State v. Smiley

729 So. 2d 743, 1999 WL 112585
CourtLouisiana Court of Appeal
DecidedMarch 3, 1999
Docket99-K-0065
StatusPublished
Cited by27 cases

This text of 729 So. 2d 743 (State v. Smiley) 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. Smiley, 729 So. 2d 743, 1999 WL 112585 (La. Ct. App. 1999).

Opinion

729 So.2d 743 (1999)

STATE of Louisiana
v.
Corey SMILEY.

No. 99-K-0065.

Court of Appeal of Louisiana, Fourth Circuit.

March 3, 1999.
Writ Denied May 14, 1999.

*744 Harry F. Connick, District Attorney, Robert P. Harper, Assistant District Attorney, John R. Dildy, Assistant District Attorney, New Orleans, LA, Attorneys for Relator.

Court composed of Judge MIRIAM G. WALTZER, Judge JAMES F. McKAY III and Judge Pro Tempore JAMES A. GRAY, III.

WALTZER, Judge.

The prosecution invokes our supervisory jurisdiction in order to determine whether the trial court erred when it granted a motion to suppress the evidence. After considering the testimony at the motion hearing and the applicable law, we grant the application for supervisory writs, deny relief and affirm the ruling of the trial court.

STATEMENT OF THE CASE

The defendant was arrested on 18 September 1998. He was charged with the violation of LSA-R.S. 40:966(C), relative to possession of cocaine. On 11 January 1999 a motion to suppress the evidence was granted. The following facts were adduced at the motion:

In the early morning hours of 9 September 1998, two police officers were standing at the corner of St. Ann and Bourbon Streets when an unknown man approached them and reported that a man in a nearby truck had just tried to sell him drugs. As the officers were looking at the truck, they noticed the defendant and two other people leave the truck and stagger into a nearby bar. The unknown man identified Smiley as the man who tried to sell him drugs. The officers called for backup, and within five minutes four officers entered the bar and eventually located Smiley. Smiley agreed to accompany the officers outside. The officers noticed Smiley was having difficulty making his way out of the bar, staggering and weaving. One officer also got close to Smiley as he exited the bar and smelled alcohol on Smiley's breath. When they reached the sidewalk, the officer placed Smiley under arrest for public intoxication, purportedly to keep him from driving away in the truck. Smiley's companions must have also exited the bar because the officers conducted a patdown search of all three for the officers' safety. The officer testified that as one officer was pulling items out of Smiley's pants pocket, a bag of what was later found to be cocaine came out of his pocket.

The officer testified that when he approached Smiley in the bar, he asked Smiley to accompany him outside to talk because the bar was so noisy, and Smiley agreed to do so. He also testified that the bag seized from Smiley contained two-tenths of a gram of cocaine. He admitted neither he nor his fellow officers conducted a field sobriety test on Smiley.

DISCUSSION

The transcript of the suppression hearing indicates the trial court suppressed the evidence because it found "no probable cause." The State argues the stop was lawful because the officers had been tipped off by a citizen *745 about criminal activity. Additionally, the State argues, that the officers had probable cause to arrest the defendant for public intoxication, evidenced by his inability to walk and the smell of alcohol when he left the bar in compliance with their request to do so.

It appears the officers had reasonable suspicion to stop the defendant. In State v. Sneed, 95-2326, p. 3 (La.App. 4 Cir. 9/11/96), 680 So.2d 1237, 1238; writ denied 96-2450 (La.3/7/97), 689 So.2d 1371, this court described the standard to support an investigatory stop:

An individual may be stopped and questioned by police if the officer has a reasonable suspicion that the person "is committing, has committed, or is about to commit an offense." La.Code Crim. Proc. Ann. art. 215.1. While "reasonable suspicion" is something less than the probable cause needed for an arrest, it must be based upon particular articulable facts and circumstances known to the officer at the time the individual is approached. State v. Smith, 94-1502, p. 4 (La.App. 4th Cir.1/19/95), 649 So.2d 1078, 1082. The officer's past experience, training and common sense may be considered in determining if the inferences drawn from the facts presented were reasonable. State v. Jackson, 26,138 (La.App.2nd Cir. 8/17/94), 641 So.2d 1081, 1084.

See also State v. Allen, 95-1754 (La.9/5/96), 682 So.2d 713.

Here, the defendant was positively identified by a citizen on the street as the person who had just tried to sell the citizen drugs from the defendant's truck. Therefore, the officers had reasonable suspicion to detain the defendant to investigate this claim.

The court found "no probable cause." It is unclear from the record if the court found that the defendant was under arrest at the point the officers and the defendant left the bar. In State v. Allen, 95-1754, p. 5-6 (La.9/5/96), 682 So.2d 713, 718-719, when considering the factors which comprise an arrest, the Louisiana Supreme Court stated:

La.C.Cr.P. art. 201 defines arrest as "the taking of one person into custody by another ... [by] actual restraint of the person." In distinguishing between an investigatory stop and an arrest, courts have considered numerous factors. In Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), the United States Supreme Court found a stop for questioning was indistinguishable from a traditional arrest because the suspect was not questioned briefly where he was but transported to the police station, was never informed he was free to go and, in fact, would have been restrained had he tried to leave. The United States Supreme Court in Michigan v. Chesternut, 486 U.S. 567, 574, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)) stated that "any assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account all of the circumstances surrounding the incident in each individual case." The Mendenhall Court also stated that in determining whether a person has been seized under the Fourth Amendment, one must determine whether a reasonable person would have believed he was free to leave. Mendenhall, 466[446] U.S. at 554, 100 S.Ct. at 1877. This court has considered this issue and determined that "it is the circumstances indicating intent to effect an extended restraint on the liberty of the accused, rather than the precise timing of an officer's statements: `You are under arrest,' that are determinative of when an arrest is actually made." State v. Giovanni, 375 So.2d 1360, 1363 (La.1979) (quoting State v. Sherer, 354 So.2d 1038, 1042 (La. 1978)); see also, State v. Davis, 558 So.2d 1379, 1382 (La.[App. 5 Cir.]1990); State v. Simms, 571 So.2d 145, 148 (La.1990). In both Giovanni and Simms, this court found an arrest based on the fact that the defendant was not free to leave.

In Allen, the defendant was asked if he owned a gun, and he replied that it was in the trunk.

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Bluebook (online)
729 So. 2d 743, 1999 WL 112585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smiley-lactapp-1999.