State v. Washington

778 So. 2d 1252, 0 La.App. 4 Cir. 0619, 2001 La. App. LEXIS 209, 2001 WL 128043
CourtLouisiana Court of Appeal
DecidedJanuary 31, 2001
DocketNo. 2000-KA-0619
StatusPublished

This text of 778 So. 2d 1252 (State v. Washington) 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. Washington, 778 So. 2d 1252, 0 La.App. 4 Cir. 0619, 2001 La. App. LEXIS 209, 2001 WL 128043 (La. Ct. App. 2001).

Opinion

11 KIRBY, Judge.

The defendant, Mertis Washington, was charged by bill of information with possession of crack cocaine, a violation of La. R.S. 40:967. He was arraigned on September 11, 1998, and pled not guilty. He filed a motion to suppress evidence, which was denied October 23, 1998. On August 11, 1999, a six member jury found defendant guilty as charged. The State filed a multiple bill accusing him of being a third offender. The defendant pled guilty to the multiple bill and was sentenced to forty months at hard labor. The defendant now appeals.

A review of the record for errors patent reveals none.

Detective Paul Noel testified that he was on routine patrol with his partner Ronnie Stevens in the 8500 block of Hickory Street at 1:00 a.m. on September 1, 1998. He saw the defendant sitting on the steps of an abandoned house in the very spot where he had made many arrests in the past. The area is near a bar and people stand outside drinking from open containers. The police often receive complaints from the neighbors. The officers put on their lights and decided to stop the defendant to ask why he was sitting on the steps of an abandoned house. The defendant saw the police, looked startled, stepped off of the steps, pitched a small object to the sidewalk, and started to walk away. Stevens detained him while Noel ^picked up the object, a crack pipe. The defendant was then placed under arrest. A search incident thereto produced a piece of crack cocaine.

The defendant took the stand and admitted to convictions for forgery and burglary. He said that on the morning of September 1, 1998, he and his wife were leaving the Bus Stop Lounge to return to their house in the next block. According to defendant, the police pulled up and two youngsters ran away. The defendant went to get his wife a cold drink to eat with her supper. The police stopped him, and the defendant told them to search him. The officers searched the area and found the pipe and the crack. The defendant denied possessing either.

In the first assignment of error, the defendant argues the trial court erred in denying the motion to suppress evidence.

It has long been held that property cannot be seized legally if it was abandoned pursuant to an infringement of the person’s rights. However:

if ... property is abandoned without any prior unlawful intrusion into a citizen’s right to be free from government interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person’s custodial rights.

State v. Belton, 441 So.2d 1195, 1199 (La.1983), cert. den. Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). See also State v. Britton, 93-1990 (La.1/27/94), 633 So.2d 1208; State v. Tucker, 626 So.2d 707 (La.1993), opinion reaffirmed and reinstated on rehearing by 626 So.2d 720 (La.1993); State v. Dennis, 98-1016 (La.App. 4 Cir. 9/22/99), 753 So.2d 296; State v. Laird, 95-1082 (La.App. 4 Cir. 5/8/96), 674 So.2d 425. As noted by the Court in Britton: “the police do not need probable cause to arrest or reasonable suspicion for an investigatory stop every time they approach a citizen in a [1255]*1255public place.” Britton, 93-1990 at p. 2, 633 So.2d at 1209.

13An “actual stop” occurs when an individual submits to a police show of authority or is physically contacted by the police. State v. Tucker, supra. An “imminent actual stop” occurs when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain. Id. The Supreme Court listed the following factors to be considered in assessing the extent of police force employed in determining whether that force was “virtually certain” to result in an “actual stop” of the individual: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter. Id. An actual stop is imminent “when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain.” Tucker, 626 So.2d at 712.

Here, we do not find that there was an actual immediate stop at the point when the defendant threw down the pipe. At that point, all the officers had done was to shine their light. The two officers had not surrounded the defendant, nor had they drawn their weapons. However, once the defendant threw down the pipe, the officers had reasonable suspicion for a stop.

In State v. Sneed, 95-2326, p. 3 (La.App. 4 Cir. 9/11/96), 680 So.2d 1237, 1238, unit denied 96-2450 (La.3/7/97), 689 So.2d 1371, this court discussed the standard for determining if officers have reasonable suspicion to support an investigatory stop:

14An individual may be stopped and questioned by police if the officer has a reasonable suspicion that the person “is committing, has committed, or is about to commit an offense.” La.Code Crim. Proc. Ann. art. 215.1. While “reasonable suspicion” is something less than the probable cause needed for an arrest, it must be based upon particular articu-lable facts and circumstances known to the officer at the time the individual is approached. State v. Smith, 94-1502, p. 4 (LaApp. 4th Cir.1/19/95), 649 So.2d 1078, 1082. The officer’s past experience, training and common sense may be considered in determining if the inferences drawn from the facts presented were reasonable. State v. Jackson, 26,-138 (La.App.2nd Cir. 8/17/94), 641 So.2d 1081, 1084.

See also State v. Smiley, 99-0065 (La.App. 4 Cir. 3/3/99), 729 So.2d 743, writ denied, 99-0914 (La.5/14/99), 743 So.2d 651; State v. Allen, 95-1754 (La.9/5/96), 682 So.2d 713.

In this case, when the officers shone the light on the defendant, he appeared startled, threw the pipe to the ground and started to walk away. We find that the officers had reasonable suspicion to stop the defendant at that time. Once they picked up the pipe, they had probable cause to arrest the defendant.

In State v. Simms, 571 So.2d 145, 148-149 (La.1990), the court made a full and comprehensive statement of the elements and qualities of probable cause, as follows:

Probable cause to arrest exists when the facts and circumstances within the officer’s knowledge are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Wilson, 467 So.2d 503 (La.1985). The determination of probable cause, although requiring something more than bare suspicion, does not require evidence sufficient to support a conviction. Probable cause, as the very [1256]*1256name implies, deals with probabilities.

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Related

Brinegar v. United States
338 U.S. 160 (Supreme Court, 1949)
Beck v. Ohio
379 U.S. 89 (Supreme Court, 1964)
Gerstein v. Pugh
420 U.S. 103 (Supreme Court, 1975)
State v. Parker
622 So. 2d 791 (Louisiana Court of Appeal, 1993)
State v. Jackson
641 So. 2d 1081 (Louisiana Court of Appeal, 1994)
State v. Smiley
729 So. 2d 743 (Louisiana Court of Appeal, 1999)
State v. Simms
571 So. 2d 145 (Supreme Court of Louisiana, 1990)
State v. Ogden
391 So. 2d 434 (Supreme Court of Louisiana, 1980)
State v. Laird
674 So. 2d 425 (Louisiana Court of Appeal, 1996)
State v. Sneed
680 So. 2d 1237 (Louisiana Court of Appeal, 1996)
State v. Rodrigue
437 So. 2d 830 (Supreme Court of Louisiana, 1983)
State v. Wilson
467 So. 2d 503 (Supreme Court of Louisiana, 1985)
State v. Allen
682 So. 2d 713 (Supreme Court of Louisiana, 1996)
State v. Tucker
626 So. 2d 720 (Supreme Court of Louisiana, 1993)
State v. Tucker
626 So. 2d 707 (Supreme Court of Louisiana, 1993)
State v. Smith
649 So. 2d 1078 (Louisiana Court of Appeal, 1995)
State v. Belton
441 So. 2d 1195 (Supreme Court of Louisiana, 1983)
State v. Britton
633 So. 2d 1208 (Supreme Court of Louisiana, 1994)
State v. Dennis
753 So. 2d 296 (Louisiana Court of Appeal, 1999)
State v. Tolliver
714 So. 2d 1273 (Louisiana Court of Appeal, 1998)

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Bluebook (online)
778 So. 2d 1252, 0 La.App. 4 Cir. 0619, 2001 La. App. LEXIS 209, 2001 WL 128043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-washington-lactapp-2001.