State v. Poche

733 So. 2d 730, 1999 WL 332793
CourtLouisiana Court of Appeal
DecidedMay 5, 1999
Docket99-K-0039
StatusPublished
Cited by6 cases

This text of 733 So. 2d 730 (State v. Poche) 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. Poche, 733 So. 2d 730, 1999 WL 332793 (La. Ct. App. 1999).

Opinion

733 So.2d 730 (1999)

STATE of Louisiana
v.
Noah POCHE.

No. 99-K-0039.

Court of Appeal of Louisiana, Fourth Circuit.

May 5, 1999.

*731 Harry F. Connick, District Attorney, Robin Pittman, Assistant District Attorney, New Orleans, Louisiana, Attorneys for the State.

Court composed of Judge WILLIAM H. BYRNES III, Judge JOAN BERNARD ARMSTRONG, and Judge DENNIS R. BAGNERIS Sr.

BYRNES, Judge.

The State requests a review of the trial court's ruling which granted the defendant Noah Poche's motion to suppress. We reverse and remand.

STATEMENT OF THE CASE

On September 4, 1998, in case # 401-207 the defendant was charged with one count of possession of diazepam. On the same date, he was charged in case # 401-224 with one count each of possession of marijuana, first offense, and possession of drug paraphernalia. He pleaded not guilty to both counts. His motion to suppress the *732 evidence was heard on October 2 and granted on October 30, 1998. The State's writ application followed.

FACTS

At approximately 10:30 p.m. on April 18, 1998, criminal sheriffs deputies were on routine patrol near the French Quarter. As they drove down Basin Street, they observed the defendant Noah Poche standing on the sidewalk at the corner of Basin and Conti Streets, next to the St. Louis Cemetery. Poche was standing with his back toward them, facing the Iberville Housing Project. The deputies made a U-turn on Basin Street and parked across the street from Poche, watching him for a time. The deputies drove around again so that they approached Poche from the back. Deputy Renaudin testified that they decided to investigate Poche because he was a white man standing near the project, and they were concerned that he might be lost.

The deputies turned on their flashing bar lights and pulled up next to Poche, diagonal to the corner. Poche reached into his back pocket, then turned around and saw the deputies' car had pulled up to him. Deputy Renaudin stated that he was about five feet from the defendant when the deputy got out of the passenger side of the patrol car. When he got out of the patrol car, Deputy Renaudin said he didn't remember either deputy saying anything to Poche until Poche reached for his back pocket. At that time, Deputy Renaudin said, "I think when he reached into his pocket, we said a lot to him." Deputy Renaudin stated that they believed that the defendant had a weapon on him. At that point they yelled at the defendant and Deputy Renaudin testified that Deputy Benton "was on the driver's side, and he was over the hood of the car with his weapon drawn." Poche dropped an object from his pocket onto the ground. The deputies detained Poche and retrieved the object, which was a small "purse-like object" containing a small plastic bag of marijuana and a small plastic bag of a green powder. The deputies arrested Poche and advised him of his rights, and incidental to his arrest they found some rolling papers in his pocket. As the deputies were transporting Poche to the police station, they tried to identify the green powder. Poche then volunteered that the green powder was valium.

The State argues that the drugs were abandoned without an interference with the defendant's privacy rights, and the deputies could lawfully seize the abandoned purse.

If property is abandoned without any prior unlawful intrusion into a citizen's right to be free from governmental interference, then such property may be lawfully seized. State v. Britton, 93-1990 (La.1/27/94), 633 So.2d 1208. In such cases, there is no expectation of privacy and, thus, no violation of a person's custodial rights. State v. Andrishok, 434 So.2d 389 (La.1983).

At issue in the present case is whether Poche abandoned the property as a result of an actual stop or an imminent actual stop, where the officers involved must have at least reasonable suspicion to support the stop.

"Reasonable suspicion" for an investigatory stop 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 articulable facts within his knowledge to justify an infringement of the suspect's rights. State v. Matthews, 94-2112 (La.App. 4 Cir. 4/26/95), 654 So.2d 868; State v. Vance, 93-1389 (La.App. 4 Cir. 2/25/94), 633 So.2d 819.

In assessing the reasonableness of an investigatory stop, the court must balance the need to search and seize against the invasion of privacy that the search and seizure entails. State v. Tucker, 604 So.2d 600 (La.App. 2 Cir.1992), *733 affirmed in part, reversed in part on other grounds, 626 So.2d 720 (La.1993); State v. Washington, 621 So.2d 114 (La.App. 2 Cir. 1993), writ denied, 626 So.2d 1177 (La. 1993). The intrusiveness of a search is not measured so much by scope as it is by whether it invades an expectation of privacy that society is prepared to recognize as reasonable. Twenty-Three Thousand Eight Hundred Eleven and No/100 ($23,811) Dollars in U.S. Currency v. Kowalski, 810 F.Supp. 738 (W.D.La.1993).

To determine whether an actual stop of an individual is imminent, the following factors may be useful in assessing the extent of police force employed and in determining whether that force was virtually certain to result in an actual stop of an individual: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter. State v. Tucker, 626 So.2d 707, 712-713 (La.1993), opinion reinstated on rehearing by 626 So.2d 720 (La.1993).

In Tucker, id., acting on repeated complaints of drug-related activity, the police conducted a drug sweep in certain highcrime areas. The sweep began when approximately ten to twelve marked police vehicles carrying 20 to 30 officers converged. When two men noticed the approaching police cars, they quickly broke apart and began to leave. Officer Wilson stopped his car and began to get out while simultaneously ordering the two men to "halt" and "prone out." One man lay down immediately. The other, Tucker, moved several steps and tossed away a plastic bag. He then lay down. The Louisiana Supreme Court noted:

.... while the Fourth Amendment only protects individuals from "actual stops" by law enforcement officers, [California v.] Hodari D, [499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)], our constitution also protects individuals from "imminent actual stops." Therefore, it becomes incumbent upon us to now determine what constitutes an "actual stop" and an "imminent actual stop" as those terms were used in Belton.
... We agree with the United States Supreme Court, an "actual stop" of an individual has not occurred when a police officer yells "Halt!" at a fleeing form which continues to flee. Thus, we hold that an individual has not been "actually stopped" unless he submits to a police show of authority or he is physically contacted by the police.
Tucker, 626 So.2d at 712. [Emphasis added.]

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Cite This Page — Counsel Stack

Bluebook (online)
733 So. 2d 730, 1999 WL 332793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-poche-lactapp-1999.