State v. Ray

521 So. 2d 582, 1988 WL 15868
CourtLouisiana Court of Appeal
DecidedFebruary 23, 1988
Docket87 KA 0753
StatusPublished
Cited by10 cases

This text of 521 So. 2d 582 (State v. Ray) 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. Ray, 521 So. 2d 582, 1988 WL 15868 (La. Ct. App. 1988).

Opinion

521 So.2d 582 (1988)

STATE of Louisiana
v.
Johnnie Jerome RAY.

No. 87 KA 0753.

Court of Appeal of Louisiana, First Circuit.

February 23, 1988.
Writ Denied May 20, 1988.

*583 Warren Daigle, Asst. Dist. Atty., Courthouse Annex, Houma, for plaintiff and appellee—State of La.

Clifford E. Foster, Indigent Defenders Office, Houma, for defendant and appellant— Johnnie Jerome Ray.

*584 Before COVINGTON, C.J., and SAVOIE and LeBLANC, JJ.

SAVOIE, Judge.

Johnnie Jerome Ray was charged by bill of information with attempted distribution of a substance falsely represented to be a controlled dangerous substance, in violation of LSA-R.S. 14:27 and 40:971.1. He pled not guilty, was tried by jury and was found guilty as charged. Defendant was subsequently charged, adjudged and sentenced as a Second Felony Habitual Offender. The court sentenced defendant to imprisonment at hard labor for a term of five years. He has appealed, urging four assignments of error to wit:

1. The trial court erred by denying defendant's motion to suppress evidence seized from his person.
2. The trial court erred by denying defendant's motion for continuance.
3. The trial court erred by overruling defense counsel's objection to the admission of S-2 into evidence.
4. The trial court erred by denying defendant's motion for new trial.

At about 1:00 a.m. on June 14, 1986, Detective Keith Gallicio of the Houma City Police Department was inside George's Lounge in Houma. He observed defendant standing near the jukebox acting in a suspicious manner, i.e., looking at the cashier and "all over." Later, from a distance of about fifty feet, Gallicio noticed defendant playing pool with another man. Gallicio testified that defendant kept "pulling around in his waistband" but that he could not tell what was being pulled, from where he was standing.

Gallicio talked to Billy Foret, the manager of the lounge, who identified the man with whom defendant was playing pool as Peter Demitro. In accordance with Gallicio's general instructions, the manager walked to where Demitro and defendant were and told Demitro he had someone for him to meet. Demitro then walked over to where Gallicio was standing, and the manager introduced Demitro to Gallicio. Demitro told Gallicio that defendant had asked him if he wanted to buy some drugs. Gallicio told Demitro to go back to where defendant was and that if defendant wanted to sell any drugs to get him to go inside the restroom and conclude the transaction there.

Thereupon, Demitro rejoined defendant. They started to shoot pool again. Defendant again broached the subject of drugs, asking Demitro if he was sure he did not need any drugs or if he knew anyone else who needed drugs. Demitro asked defendant what kind of drugs he had. Defendant stated that he had amphetamines and also cocaine. Demitro told defendant that he would buy "some."

At defendant's suggestion, Demitro followed him into the restroom. Gallicio and a fourth man followed them inside. According to Demitro's testimony, defendant waited until the fourth man left the restroom; and then, without giving any indication that he knew Gallicio was in the restroom, defendant pulled from his waistline a small, clear bag containing blue tablets. Demitro asked what it was, and defendant stated that it was "speed" (a street name for amphetamines). Demitro asked defendant for the price. Defendant stated that the price was one dollar. Demitro agreed to the price; and, as he looked over his shoulder, he saw Gallicio walking toward him. When defendant saw Gallicio, he proceeded toward a toilet. Demitro testified that he guessed that defendant was going to throw the tablets into the toilet and that, in response, he pushed defendant against the wall.

Gallicio testified that, as he walked toward defendant to arrest him, defendant was placing the clear bag back inside his waistline. Gallicio grabbed defendant and advised him that he was under arrest. After a brief struggle, Gallicio handcuffed defendant and seized the blue tablets from defendant's waistline. Before Gallicio could advise defendant of his constitutional rights, defendant stated that the drugs were fake. According to Demitro, Gallicio then told defendant that he needed to "shut up" before he got himself into more trouble. At that point, Gallicio gave defendant his constitutional rights.

*585 The state introduced S-1 into evidence, a scientific analysis report prepared by the Louisiana State Police Crime Laboratory, showing that the blue tablets seized from defendant did not contain any controlled dangerous substance.

ASSIGNMENT OF ERROR NO. ONE:

By means of this assignment, defendant contends that the trial court erred by denying his motion to suppress physical evidence.[1] He argues that, because there was no probable cause to arrest him, the evidence seized from his person was not obtained as incident to a lawful arrest; and, therefore, the evidence should have been suppressed.

The state bears the burden of proving the admissibility of evidence seized during a search without a warrant. LSA-C. Cr.P. art. 703(D). A search conducted without a warrant is per se unreasonable under the Fourth Amendment to the United States Constitution, subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Shepherd, 470 So.2d 608 (La.App. 1st Cir.1985). One such exception to the rule is that a search may be conducted without a warrant when it is incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Shepherd, supra.

A peace officer may lawfully arrest a person without a warrant when he has reasonable (probable) cause to believe that the person to be arrested has committed an offense. LSA-C.Cr.P. art. 213. Probable cause to arrest exists when the detaining officer has articulable knowledge of particular facts sufficient to reasonably suspect the detained person of criminal activity and thus justify an infringement on his constitutionally protected right of freedom from governmental interference. State v. Buckley, 426 So.2d 103 (La.1983). Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Buckley, supra; State v. Sterling, 479 So.2d 641 (La.App. 1st Cir. 1985), writ denied, 482 So.2d 626 (La.1986).

All of the information in the possession of the police is to be considered in the determination of whether or not probable cause existed for the arrest. State v. Buckley, supra. The quantity and quality of evidence needed for probable cause are measured by lesser standards than those for conviction of the defendant at trial. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Buckley, supra. Although mere suspicion cannot justify an arrest, the officer does not need proof sufficient to convict. State v. Sterling, supra.

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Bluebook (online)
521 So. 2d 582, 1988 WL 15868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ray-lactapp-1988.