State v. Taylor

701 So. 2d 766, 1997 WL 680793
Louisiana Court of Appeal·Decided October 29, 1997·No. 96-KA-1843·Published·Cited by 18 cases

Opinion

701 So.2d 766 (1997)

STATE of Louisiana
v.
Edgar J. TAYLOR.

No. 96-KA-1843.

Court of Appeal of Louisiana, Fourth Circuit.

October 29, 1997.

*769 Harry F. Connick, District Attorney, Kevin J. Gillie, Assistant District Attorney, Parish of Orleans, New Orleans, for Plaintiff/Appellee.

Archie B. Creech, Orleans Indigent Defender Program, New Orleans, for Defendant/Appellant.

Before BYRNES, JONES and WALTZER, JJ.

JONES, Judge.

Edgar Taylor was charged with possession of cocaine. His motion to suppress evidence was denied and probable cause to bind the defendant for trial was found. A jury trial resulted in a deadlocked jury and a mistrial. Ten days later at a retrial, the jury found Mr. Taylor guilty of attempted possession of cocaine, and the trial court sentenced him to thirty months at hard labor. The state then filed a multiple bill which alleged that Mr. Taylor was a fourth offender. He admitted the allegations of the multiple bill and the court vacated the previous sentence and resentenced Mr. Taylor as a fourth offender to eight years at hard labor under State v. Dorthey, 623 So.2d 1276 (La.1993). Both the State and Mr. Taylor appeal.

STATEMENT OF THE FACTS

Officer Ernest Bickham testified that he was on patrol on a bicycle in the French Quarter when he observed what appeared to be a drug transaction between two subjects on the corner of Dauphine and St. Louis Streets. Mr. Taylor's back was to him; however, when the other subject who could see the officer noticed his presence, he ran away.

Meanwhile, Mr. Taylor did not notice Officer Bickham so he started walking toward the officer. He then stopped in front of a limousine, and he had his hand in one of his pockets. Officer Bickham testified that he approached Mr. Taylor and, because he feared for his safety asked Mr. Taylor to remove his hand from his pocket. When Mr. Taylor refused, Officer Bickham secured Mr. Taylor's hand in his pocket.

Officer Bickham and Mr. Taylor struggled for a second and Mr. Taylor fell into the limousine. Mr. Taylor managed to get away and run across the street. Officer Bickham radioed for assistance and reapprehended Mr. Taylor before the assistance arrived.

From the subsequent search of Mr. Taylor, the officers retrieved a rock substance from one of his pockets and a glass pipe from the other. The rock substance proved to be negative for cocaine, but the pipe contained cocaine residue.

ERRORS PATENT REVIEW

A review of the record for errors patent reveals that the sentence is below the mandatory minimum sentence for a fourth offender. However, we will review this issue in our discussion of the assignments of error below.

ISSUES

A. Motion to Suppress Evidence

Mr. Taylor, through counsel, argues the trial court erred in its denial of the motion to suppress evidence. He avers that the arresting officer lacked reasonable cause to suspect he was engaging in criminal activity. Mr. Taylor further avers that, even if the stop was justified, the officer made no showing of reasonable suspicion that Mr. Taylor was armed, which would justify securing the defendant's hand.

A police officer has the right to stop a person and investigate conduct when he has a reasonable suspicion that the person is, has been, or is about to be engaged in criminal conduct. La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983). If an officer stops a person pursuant to Art. 215.1, the officer may conduct a limited pat down frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. La.C.Cr.P. art. 215.1(B). Reasonable suspicion for an investigatory stop is something less than probable cause; and, it must be determined under the facts of each case whether the officer had sufficient articulable knowledge of particular facts and circumstances to justify an infringement upon an individual's right to be *770 free from governmental interference. State v. Albert, 553 So.2d 967 (La.App. 4 Cir.1989); State v. Smith, 489 So.2d 966 (La.App. 4 Cir.1986).

The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Belton, 441 So.2d 1195 (La.1983), cert. den., 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). An investigative stop must be justified by some objective manifestation that the person stopped is or is about to be engaged in criminal activity or else there must be reasonable grounds to believe that the person is wanted for past criminal conduct. State v. Moreno, 619 So.2d 62 (La.1993). The reputation of an area is an articulable fact upon which an officer can rely and which is relevant in the determination of reasonable suspicion. State v. Richardson, 575 So.2d 421 (La.App. 4 Cir.1991), writ denied, 578 So.2d 131 (La.1991); State v. Burnett, 513 So.2d 391 (La.App. 4 Cir.1987).

A trial judge's decision to deny a motion to suppress will be afforded great weight and will not be set aside unless to do so is clearly mandated by a preponderance of the evidence. State v. Lee, 545 So.2d 1163 (La.App. 4 Cir.1989).

Defense counsel argues the officer's explanation of the facts and circumstances of the case was insufficient to prove he had reasonable suspicion that Mr. Taylor was engaged in criminal activity. Counsel notes the officer testified he observed Mr. Taylor holding out a cupped hand to another subject, after which there was an exchange. The officer did not see what was exchanged. The officer further testified the exchange took place in an area known for high drug activity.

Considering that officers are permitted to rely on the reputation of the area, and further considering that the officer observed an exchange after observing Mr. Taylor hold out a cupped hand for the other subject to view something, the trial court did not error in finding that the officer had reasonable suspicion to justify a stop of Mr. Taylor.

Counsel further argues that, even if the officer had reasonable suspicion to justify the stop, he failed to explain why he feared for his safety and immediately secured Mr. Taylor's hand. We disagree. Deference should be given to the experience of the policemen who were present at the time of the incident. An officer should react for his safety under the conditions and events as they occur. State v. Short, 96-1069 (La.App. 4 Cir. 5/7/97), 694 So.2d 549. Where an officer is in a high crime area and believes that a suspect is engaging in illegal activity, the officer could reasonably believe that he is in danger and that the suspect possesses a dangerous weapon, so that his pat down search of the defendant was proper under La.C.Cr.P. art. 215.1. Id.

Mr. Taylor pro se argues his arrest was illegal, that a defendant is entitled to resist an illegal arrest, and that the search incident to his illegal arrest was therefore illegal. Again we disagree. Mr. Taylor errs in that the initial stop is more properly categorized as an investigatory stop than an arrest. As such, if the officer had reasonable suspicion to justify the stop, then it was legal. Proceeding from there, if the officer reasonably believed he was in danger or that Mr. Taylor was armed, the officer could legally secure the hand which Mr. Taylor had put into his pocket. Subsequent struggle and an attempt to flee were sufficient for the officer to have probable cause that Mr.

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