State v. Stewart

357 So. 2d 1111
Supreme Court of Louisiana·Decided April 10, 1978·No. 60935·Published·Cited by 24 cases

Opinion

357 So.2d 1111 (1978)

STATE of Louisiana
v.
Curtis Lee STEWART.

No. 60935.

Supreme Court of Louisiana.

April 10, 1978.

*1113 George M. Strickler, Jr., New Orleans, Jerry A. Kirby, Kirby & Anzalone, Monroe, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Blaine Adkins, Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

Curtis Lee Stewart was charged by bill of information with the crime of possession with intent to distribute a controlled dangerous substance, to-wit: marijuana, in violation of La.R.S. 40:966. After trial by jury, defendant was found guilty as charged and was sentenced to serve three years at hard labor and to pay a fine of $1,500 and court costs, in default of which he was to serve one year in jail. Payment of the fine was suspended but not that of the court costs. Defendant was given credit toward service of his sentence for time spent in actual custody prior to imposition of sentence. On appeal, defendant relies on nine assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 3

Defendant contends the trial judge erred in ruling at the preliminary examination that there was probable cause to charge defendant with the instant offense.

It is well settled that the question of probable cause and errors alleged to have occurred at the preliminary hearing are moot once a defendant has been tried and convicted by a jury. State v. Qualls, 353 So.2d 978 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Sneed, 328 So.2d 126 (La.1976); State v. Luckett, on rehearing, 327 So.2d 365 (La.1976). Accordingly, these assignments of error present nothing for our review.

Assignments of Error Nos. 1 and 3 are without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 7

Defendant contends the trial judge erred in denying his motion to suppress physical evidence and in permitting its introduction at trial.

The pertinent facts are as follows.[1] During the previous evening and early morning hours of November 21, 1976, Officer Isaac Robinson, Jr., of the Monroe City Police Department had been on the lookout for Charles Edward Jackson who had escaped from the parish jail. At about 7:30 a. m., while driving his personal vehicle home after completion of his shift, Officer Robinson observed a 1965 red Chevrolet traveling ahead of him in the same direction. As Robinson passed the vehicle, he noticed that the driver of the vehicle was defendant, whose street name was "Sleepy." Two passengers, whose faces the officer was unable to see, occupied the back seat of the vehicle. Upon seeing the uniformed officer, defendant slowed down and changed lanes. Suspecting that the escaped prisoner might have been a passenger in the vehicle, Officer Robinson radioed the Ouachita Parish Sheriff's Office for assistance, which in turn notified Deputy Sheriff Lester A. Edwards, an officer on patrol in a marked *1114 police car in the vicinity, that an escaped prisoner was believed to be a passenger in the 1965 red Chevrolet. Immediately after receiving the radio dispatch, Deputy Edwards spotted defendant's vehicle, which was traveling at a normal rate of speed, being followed by Officer Robinson in his unmarked car. The deputy followed behind the vehicles. Shortly thereafter, defendant executed a series of turns down various streets in an apparent attempt to evade the officers. As Deputy Edwards passed Officer Robinson's vehicle, defendant accelerated to a high rate of speed, driving recklessly and failing to stop at any of the stop signs. Deputy Edwards thereupon activated the flashing red light on his vehicle and pursued defendant's car. After tracking defendant's vehicle by means of the tire marks left by the speeding car, the deputy turned onto a dead-end street where he discovered defendant standing near a trash barrel. As the deputy alighted from his vehicle, defendant fled behind the residences located on the street. Edwards then proceeded to defendant's parked vehicle at which time a resident in the area, Freddie Coleman, informed the deputy that he had observed defendant exit his vehicle, open the trunk, remove a large brown bag bearing red lettering which defendant threw into the trash barrel, and flee. After a search of the area, defendant was apprehended by Deputy Edwards behind one of the residences on the street, placed under arrest for the reckless operation of a vehicle and for resisting an officer, and advised of his rights. Defendant related to the police that he had dropped off his two passengers. Meanwhile, Officer Robinson arrived at the scene and observed that the door of the driver's side and the trunk of defendant's vehicle were partially opened. Fearing that the suspect might have concealed himself in the trunk, the officer drew his revolver and looked inside; he did not discover anyone. He did, however, detect a strong odor of marijuana coming from inside the trunk. Thereafter, upon determining in which direction defendant had fled when confronted by Deputy Edwards, Robinson discovered and seized a box and a large brown bag bearing red lettering, both of which contained marijuana weighing approximately fourteen pounds, from the trash barrel located near where defendant was confronted by the deputy. Based upon the foregoing facts, a warrant authorizing a search of defendant's vehicle was issued which, when executed by the police, resulted in the recovery of a marijuana cigarette, seeds and gleanings from the trunk and interior of defendant's vehicle.

La.Code Crim.P. art. 213 provides in pertinent part:

A peace officer may, without a warrant, arrest a person when:
(1) The person to be arrested has committed an offense in his presence, and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;

. . . . .

In the instant case, based upon the belief that defendant's vehicle might contain a recently escaped prisoner from the parish jail, coupled with the suspicious manner in which the vehicle was operated by defendant upon his observing the police officers, we consider that the police officers had at least the right to follow and to keep defendant's vehicle under surveillance. At first, defendant's vehicle proceeded at a normal rate of speed. Shortly thereafter, defendant began to accelerate to a high rate of speed, driving recklessly and failing to stop at any of the stop signs. Deputy Edwards specifically stated that he did not activate the red light on his vehicle until "after" defendant "accelerated and started driving at a high rate of speed." After tracking defendant's vehicle to a dead-end street, defendant attempted to resist arrest by flight on foot. Finally, after defendant was apprehended, he was arrested for reckless operation of a vehicle and resisting an officer. Clearly, these offenses were committed in the presence of the arresting officer. No warrant for defendant's arrest was required. The evidence abandoned by defendant during his flight from a lawful arrest was legally seized and was admissible in evidence. Since the arrest of defendant and seizure of the evidence were lawful, the *1115 seizure of the contraband from defendant's vehicle pursuant to a search warrant issued on the basis of the foregoing arrest and seizure was also lawful. Accordingly, the trial judge did not err in overruling defendant's motion to suppress and in admitting the evidence at trial.

Assignments of Error No

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