State v. Sellers

796 So. 2d 158, 2001 La. App. LEXIS 2023, 2001 WL 1131679
CourtLouisiana Court of Appeal
DecidedSeptember 26, 2001
DocketNo. 34,968-KA
StatusPublished
Cited by2 cases

This text of 796 So. 2d 158 (State v. Sellers) 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. Sellers, 796 So. 2d 158, 2001 La. App. LEXIS 2023, 2001 WL 1131679 (La. Ct. App. 2001).

Opinion

11 DREW, Judge.

By a 10-2 vote, a petit jury convicted Victor C. Sellers of simple possession of cocaine, a violation of La. R.S. 40:967.C., punishable by imprisonment with or without hard labor for not more than five years. Defendant had been charged by amended bill of information with possession of cocaine with intent to distribute. [160]*160Thereafter, defendant judicially admitted being a second felony offender. The court sentenced him to serve nine years at hard labor and denied a motion for reconsideration of sentence. We affirm.

DISCUSSION

Motion to Suppress

The defense argues that because the police officers did not actually see defendant drinking beer in public, and because one of the other men, Jackson, testified that only he had possession of the beer, the police had no reasonable suspicion that defendant was violating the open container law or loitering. Further, the defense contends that even if there was reasonable suspicion justifying the investigatory stop, there was no reason to believe defendant was armed and dangerous, so as to justify a pat down. The state justifies the investigatory stop because defendant was in violation of Monroe City Ordinance 12-231 which prohibits possession and/or consumption of alcoholic beverages in public places. Further justification is alleged on account of the incident occurring at night, in a high crime area known for drug trafficking.

At the suppression hearing, Detective Richardson testified that he has six years’ experience with the Monroe Police Department. On December 16, 1999, Richardson and his partner, Detective Johnson, members of the Monroe Narcotics Unit, were patrolling the area of the Blue Light Lounge, 12an area known for drug trafficking. The officers saw defendant “standing out front with a forty-ounce beer in his hand.” Richardson, who was in uniform, announced himself to defendant and “advised him I needed to pat him down for weapons/’ Richardson conducted a pat down for weapons but did not feel any. Richardson then asked defendant to place his hands on the wall “for officer safety and for his safety alike”.

While Richardson talked to the other people, he noticed defendant pull off his right glove, reach into his jacket pocket and pull out an object with a clenched fist and place it on the wall. Richardson walked back to defendant and shined a flashlight on his hands to make sure he did not have any weapons. Richardson asked defendant to open his hand. In response to this request, the defendant did so, at which time Richardson saw a plastic bag that appeared to contain two rocks of crack cocaine.

Richardson placed defendant under arrest and advised him of his rights per Miranda. Defendant said he understood. When asked if he had any other narcotics, defendant “kind of shrugged.” Richardson and his partner conducted a contemporaneous custodial search incident to the arrest and found a bag of marijuana in defendant’s front left pocket. Defendant volunteered that he was “attempting to pay off a fine and as soon as he paid off the fine, he was going to stop selling cocaine”.

Richardson said he initially approached defendant because he was standing in front of the club “in an open container violation,” which is a violation of a city ordinance. The forty-ounce container was clearly visible, although there was a bag around the bottom of it. There was no top on the container. Richardson did not see defendant drinking from the bottle.

On cross, Richardson said he and his partner were in this area due to a 13lot of drug activity “and other crimes”. The police did not charge defendant with a violation of the open container law. Richardson smelled beer in the container, put it down and did not go back to it. He could not remember the brand name, but he did remember that the cap was off the bottle. [161]*161This occurred at about 8 p.m. during the month of December, after dark. Richardson did not recall Louis Ray Jackson being at the scene. Richardson also did not recognize any of the witnesses who were placed under the rule for this hearing as having been at the scene. A total of three individuals were patted down outside the Blue Light Cafe.

Louis Ray Jackson, testifying for the defense, told the court he was a friend of defendant. Jackson initially denied having any prior record, but admitted he had a prior conviction for “possession”. On the night in question, Jackson and defendant had been drinking. Defendant went in the club to use the restroom. When he came out, “the law pulled up and told us to get against the wall.” Jackson said he, not defendant, was in possession of the beer bottle. According to Jackson, the men were sharing the bottle, but asserted that defendant didn’t drink any of the beer. Allegedly another man, “Tubb,” was present with Jackson and defendant. According to Jackson, the officers saw Jackson drinking the beer. Jackson was not charged with an open container violation. After the police searched Jackson they allowed him to leave. Jackson did not hear any conversation between defendant and the police.

On cross, Jackson clarified that he and defendant had shared the beer before defendant went into the club but defendant did not drink any of it after he exited the club. In addition to defendant, Jackson and Tubb, there were a lot of people outside the club but they left “when the law got out of |4the car”. Jackson did not know what defendant had in his hand, but it was not a beer. There were several other people in the parking lot drinking beer, according to Jackson.

“After judging the credibility of the witnesses,” the trial court denied the motion to suppress on finding a reasonable suspicion of criminal activity existed and justified the investigatory stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The court found that defendant had an open container which justified an arrest. Detective Richardson was justified in making sure the object gripped in defendant’s hand was not a weapon. When crack cocaine was found, probable cause to arrest was present. The court properly ruled this was not an illegal search. On observing the defendant possessing and/or consuming alcohol in a public place, the officers properly made an investigatory stop and conducted a pat down frisk for weapons. The drugs were not found during the pat down frisk. The cocaine was found after the pat down (frisk), when defendant acted suspiciously by putting his hand in his pocket and taking out something, and then holding it, partially hidden in his hand.

At trial, Detective Richardson related the same basic facts to the jury. However, he clarified that he had a total of over 13 years’ experience as a police officer. Richardson identified defendant as the person who was drinking beer in the parking lot. Detective Johnson talked to the other two men while Richardson was involved with defendant. They were about five feet apart. Richardson elaborated on the chain of custody of the crack cocaine. The crime lab verified that the substances seized from defendant were crack cocaine and marijuana.

Detective Mark Johnson testified he has been a police officer for 131 Byears, the last 7 with the Monroe Police Department. Johnson saw three subjects in the parking lot “consuming alcoholic beverages.” The police pulled in to investigate an open container violation. Richardson confronted defendant about the violation while Johnson talked to the other men, about three [162]

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Related

State v. Jackson
257 So. 3d 179 (Supreme Court of Louisiana, 2018)
State v. Jenkins
805 So. 2d 1244 (Louisiana Court of Appeal, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
796 So. 2d 158, 2001 La. App. LEXIS 2023, 2001 WL 1131679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sellers-lactapp-2001.