27,188 La.App. 2 Cir. 8/23/95, State v. White

CourtCourt of Appeal of Louisiana (US)
Writing for the CourtSTEWART
Citation660 So.2d 515
Decision Date23 August 1995
Parties27,188 La.App. 2 Cir

Page 515

660 So.2d 515
27,188 La.App. 2 Cir. 8/23/95
STATE of Louisiana, Appellee
v.
Elbert WHITE, Jr., Appellant.
No. 27188-CA.
Court of Appeal of Louisiana,
Second Circuit.
Aug. 23, 1995.
Rehearing Denied Sept. 21, 1995.

Page 517

Indigent Defender Board, Edward F. Jones, Shreveport, for appellant.

Paul J. Carmouche, District Attorney, Michael A. Pitman, Asst. District Attorney, Trial Attorney, Shreveport and Tommy J. Johnson, Asst. District Attorney, Counsel on Appeal, Shreveport, for appellee.

Before MARVIN, SEXTON and STEWART, JJ.

STEWART, Judge.

Defendant, Elbert White, Jr., was charged by bill of information with one count of possession with intent to distribute a schedule II controlled dangerous substance (cocaine), a

Page 518

violation of LSA-R.S. 40:967A(1). A unanimous jury convicted him as charged. The state subsequently charged defendant as a third felony offender pursuant to LSA-R.S. 15:529.1. After a hearing, the trial court adjudicated him a third felony offender and sentenced him to life imprisonment without benefit of parole, probation, or suspension of sentence. He appeals his conviction and sentence and assigns ten errors, three of which have not been argued. We affirm.

FACTS

On August 25, 1993, Officer D.E. McDaniels of the Shreveport Police Department was patrolling the Allendale area of Shreveport. Officer McDaniels, a fourteen-year veteran of the police force, had patrolled this area for over ten years and was very familiar with its reputation as a high crime area involving drug activity. He had also performed undercover drug transactions and was familiar with the procedure.

Officer McDaniels saw the defendant conduct what appeared to be a drug transaction with an individual at a vacant lot at the corner of Webster and Ford Streets. However, because of insufficient back-up, he did not arrest defendant and continued to patrol this area over the next several days. Officer McDaniels also returned to the area a day or two later and warned defendant that the police were suspicious of his actions and would continue to watch him.

On August 28, 1994, Officer McDaniels returned again to the vacant lot, this time accompanied by seven or eight other police officers in an "organized routine patrol strike" to conduct field interviews and an investigation. Once they arrived in the area, the police approached the vacant lot from both the front and back. Defendant and several other people were sitting on blankets at the vacant lot when the police arrived. Upon seeing the police, defendant immediately stood up, took several steps, and then began to run. The police gave chase on foot, but did not draw their weapons.

Defendant ran toward a wooded area near one side of the vacant lot. Several officers pursued defendant, who continued to run from the area. Another police officer radioed the location of the defendant to officers in other nearby patrol cars. One of the pursuing officers, David Pickett, saw defendant take money from his right pants pocket and exchange it to his left hand as he was running.

Officer Dianne Thomas, who received the radio message that defendant was running in her direction, stopped and backed up her car. At that time, defendant emerged from a nearby alley and ran into Officer Thomas' car, knocking defendant to the ground. At about the same time, Officer McDaniels saw defendant throw down a matchbox and some money from his left hand. Officer Pickett saw defendant discard only the money.

The defendant stood up and began to run again, but Officer Pickett apprehended him. Officer McDaniels picked up the matchbox and looked inside to discover what he suspected to be illegal drugs. Officer Pickett conducted a field test on the substance and confirmed it to be 4.4 grams of crack cocaine. Testimony at trial revealed that possession of this amount of cocaine at one time was inconsistent with personal usage and was instead consistent with usage for distribution purposes.

DISCUSSION

Assignment No. 1: Trial court erred by not granting defendant's motion to suppress evidence.

In this assignment of error, defendant contends that the trial court erred by failing to grant his motion to suppress the evidence. Specifically, he contends that the Shreveport police had no reasonable grounds or probable cause to stop, detain, or search him and that the warrantless search was a violation of his constitutional rights. Thus, defendant avers that the abandoned matchbox containing the cocaine should have been suppressed.

The right of law enforcement officers to temporarily detain and interrogate persons reasonably suspected of criminal activity is well established. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Fauria, 393 So.2d 688 (La.1981); State v. Taylor, 363 So.2d 699 (La.1978); LSA-C.Cr.P. Art. 215.1. The right to make

Page 519

an investigatory stop must be based on reasonable cause to believe that the suspect has been, is, or is about to be engaged in criminal activity. State v. Washington, 621 So.2d 114 (La.App. 2d Cir.), writ denied, 626 So.2d 1177 (La.1993); State v. Patterson, 588 So.2d 392 (La.App. 4th Cir.1991); State v. Thibodeaux, 531 So.2d 284 (La.App. 3d Cir.1987). Reasonable cause for an investigatory stop is something less than probable cause, but the officer must have "articulable knowledge" of particular facts which, in conjunction with reasonable inferences drawn therefrom, provide reasonable grounds to suspect the detainee of criminal activity. State v. Flowers, 441 So.2d 707 (La.1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984); State v. Washington, supra; State v. Thibodeaux, supra; State v. Rodriguez, 396 So.2d 1312 (La.1981). Whether an officer has a reasonable suspicion to make an investigatory stop should be determined under a totality of the circumstances, in light of the officer's experience, training, and common sense. The officer's experience may be a consideration in ascertaining whether his inferences from the given facts were reasonable. State v. Jackson, 26,138 (La.App. 2d Cir. 08/17/94), 641 So.2d 1081; State v. Leary, 627 So.2d 777 (La.App. 2d Cir.1993), writ denied, 93-3187 (La. 03/25/94), 635 So.2d 237.

Flight, a furtive gesture, nervousness, or startled behavior at the sight of a police officer is not, by itself, sufficient to justify an investigatory stop. However, this type of conduct may be a factor leading to a finding of reasonable cause. State v. Jackson, supra. Further, presence in a high crime area, coupled with nervousness or flight or suspicious actions upon approach of the officers is sufficient to justify an investigatory stop. State v. Taylor, 363 So.2d 699 (La.1978); State v. Jackson, supra. Such a high crime area is a place in which the character of the area gives color to conduct which might not otherwise raise the suspicion of an officer. State v. Buckley, 426 So.2d 103 (La.1983).

When police officers make an investigatory stop without legal justification, property abandoned or otherwise disposed of as a result thereof cannot be legally seized. However, if the property is abandoned without any prior unlawful intrusion into a person's right to be free from government interference, then such property may be lawfully seized. 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).

When reviewing a ruling on a motion to suppress, based on findings of fact, great weight is afforded to the trial court's determination, as it had the opportunity to observe the witnesses and to weigh the credibility of their testimony. State v. Jackson, supra.

Applying the facts of the case at bar to these legal principles, we conclude that the trial court was correct in denying defendant's motion to suppress. Officer McDaniels was a fourteen-year veteran of the Shreveport Police Department and had worked in the Allendale area for over ten years. He had substantial experience in drug enforcement in this area and knew of its reputation as a high crime area. Officer McDaniels had observed defendant three days prior to the date of arrest conducting what appeared to be a drug transaction at the vacant lot. He had also warned defendant of his suspicions one or two days prior to the arrest. Because of Officer McDaniels' previous observations of possible drug trafficking, he returned to the vacant lot with additional police officers to conduct an "organized routine patrol-type strike" to further investigate. Upon seeing the police arrive at the vacant lot, defendant stood up, took a few steps, and then began to run. At that point, defendant's prior suspected conduct, his immediate flight, and his presence in a high crime area all provided the police reasonable suspicion to justify an investigatory stop. As a result, the matchbox containing the crack cocaine was abandoned without any prior unlawful intrusion into defendant's right to be free from government interference. Because this evidence was lawfully seized, this assignment is without merit.

Defendant argues that his case is factually similar to State v. Tucker, 626 So.2d 707 (La.1993). In the Tucker case, the court

Page 520

noted its previous holding that a seizure violates LSA-Const. Art. 1 § 5 if the police, without reasonable suspicion, either actually stop an individual or create a situation wherein an actual stop is imminent. Clearly, the police in this case had reasonable suspicion to stop defendant when they observed defendant run when he saw the police arrive at the vacant lot.

Assignment No. 2: Trial court erred by not granting defendant's pro se motion to quash.

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17 practice notes
  • 31,078 La.App. 2 Cir. 9/23/98, State v. Wafer
    • United States
    • Court of Appeal of Louisiana (US)
    • September 23, 1998
    ...establishes, and both may press upon the jury any view arising out of the evidence. State v. White, 27,188 (La.App.2d Cir.8/23/95), 660 So.2d 515; State v. Kennon, 588 So.2d 1348 (La.App. 2d Cir.1991), writ denied, 600 So.2d 634 (La.1992); State v. Mills, 505 So.2d[31,078 La.App. 2 Cir. 15]......
  • 94-1423 La.App. 4 Cir. 11/13/96, State v. Addison
    • United States
    • Court of Appeal of Louisiana (US)
    • November 13, 1996
    ...in determining if his inferences from the facts at hand were reasonable. State v. White, 27,188, p. 3 (La.App.2d Cir. 8/23/95), 660 So.2d 515, 519. Once an individual is stopped, an officer may make a protective search of the suspect for his own safety and the safety of others. La.Code Crim......
  • 29,369 La.App. 2 Cir. 5/7/97, State v. Keys
    • United States
    • Louisiana Court of Appeal
    • May 7, 1997
    ...are unable to declare that the instant life sentence is constitutionally excessive. See State v. White, 27,188 (La.App. 2d Cir. 8/23/95), 660 So.2d 515; State v. Lewis, 576 So.2d 1106 (La.App. 3rd Cir.), writ denied 580 So.2d 669 (1991). This assignment does not present reversible Error Pat......
  • 30,733 La.App. 2 Cir. 7/06/98, State v. Branch
    • United States
    • Court of Appeal of Louisiana (US)
    • July 6, 1998
    ...conduct may be highly suspicious and contribute to a finding of reasonable suspicion. State v. White, 27,188 (La.App.2d Cir. 8/23/95), 660 So.2d 515. The suspect's presence in a high-crime area, coupled with flight and the other factors described above, may also contribute to reasonable sus......
  • Request a trial to view additional results
17 cases
  • 31,078 La.App. 2 Cir. 9/23/98, State v. Wafer
    • United States
    • Court of Appeal of Louisiana (US)
    • September 23, 1998
    ...establishes, and both may press upon the jury any view arising out of the evidence. State v. White, 27,188 (La.App.2d Cir.8/23/95), 660 So.2d 515; State v. Kennon, 588 So.2d 1348 (La.App. 2d Cir.1991), writ denied, 600 So.2d 634 (La.1992); State v. Mills, 505 So.2d[31,078 La.App. 2 Cir. 15]......
  • 94-1423 La.App. 4 Cir. 11/13/96, State v. Addison
    • United States
    • Court of Appeal of Louisiana (US)
    • November 13, 1996
    ...in determining if his inferences from the facts at hand were reasonable. State v. White, 27,188, p. 3 (La.App.2d Cir. 8/23/95), 660 So.2d 515, 519. Once an individual is stopped, an officer may make a protective search of the suspect for his own safety and the safety of others. La.Code Crim......
  • 29,369 La.App. 2 Cir. 5/7/97, State v. Keys
    • United States
    • Louisiana Court of Appeal
    • May 7, 1997
    ...are unable to declare that the instant life sentence is constitutionally excessive. See State v. White, 27,188 (La.App. 2d Cir. 8/23/95), 660 So.2d 515; State v. Lewis, 576 So.2d 1106 (La.App. 3rd Cir.), writ denied 580 So.2d 669 (1991). This assignment does not present reversible Error Pat......
  • 30,733 La.App. 2 Cir. 7/06/98, State v. Branch
    • United States
    • Court of Appeal of Louisiana (US)
    • July 6, 1998
    ...conduct may be highly suspicious and contribute to a finding of reasonable suspicion. State v. White, 27,188 (La.App.2d Cir. 8/23/95), 660 So.2d 515. The suspect's presence in a high-crime area, coupled with flight and the other factors described above, may also contribute to reasonable sus......
  • Request a trial to view additional results

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