State v. Swaingan

563 So. 2d 1204, 1990 La. App. LEXIS 1560, 1990 WL 79841
CourtLouisiana Court of Appeal
DecidedJune 6, 1990
DocketNo. 90-KA-89
StatusPublished
Cited by2 cases

This text of 563 So. 2d 1204 (State v. Swaingan) 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. Swaingan, 563 So. 2d 1204, 1990 La. App. LEXIS 1560, 1990 WL 79841 (La. Ct. App. 1990).

Opinion

BOWES, Judge.

Defendant, Leroy Swaingan, appeals his conviction in the Twenty-Fourth Judicial District Court of first degree robbery under LSA-R.S. 14:64.1. We affirm.

Shortly after midnight on December 11, 1988, two men walked into a Time Saver-store in Paradis, St. Charles Parish, Louisiana, and selected a bottle of Thunderbird wine. They then approached the register and as the cashier rang up the sale, one of the men pointed a gun at her and ordered her to hand over the money in the register. The men left the store with the money, the wine, and some cigarettes and food stamps, also stolen in the robbery.

The cashier immediately telephoned the police to report the crime and as she did so, she noticed a “big, white” four door car pass very slowly in front of the store. She informed the police about the car, and gave a description of the perpetrators as two black males, one somewhat taller than the other, one wearing a blue flannel jacket with jeans and a white cap, and the other wearing a blue denim jacket with jeans.

At about 12:17 a.m., State Trooper A1 Willumitis was patrolling westbound on U.S. Highway 90 near Boutte (approximately three milel east of the Time Saver) when he received a transmission concerning the robbery. The broadcast advised that the suspects were two black males wearing blue jeans and blue denim, jackets, one suspect had a white hat, and that they were driving eastbound on Highway 90 in a large white four door vehicle. Trooper Willumitis, watching the eastbound traffic, noticed a large white four door car going east. He turned around and followed the car, and when he pulled directly behind it he realized that it was a “very, very pale blue.” He pulled alongside of the vehicle in the right lane and saw that it was occupied by two black males who appeared to be wearing dark colored clothing. He advised the Sheriffs Office and stopped the vehicle.

Trooper Willumitis told the driver to step out of the car and as he complied, Willumi-tis observed that the driver was wearing a blue denim jacket and jeans. The trooper then called for back-up, believing that he had found the suspects. As the back-up unit arrived in less than a minute, the trooper had the passenger defendant, Leroy Swaingan, step out of the vehicle. When he did so, Swaingan did not close the automobile door. While Sergeant Simo-neaux, the back-up officer watched the, two suspects, Trooper Willumitis approached the passenger side of the car. Shining his [1206]*1206flashlight into the car, he observed, on the front seat, a white baseball cap, a red knit hat, and a paper bag with several packs of Camel cigarettes spilling out. On the floor of the passenger side Willumitis observed a black pistol and a bottle of Thunderbird wine.

Ascertaining via his radio that a black handgun was used in the robbery and that money, food stamps, Camel cigarettes and a bottle of Thunderbird wine had been stolen, he placed the suspects under arrest.

The two were taken back to the Time Saver where they were identified by the cashier.

The defendant and co-suspect, Kirk Bowers, were charged by bill of information with a violation of LSA-R.S. 14:64.1, first degree robbery. Various defense motions were propounded, including a motion to suppress identification and physical evidence. A hearing on this motion was held on May 17 and 22, 1989. The trial court denied the motion and following trial, the defendant was found guilty as charged by the jury.

On October 24, 1989, a multiple offender bill was filed charging Swaingan as a fifth felony offender. Following hearing, the trial court found the defendant to be a multiple offender as charged, and further denied his motion for a new trial. After waiver of delays by the defendant, the court sentenced him to forty years at hard labor without benefit of parole, probation, or suspension of sentence. From this conviction defendant appeals.

The only error alleged on appeal is that the trial court erred in ruling that the evidence seized as a result of the initial stop was admissible. The threshold issue according to defendant is whether or not Trooper Willumitis had the right to initially stop the vehicle in which Swaingan was a passenger; resolution of this issue determines whether the evidence seized “in plain view” was inadmissible.

Defendant alleges that Trooper Wil-lumitis testified: “... in effect, that the only reason for stopping (the co-defendant) and Mr. Swaingan was the fact that they were two black individuals driving late at night,” although the trooper noted that the actual color of the car was, upon close inspection, blue and not white. Defendant urges that there was nothing suspicious about the vehicle itself or the behavior of its occupants, and that no traffic violations had been committed. Therefore, defendant urges that there was no reasonable cause for an investigatory stop of the defendant’s vehicle.

Our United States Supreme Court discussed the question of investigatory stops in Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-5, 20 L.Ed.2d 889 (1968) and there held that the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion that criminal activity “may be afoot,” even if the officer lacks probable cause. In U.S. v. Sokolow, — U.S.-, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), the Supreme Court discussed Terry and examined the issue further:

The officer, of course, must be able to articulate something more than an
inchoate and unparticularized suspicion or 'hunch’.
Id., at 27, 88 S.Ct., at 1883. The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop. INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means ‘a fair probability that contraband or evidence of a crime will be found.’ Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause. See United States v. Montoya de Hernandez, 473 U.S. 531, 541, 544, 105 S.Ct. 3304, 3312, 87 L.Ed.2d 381 (1985).
The concept of reasonable suspicion, like probable cause, is not 'readily, or even usefully, reduced to a neat set of legal rules.’ Gates, supra, 462 U.S., at 232, 103 S.Ct., at 2329 ... In evaluating [1207]*1207the validity of a stop such as this, we must consider ‘the totality of the circumstances — the whole picture.’ United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). AS we said in Cortez:
The process does not deal with hard certainties, but with probabilities.

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Related

State v. Swaingan
630 So. 2d 300 (Louisiana Court of Appeal, 1993)
State v. Head
598 So. 2d 1202 (Louisiana Court of Appeal, 1992)

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Bluebook (online)
563 So. 2d 1204, 1990 La. App. LEXIS 1560, 1990 WL 79841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-swaingan-lactapp-1990.