State v. Dappemont
| Decision Date | 17 March 1999 |
| Docket Number | No. 98-K-0446.,98-K-0446. |
| Parties | STATE of Louisiana v. Urban DAPPEMONT. |
| Court | Court of Appeal of Louisiana — District of US |
Harry F. Connick, Orleans Parish District Attorney, Randy J. Hoth, Orleans Parish Assistant District Attorney, New Orleans, Counsel for State of Louisiana-Relator.
Dennis K. Dolbear, New Orleans, Counsel for Defendant-Respondent.
Court composed of Chief Judge ROBERT J. KLEES, Judge WILLIAM H. BYRNES, Judge STEVEN R. PLOTKIN. PLOTKIN, Judge.
Defendant, Urban Dappemont was charged by bill of information with distribution of marijuana. On January 29, 1998, the trial court granted the defendant's motion to suppress the evidence. The State sought review of that ruling, and on March 25, 1998, we granted the State's writ but denied relief. State v. Dappemont, 98-0446, 734 So.2d 736 (La.App. 4th Cir. 3/17/99). The supreme court remanded to this court for briefing, argument and a full opinion on January 8, 1999, in 98-KK-1118.
At the December 22, 1997 hearing on the motion to suppress, the State called Officer Eric Guillard to testify. Officer Guillard testified that on the evening of October 8, 1997, he was working with Officers Gilmore, Fiat, George, Hyde, and Mayfield. They had targeted a particular courtyard in the 3600 block of Hamburg. As they arrived in the area, they observed subjects fleeing the area and alerting other subjects that the police were in the area. As they approached, they observed the defendant. He was walking "off the corner." As he was walking, he placed his hands into his waistband area and looked around in all directions. The police approached him, identified themselves as police officers and ordered him to remove his hands. He removed his hands, at which time Officer Guillard saw a white piece of paper protruding from his zipper area. Officer Guillard conducted a pat-down search. He felt a large bulge where the paper was sticking out. He removed the bulge and found it to be a red, white and blue Popeye's bag. He opened the bag and learned it contained marijuana. The defendant was placed under arrest and it was discovered that he had one hundred and eighty three dollars in his possession. Officer Guillard testified that he had reviewed the Crime Lab Report in connection with the arrest and seizure and learned that the material in the bag tested positive for marijuana.
On cross examination, Officer Guillard was questioned about his report, which allegedly stated he conducted a possible weapons search when he conducted the search of the defendant. When asked if the weapons search was incident to the stop, Officer Guillard stated that when the defendant placed his hand into his front waistband, he did not know if the defendant placed a weapon or bag there. Due to the area's reputation,1 and for safety reasons, he patted down defendant for safety first. He admitted that when he took the bag out, he realized prior to opening it that it was not a weapon. However, believing it to be some type of contraband, he opened it. He believed it to be contraband because he did not believe that people normally place a Popeye's bag in their waistband area. Officer Guillard testified that the defendant was not fleeing when he saw him; he was walking and looking around to see what was going on. He stopped when the officers identified themselves, but he was constantly looking around and had his hand inside his waistband area. Following the hearing, the trial court gave both sides time to file memoranda. On January 29, 1998, the trial court, citing this court's ruling in State v. Ellington, 96-0766 (La.App. 4th Cir.9/4/96), 680 So.2d 174, granted the motion to suppress. The State seeks a review of that ruling.
The State argues that the trial court erred in granting the motion to suppress because the marijuana was lawfully discovered in the course of a patdown frisk for weapons after the police had lawfully detained the defendant. The State argues that the totality of the circumstances justified the initial stop, subsequent search, and eventual seizure of the drugs found on the defendant. The initial stop:
A temporary stop by a police officer of a person in a public place is authorized by La.C.Cr.P. art. 215.1, which provides in part:
A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Williams, 621 So.2d 199 (La.App. 4th Cir. 1993); State v. Johnson, 557 So.2d 1030 (La.App. 4th Cir.1990). As this court noted in State v. Clark, 612 So.2d 232, 233-234 (La.App. 4th Cir.1992), quoting from Johnson:
"Reasonable suspicion" is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect's rights. State v. Jones, [483 So.2d 1207 (La.App. 4th Cir.1986), writ den. 488 So.2d 197 (1986)]. Mere suspicion of activity is not a sufficient basis for police interference with an individual's freedom. State v. Williams, 421 So.2d 874 (La.1982).
In State v. Ellington, 96-0766 (La.App. 4th Cir.9/4/96), 680 So.2d 174, this court affirmed a judgment granting a motion to suppress in a case similar to the instant case. In that case the police officer testified that he saw the defendant standing in an area known for high drug activity and, upon seeing the marked police car, the defendant put his hands in his pocket as if attempting to conceal something. Thinking that this activity was suspicious and that the defendant was trying to conceal something in his pocket, possibly drugs, the officer stopped the defendant and conducted a patdown search. A folding knife was found in the defendant's right rear pants pocket. The officer then shined a flashlight into the same pocket and found a glass vile containing cocaine residue. This court found that these facts were not sufficient to justify the stop of the defendant. This court noted that the officer did not testify that he saw the defendant engaging in what appeared to be a drug transaction, or that he saw a suspicious object which the defendant attempted to conceal. Further, this court stated that even if the initial stop was justified, the subsequent pat-down frisk of the defendant was not because La.C.Cr.P. art. 215.1 only allowed a frisk of outer clothing for a dangerous weapon. Since the officer did not testify to any particular facts from which he could reasonably infer that the defendant was armed and dangerous, this court held that the patdown frisk was not justified.
In State v. Hill, 97-1012 (La.App. 4th Cir., 9/17/97), 700 So.2d 551, this court denied the state's writ application seeking review of a trial court's judgment granting a motion to suppress. In State v. Hill, officers were on patrol in an area about which they had received a general tip of narcotics activity. The officers had received no descriptions or names of persons involved in the activity. Upon reaching a corner, the officers saw two unknown men either standing or sitting in front of an abandoned building. The men began walking away as the officers approached. The officers stopped the two men and frisked them. Finding nothing, they ran the names of the men through the computer and found that one of them, the defendant, had outstanding arrest warrants. They placed him under arrest and in a search incident to that arrest found a crack pipe containing a trace amount of cocaine. The defendant was charged with simple possession of cocaine and subsequently filed a motion to suppress the evidence. This court found the trial court did not err by granting the motion to suppress since the officers did not have reasonable suspicion to stop the defendant. Likewise, in State v. Williams, 621 So.2d 199 (La.App. 4th Cir.1993), the defendant was seen standing in a courtyard of a housing project. When he saw the police officers, "he turned immediately and quickly walked away." The officers also saw him "fooling with his belt area." The trial court denied the defendant's motion to suppress the pipe the officers seized after the defendant was stopped and frisked, but this court reversed the trial court's ruling. This court found that these facts did not justify the initial stop of the defendant, and even if the stop was legal, the officers provided no evidence to justify the subsequent pat-down frisk.
However, recently, the Louisiana Supreme court discussed reasonable suspicion in State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988. In that case, the trial court denied the defendant's motion to suppress and he was subsequently convicted of being a convicted felon in possession of a firearm. This court reversed the conviction finding that the police did not have reasonable suspicion to stop the defendant. The supreme court reversed this court and reinstated the conviction and sentence.
In that case, the police were in a marked unit. As they approached the defendant, he clutched his waistband and began to run away from the police. A foot chase ensued, during which defendant discarded a handgun. He was eventually apprehended and arrested. Based on these facts, the supreme court stated:
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