State v. Simmons

663 So. 2d 790, 1995 WL 609362
CourtLouisiana Court of Appeal
DecidedOctober 18, 1995
Docket95-KA-309
StatusPublished
Cited by29 cases

This text of 663 So. 2d 790 (State v. Simmons) 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. Simmons, 663 So. 2d 790, 1995 WL 609362 (La. Ct. App. 1995).

Opinion

663 So.2d 790 (1995)

STATE of Louisiana
v.
Alan SIMMONS.

No. 95-KA-309.

Court of Appeal of Louisiana, Fifth Circuit.

October 18, 1995.

*792 John M. Mamoulides, District Attorney, Terry M. Boudreaux, Assistant Dist. Atty., Gretna, LA, for Plaintiff-Appellee.

Linda Davis-Short, Indigent Defender Board, Gretna, LA, for Defendant-Appellant.

Before GAUDIN, DUFRESNE and CANNELLA, JJ.

*793 DUFRESNE, Judge.

The defendant was charged by bill of information with possession of cocaine in violation of LSA-R.S. 40:967 C. When arraigned on the charge, the defendant entered a plea of not guilty. Following the trial court's denial of his motions to suppress evidence and confession, the defendant entered into a plea agreement with the State and pled guilty as charged while reserving the right to appeal the denial of the motions to suppress evidence and confession in accordance with State v. Crosby, 338 So.2d 584 (La.1976). Thereafter, the trial court sentenced the defendant to five years at hard labor with credit for time served.

Subsequently, the State filed a multiple offender bill of information seeking enhanced sentencing of the defendant as a second felony offender and the defendant entered a plea of not guilty to the bill of information. On March 15, 1995, the trial court conducted a hearing on the multiple offender bill of information and found the defendant to be a second felony offender. The court then vacated the previous sentence and resentenced the defendant to eight years at hard labor without benefit of probation or suspension of sentence, but with credit for time served.

FACTS

On the afternoon of January 13, 1994 at approximately 2:00, Detective Blain Hebert of the Kenner Police Department, accompanied by two agents of the Bureau of Alcohol, Tobacco and Firearms, was conducting surveillance of 3021 Phoenix Street on an unrelated matter when he observed a blue car arrive at that address. The defendant, who was known to the detective from a previous arrest as a "narcotics violator", exited the car along with Nolen Merritt, who was also known from a previous arrest. The defendant then approached Apartment C of 3021 Phoenix Street.

Detective Hebert had a confidential source living inside the apartment complex and he had been informed that crack cocaine transactions were occurring in the complex. He also had made arrests at the complex.

When the defendant reached Apartment C, the door opened and Glynn Bartholomew, who had previously been arrested by the detective, stepped outside of the apartment. "Some type of exchange" which lasted for about 15 to 18 seconds took place between the defendant and Bartholomew. The defendant then walked away from the apartment and Merritt met him; however, Detective Hebert did not observe any exchange between them. After both the defendant and Merritt entered the car, they drove away from the scene.

Detective Hebert was convinced that a crack cocaine transaction was occurring when he noticed Bartholomew step from the apartment, having received information that Bartholomew, who was "on probation for ... distribution of crack cocaine at the time", was still dealing crack cocaine.

Detective Hebert decided to allow the car to leave the area so as not to alert the subject of the surveillance. He also notified the Kenner Police Department to send a marked unit to the area "for when we would do the stop."

Subsequently, while pursuing the blue car, the marked unit activated its lights and siren and the blue car turned onto West Loyola before stopping. As the car turned onto West Loyola, Detective Hebert noticed "some type of shuffling on the front seat" between the defendant and Merritt. Detective Hebert, who testified that he was conducting a "felony stop", instructed both the defendant and Merritt to exit the car. Detective Hebert commanded the defendant to step to rear of the car and to place his hands on it, and a search of the defendant's person revealed a matchbox containing crack cocaine. After the defendant was advised of his rights and placed under arrest, he replied: "What about the big white guy?" "I got that for him. What's going to happen to him?"

After the defendant was transported to Kenner Lock-up, Detective Hebert advised him of his rights using a standard advice of rights form which the defendant later signed. When Detective Hebert asked the defendant if he wished to make a statement without his attorney present, the defendant responded: *794 "Yeah, I want to talk to you." The defendant then gave a statement which was typed by Detective Hebert.

At the suppression hearing, Detective Hebert testified that in his statement the defendant admitted:

That he had a crack cocaine habit; he had purchased crack cocaine on more than one occasion on that date from Glynn Bartholomew from 3021 Phoenix, Apartment C; that he purchased crack cocaine from Glynn Bartholomew for himself and Nolan (sic) Merritt, that he had—I think he was given about forty-seven dollars ($47) that day to purchase crack, and they had been smoking all day. They would smoke crack, go back and get more, smoke, go riding around.

Following the conclusion of the statement, Detective Hebert and the defendant signed both of the pages of the typed statement.

Additionally, Detective Hebert testified that the advice of rights form and the statement were incorrectly dated January 15, 1994. He later corrected the date on the statement, but he did not know whether the date was corrected on the advice of rights form.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in denying defendant's motion to suppress physical evidence.

DISCUSSION

The defendant contends that the cocaine was seized as the result of an unlawful stop in that Detective Hebert lacked reasonable suspicion for the initial stop. The State argues that Detective Hebert had "ample reasonable cause" to arrest the defendant without a warrant and thus the cocaine was seized incident to the arrest.

An arrest occurs when the circumstances indicate an intent to effect an extended restraint on the liberty of the accused, rather than at the precise time an officer tells an accused he is under arrest. State v. Raheem, 464 So.2d 293 (La.1985); State v. Foley, 570 So.2d 171 (La.App. 5th Cir.1990), writ denied, 576 So.2d 27 (La.1991).

In the instant case the circumstances indicate that an arrest occurred, rather than a investigatory stop, when Detective Hebert ordered the defendant to exit the car and commanded him to step to the rear of the car and to place his hands on it. See State v. Davis, 558 So.2d 1379 (La.App. 5th Cir.1990) where the court found that the circumstances indicated that an arrest occurred when the officers drove their car into a parking lot and ordered the defendant and his companion to put their hands on the car.

Because an arrest preceded the search, the State must show probable cause to arrest in order to justify the search. Probable cause to arrest without a warrant exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Raheem, supra.

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Cite This Page — Counsel Stack

Bluebook (online)
663 So. 2d 790, 1995 WL 609362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simmons-lactapp-1995.