State v. Tolliver

556 So. 2d 166, 1990 WL 5429
CourtLouisiana Court of Appeal
DecidedJanuary 17, 1990
Docket89-KA-585
StatusPublished
Cited by5 cases

This text of 556 So. 2d 166 (State v. Tolliver) 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. Tolliver, 556 So. 2d 166, 1990 WL 5429 (La. Ct. App. 1990).

Opinion

556 So.2d 166 (1990)

STATE of Louisiana
v.
Marvin D. TOLLIVER.

No. 89-KA-585.

Court of Appeal of Louisiana, Fifth Circuit.

January 17, 1990.

*167 James C. Lawrence, New Orleans, for appellant.

John M. Mamoulides, Dist. Atty., Ronald Gracianette, Dorothy A. Pendergast, Asst. Dist. Attys. (Louise Korns, of counsel, Office of the Dist. Atty.), Gretna, for appellee.

Before CHEHARDY, GRISBAUM and DUFRESNE, JJ.

CHEHARDY, Chief Judge.

Marvin Tolliver was charged with one count of possession of five grams of crack cocaine, under LSA-R.S. 40:967. Initially he pleaded not guilty to the charge and filed a motion to suppress evidence of the seized drug on the basis that it was unlawfully obtained without a search warrant and without probable cause. After hearing the district court denied Tolliver's motion to suppress, reasoning that the cocaine was inadvertently discovered in the course of a valid investigatory stop.

Tolliver changed his plea to guilty but reserved his right to appeal the district court ruling on the motion to suppress. State v. Crosby, 338 So.2d 584 (La. 1976). After conduct of a thorough colloquy in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the district judge accepted Tolliver's guilty plea and sentenced him to serve 18 months in the parish prison. The sentence was suspended and Tolliver was placed on active probation for two years. He was also required to satisfy a $500 fine, court costs and administrative fees. LSA-C. Cr.P. art. 895.1.

In this appeal Tolliver argues that the district court committed reversible error in denying his motion to suppress the cocaine, because the evidence was illegally seized in violation of his Fourth Amendment rights. We hold that on the evidence presented the district court correctly denied defendant's motion to suppress.

THE EVENT

The evidence introduced at the suppression hearing took the form of testimony from veteran police officers Lt. David Bujol and Sgt. Henry Saacks. On March 2, 1989 at 9:30 p.m. the officers were patroling East Jefferson in an unmarked car. As they traveled westbound toward Kenner in the left lane of Airline Highway they observed a white Buick Regal headed west in the right lane, four car lengths ahead of them. As the Buick passed a Time Saver in the 4100 block of Airline Highway, the driver, later identified as the defendant Tolliver, reduced his speed from 40 to 5 miles per hour. Lt. Bujol described the car as proceeding "at a slow pace" moving almost "to a crawl." Both Tolliver and his passenger, Reginald Harris, stared intently into the store, turning their heads completely to the right.

The Buick continued west on Airline Highway through the Clearview Parkway intersection. At the corner of Phlox Street and Airline, the car repeated the slow-down maneuver, reducing its speed to 5 miles per hour as it passed a Circle K convenience store. Both occupants of the vehicle carefully scanned the store as they drove past. The police officers' suspicions were aroused. Lt. Bujol testified that this area of Airline Highway is a high crime location due to the ease of flight from the area via Earhart Expressway. Both convenience stores had been the sites of numerous robberies. Sgt. Saacks stated that the actions of Tolliver and Harris, slowing the car and staring fixedly into the store windows, were consistent with a suspect's "casing" a potential robbery site.

Continuing toward Kenner, the Buick slowed to 5 miles per hour as it passed a Texaco service station. Tolliver and Harris stared into the station until their vehicle was well past it. Lt. Bujol was forced to speed up to relieve traffic congestion which had built up behind the two vehicles. As he did so Tolliver and Harris noticed the *168 car and Sgt. Saacks in uniform in the passenger seat. The Buick maintained a five to ten-mile-per-hour speed. Lt. Bujol was able to reduce his speed to drop behind the Buick which then moved to the left traffic lane in front of the police car. The officers requested a radio check of the vehicle license plate. It revealed that the car had not been reported stolen but was registered to Kay Tolliver.

At the David Drive intersection the Buick turned left and proceeded to Earhart Expressway. Both officers found this route highly suspicious in that a driver traveling west on Airline Highway who wanted to access Earhart Expressway could have done so at Clearview Parkway. The officers stopped the vehicle to investigate.

As the Buick stopped, defendant Tolliver got out of the car and locked the door. Harris got out of the passenger side door and moved to the rear of the vehicle. Lt. Bujol asked the men where they were going. Tolliver replied that they were going for a ride; Harris said they were looking for Tolliver's sister. A pat-down search of both men revealed no weapons.

In response to Sgt. Saacks' request, Tolliver produced his driver's license. Sgt. Saacks asked for the vehicle registration and Tolliver stated that it was in the glove compartment. Before having Tolliver retrieve the registration, Sgt. Saacks asked him if there was a gun in the car. Tolliver said that there was a gun in the front seat under the arm rest. Sgt. Saacks asked Tolliver if the officers could take possession of the gun and he agreed. Lt. Bujol entered the passenger side of the vehicle. He observed a .38 revolver partially sticking out from beneath the arm rest. He lifted the arm rest and picked up the hand gun. Beneath the gun he saw an open black coin purse. Inside the purse he saw a clear plastic bag containing a white rock-like substance which he recognized as crack cocaine. Lt. Bujol secured the hand gun, seized the purse and placed Tolliver and Harris under arrest.

THE ANALYSIS

In denying Tolliver's motion to suppress, the district court found that the investigatory stop was reasonable. The entry into the car to remove the weapon was justified and the contraband was in plain view when seized. Tolliver challenges these findings on appeal.

I

The Constitution of the United States forbids unreasonable searches and seizures. U.S. Const.Amend. 4. The Louisiana Constitution extends this protection to prohibit the invasion of an individual's privacy. La. Const. 1974, Art. 1 § 5. When, as in this case, the seizure occurs in the absence of a warrant, the unreasonableness of the search must be proved by the State. We find that here the State has borne its burden of proof.

We do not suscribe to defendant's contentions in brief that the initial stop was invasive, and that therefore the search for the gun unjustified and the seizure of the cocaine illegal. The officers' initial approach was not a routine traffic stop and this appeal is not governed by Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), and its progeny. See, e.g., State v. Church, 538 So.2d 993 (La. 1989). Rather we find this case governed by both the facts and analysis of Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the classic "stop and frisk" case.

In Terry a veteran police officer observed two men repeatedly passing and staring into a store window for 10 to 12 minutes. He approached the men, identified himself and asked for their names. Incident to this investigatory stop the officer conducted a frisk — a pat-down search of the men for weapons.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Martinez
874 So. 2d 272 (Louisiana Court of Appeal, 2004)
State v. Martin
738 So. 2d 98 (Louisiana Court of Appeal, 1999)
State v. Gresham
712 So. 2d 946 (Louisiana Court of Appeal, 1998)
State v. Sanders
717 So. 2d 234 (Louisiana Court of Appeal, 1998)
State v. Barre
592 So. 2d 440 (Louisiana Court of Appeal, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
556 So. 2d 166, 1990 WL 5429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tolliver-lactapp-1990.