State v. Wilson

758 So. 2d 356, 2000 WL 328213
CourtLouisiana Court of Appeal
DecidedMarch 15, 2000
Docket99-KA-2334
StatusPublished
Cited by5 cases

This text of 758 So. 2d 356 (State v. Wilson) 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. Wilson, 758 So. 2d 356, 2000 WL 328213 (La. Ct. App. 2000).

Opinion

758 So.2d 356 (2000)

STATE of Louisiana
v.
Calvin WILSON.

No. 99-KA-2334.

Court of Appeal of Louisiana, Fourth Circuit.

March 15, 2000.

William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, Attorney for Defendant/Appellant, Calvin Wilson.

Harry F. Connick, District Attorney, Holli Herrle-Castillo, Assistant District Attorney, New Orleans, LA, Attorneys for Plaintiff/ Appellee.

*357 Court composed of Judge MIRIAM G. WALTZER, Judge MOON LANDRIEU, Judge DENNIS R. BAGNERIS, Sr.

WALTZER, Judge.

Defendant, Calvin Wilson, appeals his conviction and sentence for possession of cocaine. Wilson argues that the trial court erred in denying his motion to suppress evidence seized after an illegal stop.

STATEMENT OF CASE

Calvin Wilson was charged by bill of information on 29 April 1997, with possession of cocaine, a violation of LSA-R.S. 40:967. On 21 May 1997, he entered a plea of not guilty. On 19 December 1997, the court denied Wilson's motion to suppress evidence, a medicine bottle filled with 30 rocks of crack cocaine. On 28 May 1998, a six-member jury found the defendant guilty as charged. On 9 July 1998, the court sentenced the defendant to thirty months in the Department of Corrections. That same day, the State filed a multiple bill, to which the defendant pled guilty. The court vacated the defendant's original sentence and re-sentenced him as a second felony offender pursuant to LSA-R.S. 15:529.1 to thirty months, concurrent with any other sentence being served.

STATEMENT OF FACTS

While on routine patrol on 3 February 1997, Officer Eduardo Colmenero and his partner, Officer Denise Miles, received a call from dispatch that an anonymous caller reported a "suspicious" person at the corner of Bienville and Gayoso Streets. The dispatcher described the suspect as a black male wearing a plaid shirt and white shorts, and "possibly" selling drugs. When Officers Colmenero and Miles arrived at the intersection, Lt. Robert McNeal met them. Officer Colmenero observed the defendant, fitting the description broadcast by the dispatcher, leave the corner and enter Adams grocery store. Officer Colmenero entered the store and asked the defendant to step outside. Once outside, the defendant became nervous and began to look as though he was going to run. However, the other two officers blocked his path. The officers ordered the defendant to put his hands on the patrol car so they could conduct a pat down for weapons. Officer Colmenero acknowledged that from his experience drugs and weapons are usually found together. The defendant, however, refused to extend his arms. Lt. McNeal conducted the pat down and discovered a medicine bottle tucked into the defendant's left armpit. The bottle contained 30 pieces of rock cocaine. The defendant became very agitated and refused to get into the patrol car. The officers arrested the defendant for possession of cocaine.

Officer John F. Palm, Jr., an NOPD criminologist and expert in the testing and analysis of controlled dangerous substances, testified that the contents of the medicine bottle retrieved from the defendant tested positive for cocaine.

Officer Denise Miles testified that she assisted in the defendant's arrest. The police dispatcher received an anonymous call concerning a black male selling drugs on the corner of Bienville and N. Gayoso Streets. When they arrived on the scene, the officers noticed the defendant, who was wearing clothing matching the dispatcher's description, enter Adams grocery store. Officer Colmenero walked into the store and brought the defendant back out to the patrol car. The defendant appeared nervous and looked as though he was going to run, so she and Lt. McNeal blocked his escape. For their safety, the officers ordered the defendant to submit to a pat down by opening his legs and extending his arms. The defendant refused to cooperate. Lt. McNeal conducted the pat down and discovered a medicine bottle tucked underneath the defendant's left arm. The defendant created a commotion and resisted arrest.

Lt. Robert McNeal testified for the State that he assisted in the arrest of the defendant. He heard the radio dispatch describing the clothing worn by a black *358 male selling drugs on the corner of Bienville and N. Gayoso Streets. Lt. McNeal proceeded to the location as back up for the arresting officers. He saw Officer Colmenero run into the grocery store and exit the store holding Wilson's pant's belt loop. The defendant fit the description given by the dispatcher. Lt. McNeal noted that the defendant was very nervous and uncooperative. Observing the defendant's posture and behavior, Lt. McNeal feared he might have a weapon so he patted the defendant down and discovered a medicine bottle tucked into the defendant's armpit.

Ronnie Hyde testified for the defense. He stated that he was standing in front of Adams grocery store when the police drove up and entered the store. When the police exited the store, they had the defendant handcuffed. Three officers searched the defendant but found nothing. The defendant did not resist the officers.

ERRORS PATENT

A review for errors patent of the record reveals none.

ASSIGNMENT OF ERROR Wilson argues that the trial court erred in refusing to suppress the evidence seized since the police officers lacked reasonable suspicion to stop him.

In State v.Huntley, 97-0865, p. 3 (La.3/13/98); 708 So.2d 1048, 1049, the Louisiana Supreme Court stated:

In making a brief investigatory stop on less than probable cause to arrest, the police "`must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" State v.Kalie, 96-2650, p. 3 (La.9/19/97); 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The police must therefore "articulate something more than an "`inchoate and unparticularized suspicion or "hunch."'" United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest. The police need have only "`some minimal level of objective justification....'" Sokolow, 490 U.S. 1, 7, 109 S.Ct. at 1585 (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)). A reviewing court must take into account the "totality of the circumstances -the whole picture," giving deference to the inferences and deductions of a trained officer that might well elude an untrained person. Cortez, 449 U.S. at 418, 101 S.Ct. at 695. The court must also weigh the circumstances known to the police `not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.'" Id."

In State v. Kalie,

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Bluebook (online)
758 So. 2d 356, 2000 WL 328213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilson-lactapp-2000.