State v. Washington

725 So. 2d 587, 98 La.App. 5 Cir. 545, 1998 La. App. LEXIS 3653
Louisiana Court of Appeal·Decided December 16, 1998·No. No. 98-KA-545·Published·Cited by 1 cases

Opinion

bEDWARDS, Judge.

DefendanVappellant Ramos J. Washington1 appeals the trial court’s denial of his Motion to Suppress the evidence. As the evidence at issue was obtained in the course of performing a search pursuant to a lawful arrest, this assignment of error is without merit and the ruling of the trial court is hereby affirmed.

On October 1, 1996, the Jefferson Parish District Attorney filed a bill of information charging defendant Ramos J. Washington [589]*589with possession of cocaine in violation of LSA-R.S. 40:967(C).2 At the February 3, 1998 arraignment, defendant pled not guilty. Defendant filed a motion to suppress, which was denied after a hearing held on March 10, 1998. On the next day, the defendant withdrew his former plea of not guilty and pled guilty as charged, reserving his right to appeal the denial of his suppression motion pursuant to State v. Crosby, 338 So.2d 584 (La.1976). After a Boykin colloquy with defendant, the trial judge accepted defendant’s guilty plea and then imposed a sentence of three (3) years at hard labor, with credit for time served. The trial judge then suspended the sentence and placed defendant on three (3) years active probation, with special conditions. Defendant filed a timely motion for appeal on March 12, 1998, which the trial judge granted on March 16,1998.

On September 4, 1996, Jefferson Parish Sheriffs Office Deputies Norris, Brocato, Imbornone, Gaudet and Ramon were patrolling the high crime and high drug related areas of Monticello and Chesterfield streets. The officers attempted to detain Morial Dunn for suspected drug transactions, at which point he fled the officers and was finally detained in front of 1805 Hamilton Street. Mr. Dunn was charged with resisting arrest and possession of drugs.

While detaining Mr. Dunn, the officers noticed three men sitting in front of 1805 Hamilton Street, one of whom was armed with a weapon which he attempted to conceal. Officer Imbornone detained and arrested the man with the weapon, one Raymond Washington. Officers Brocato, Ramon and Gaudet ordered the two other men in front of the house to stop and remain where they were. The two men, Joseph Ernest and defendant Ramos Washington, disobeyed the officers’ order and swiftly walked towards the entry of 1805 Hamilton Street. Joseph Ernest swallowed small white substances while walking towards the entry to the house and was detained. These actions, along with the fact that Raymond Washington was armed with a deadly weapon and in possession of drugs, led the officers to enter 1805 Hamilton Street and detain appellant Ramos Washington.

Officers Norris and Brocato detained the defendant just inside the doorway of the residence, within arms reach of two weapons on the sofa. Mr. Washington kwas arrested for resisting an officer and upon search incident to arrest, a bag containing crack cocaine was found on his person. This is the evidence that the defendant desired to have suppressed at trial, claiming that he was subjected to an illegal search by the officers in question.

The defendant contends that the trial judge improperly denied his motion to suppress cocaine seized from his person during a search incident to arrest. The defendant argues that he was illegally arrested because the police lacked probable cause to arrest him, and thus, the search incident to arrest was unlawful. The state responds that the evidence was obtained as a result of a search incident to defendant’s lawful arrest for resisting an officer, LSA-R.S. 14:108.

The Fourth Amendment of the United States Constitution and Article I § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). A search conducted without a warrant issued upon probable cause is per se unreasonable, unless justified by a specific exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Moreno, 619 So.2d 62 (La.1993); State v. Lassere, 95-1009, p. 8 (La.App. 5 th Cir. 10/1/96), 683 So.2d 812, 817, writ denied, 96-2655 (La.4/18/97), 692 So.2d 445. When the constitutionality of a warrantless search is at issue on a motion to suppress, the state bears the burden of affirmatively showing that the search was justified under one of the exceptions to the warrant requirement. State v. Diaz-Rubio, 615 So.2d 1124, 1127 (La.App. 5th Cir.1993), writ denied, 93-1010 (La.9/30/94), 642 So.2d 866. One such exception is a search incident to a lawful arrest. [590]*590Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Green, 97-702 (La.App. 5th Cir. 12/30/97), 706 So.2d 536. An arrest is lawful when it is based on probable cause. State v. Raheem, 464 So.2d 293, 296 (La.1985). Conversely, an arrest without probable cause is illegal and the seizure of evidence pursuant thereto is also illegal. State v. Simmons, 95-309, p. 6 (La. App. 5 th Cir. 10/18/95), 663 So.2d 790, 794.

Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge, and of which he has reasonable, trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Scales, 93-2003, p. 6 (La. 5/22/95), 655 So.2d 1326, 1331, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996). An officer may make a warrantless arrest when the officer has probable cause to believe that the person to be arrested has committed an offense. State v. Green, supra; LSA-C.Cr.P. art. 213.

The defendant was arrested for resisting an officer, which is defined in LSA-R.S. 14:108 as follows:

§ 108. Resisting an officer
A. Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
B. (1) The phrase “obstruction of’ as used herein shall, in addition to its common meaning, signification, and connotation mean the following:
(a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
(b) Any violence toward or any resistance or opposition to the ^arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
(c) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
(d) Congregation with others on a public street and refusal to move on when ordered by the officer.

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State v. Washington, 725 So. 2d 587, 98 La.App. 5 Cir. 545, 1998 La. App. LEXIS 3653 (La. Ct. App. 1998).

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