State v. Spears

459 So. 2d 1328, 1984 La. App. LEXIS 10029
CourtLouisiana Court of Appeal
DecidedNovember 20, 1984
DocketNos. 84 KA 0420, 84 KA 0421
StatusPublished
Cited by2 cases

This text of 459 So. 2d 1328 (State v. Spears) 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. Spears, 459 So. 2d 1328, 1984 La. App. LEXIS 10029 (La. Ct. App. 1984).

Opinion

CARTER, Judge:

Defendant, Kenneth W. Spears, was charged by separate bills of information with two instances of possession of controlled dangerous substances. Bill # 10-81-636 charged that on September 19, 1981, defendant did knowingly • and intentionally possess phenmetrazine, a violation of LSA-R.S. 40:967(C).1 Bill #1-83-289 charged that on December 31, 1982, defendant did knowingly and intentionally possess pentazocine, a violation of LSA-R.S. 40:967(C). Defendant initially entered pleas of not guilty and filed motions to suppress physical evidence seized at the time of each arrest. After the trial judge denied the motions, defendant changed his pleas to guilty and expressly reserved his right to appeal the denials of the motions. See State v. Crosby, 338 So.2d 584 (La.1976). Defendant was sentenced to serve five years at hard labor on each charge. The sentences are to be served concurrently. In addition, defendant was ordered to pay $251.20 in court costs.

On appeal defendant urges four assignments of error.

ASSIGNMENT OF ERROR NO. 1

In Assignment of Error No. 1, defendant argues that the trial court erred when it denied defendant’s motion to suppress physical evidence seized on September 19, 1981.

The motion to suppress was submitted to' the court on the transcript of the preliminary examination. At the preliminary examination, Officer Bruce Sarrazin, of the Baton Rouge City Police Department, testified as follows. On September 19, 1981, at 7:20 p.m., Sarrazin and a partner were in front of a bar called Duster Pamela’s. They were in the process of writing summonses for two individuals who were in violation of the Baton Rouge city ordinance banning open containers of alcoholic beverages in public. Baton Rouge City Ordinance, Title 13, Chapter 10, Sec. 608, 610. Sarrazin noted defendant coming around the corner holding an open alcoholic beverage in one hand and a plastic bag in the other hand. Sarrazin testified: “When [defendant] walked around the corner, I told him to come here, and he just froze.” Defendant then started to put his hand in his pocket. Sarrazin stated that he was concerned that defendant might have had a weapon in his pocket. At this point, Sarra-zin, who was a short distance away from defendant, reached for defendant’s hand as it disappeared into defendant’s pocket. Sarrazin stated: “By the time his hand reached the bottom of his pocket, my hand was with his.” Sarrazin removed his hand, defendant’s hand, and a plastic bag from defendant’s pocket. The plastic bag contained tablets which were later identified as phenmetrazine, a controlled dangerous substance.

The Fourth Amendment to the federal constitution protects people against “unreasonable searches and seizures”. Measured by this standard, LSA-C.Cr.P. art. 215.1, as well as federal and state jurisprudence, recognizes the right of a law enforcement officer to temporarily detain and interrogate a person whom he reasonably suspects is committing, has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Lanter, 391 So.2d 1152 (La.1980); State v. Snoddy, 389 So.2d 377 (La.1980). It has been held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient [1331]*1331knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Lanter, supra; State v. Snoddy, supra.

In the case sub judice, Sarrazin testified that he saw defendant walk around the comer with an open bottle of beer in one hand and a plastic bag in the other. Sarrazin stated that defendant was “just taking [the beer] away from his mouth.” Under these factual circumstances, Sarra-zin was clearly justified in detaining defendant. Since the defendant was committing a crime in the presence of the officer, he could have been arrested. LSA-C.Cr.P. art. 213(1).

Once a lawful detention is made, a police officer is justified in frisking the suspect for weapons under circumstances where he reasonably suspects that he is in danger of life or limb. LSA-C.Cr.P. art. 215.1(B); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Lanter, supra; State v. Jernigan, 377 So.2d 1222 (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (1980). Further, the officer’s belief is not reasonable unless the officer is “able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917, 935 (1968). State v. Hunter, 375 So.2d 99 (La.1979). It is not necessary that the investigating officer establish that it was more probable than not that the detained individual was armed and dangerous; it is sufficient that he establish a “substantial possibility” of danger. State v. Hunter, supra.

In testifying, Sarrazin stated that defendant had started to put his hand in his pocket. Sarrazin further stated his concern that defendant may have been attempting to get a weapon. Thus, Sarrazin was able to point to particular actions taken by defendant from which it could be reasonably inferred that defendant was armed and dangerous. Clearly, Sarrazin was justified in reacting quickly and conducting a limited search of defendant for weapons.

In summary, the initial detention and subsequent search of defendant by Officer Sarrazin was justified. Accordingly, the trial judge did not err in denying defendant’s motion to suppress the evidence obtained as a result thereof.

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2, defendant argues that the trial court erred when it denied defendant’s motion to suppress physical evidence seized on December 31, 1982.

The motion to suppress was submitted to the court on the transcript of the preliminary examination. At the preliminary examination, the following facts were adduced. Uniformed officers in a marked police car were cruising the area of 39th and Cain Streets in Baton Rouge on December 31, 1982, at 1:30 p.m. The officers observed several black males standing next to a house. As the officers approached, the group of men dispersed. Defendant walked rapidly away from the group, headed toward 38th Street, and then ducked behind a building. As the officers circled the building, they observed defendant throw a cigarette pack over a fence and then run around the fence. At this point, one of the officers got out of the car and detained defendant. The cigarette pack was recovered and was found to contain pentazocine tablets.

The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1, as well as both the federal and state jurisprudence. Terry v. Ohio, supra; State v. Chopin, 372 So.2d 1222 (La.1979).

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Related

State v. Valery
532 So. 2d 536 (Louisiana Court of Appeal, 1988)
State v. Spears
463 So. 2d 600 (Supreme Court of Louisiana, 1985)

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Bluebook (online)
459 So. 2d 1328, 1984 La. App. LEXIS 10029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spears-lactapp-1984.