State v. Neal

719 So. 2d 659, 1998 La. App. LEXIS 2723, 1998 WL 678034
CourtLouisiana Court of Appeal
DecidedSeptember 30, 1998
DocketNo. 98-K-1433
StatusPublished
Cited by1 cases

This text of 719 So. 2d 659 (State v. Neal) 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. Neal, 719 So. 2d 659, 1998 La. App. LEXIS 2723, 1998 WL 678034 (La. Ct. App. 1998).

Opinions

hWALTZER, Judge.

Defendant, Cleveland Neal was charged by bill of information with the violation of LSA-R.S.40:966 (C) relative to possession of cocaine. Pretrial hearings to determine probable cause and to suppress the evidence were held. The trial court found probable cause to bind the defendant over for trial, and denied the motion to suppress the evidence. Neal challenges this ruling under our supervisory jurisdiction.

STATEMENT OF THE FACTS

On 24 November 1997 at approximately 7:47 p.m., Police Officer Lampard and Police Recruit Knight were on routine patrol in the area of Magnolia and Valence Streets. There had been no specific complaint about any criminal activity in the area but it was “a hot line location” the officers were assigned to address. When the officers reached the corner of Magnolia and Valence, they noticed two men standing on the corner. Upon seeing the police car, both men fled in opposite directions. The defendant, whom they did not know, ran West on Magnolia Street, and [660]*660as he did so grabbed his waistband with his right hand. Officer Lampard testified that they believed the defendant was possibly armed, although no bulge was observed and no threatening motion was made by the defendant. The officers elected to pursue this defendant in order to determine whether he was armed or not. Police Recruit Knight exited the patrol car to follow the defendant; Officer Lampard drove ahead in order to cut off any escape route the defendant might use. Officer Lampard related that ^Recruit Knight told him that while the defendant was running the defendant pulled off a sweatshirt he was wearing and discarded it on the way, and that the defendant had discarded a brown bag containing cocaine. Officer Lam-pard did not see any of this, and before he knew about Knight’s information, believed there to be “suspicious activity warranting a stop”. Officer Lampard apprehended the defendant and placed him under arrest. Neither the sweatshirt nor a gun was ever found.

Recruit Knight corroborated that he had seen the defendant running and that believing that he had a weapon, he decided to investigate and stop him. He testified that he ran after the defendant and saw him discard the sweatshirt somewhere in the block, and that he was in pursuit when the defendant discarded an object or a bag. Recruit Knight retrieved the bag and found that it contained cocaine.

DISCUSSION

The trial court found that the stop of the defendant was not imminent and denied the motion to suppress. The defendant argues that there was an imminent actual stop, and thus the officers needed reasonable suspicion to stop him. He contends his actions did not give the officers reasonable suspicion, and, therefore, the seizure of the cocaine was invalid. In State v. Tucker, 626 So.2d 707 (La.1993) opinion reaffirmed and reinstated on rehearing by 626 So.2d 720 (La.1993),our Supreme Court held inter alia that an “imminent actual stop” occurs when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain. If a defendant abandons property as a result of an actual stop or an imminent actual stop, the officers involved must have at least reasonable suspicion to support the stop.

|3In his application, the defendant relies on State v. Benjamin, 96-2781 (La.App. 4 Cir. 11/26/97), 703 So.2d 192, writ granted State v.Benjamin, 97-3065 (La. 4 /24/98), 717 So.2d 1152, the facts of which are almost identical to those in this case.

In Benjamin, officers were on routine patrol when they came upon the defendant, who was walking down the street. The officers pulled alongside the defendant; he grabbed at his waistband and began running down the street. Believing the defendant was carrying a weapon or contraband, one officer remained in the car and attempted to cut off the defendant’s escape. In addition, a second police car joined in the chase, with one of its officers joining in the foot race. The officers on foot chased the defendant through back yards and over fences, and at some point in the chase the defendant abandoned a gun and kept running. The officers in the car eventually captured the defendant as he was exiting an empty lot. One of the officers who chased the defendant on foot went back and retrieved the gun abandoned by the defendant.

The trial court denied the defendant’s motion to suppress the gun and the statement he made at his arrest. On review, this Court reversed. We noted that the actions of the officers showed that an actual stop of the individual was virtually certain. “Two officers were chasing the defendant on foot and two were following in police units cutting off any escape routes that the defendant might take. He was surrounded by the police. In fact, the testimony was to the effect that the officers’ aim was to try to cut him off, give him a short cut and make him turn so that he would have no escape possibility.” Id. at p. 7, 703 So.2d at 196. Because this Court found that an actual stop of the defendant was virtually certain, it also considered whether the circumstances gave the ^officers reasonable suspicion to stop the defendant, and it found reasonable suspicion lacking. This Court noted that the officers who chased the defendant did so only because he [661]*661began running and grabbed at his waistband. The Court pointed out that the officers had no tip involving the defendant or any drug activity at that time, nor did they see any weapon or suspected drug activity on the defendant’s part. This Court concluded:

There was no reasonable suspicion to detain the defendant. All the while there were no articulable facts that the defendant was fleeing as a result of the commission or attempted commission of a crime. Although the defendant’s running from the scene upon seeing the officers is a factor to be considered, flight without more is insufficient to justify an investigatory stop where the officers did not know what might be in the defendant’s waistband. State v. Roberson, 549 So.2d 931 (La.App. 3 Cir.1989); State v. Ellington, 96-0766 (La.App. 4 Cir. 9/4/96), 680 So.2d 174; State v. Denis, 96-0956 (La.App. 4 Cir. 3/19/97), 691 So.2d 1295, writ denied 97-1006 (La.6/20/97), 695 So.2d 1352. Running and pulling on the waistband served as an impermissible substitute for the requisite reasonable suspicion. It is not a crime to run from the police while clutching one’s waistband.

Benjamin at p. 8, 703 So.2d at 196.

Having found there was an imminent stop and that the officers did not have reasonable suspicion to support the stop, this Court suppressed the evidence abandoned by the defendant.

The facts in the instant case are strikingly similar to those in Benjamin. There is a difference in that here there were only two police officers involved, one on foot and one in a police car in hot pursuit, whereas in Benjamin there were more. We do not believe it necessary that there be a magic number of officers or police cars in order to determine whether an actual stop of the individual is virtually certain. What we do consider determinative are the facts of the particular incident and the virtual certainty of the stop conducted by the Rpolice. Both officers testified that they intended to cut off the defendant’s escape route.1

The trial court concluded that the defendant’s stop was not imminent. We disagree.

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State v. Clay
731 So. 2d 414 (Louisiana Court of Appeal, 1999)

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Bluebook (online)
719 So. 2d 659, 1998 La. App. LEXIS 2723, 1998 WL 678034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-neal-lactapp-1998.