97-0025 La.App. 4 Cir. 8/20/97, State v. McBarry
| Decision Date | 20 August 1997 |
| Parties | 97-0025 La.App. 4 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Graham daPonte, Orleans Indigent Defender Program, New Orleans, for Defendant.
Harry F. Connick, District Attorney, New Orleans, for Plaintiff.
Before BARRY, PLOTKIN and MURRAY, JJ.
ON REMAND FROM THE SUPREME COURT OF LOUISIANA
[97-0025 La.App. 4 Cir. 1] PLOTKIN, Judge.
The defendant, Michael McBarry applied to this Court for writs to review a ruling by the trial court denying his motion to suppress evidence. Originally, the writs were denied, however, on remand from the Supreme Court, we were ordered to brief, permit argument unless waived 1 and render an opinion. The issue is whether or not the police had probable cause to execute an investigatory stop of the defendant and his companion which resulted in the seizure of evidence. We hold that the police did not have probable cause, the writ is granted and the judgment of the trial court reversed.
FACTS:
On September 22, 1996, at approximately 1:20 a.m., police officers were dispatched to investigate a possible burglary. The only information they received was that the door of the house was ajar. There was no mention of suspected perpetrators. While en route to the house, the responding officers noticed two men walking down the street approximately two blocks from the scene of the possible burglary. One of the men, the defendant Michael McBarry, was pushing [97-0025 La.App. 4 Cir. 2] a bicycle while carrying a beer in one hand and a Crown Royal bag in the other hand. As the police car approached the men, the officers activated the vehicle's spotlight and shined it on the two men. The men did not attempt to run, but rather, kept walking.
The officers ordered the men to stop and place their hands on the hood of the police car. Sergeant Alonzo, one of the responding officers, testified at the motion hearing that the defendant stooped down to place his bicycle in front of the police car but then got back up and tried to walk away. On cross-examination, however, Sergeant Alonzo admitted that the defendant did not attempt to leave the scene but was putting his bicycle on the curb with the kickstand down. After situating the bicycle, the defendant complied with the officers' request and walked to the car and put his hands on the hood. A patdown search of the defendant revealed nothing. However, one officer looked under the front of the car, noticing the Crown Royal bag, which defendant allegedly placed under the car. The officer retrieved the bag and discovered the pistol within. The defendant was placed under arrest. The other man told the officers the defendant had become afraid when the officers shined the spotlight on them and that the defendant told him he was afraid because he was in possession of a gun.
The defendant was booked on a charge of carrying a concealed weapon. Upon learning of the defendant's prior conviction for possession of a controlled dangerous substance, defendant was charged via bill of information with La. R.S. 14:95.1, possession of a firearm by a convicted felon. The defendant pleaded not guilty. Motions were heard on December 4, 1996, at which time the trial court denied the motion to suppress evidence and found probable cause for arrest. It is from this ruling of the trial court that defendant seeks relief.
[97-0025 LA.APP. 4 CIR. 3] DISCUSSION:
The defendant argues that the trial court erred by denying the motion to...
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State v. Dumas
...inferences drawn therefrom, is sufficient to provide reasonable grounds to suspect criminal activity." State v. McBarry, 97-0025 (La.App. 4th Cir.8/20/97), 699 So.2d 127. The officer must have sufficient facts within his knowledge to justify an infringement of the suspect's rights. An incho......