State v. Scott

561 So. 2d 170, 1990 WL 47683
CourtLouisiana Court of Appeal
DecidedApril 10, 1990
Docket88 KA 1199
StatusPublished
Cited by18 cases

This text of 561 So. 2d 170 (State v. Scott) 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. Scott, 561 So. 2d 170, 1990 WL 47683 (La. Ct. App. 1990).

Opinion

561 So.2d 170 (1990)

STATE of Louisiana
v.
Carl SCOTT.

No. 88 KA 1199.

Court of Appeal of Louisiana, First Circuit.

April 10, 1990.

Bryan Bush, Dist. Atty., Baton Rouge by Stephen Pugh, Asst. Dist. Atty., for plaintiff-appellee.

Gail H. Ray, Baton Rouge, for defendant-appellant.

*171 Before CARTER, SAVOIE and ALFORD, JJ.

CARTER, Judge.

This matter is before us on remand from the Louisiana Supreme Court. State v. Scott, 551 So.2d 1310 (La.1989). The only issue presented for our review is the trial court's ruling denying defendant's motion to suppress physical evidence. The Louisiana Supreme Court remanded this matter to us for reconsideration and full treatment of an investigatory stop and resultant search.

Defendant was charged with the possession of cocaine, a violation of LSA-R.S. 40:967C. He filed a motion to suppress several packages of cocaine found on his person during a search incident to his arrest on a weapons charge. After a hearing, the trial court denied the motion to suppress, and defendant sought review of that ruling. This court denied defendant's application for writs. State v. Scott, KW 87 1689. Defendant sought further review to the Louisiana Supreme Court, and that court also denied his application for supervisory relief. State v. Scott, 520 So.2d 429 (La.1988).

After the supreme court's action, defendant waived his right to a jury trial and elected to be tried before the bench on this charge. The parties agreed to submit the matter on the records of the pretrial hearings and the scientific analysis reports. Defendant was convicted as charged, and the trial court imposed a suspended sentence.

Defendant appealed his conviction, urging in his only briefed assignment of error that the trial court erred in denying his motion to suppress. Defendant's appellate brief was virtually identical to the writ application previously filed and rejected by this court. In the appellate opinion, we noted that our pretrial ruling did not absolutely preclude a different decision on appeal; but, nevertheless, judicial efficiency demanded that we accord great deference to our pretrial ruling. State v. Scott, 543 So.2d 631 (La.App. 1st Cir.1989). In obtaining this result, we relied upon State v. Humphrey, 412 So.2d 507 (La.1982), on rehearing, wherein the Louisiana Supreme Court found as follows:

When this court considers questions of admissibility of evidence in advance of trial by granting a pretrial application for supervisory writs (rather than deferring judgment until an appeal in the event of conviction), the determination of admissibility does not absolutely preclude a different decision on appeal, at which time the issues may have been more clearly framed by the evidence adduced at trial. Nevertheless, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result.

[412 So.2d at 523].

Thereafter, we noted that no further evidence had been adduced at trial, and, we adhered to our original finding that the court's ruling denying defendant's motion to suppress was correct.

In its order remanding this matter, the court referenced State v. Fontenot, 550 So.2d 179 (La.1989), wherein the court found an error of law in the determination of the Fifth Circuit that reconsideration of the defendant's complaint of the trial court's denial of a motion to suppress evidence was barred by its pretrial denial of supervisory review of the same issues. Therein, the court noted as follows:

A denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction, and it does not bar consideration on the merits of the issue denied supervisory review, when appeal is taken from final judgment. [citations omitted] Thus, the ruling denying supervisory writs does not bar reconsideration of the issue on appeal and ... reaching a different conclusion as to it.

[550 So.2d at 179].

We are mindful that a pretrial denial of an application for supervisory relief is not equivalent to a pretrial grant of review, as was considered in State v. Humphrey. As *172 previously noted, in our earlier consideration of this appeal we specifically found that further review was not barred by our pretrial denial of supervisory relief, and we found that a different result was not absolutely precluded upon appeal. We further found, however, that our earlier determination was entitled to deference. Since no additional evidence relating to this issue was adduced at the trial, and no new argument was raised to this court, we affirmed the trial court's ruling denying defendant's motion to suppress.

The Louisiana Supreme Court has now remanded this matter to us for "reconsideration and full treatment of the stop and search." Accordingly, we review the denial of defendant's motion to suppress on the record of the pretrial hearings.

Defendant was apprehended by Sgt. Michael Dickinson of the Baton Rouge City Police Department near the intersection of Odell and 39th Streets, an area notorious for drug trafficking. While on patrol with two other units of the Baton Rouge Metro Squad, Sgt. Dickinson noticed defendant standing in the middle of Odell Street, conversing with another black male. The incident occurred on March 13 in the early evening hours, approximately 7:30 p.m. As the police units approached, one of the men signalled their arrival. Apparently in response to that signal, defendant's companion ran into a nearby grocery store, and defendant began to walk rapidly down 39th Street. Sgt. Dickinson instructed the second unit to stop the man who ran into the grocery store, and he pursued defendant.

Sgt. Dickinson stopped defendant and initiated an "informal conversation" with him. During a brief frisk for weapons, Sgt. Dickinson recovered a .357 handgun that was stuck in defendant's belt. Sgt. Dickinson jokingly asked defendant if he had any other guns, and defendant replied that he did. Sgt. Dickinson recovered another handgun from the pocket of defendant's trousers. Both of the guns were loaded.[1]

Sgt. Dickinson then arrested defendant for a "weapons charge." During a search incident to the arrest, Detective Denicola, also of the Metro Squad, found several clear plastic baggies of suspected cocaine in the brim of defendant's hat, and another packet, covered with a dollar bill, in defendant's shirt pocket.

During the hearing on defendant's motion to suppress, Sgt. Dickinson related that, in this area, he had personally made over forty arrests for drug-related offenses. He further testified that many of the arrests resulted from drug transactions made in the middle of the street and that most of the drug transfers in that area occurred in the middle of the street. Finally, he noted that it appeared to him that a *173 transaction was occurring which the men clearly wished to conceal.

In determining that the initial stop was valid, the trial court found that Sgt. Dickinson's attempt to approach defendant was authorized by LSA-C.Cr.P. art. 215.1. Thereafter, defendant's flight to avoid the encounter confirmed Sgt. Dickinson's belief that criminal activity was underway.

LSA-C.Cr.P. art. 215.1 provides for the temporary questioning of persons in public places, in pertinent part, as follows:

A.

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Bluebook (online)
561 So. 2d 170, 1990 WL 47683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scott-lactapp-1990.