when the officers approached but rather continued to sit on his porch. One officer walked towards defendant's driveway and told him to come off the porch. In response, defendant told the officer that he "stayed there." The officer then drew his gun and said, "Come here." Defendant stood up, retrieved his wallet from his back pocket, got his driver's license out, and told the officer that he lived there. The officer grabbed defendant's hand, brought him into the street, and told him to put his hands on the police vehicle. According to defendant, the police searched him three times and did not seize anything from him. Defendant denied that Deputy Thomas seized cocaine from him. He also denied having a gun in his possession. Defendant claimed that the gun came from an individual named Robert who was in his yard and attempted to run away when the police approached.

Mark Foucher, defendant's neighbor who was also detained that night, testified that the police searched defendant three times and did not recover any weapons or drugs from defendant. He also testified that he did not see defendant discard a chrome object. Mark Foucher corroborated defendant's testimony that an individual named Robert was in defendant's yard and attempted to run from police but his shirt snagged on the handrail next to the steps.

DENIAL OF MOTION TO SUPPRESS EVIDENCE

On appeal defendant challenges the trial court's denial of his motion to suppress evidence. He argues that the police did not observe any suspicious activity or any crime being committed, and therefore, the police did not have reasonable suspicion for an investigatory stop. Defendant further argues that this illegal investigatory stop immediately turned into an arrest without probable cause when the deputy drew his weapon and handcuffed him without ascertaining his identity or his right to be on his own porch. Lastly, defendant asserts that Deputy Thomas unlawfully seized the cocaine in his pocket when he knew it was not a gun. For the reasons which follow, we find no merit to defendant's arguments.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence was derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Bessie, 05-284 (La.App. 5 Cir. 11/29/05), 917 So.2d 615, 619.

The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal activity is, however, recognized by LSA-C.Cr.P. art. 215.1 as well as state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); 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). The right to make an investigatory stop and question the particular individual detained must be based on reasonable suspicion to believe that he has been, is, or is about to be engaged in criminal activity. State v. Bessie, 917 So.2d at 619. The "reasonable suspicion" necessary for an investigatory stop is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement *656 on the individual's right to be free from governmental interference. State v. Young, 05-702 (La.App. 5 Cir. 2/14/06), 938 So.2d 90, 96.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Louisiana v. Zachary Hunt
Louisiana Court of Appeal, 2024
State v. Overstreet
263 So. 3d 1241 (Louisiana Court of Appeal, 2018)
State v. Flournoy
209 So. 3d 150 (Louisiana Court of Appeal, 2016)
State of Louisiana v. James J. Flournoy
Louisiana Court of Appeal, 2016
State v. Bradstreet
170 So. 3d 306 (Louisiana Court of Appeal, 2015)
State v. Butler
142 So. 3d 306 (Louisiana Court of Appeal, 2014)
State v. Bibbins
140 So. 3d 153 (Louisiana Court of Appeal, 2014)
State v. Lewis
121 So. 3d 128 (Louisiana Court of Appeal, 2013)
State v. Turner
118 So. 3d 1186 (Louisiana Court of Appeal, 2013)
State v. Morales
125 So. 3d 1141 (Louisiana Court of Appeal, 2012)
State v. Kinard
105 So. 3d 974 (Louisiana Court of Appeal, 2012)
State v. Wilford
81 So. 3d 868 (Louisiana Court of Appeal, 2011)
State v. Jones
78 So. 3d 274 (Louisiana Court of Appeal, 2011)
State v. Leonard
80 So. 3d 535 (Louisiana Court of Appeal, 2011)
State v. Mitchell
52 So. 3d 155 (Louisiana Court of Appeal, 2010)
State v. Williams
47 So. 3d 467 (Louisiana Court of Appeal, 2010)
State v. Brown
30 So. 3d 907 (Louisiana Court of Appeal, 2009)
State v. Ramirez
30 So. 3d 833 (Louisiana Court of Appeal, 2009)
State v. Thomas
8 So. 3d 646 (Louisiana Court of Appeal, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
993 So. 2d 651, 2008 WL 2917499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morton-lactapp-2008.