State v. Parker

622 So. 2d 791, 1993 WL 276813
CourtLouisiana Court of Appeal
DecidedJuly 27, 1993
Docket92-KA-2304
StatusPublished
Cited by47 cases

This text of 622 So. 2d 791 (State v. Parker) 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. Parker, 622 So. 2d 791, 1993 WL 276813 (La. Ct. App. 1993).

Opinion

622 So.2d 791 (1993)

STATE of Louisiana
v.
Jerry P. PARKER.

No. 92-KA-2304.

Court of Appeal of Louisiana, Fourth Circuit.

July 27, 1993.

Richard Ieyoub, Atty. Gen., and Darryl W. Bubrig, Sr., Dist. Atty., 25th Judicial District, Parish of Plaquenines, Pointe-a-la-Hache, and Gilbert V. Andry, III, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.

Peter A. Barbee, Indigent Defender Bd., Pointe-a-la-Hache, for defendant-appellant.

Before KLEES, ARMSTRONG and WALTZER, JJ.

*792 WALTZER, Judge.

Defendant Jerry Parker was charged by bill of information with possession of cocaine with intent to distribute. Mr. Parker entered a plea of not guilty and filed a Motion to Suppress the Evidence. A combined preliminary hearing and hearing on the motion to suppress was held. The court found probable cause for the arrest and denied the motion to suppress. On April 14, 1992, the defendant entered a guilty plea to the reduced charge of simple possession of cocaine reserving his right to appeal the court's ruling on the motion to suppress the evidence. State v. Crosby, 338 So.2d 584 (La.1976). After the defendant waived delays, the trial court sentenced him to serve three years at hard labor, suspended the sentence, and placed the defendant on three years active probation followed by two years inactive probation. A $1000.00 fine was also imposed.

STATEMENT OF THE FACTS

On December 6, 1991, Deputy Sheriff David Illg received information from a confidential informant that Joseph and Jonathan Mitchell, a father and son drug dealing team, were in Sunrise selling drugs from a blue Nissan with dark tinted windows. When Deputy Illg arrived in Sunrise in front of the Mitchell residence, he observed the vehicle described by the informant with several subjects standing around it. Many of the subjects ran when the deputy drove up. Jonathan and Joseph Mitchell were seated inside the vehicle. As Deputy Illg approached the vehicle, Jonathan Mitchell threw a brown pill bottle containing 45 white rocks of cocaine from the car. A patdown search of Joseph Mitchell showed that he was also in possession of narcotics.

Defendant Parker was standing "right on the side of the vehicle", approximately one to two feet away from the vehicle door and was turning to walk away. A deputy stopped Jerry Parker, patted him down, and found a matchbox containing 4-5 rocks of cocaine. He stated that the area the defendant was in "was a high crime area as far as drug dealings ...", that they had received information that the Mitchells were engaged in selling drugs at that time, when the suspects saw the officers drive up, they acted "fidgety" to the extent that many of them ran away, and that they did not search the defendant until after they found the drugs on the Mitchells and defendant attempted to leave the scene.

ASSIGNMENT OF ERROR

The question presented by this assignment of error is whether the deputy was justified in seizing the matchbox containing cocaine from the defendant.

C.Cr.P. art. 215.1 provides that a law enforcement officer may stop a person in a public place whom he reasonably believes is committing, has committed, or is about to commit an offense. If an officer stops a person pursuant C.Cr.P. art. 215.1, he may conduct a limited patdown frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Riley, 591 So.2d 1348 (La.App. 4th Cir.1991); State v. Ganier, 591 So.2d 1328 (La.App. 4th Cir.1991); State v. Wartberg, 586 So.2d 627 (La.App. 4th Cir.1991); State v. Johnson, 557 So.2d 1030 (La.App. 4th Cir.1990). As this Court noted in Johnson:

"Reasonable suspicion" is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect's rights. State v. Jones [483 So.2d 1207 (La.App. 4th Cir.1986)], supra. Mere suspicion of activity is not a sufficient basis for police interference with an individual's freedom. State v. Williams, 421 So.2d 874 (La.1982).

State v. Johnson, at 1033.

In the instant case, defendant was standing near the Nissan vehicle occupied by the Mitchells. In State v. Wartberg, 586 So.2d 627, 629 (La.App. 4th Cir.1991), this Court stated, "if this was only an investigatory stop, the officers were satisfied that they had seen a drug transaction and they were dealing with four suspects in an automobile, it would be reasonable to infer that *793 such suspects would be armed and dangerous." This Court then concluded that a reasonably cautious police officer was entitled to fear that the defendant might have a weapon and was justified in conducting a search. However, the Louisiana Supreme Court held in State v. Short, 605 So.2d 1102 (La.1992), that a frisk for weapons may not justify the seizure of rocks of cocaine inside a suspect's pants pocket. The facts in that case are as follows:

On June 17, 1991, Officer Darren Bush received an anonymous telephone call informing him that narcotics were being sold by persons loitering on the front porch of an unpainted, run-down looking house located near the middle of the 7200 block of Fig Street on the "lake bound" side of the street. Officer Bush and his partner Sergeant Tim Bayard were aware that this area has a reputation for frequent narcotic distribution. Later that evening at approximately 10:45 p.m., the officers turned from Pine Street onto the 7200 block of Fig Street and saw the house that matched the description furnished by the anonymous caller. Two men were walking from an alley alongside the house. The first man appeared to be holding money in his hand. The defendant was walking a short distance behind and "appeared to be putting something in his pocket." When the defendant saw the officers, "he totally lost his composure and began to make facial expressions. "Officer Bush testified that the defendant "couldn't decide which way he wanted to go" and walked in front of the police car, still attempting to put something in his right front pants pocket.

The officers believed that a drug transaction had occurred and stopped the defendant near the street corner, placing him against the police car and frisking him for weapons. According to Officer Bush, Sergeant Bayard "felt a hard object" in the watch pocket of the defendant's pants. Officer Bush testified that Sergeant Bayard's ten years experience in street level narcotics trafficking led him to believe that this object was crack cocaine. Sergeant Bayard seized the object and found two individually wrapped small pieces of crack cocaine.

This Court concluded that the officers had reasonable suspicion of criminal activity to justify the stop of the defendant. This Court then stated, "because of the notorious area and their suspicions that a drug deal had just concluded, the officers were justified in patting down the defendant for weapons. See State v. Wartberg, 586 So.2d 627 (La.App. 4th Cir.1991). The reasonable suspicion blossomed into probable cause when the officers seized two individually wrapped, small pieces of crack cocaine from the defendant's pocket." State v. Johnnie Short, 598 So.2d 730 (La.App. 4th Cir.1992). The Louisiana Supreme Court reversed this Court's decision stating, "The search went beyond a frisk for weapons."

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Bluebook (online)
622 So. 2d 791, 1993 WL 276813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-parker-lactapp-1993.