State v. Payne

489 So. 2d 1289
Louisiana Court of Appeal·Decided May 23, 1986·No. 85 KA 1481·Published·Cited by 26 cases

Opinion

489 So.2d 1289 (1986)

STATE of Louisiana
v.
Gregory PAYNE.

No. 85 KA 1481.

Court of Appeal of Louisiana, First Circuit.

May 23, 1986.

Bryan Bush, Dist. Atty., Baton Rouge by Richard Sherburne, Asst. Dist. Atty., for plaintiff-appellee.

Public Defenders' Office, Baton Rouge, for defendant-appellant.

Before GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ.

SHORTESS, Judge.

Gregory Payne (defendant) was charged by bill of information with armed robbery in violation of LSA-R.S. 14:64. He filed a motion to suppress physical evidence as being the fruit of an illegal search. After a hearing, the motion was denied. The bill of information was amended to charge defendant with simple robbery in violation of LSA-R.S. 14:65. Defendant pled guilty but reserved his right to appeal the denial of his motion to suppress. See State v. Crosby, 338 So.2d 584 (La.1976).

Defendant was sentenced to a two-year term of imprisonment at hard labor, with credit for time served, the remainder of *1290 which was suspended; and he was placed on supervised probation for three years.

Defendant appeals and urges as his sole assignment of error the denial of his motion to suppress physical evidence. He asserts that the State failed to show a requisite factual basis to support an investigatory stop under LSA-C.Cr.P. art. 215.1. He further argues that LSA-C.Cr.P. art. 215.1 authorizes the search of the "person" for weapons but does not provide authority to search "property" belonging to the person. He argues that to lawfully search the property (in this case, a plastic bag) the police must have had a search warrant, which they did not have, or the search must have been incident to a lawful arrest. Defendant asserts that he was not arrested until after the search. He further argues that, although the instant facts do not support an arrest prior to the search, even assuming arguendo that he had been placed under arrest prior to the search, the arrest was without probable cause. Defendant concludes that he was subjected to an unconstitutional investigatory stop; that the search was outside the permissible scope of LSA-C.Cr.P. art. 215.1(B) and not incident to a lawful arrest; and, alternatively, that he was arrested without probable cause.

The State responds by contending that the police had the requisite reasonable suspicion to lawfully conduct a Terry stop, and once the stop occurred the officers' protective search for weapons extended to a search of defendant's plastic bag. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The State argues that the protective search of defendant's plastic bag, in close proximity to him, was justified under the provisions of LSA-C.Cr.P. art. 215.1(B) and the rationale of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). The State concludes by asserting that the discovery of items found inside defendant's plastic bag (clothing identified as the type worn by the suspected armed robber) escalated the facts to a level sufficient to provide probable cause for defendant's subsequent arrest.

No witnesses actually testified at the motion to suppress hearing. However, the State and the defense stipulated that the testimony of Officer Oscar Trammell of the Baton Rouge City Police, if he were called, would be the same as that previously elicited from him at the preliminary examination. It was additionally stipulated that if Officer Ronald Norman, Officer Trammell's partner, were called as a witness, his testimony would be the same as Trammell's.

At the preliminary examination, Officer Trammell testified that on March 15, 1985, at about 1:30 a.m., he and his partner, Ronald Norman, were on patrol in their unmarked police unit when they heard over their police radio that an armed robbery had occurred at the Racetrack Service Station on College Drive in Baton Rouge. Officer Trammell testified that a description of the armed robber was broadcast over the police radio by Officer Drickerman, the first policeman to arrive at the scene.

The State and the defense stipulated at the motion to suppress hearing that the general description of the armed robber, as broadcast over the police radio, was as follows: "A black male, thirty years, 5' 8", medium build, light blue fisherman's cap with dark blue band, dark blue coveralls, red tee shirt, had stolen approximately $60.00 from the station." They also stipulated that Officer Thompson, the investigating officer on the case, added to the general description that "the robber may have had a plastic bag."

Officer Trammell's testimony regarding the description of the robber as broadcast over the police radio, although otherwise consistent with the description stipulated, contained additional information, i.e., the robber was dark-complexioned, was carrying a white plastic bag, and had an odor of alcohol about his breath.

Officer Trammell testified that he and Officer Norman responded to the alert by proceeding to the general area of the crime and looking for an individual fitting the robber's description. The officers observed defendant riding a bicycle in the 4400 block of Wells Street. Defendant was the only person on the street at that time. Defendant initially passed the vehicle in which the *1291 officers were riding. The officers then stopped their vehicle, turned it around, and subsequently stopped him.

Trammell testified that defendant's "general" build was about the same as he had heard described over the police radio, i.e., medium build, about 5' 8"-5' 9" in height and dark-complexioned; that defendant appeared to him to be that height even though he was on a bicycle; that at the time of the stop, defendant was wearing "jogging type clothes, blue hood—pullover" and black jogging pants; that he could tell, when he first sighted defendant, that defendant was not wearing a blue jumpsuit or a "fishing type" hat; that, although he and his partner had some knowledge of what the robber was supposed to have been wearing, they also knew it was not unusual for a robber to change clothing after the commission of a robbery; that, at the time of the stop, their reason for making the stop was to identify defendant and determine whether or not he was the robber wearing different clothes; that he had seen the white plastic bag attached to the carriage rack of defendant's bicycle at the time defendant rode by their vehicle prior to the stop; that the bag was similar to grocery bags used at A & P Food Stores.

Trammell also testified that the actual stop occurred at the corner of Wells Street and Valley Street, at approximately 2:10 a.m.; that they stopped their unit and requested that defendant stop; that defendant complied and got off his bicycle; that they identified themselves as police officers; that, as they approached defendant, they immediately smelled alcohol about his breath from a distance of two or three feet, thereby increasing their suspicion;[1] that neither he nor his partner had drawn their guns in the process; that they could clearly see that defendant had no weapons in his hands; that defendant was placed against the police unit and quickly searched for weapons; that after finding no weapons on defendant's person, the plastic bag was removed from the bicycle and found to contain a blue jumpsuit and a "fishing type" hat, items of clothing matching those worn by the robber; that no weapon was found; that at the time of discovery of the items of c

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

State v. Payne, 489 So. 2d 1289 (La. Ct. App. 1986).

489 So. 2d 1289 (State v. Payne) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Matthews
191 So. 3d 1080 (Louisiana Court of Appeal, 2016)
State v. Bell
169 So. 3d 417 (Louisiana Court of Appeal, 2015)
State v. Lowery
890 So. 2d 711 (Louisiana Court of Appeal, 2004)
State v. Lagarde
758 So. 2d 279 (Louisiana Court of Appeal, 2000)
State v. Waters
751 So. 2d 290 (Louisiana Court of Appeal, 1999)
State v. Stewart
721 So. 2d 925 (Louisiana Court of Appeal, 1998)
State v. Williams
693 So. 2d 204 (Louisiana Court of Appeal, 1997)
State v. Nixon
672 So. 2d 402 (Louisiana Court of Appeal, 1996)
Taylor v. City of Shreveport
653 So. 2d 232 (Louisiana Court of Appeal, 1995)
State v. Mingo
638 So. 2d 1209 (Louisiana Court of Appeal, 1994)
State v. Collins
637 So. 2d 741 (Louisiana Court of Appeal, 1994)
State v. Ducre
604 So. 2d 702 (Louisiana Court of Appeal, 1992)
State v. McHugh
598 So. 2d 1171 (Louisiana Court of Appeal, 1992)
State v. Cabanas
594 So. 2d 404 (Louisiana Court of Appeal, 1991)
State v. Rack
585 So. 2d 1215 (Louisiana Court of Appeal, 1991)
State v. Thomas
583 So. 2d 895 (Louisiana Court of Appeal, 1991)
State v. Scott
561 So. 2d 170 (Louisiana Court of Appeal, 1990)
State v. Hunt
558 So. 2d 1212 (Louisiana Court of Appeal, 1990)
State v. Brown
558 So. 2d 1226 (Louisiana Court of Appeal, 1990)
State v. Taylor
553 So. 2d 873 (Louisiana Court of Appeal, 1989)