State v. Whitehead

980 So. 2d 243, 2008 WL 902212
CourtLouisiana Court of Appeal
DecidedApril 2, 2008
Docket42,677-KA
StatusPublished
Cited by6 cases

This text of 980 So. 2d 243 (State v. Whitehead) 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. Whitehead, 980 So. 2d 243, 2008 WL 902212 (La. Ct. App. 2008).

Opinion

980 So.2d 243 (2008)

STATE of Louisiana, Appellee,
v.
Michael Vernard WHITEHEAD, Appellant.

No. 42,677-KA.

Court of Appeal of Louisiana, Second Circuit.

April 2, 2008.
Rehearing Denied April 24, 2008.

*245 Ross S. Owen, for Appellant.

J. Schuyler Marvin, District Attorney, John M. Lawrence, Robert R. Smith, Assistant District Attorneys, for Appellee.

Before WILLIAMS, STEWART and LOLLEY, JJ.

STEWART, J.

The defendant, Michael Vernard Whitehead, was charged by bill of information with possession of Schedule II CDS, cocaine, with intent to distribute, but the jury convicted him of the responsive verdict of possession of Schedule II CDS, cocaine. The defendant admitted to being a fourth felony offender, and the trial court sentenced him to 30 years at hard labor without benefit of parole, probation or suspension of sentence, with credit for time served. The defendant now appeals, urging two assignments of error. Finding merit in one of the assignments raised, we reverse the defendant's conviction and sentence.

FACTS

On December 30, 2005, the defendant was arrested after a rock of crack cocaine *246 was found in his pocket during an investigatory stop. During the night in question, Sergeant Richard McGee, the unit supervisor of the Bossier City Police Department's Street Crimes Interdiction Unit, was on patrol along with Bossier City Police Officers Adam Johnson and Darren Barkley using three different squad cars.

Officer McGee observed the defendant "engaged with a white female" on Scott Street. This was reportedly a "high crime" area, and Officer McGee decided to watch Mr. Whitehead and the unknown female. After watching the couple enter Mr. Whitehead's house and reemerge, Officer McGee requested other officers come to the scene. Officer McGee testified that as he and the other officers pulled up, the defendant and the female got in her car and were "shuffling around." The officers removed the defendant and the female from the car for officer safety. Officer McGee testified that he dealt with the white female while Officer Johnson patted down the defendant.

Officer Johnson testified that the defendant kept trying to put his hands in his pockets and that as he felt the outside of the defendant's right front pants pocket, he felt an object that resembled a razor blade. Officer Johnson testified that because of the defendant's past history, he was very cautious and peered inside the right pants pocket before reaching inside to ensure the razor blade was not sticking out in a way that would cut him. Officer Johnson then testified that the metal object was a little cross, but that he observed a white residue that he suspected to be crack cocaine. He did not inform the defendant of this discovery at the time due to concern for officer safety.

Officer Johnson testified that later, when he had more officers in the immediate area, he then retrieved the white substance from the defendant's pocket. Pursuant to a field test, the white substance tested positive for cocaine. The defendant was then arrested and taken to jail. During his booking at the jail, a plastic bag containing 24 rocks of crack cocaine fell out of his pants.

On the day of the trial, the defendant filed an oral motion to suppress the evidence found in the search because the existence of the videotapes from the search and arrest had just been provided the day before trial. After hearing arguments from counsel, the trial court denied the motion to suppress. Based upon evidence presented at trial, the jury convicted the defendant of the responsive charge of possession of cocaine.

DISCUSSION

The defendant argues that the trial court erred in denying his motion to suppress, because there was no reasonable suspicion to believe that he was engaged in criminal activity in order to justify an investigatory stop under Terry, infra. The defendant contends that there was no evidence of a hand-to-hand transaction between the defendant and the white female. The state alleges that suspicion of selling drugs, among other circumstances, provided reasonable suspicion to justify the investigatory stop.

A trial court's decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Normandin, 32,927 (La.App. 2d Cir.12/22/99); 750 So.2d 321. When reviewing a motion to suppress, it is important to determine who has the burden of proof and the proper standard of review.

According to La. C. Cr. P. art. 703(D), the state bears the burden of proof when a defendant files a motion to suppress *247 evidence obtained without a warrant. The entire record, including the testimony at trial, is reviewable for determining the correctness of a ruling on a pre-trial motion to suppress. State v. Young, 39,546 (La.App. 2d Cir.3/2/05), 895 So.2d 753, 757. Great weight is placed upon the trial court's determination, because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La.App. 2d Cir.5/8/96), 674 So.2d 1082, citing State v. Jackson, 26,138 (La.App. 2d Cir.8/17/94), 641 So.2d 1081. Accordingly, this court will review the district court's ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to its findings of law. State v. Hemphill, 41,526 (La.App. 2d Cir.11/17/06), 942 So.2d 1263, citing State ex rel. Thibodeaux v. State, 2001-2510 (La.3/8/02), 811 So.2d 875.

The Fourth Amendment of the Constitution of the United States guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. U.S. Const. Amend. IV. This amendment is made enforceable against the states through the Fourteenth Amendment. Article I, Section 5 of the Louisiana Constitution guarantees the right of the people to be secure in their person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. Searches and seizures conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment, except under a few specifically established and well-delineated circumstances. As this court explained in State v. Furlow, 34,339 (La.App. 2d Cir.2/28/01), 780 So.2d 602, 605-606, writ denied, XXXX-XXXX (La.3/15/02), 811 So.2d 895, one such exception includes investigatory stops by law enforcement and pat-downs for officer safety:

One such exception was recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which held that "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . .," the officer may briefly stop the suspicious person and make "reasonable inquiries" aimed at confirming or dispelling his suspicions. Id. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911.
Terry further held that, "[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may conduct a pat-down search "to determine whether the person is in fact carrying a weapon." 392 U.S.

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Cite This Page — Counsel Stack

Bluebook (online)
980 So. 2d 243, 2008 WL 902212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-whitehead-lactapp-2008.