State v. Belton

• Citation: 441 So.2d 1195
• Decision Date: 28 November 1983
• Docket Number: 82-KA-2120,Nos. 82-KA-2061,s. 82-KA-2061
• Parties: STATE of Louisiana v. Clifton BELTON, Jr.
• Court: Supreme Court of Louisiana

Page 1195

441 So.2d 1195

STATE of Louisiana v. Clifton BELTON, Jr.

Nos. 82-KA-2061, 82-KA-2120.

Supreme Court of Louisiana.

Nov. 28, 1983.

Rehearing Denied Jan. 6, 1984.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Kay Bates, Asst. Dist. Attys., for plaintiff-appellee.

Paula Cobb, Baton Rouge, for defendant-appellant.

MARCUS, Justice.

Clifton Belton, Jr. was charged by bill of information with possession of phenmetrazine (preludin) in violation of La.R.S. 40:967(C). After trial by jury, he was found guilty as charged. The state then filed an information accusing defendant of being an habitual offender under La.R.S. 15:529.1 (Habitual Offender Law). After a hearing, the trial judge found defendant to be a second felony offender and sentenced him to serve five years at hard labor. Defendant took separate appeals from his conviction (No. 82-KA-2061) in which he asserts two assignments of error and from his sentence (No. 82-KA-2120) in which he asserts one assignment of error.

ASSIGNMENTS OF ERROR NOS. 1 AND 2 (NO. 82-KA-2061)

Defendant contends the trial judge erred in denying his motions to suppress physical evidence seized prior to his arrest and physical evidence and an inculpatory statement obtained after his arrest.

Evidence adduced at the suppression hearing reveals that at about 10:00 p.m. on November 12, 1981, Officers Joseph Booth and Jay Thompson of the Louisiana State Police and Officer Royce Thompson of the Baton Rouge City Police Department were on a routine patrol in an unmarked police car. The officers, who were dressed in plain clothes, were on an "armed robbery patrol" and were looking for suspects for whom outstanding warrants had been issued. As they approached the Bradley Road Cafe, the officers saw defendant and several other persons standing outside of the bar. Officer Booth described defendant's stance as the same one that he normally exhibits when he is "holding narcotics." When asked to explain how one normally looks when one is in possession of narcotics, Officer Booth stated: "Standing around like you have nothing to do, not talking to anybody, with your hands in your pocket[s]."

According to Officer Booth, the bar was "renowned in this area for being a place where people stand outside on the sidewalk and sell narcotics." Similarly, Officer Jay Thompson described it as a "known ... hangout for drug dealers and armed robber[s] and the like." The officers also testified that they were familiar with defendant and knew that he dealt narcotics because they had previously taken drugs from him. Defendant admitted that he also knew these officers. He then described an encounter with these officers at the Bradley Road Cafe about a week before his arrest. According to defendant, he had just gotten out of jail and was standing in front of the bar talking to friends when the officers approached. He stated that when confronted with some pills that the officers had found in the vicinity of the bar, he admitted that they were his. The officers then told him that the next time they see him standing in front of the bar, they will arrest him.

Being suspicious of both defendant and the Bradley Road Cafe, the officers stopped at the bar to look around. Defendant immediately became nervous when he saw them drive into the parking lot and then suddenly turned around and ran into the bar as the officers were getting out of their patrol car. Upon seeing defendant flee, the officers ran after him, identified themselves as police officers, called defendant by name, and ordered him to stop. When asked by the trial judge what precipitated this action, Officer Booth responded, "Mr. Belton recognized us and ... [h]e drawed up straight and looked like he got nervous and then he turned around and immediately made for the door as we exited the vehicle and ordered him to halt." Officer Booth further testified that it was "more than likely" that he had his weapon drawn as he ran into the bar. Defendant did not mention seeing the officer's weapon.

The officers were only about five to eight steps behind defendant by the time they entered the bar. Once inside, the officers scanned the premises, spotted defendant standing near the end of the bar and then immediately approached him. He was ordered to stand up against a wall and was "patted ... down for weapons." Officer Jay Thompson looked around the area where defendant was originally standing when they entered the bar and spotted a rolled up portion of a brown paper bag on the floor. According to Officer Thompson, this is "the common way on Bradley Road of concealing drugs." Therefore, he picked it up and discovered that it contained fifteen tablets. Both Officers Booth and Thompson recognized them as preludin. Officer Thompson testified that a barmaid told Officer Booth that she saw defendant drop the drugs when he ran in the bar.

Defendant was arrested and transported to the city police armed robbery office where, after being advised of his rights, he signed a waiver of rights form. Thereafter, he orally admitted that the preludin tablets were his. In searching him prior to booking, Officer Thompson found another preludin tablet in defendant's shirt pocket. Later chemical analysis confirmed that all sixteen tablets were preludin. It is conceded that the arrest and all searches and seizures were conducted without a warrant.

The fourth amendment to the federal constitution and art. 1, § 5 of the Louisiana constitution protects people against unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.Code Crim.P. art. 215.1, as well as by both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983); State v. Chopin, 372 So.2d 1222 (La.1979). We have held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Andrishok, supra; State v. Chopin, supra.

The totality of the circumstances, "the whole picture," must be considered in determining whether reasonable cause exists. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Although flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, State v. Chopin, supra; State v. Truss, 317 So.2d 177 (La.1975), this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause, State v. Williams, 421 So.2d 874 (La.1982); State v. Wade, 390 So.2d 1309 (La.1980).

The purpose of the fourth amendment, however, is not to eliminate all contact between the police and the citizenry. Police officers do not need probable cause to arrest or reasonable cause to detain each time they attempt to converse with or approach a citizen. As long as the person remains free to disregard the encounter and walk away, there has been no intrusion upon that person's liberty or privacy which would require some particularized and objective justification under the fourth amendment. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); State v. Williams, supra; State v. Lanter, 391 So.2d 1152 (La.1980).

When police officers make an investigatory stop without the legal right to do so, property abandoned or otherwise disposed of as a result thereof cannot be legally seized. If, however, property is abandoned without any prior unlawful intrusion into a citizen's right to be free from government interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person's custodial rights. It is only when the citizen is actually stopped without reasonable cause or when a stop without reasonable cause is imminent that the "right to be left alone" is violated, thereby rendering unlawful any resultant seizure of abandoned property. State v. Andrishok, supra; State v. Chopin, supra; State v. Ryan, 358 So.2d 1274 (La.1978).

In the instant case, the crucial inquiry is whether, at the time defendant disposed of the preludin tablets, the police officers had effected an actual or imminent unlawful detention. When the officers drove up to the Bradley Road Cafe and saw defendant standing out front, they had a right to stop the patrol car, get out, look around, and converse with him. No detention or attempted detention of defendant in fact occurred. It is arguable that if the police officers had detained him at this moment, the stop would have been without reasonable cause. The only facts and circumstances known by them...