State v. Temple

854 So. 2d 856, 2003 WL 22081382
Supreme Court of Louisiana·Decided September 9, 2003·No. 2002-K-1895·Published·Cited by 53 cases

Opinion

854 So.2d 856 (2003)

STATE of Louisiana
v.
Derek TEMPLE.

No. 2002-K-1895.

Supreme Court of Louisiana.

September 9, 2003.

*857 Richard P. Ieyoub, Attorney General, Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Catherine L. Bartholomew, Counsel for Applicant.

Sherry Watters, New Orleans, Counsel for Respondent.

*858 JOHNSON, Justice.

We granted this writ of certiorari to determine whether a search of defendant's female companion, which led to the discovery of contraband and defendant's subsequent arrest, was constitutional pursuant to the Fourth Amendment to the United States Constitution. After a thorough review of the record and the applicable law, we find that the contraband was seized without probable cause and should have been suppressed by the trial court. Accordingly, we affirm the decision of the court of appeal.

FACTS AND PROCEDURAL HISTORY

On October 18, 1996, at approximately 11:30 p.m., New Orleans Police Department officers Christopher Davis and Patrick Garner responded to a call of an attempted burglary in the 600 block of Felicity Street in the St. Thomas housing development. The victim of the alleged burglary attempt informed the officers that four individuals had attempted to enter her apartment without her permission. Officer Davis testified that he and Officer Garner canvassed the front and rear of the apartment building and observed four individuals sitting on a porch step. Officer Davis testified that he noticed that one of the individuals "quickly leaned against the wall" when he saw the officers. According to Officer Davis' testimony, he, Officer Garner, and a third officer, Officer Hudson Cutno, "formulated a plan to try to stop the persons to interview them for, ah, interview purpose or whatever ...." Officers Davis and Garner approached the group from one side of the building, and Officer Cutno approached the group from the other side.[1]

Upon seeing the officers, the only female in the group, Christine Johnson, sat down and defendant, Derek Temple, sat down next to her. Officer Davis testified that he observed defendant hand Johnson a white object, which Johnson quickly placed in her pocket and attempted to walk away.[2] At that point, all four individuals were detained by the police officers.

The officers subsequently called for assistance so that Johnson could be searched by a female officer.[3] Officer Lizell Brooks responded to the call and conducted a "pat-down" search of Johnson's person. Officer Brooks ultimately seized 141 pieces of rock cocaine and 60 bags of powder cocaine from Johnson's pocket. All four individuals were transported to the Sixth District station.

Officer Davis stated that upon their arrival at the station, Johnson told police that defendant had given her the object and told her to "hold it for him." Johnson and the other two subjects were not charged with any offense.

On February 6, 1997, the state charged defendant with one count of possession of cocaine with intent to distribute, in violation of R.S. 40:967(B)(1). On April 7,1997, the trial court denied defendant's motion to suppress the evidence and Johnson's statement. On April 30, 1997, a jury found defendant guilty as charged. Thereafter, *859 the state filed an habitual offender bill, and on September 10, 1997, the trial court adjudicated defendant a fourth felony offender. On November 7, 1997, the trial court sentenced defendant to life imprisonment without benefit of parole, probation, or suspension of sentence.

On appeal, counsel raised the sole issue of denial of motion for continuance,[4] but the court of appeal determined that no such motion had in fact been requested and thus, dismissed defendant's appeal for failing to assert any assignments of error for review. State v. Temple, 98-0571 (La. App. 4th Cir.6/30/99), 739 So.2d 1028 (not designated for publication). Subsequently, by order of the Fourth Circuit, the trial court granted defendant an out-of-time appeal on June 30, 2000.

Thereafter, the Fourth Circuit reversed defendant's conviction and sentence based on its determination that the officers did not have reasonable suspicion to stop and search the subjects, and thus, found that the trial court had erred in denying defendant's motion to suppress. State v. Temple, 01-1460 (La.App. 4th Cir.6/19/02). Following this adverse ruling, the state sought review in this Court. By order dated January 31, 2003, this Court granted the state's writ application. State v. Temple, 02-1895 (La.1/31/03), 836 So.2d 55.

DISCUSSION

The question of whether the evidence was properly admitted at defendant trial turns on two key factors: (1) whether the police officers had reasonable suspicion to make an investigatory stop of defendant and the other individuals sitting on the porch, and (2) whether the police officers had probable cause to search the individuals.

Although La.C.Cr.P. art. 215.1 permits an officer to stop a citizen in a public place and question him, the right to make such an investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, an offense. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 899 (1968); State v. Andrishok, 434 So.2d 389, 391 (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). Determining whether "reasonable, articulable suspicion" existed requires weighing all of the circumstances known to the police at the time the stop was made. State v. Williams, 421 So.2d 874, 875 (La.1982).

In making a brief investigatory stop on less than probable cause to arrest, the police "`must have a particularized and objective basis for suspecting the particular *860 person stopped of criminal activity.'" State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The police must therefore "articulate something more than an "`inchoate and unparticularized suspicion or "hunch."'" United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest.

In determining whether the police possessed the requisite "`minimal level of objective justification'" for an investigatory stop based on reasonable suspicion of criminal activity, Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585 (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)), reviewing courts "must look at the `totality of the circumstances' of each case," a process which "allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person.' " United States v. Arvizu,

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