State v. Pittman

585 So. 2d 591, 1991 WL 150209
CourtLouisiana Court of Appeal
DecidedJuly 30, 1991
Docket91-KA-128, 91-KA-129
StatusPublished
Cited by30 cases

This text of 585 So. 2d 591 (State v. Pittman) 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. Pittman, 585 So. 2d 591, 1991 WL 150209 (La. Ct. App. 1991).

Opinion

585 So.2d 591 (1991)

STATE of Louisiana
v.
Mark D. PITTMAN.

Nos. 91-KA-128, 91-KA-129.

Court of Appeal of Louisiana, Fifth Circuit.

July 30, 1991.
Writ Denied October 11, 1991.

*593 Bruce G. Whittaker, IDB Staff Appellate Counsel, Gretna, for defendant-appellant.

John M. Mamoulides, Dist. Atty., Dorothy A. Pendergast, Asst. Dist. Atty., Gretna, for state-appellee.

Before DUFRESNE and BOWES, JJ., and FINK, J. Pro Tem.

ELORA C. FINK, Judge Pro Tem.

Mark D. Pittman was charged on May 16, 1990, with possession of cocaine (LSA-R.S. 40:967), one count of resisting arrest (LSA-R.S. 14:108) and two counts of battery on a police officer (LSA-R.S. 14:34.2). After due proceedings in the trial court the defendant filed a motion to suppress, which was denied on September 5, 1990 after a hearing. On November 11, 1990 he pleaded guilty to all the charges. The plea was entered pursuant to State v. Crosby, 338 So.2d 584 (La.1976), thereby reserving the defendant's right to appeal the ruling on the motion to suppress.

Following his plea, the defendant was sentenced to three years at hard labor on the possession of cocaine charge, which was to run concurrent with other sentences (including a possible sentence following a pending hearing on revocation of the defendant's probation). He was also sentenced to six months imprisonment on each of the remaining three counts. Those sentences were ordered to run concurrently with each other and the possession-of-cocaine sentence. The defendant was given credit for time served.

He now appeals the judgment denying his motion to suppress evidence and an oral inculpatory statement.

FACTS

The testimony revealed that on April 28, 1990 at approximately 11:00 p.m., members of the Jefferson Parish Sheriff's Office were assisting the Narcotics Task Force of the Kenner Police Department in an area of Kenner notorious for narcotic sales and trafficking. While cruising on Decatur Street, two Sheriff's Office cars and two Kenner Police cars approached an apartment complex in the 200 block known for numerous narcotics transactions. The officers had been informed by Kenner detectives that the drug dealers kept armed guards posted nearby to watch for police activity.

Lieutenant David Bujol and his partner, as part of this patrol, were driving ahead of the other cars on Third Street preparing to turn onto Decatur Street, when Bujol observed a black male pedestrian (later identified as the defendant) turn the corner and stop at Decatur and Third Streets. Lt. Bujol stopped his vehicle at that location to see where the pedestrian was going and allowed the other units to pass by. Lt. Bujol was attempting to determine whether he was one of the look-outs or armed guards the officers had been told were posted at the complex.

Neither Lt. Bujol nor his partner exited the vehicle. As soon as the other units passed their car, the pedestrian began to *594 run to the east side of the complex and then toward the river levee. Lt. Bujol began pursuit and advised the other units he was chasing a black male dressed in a white shirt and blue jeans.

Sergeant Henry Saacks and his partner, Deputy Dwayne Scheuermann, picked up the pursuit. Sgt. Saacks got out of his car to pursue the fleeing subject and ran through an empty lot, attempting to cut off the suspect's path. In doing so, Sgt. Saacks ran behind the apartment complex, where he observed the suspect fleeing toward the river levee. As the suspect rounded the corner of the complex, Sgt. Saacks saw him drop a small match box on the ground. Sgt. Saacks retrieved the box as he continued the pursuit, assuming there was contraband in it because of his past experience and the area's reputation.

The suspect went over the levee into a wooded batture area and Sgt. Saacks lost sight of him. Several of the police officers converged on the levee and a search ensued by Sgt. Saacks and Dep. Scheuermann. While the two officers walked along the levee looking for defendant, Sgt. Saacks opened the match box and observed two off-white rock-like objects, which his past experience led him to assume was cocaine.

Approximately ten minutes later, Sgt. Saacks and Dep. Scheuermann saw the defendant lying down in approximately two feet of water in the river with only his head exposed. He was ordered to come out twice and twice he refused to move. When the defendant failed to respond, the officer waded into the water and attempted to handcuff the defendant, who resisted and had to be physically subdued.

Prior to bringing the defendant back to the levee, and while he and the two officers were standing in the water, Sgt. Saacks advised the defendant of his rights. As the three began moving back to the levee, the officers testified the defendant stated he understood his rights and, in response to Sgt. Saacks' questioning, he said the reason he ran was because he had two "rocks" on him and he was on probation.

The defendant produced the testimony of his sister, Jackie Curtis, and a friend, Brian Young. They both testified that the defendant was standing with them and another man talking and laughing when the police convoy appeared. Everyone but Ms. Curtis started running before the police cars came to a stop because they believed the police were "coming to mess with us." The witnesses stated the police only chased the defendant, although the two other men ran as well.

After listening to the testimony, the trial judge denied the motion to suppress.

On appeal the defendant first contends the trial judge erred in denying the motion to suppress the contraband. The defendant contends his prior behavior did not constitute facts and circumstances sufficient to authorize an infringement upon his right to be left alone. Thus, he asserts, the abandoned contraband was the result of an illegal stop. The defendant secondly contends his inculpatory statement should have been suppressed because the State failed to prove beyond a reasonable doubt that the interrogating officers advised the defendant of his Miranda rights. Cf. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

ASSIGNMENT OF ERROR NUMBER ONE

The Louisiana Supreme Court has held that "reasonable cause for an investigatory detention 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 on the individual's right to be free from governmental interference." State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The court further held that the right to make the investigatory stop must be based upon "reasonable cause to believe ... [the individual detained] has been, is, or is about to be engaged in criminal conduct." Id.

Flight, nervousness, or a startled look at the sight of a police officer is not by itself sufficient to justify an investigatory *595 stop. State v. Belton, supra. However, such conduct may be highly suspicious and maybe one of the factors leading to a finding of reasonable cause. Id.

The Belton

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Cite This Page — Counsel Stack

Bluebook (online)
585 So. 2d 591, 1991 WL 150209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pittman-lactapp-1991.