96-787 La.App. 3 Cir. 12/11/96, State v. Purvis

• Decision Date: 11 December 1996
• Citation: 684 So.2d 567
• Parties: 96-787 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 567

684 So.2d 567

96-787 La.App. 3 Cir. 12/11/96

STATE of Louisiana, Plaintiff-Appellee, v. Demond Issac PURVIS, Defendant-Appellant.

No. 96-787.

Court of Appeal of Louisiana Third Circuit.

Dec. 11, 1996.

Glenn G. Cortell, Charles F. Wagner, District Attorney, for State of Louisiana.

Michael Brewer, Alexandria, for Demond Issac Purvis.

Before THIBODEAUX, PETERS, and GREMILLION, JJ.

[96-787 La.App. 3 Cir. 1] GREMILLION, Judge.

Defendant, Demond Issac Purvis, was charged by bill of information on March 20, 1995, with possession of between 28 to 200 grams of a controlled dangerous substance, a violation of La.R.S. 40:967 F(1)(a). Defendant waived formal arraignment and entered a plea of not guilty on April 28, 1995. A jury convicted defendant on December 13, 1995. On March 1, 1996, defendant was sentenced to seven years at hard labor without benefit of parole. Defendant now appeals his conviction, alleging that the trial court erred in denying his motion to suppress evidence.

FACTS

On February 9, 1995, at approximately 7:00 p.m., Officers Robert Strother and Daniel Joffrion of the Alexandria Police Department were patrolling the twelve hundred block of Magnolia Street, a high crime drug area. They observed defendant and Charles Dupars, a/k/a Willie Jenkins, enter a taxicab. Officer Strother [96-787 La.App. 3 Cir. 2] recognized defendant because he had arrested him before. The officers followed the cab because they thought it was unusual that defendant was outside of his known area and they had never seen him in a cab before. The officers turned onto a side road and Officer Joffrion got out of the patrol car and walked up the street in order to observe the cab. Officer Joffrion saw two black males get into the cab. As the officers continued to follow the cab, they noticed the light on its license plate was not shining. Based on their previous history with defendant, they called for backup units before they stopped the cab. They then stopped the cab for the traffic violation.

As Officer Strother was talking to the cab driver, Walter Tiffy, at the rear of the vehicle, he observed that Dupars was staring at him and sweating. Meanwhile, Officer Joffrion was observing the defendant. Officer Strother asked Dupars to step out of the vehicle. According to Officer Strother, Dupars was highly nervous and was shaking in a manner similar to a semi-epileptic seizure. Officer Strother then conducted a pat down of Dupars. As he was leaning down to frisk Dupars, he saw a plastic bag containing a white object in the pocket of Dupars' flight jacket which was later determined to be crack cocaine. Officer Strother asked Dupars who owned the contraband. Dupars told him it belonged to defendant who was still in the cab. Officer Joffrion then searched defendant, but did not discover any other contraband. Officer Strother arrested Dupars and defendant for possession of crack cocaine.

ASSIGNMENT OF ERROR

Defendant contends the trial court erred in denying his motion to suppress the evidence. He first argues the officers had no legal basis to stop the taxicab. He contends the fact that the license plate light was dim from a distance of ninety feet did not violate La.R.S. 32:304(C) which requires that the license plate be visible from a distance of fifty feet to the rear. The defendant further asserts that Officer Strother conceded he could possibly read the numbers on the license plate at the point when he [96-787 La.App. 3 Cir. 3] activated his blue lights and could read the license plate when he stopped the vehicle. Under Article 1, § 5 of the Louisiana Constitution, any party adversely affected by an illegal search or seizure, has standing to raise the illegality of the search. State v. Gibson, 391 So.2d 421 (La.1980); State v. Owen, 453 So.2d 1202 (La.1984); State v. Smith, 546 So.2d 538 (La.App. 1 Cir.1989), writ denied, 552 So.2d 393 (La.1989). Therefore, defendant has standing to raise a possible violation of the constitutional rights of the cab driver.

When the trial court issues a ruling on a defendant's motion to suppress, the appellate court looks at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a ruling unless the trial court's conclusions are not supported by the evidence or there exists a palpable or obvious abuse of discretion. State v. Burkhalter, 428 So.2d 449 (La.1983), and State v. Rios, 528 So.2d 163 (La.App. 3 Cir.), writ denied, 530 So.2d 83 (La.1988).

An individual cannot be stopped in his automobile by a police officer, without a warrant, unless the officer has a reasonable suspicion that the individual has committed, is committing, or is about to commit a criminal offense, including the violation of a traffic regulation. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660, (1979); State v. Matthews, 366 So.2d 1348 (La.1978); State v. Dillon, 95-884 (La.App. 3 Cir. 1/31/96); 670 So.2d 278; State v. Fisher, 94-603 (La.App. 3 Cir. 11/2/94); 649 So.2d 604, writ denied, 94-2930 (La.4/7/95); 652 So.2d 1344. Officer Strother testified at the suppression hearing that he was about ninety feet away from the taxicab when he first observed the traffic violation. Officer Joffrion testified the license plate light was burning but the light had been painted yellow and was so dim it could not be seen. The question of whether or not the light was visible from a distance of ninety feet or fifty feet is irrelevant since the trial judge necessarily must have considered the initial stop to be legally valid and determined the officers had reasonable suspicion that [96-787 La.App. 3 Cir. 4] the taxicab driver was violating a traffic regulation. We agree. La.R.S. 32:304(C) provides in pertinent part:

Either a tail lamp or a separate lamp shall be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of 50 feet to the rear. (emphasis added).

The trial court gave credence to the testimony of the officers. It is within the trial court's discretion to make factual determinations based upon the credibility of the witnesses. Those determinations are not to be disturbed on appeal absent a showing of clear abuse of discretion. State v. Robertson, 421 So.2d 843 (La.1982); Fisher, 649 So.2d 604. We hold there was a technical violation, however slight, of La.R.S. 32:304(C) and, therefore, find the trial court did not commit error in holding the stop to be constitutionally valid.

Defendant next contends the officers were unjustified in removing Dupars from the taxicab. As stated previously, Article 1, § 5 of the Louisiana Constitution allows any party adversely affected by an illegal search or seizure to raise the illegality of the search. Thus, defendant has standing to raise a possible violation of Dupars' constitutional rights because the discovery of the contraband in his possession led to defendant's arrest. Defendant urges that while the officers' stated reason for removing Dupars was for the purpose of identification, the fact that the officers did not request identification from Dupars suggests the officers' true intent was to search the occupants of the vehicle. Defendant contends State v. Landry, 588 So.2d 345 (La.1991) is the applicable case law.

In Landry, the Louisiana Supreme Court ruled that a police officer has the authority to order a passenger out of a vehicle while speaking with the driver. In reaching its decision, the court balanced the intrusion into the passenger's privacy against the safety concerns of the officer and found the intrusion to be minimal. The court further held that an officer can request identification from the passenger. In its [96-787 La.App. 3 Cir. 5] holding, the court plainly states that safety concerns justify an officer in removing a passenger from a vehicle during a traffic stop:

[E]ither the driver or the passenger of a stopped automobile can present a significant threat to the safety of the stopping officer. Any occupant of a vehicle may have access to a weapon or may have the propensity to use a weapon to escape the consequences of the confrontation. Ordering a passenger out of the vehicle not only places him in the view of the officer, but also distances him from access to weapons. The justification for ordering the passenger out of the vehicle is just as compelling as the justification for ordering the driver out.

Id. at 347.

At the suppression hearing, Officer Strother testified that Dupars' nervousness, shaking, and sweating, coupled with his association with defendant, led him to ask Dupars to exit the taxicab for safety reasons. While Officer Strother's removal of Dupars from the vehicle is allowed under Landry, the warrantless seizure must still satisfy the dictates of the Fourth Amendment.

The trial court's determination that after Dupars stepped out of the cab, Officer Strother could see the contraband in "plain view" because it was "protruding" from the jacket pocket is not supported by the record. The trial court concluded:

Officer Strother decided to ask the man to exit the taxi and could see the man was actually shaking. Strother could also see, in plain view, a plastic bag containing white powder, protruding from the pocket of the man's jacket. (Emphasis added.)

However, Officer Strother testified at the suppression hearing and at trial that he saw the contraband only after he began to frisk Dupars. He stated that when he leaned over the left side of Dupars' body to pat down his leg, he could see in the jacket and that was when he saw the plastic bag containing the white object. He further testified that the plastic bag wasn't sticking out of Dupars' pocket, but, because the pockets of the leather jacket were not deep, they were open and he could see in them.

[96-787 La.App. 3 Cir. 6] If the officer had actually seen the contraband protruding from Dupars' pocket in plain view, as the...