State v. Washington

866 So. 2d 1058, 2004 WL 239877
Louisiana Court of Appeal·Decided February 10, 2004·No. 03-KA-1134·Published·Cited by 8 cases

Opinion

866 So.2d 1058 (2004)

STATE of Louisiana
v.
David WASHINGTON.

No. 03-KA-1134.

Court of Appeal of Louisiana, Fifth Circuit.

February 10, 2004.

Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Roger Jordan, Assistant District Attorneys, Gretna, LA, for appellee.

Bruce G. Whittaker, New Orleans, LA, for appellant.

Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and CLARENCE E. McMANUS.

CLARENCE E. McMANUS, Judge.

Defendant appealed his conviction and sentence resulting from a guilty plea pursuant to State v. Crosby, 338 So.2d 584(La.1976).

*1059 For the following reasons, we reverse the denial of the motion to suppress and vacate the conviction and sentence.

FACTS

Officer Nathan Getts and Sergeant Stephen Imbragulio, narcotics detectives with the New Orleans Police Department, testified that, on May 31, 2002 they were members of a take down unit conducting surveillance at 806 Darensburg Street in New Orleans. Other investigating officers witnessed narcotics transactions from the residence and were in the process of obtaining a search warrant or gathering enough information to obtain a search warrant for the residence. That day, a surveillance officer observed a blue pickup truck approach the front of the residence. A passenger, later identified as defendant, exited the truck and entered the residence briefly and returned to the pickup truck. That information was relayed to Officer Getts and Sergeant Imbragulio by surveillance officers.

Subsequently, Detective Harry Stovall, driving an unmarked vehicle, followed the truck in response to the information given to him by the surveillance officer. Officer Getts and Sergeant Imbragulio, driving an enforcement vehicle, also followed, positioning themselves in order to conduct a take down investigatory stop of the truck. Officer Getts opined that reasonable suspicion for the stop existed because the ongoing narcotics investigation led them to believe defendant had just engaged in a narcotics transaction and that he could potentially compromise the investigation by making a phone call to the residence under surveillance. Office Getts and Sergeant Imbragulio, while in Orleans Parish, activated their vehicle's lights and siren in order to stop the truck. The truck failed to initially stop and continued until it finally stopped in Jefferson Parish.

Sergeant Imbragulio approached the driver's side of the truck and Officer Getts approached the passenger side. As Officer Getts approached, he observed defendant making furtive movements toward his waistband and bending downward. Officer Getts, concerned by the situation, instructed defendant to exit the vehicle. Likewise, Sergeant Imbragulio instructed the driver to exit the vehicle. As defendant was exiting the vehicle, two pieces of wrapped aluminum foil, which Officer Getts recognized as the packaging of street level heroin, fell to the ground. The contents of the aluminum foil subsequently tested positive for heroin.

Officer Getts instructed defendant to place his hands on the vehicle. Meanwhile, Sergeant Imbragulio placed the driver under arrest after having observed two tinfoil packets inside the vehicle on the floor board. As Officer Getts was securing defendant against the car, defendant looked over his left shoulder and told Officer Getts, "Look out behind you." Officer Getts observed defendant move his hand to his waistband and, believing defendant was attempting to retrieve a weapon, wrestled defendant to the ground. As defendant hit the ground, a Walther PPK semi-automatic weapon fell to the ground. Officer Getts then handcuffed defendant.

Sergeant Imbragulio subsequently notified the Jefferson Parish authorities. Officer Brandon Boylan of the Jefferson Parish Sheriff's Office responded to the call. Officer Boylan then took defendant and the driver into custody and transported them to the Jefferson Parish Correctional Center. Officer Boylan got a statement from the defendant after obtaining a waiver of his constitutional rights.

On June 19, 2002, the Jefferson Parish District Attorney's Office filed a bill of information charging defendant, David Washington, with one count of possession *1060 of a controlled dangerous substance, to wit: heroin, in violation of La. Rs. 40:966(C) and one count of possession of a firearm by a convicted felon in violation of La. Rs. 14:95.1. On June 20, 2002, defendant was arraigned on the charges and entered a plea of not guilty.

On June 23, 2002, defendant filed various pretrial motions including a Motion to Suppress Confession, Identification, and Physical Evidence. A hearing on defendant's motion to suppress was held on January 21, 2003 and February 4, 2003. The motion was denied. On February 20, 2003, he plead guilty to both counts of the indictment.

In accordance with his plea agreement, defendant was sentenced to ten years of imprisonment at hard labor on count one, possession of heroin, and ten years of imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on count two, possession of a firearm by a convicted felon. The sentences were ordered to be served concurrently with one another and concurrently "with the sentence resulting from any parole revocation which occurred while [defendant was] awaiting trial in this matter." Thereafter, defendant filed a timely motion to appeal the trial court's ruling on the pretrial motions pursuant to State v. Crosby, 338 So.2d 584 (La.1976). This appeal followed.

DISCUSSION

Defendant argues the trial court erred in denying his motion to suppress because his actions of entering and exiting a residence under surveillance for drug activity, without more, did not provide officers with reasonable suspicion necessary to conduct an investigatory stop of the vehicle. The State responds that the police officers had reasonable suspicion to stop defendant because defendant exhibited suspicious behavior when he entered a residence which was under surveillance for drug activity.

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.C.Cr.P. art. 215.1 and federal and state jurisprudence. See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); 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); State v. Hicks, 98-1231 (La.App. 5 Cir. 3/30/99), 733 So.2d 652.

Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the facts of each case by determining whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. State v. Belton, supra; State v. Rosales, 537 So.2d 850 (La.App. 5 Cir. 1989); State v. Hicks, 733 So.2d at 655. The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances "giving deference to the inferences and deductions of a trained police officer." State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98, 101.

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State v. Washington, 866 So. 2d 1058, 2004 WL 239877 (La. Ct. App. 2004).

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