State v. Phillips

774 So. 2d 989, 2000 La.App. 4 Cir. 0279, 2000 La. App. LEXIS 2602, 2000 WL 1584599
Louisiana Court of Appeal·Decided October 4, 2000·No. No. 2000-KA-0279·Published·Cited by 5 cases

Opinion

JjKIRBY, J.

On December 31, 1997, the defendant, Thomas Phillips, was charged by bill of information with possession of cocaine, a violation of La. R.S. 40:967. He was arraigned January 8, 1998, and pled not guilty. Defendant filed a motion to suppress the evidence. On January 29, 1998, the trial court found probable cause and denied the motion to suppress. On March 31, 1998, a six member jury found defendant guilty as charged. On April 9, 1998, he was sentenced to thirty months at hard labor. The State filed a multiple bill. On March 30, 1999, the trial court found defendant to be second offender, vacated the original sentence and resentenced him to thirty months at hard labor without benefit of parole, probation, or suspension of sentence under La. R.S. 15:529.1. The defendant now appeals.

A review of the record for errors patent reveals none.

At trial, Officer Hal Amos testified that on November 1, 1997, at 3:30 a.m., he saw “a large group of subjects loitering on the sidewalk” in an area known for narcotics. When the people saw the marked police unit, they dispersed. The defendant was “nervous”, “continually looking over his shoulder.” The defendant was ordered “to the car.” He then threw down a rock of cocaine, which was retrieved.

| gAmos denied any previous “close contact” with the defendant or harassment of him.

On cross-examination, he said that he knew the defendant from the neighborhood, but could not recall arresting him previously. He then admitted his badge number appeared on an arrest of the defendant for “obstructing” in January 1997.

The defendant testified that he was at a Halloween party and was going to the store to replenish party supplies. He was walking down a driveway when he heard someone call out that the police were in the neighborhood. A group of people were on the corner and began to run. Amos harassed him, then went to the corner and found the cocaine on the ground. He said that Amos had arrested him on several occasions for as trite an “offense” as carrying a concealed weapon when he was using a knife to spread mayonnaise on a sandwich. According to defendant, Amos tracked him, threatened him, and tried to force him to provide incriminating evidence on other people. The defendant admitted to drug use and prior convictions but said that he was a member of a rehabilitation group and a frequent lecturer on the subject.

Donald White testified that he was returning from the store when he saw the police car approach and the crowd on the corner disperse. The defendant was not with the group. He saw Amos pick up the cocaine from the ground, some distance from where he had stopped the defendant.

The defendant argues the trial court erred in denying his motion to suppress the evidence.

Amos’s testimony at the motion to suppress hearing differed substantially from his testimony at trial. The evidence before the trial court when it ruled on the [amotion was Amos’s testimony that the defendant threw down the cocaine before the officers approached him. In fact, Amos testified that the defendant threw down the cocaine even before the officers got out of the car. Under that scenario, the only issue before this Court would be the abandonment exception to the warrant requirement. Property that is abandoned without any prior unlawful intrusion into a citizen’s right to be free from governmental interference may be lawfully seized. State v. Belton, 441 So.2d 1195 (La.1983), cert. denied Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). However, because Amos testified at trial [991] that he had initiated a stop by ordering the defendant “to the car” before the defendant abandoned the cocaine, we must examine whether the initial stop was lawful.

A police officer has the right to detain briefly and interrogate a person when the officer has a reasonable articula-ble suspicion that the person is, has been, or is about to be engaged in criminal conduct. La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Tucker, 626 So.2d 707 (La.1993). “Reasonable suspicion” is something less than probable cause, 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 an individual’s right to be free from governmental interference. State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268. Mere suspicious activity is not a sufficient basis for police interference with an individual’s freedom. State v. Williams, 421 So.2d 874 (La.1982). However, the level of suspicion need not rise to the probable cause needed for a lawful arrest. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. Belton. An investigative stop must be justified by some objective manifestation that the | ¿person to be stopped is or is about to be engaged in criminal activity, or else there must be reasonable grounds to believe that the person is wanted for past criminal conduct. State v. Moreno, 619 So.2d 62 (La.1993).

In State v. Ganier, 591 So.2d 1328 (La.App. 4 Cir.1991), police officers were patrolling a housing project in New Orleans known to be a center of drug trafficking. The defendant saw the officers, turned and began to walk away, and then began to run. The officers chased the defendant until he was apprehended. Before being apprehended, the defendant threw down a rock of crack cocaine. This Court found that two factors were sufficient to justify a stop of the defendant: the area’s reputation for drug trafficking, and the suspicious actions of the defendant. This Court noted:

... Drug activity and crimes which it generates have become a major problem endangering innocent people and severely taxing police resources. Although an innocent individual who has nothing to hide from police might flee so that such flight would be irrational, the action of fleeing in itself is inherently suspicious and justifies an investigation by a police officer exercising common sense. This is not the case of a man merely standing on a street corner who is detained by the police simply because he is there.

State v. Ganier, 591 So.2d at 1330.

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State v. Phillips, 774 So. 2d 989, 2000 La.App. 4 Cir. 0279, 2000 La. App. LEXIS 2602, 2000 WL 1584599 (La. Ct. App. 2000).

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