State v. Dumas
| Citation | 750 So.2d 439 |
| Decision Date | 26 January 2000 |
| Docket Number | No. 32,925-KA.,32,925-KA. |
| Parties | STATE of Louisiana, Appellee, v. Melvin DUMAS, Appellant. |
| Court | Court of Appeal of Louisiana (US) |
Diane L. Foster, Assistant Indigent Defender, New Orleans, Counsel for Appellant.
Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Brian King, Tommy J. Johnson, Assistant District Attorneys, Counsel for Appellee.
Before STEWART, GASKINS and PEATROSS, JJ.
Defendant, Melvin Dumas, was charged with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. Following the denial of his motion to suppress evidence and statements, Defendant pled guilty as charged, but reserved his right to appeal the trial court's ruling under State v. Crosby, 338 So.2d 584 (La.1976). Defendant was sentenced to ten years at hard labor, without benefit of parole, probation or suspension of sentence, and to pay a fine of $1,000. Defendant now appeals the trial court's denial of his motion to suppress. For the reasons set forth herein, Defendant's conviction is vacated and his sentence set aside.
On November 19, 1998, at approximately 2:15 p.m., Defendant and another man, Bryan Marlin, were walking in the middle of Cornwell Street in the Highland area of Shreveport. They walked in front of and were almost struck by a patrol car driven by Officer Pierce of the Shreveport Police Department. Officer Pierce was transporting a suspect in an unrelated case so he continued driving. Officers Isaiah Jackson, III, and Ron Vanni, who were following Officer Pierce in another patrol car, stopped to investigate. Thinking that Defendant and Mr. Marlin might have been intoxicated or have some other problem, the officers called out to the men. Mr. Marlin immediately responded, but Defendant continued walking. When he was summoned again, Defendant turned and walked over to the officers.
Subsequent to the stop, the officers conducted a pat down search of the two men. Mr. Marlin was not armed. Defendant, however, was carrying a loaded .25 automatic pistol in his back pants pocket. Defendant was advised of his Miranda rights and was arrested for possession of a firearm by a convicted felon. While Defendant admitted that he knew carrying the firearm was a violation of his probation, he told the officers that an individual named Remedro Williams had been punching him in the face and that he was carrying the weapon for protection.
After being charged by bill of information with possession of a firearm by a convicted felon, Defendant pled not guilty and a preliminary examination was held on January 4, 1999. The trial court determined that there was probable cause to hold Defendant for trial as charged. Defendant then filed a motion to suppress the gun and the statements he made to officers following his arrest. After a hearing on March 4, 1999, the trial court denied the motion to suppress. The court found that both the stop and the pat down search were valid. The court noted that walking in the middle of the street is a violation of Shreveport City Ordinances 90-459 and 90-462.1 The court further found that the officers had reasonable suspicion to stop Defendant and his companion to advise them that it was unsafe to walk in the roadway and to determine if they were intoxicated or otherwise impaired. Regarding the validity of the pat down frisk, this finding was based primarily on the fact that the officers were personally familiar with Defendant and with his criminal history.2
As previously stated, on March 5, 1999, Defendant entered a plea of guilty as charged, reserving his rights under State v. Crosby, supra, to appeal the trial court's decision on the motion to suppress. Defendant appealed, claiming that the trial court erred in denying his motion to suppress. He argues that the gun taken from his person and the statements he made to law enforcement officers following his arrest were obtained in violation of the rights guaranteed him by the Fourth Amendment and were improperly admitted against him.
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. White, 27,188 (La.App.2d Cir.8/23/95), 660 So.2d 515.
The Fourth Amendment of the United States Constitution and Article I, § 5, of the Louisiana Constitution protect people against unreasonable searches and seizures. The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct, however, is recognized by La.C.Cr.P. art. 215.1, as well as both federal and state jurisprudence.3 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Stewart, 97-2399 (La.App. 1st Cir.9/25/98), 721 So.2d 925. Reasonable suspicion for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether or not 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 on reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Tucker, (La. App. 2d Cir.1992), 604 So.2d 600, affirmed in part, reversed in part, 626 So.2d 707 (La.1993); State v. Stewart, supra; State v. Colarte, 96-0670 (La.App. 1st Cir.12/20/96), 688 So.2d 587, writ denied, 97-1015 (La.10/3/97), 701 So.2d 197. Under such circumstances, a law enforcement officer may stop a person and may demand of him his name, address and an explanation of his actions. State v. McHugh, 92-1852 (La.1/6/94), 630 So.2d 1259. The necessary reasonable suspicion has been defined as "articulable knowledge of particular facts which, in conjunction with reasonable 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 inchoate or unparticularized hunch or mere suspicion is insufficient to establish reasonable grounds to stop a person. State v. Tucker, supra; State v. Leary, 627 So.2d 777 (La.App. 2d Cir.1993), writ denied, 93-3187 (La.3/25/94), 635 So.2d 237.
In order to assess the reasonableness of an officer's conduct, it is necessary to balance the need to search or to seize against the harm of invasion. State v. Stewart, supra. 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. White, 27,188 (La.App.2d Cir.8/23/95), 660 So.2d 515, writ denied, 95-3045 (La.4/25/97), 692 So.2d 1076.
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. This type of conduct, however, may be a factor leading to a finding of reasonable suspicion. Presence in a high crime area, coupled with nervousness or flight or suspicious actions on approach of officers is sufficient to justify an investigatory stop. 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 the officer. State v. White, supra.
To assess the validity of an investigatory stop under Terry v. Ohio, supra, and its Louisiana statutory equivalent, La. C.Cr.P. art. 215.1, the critical inquiry must focus on the knowledge in the officer's possession at the time of the stop and whether that knowledge constitutes reasonable cause for a stop. State v. Dorsey, 27,509 (La.App.2d Cir.11/1/95), 662 So.2d 857.
In this case, we believe that the officers made a valid investigatory stop. It was readily apparent that Defendant and his companion had violated city ordinances prohibiting walking in the roadway. According to Officer Jackson, the pair was walking in a southbound direction in the middle of the roadway. Officer Vanni testified that the pair was standing in the east side of Cornwell Street and walked out in front of Officer Pierce's patrol car. When asked why Defendant was stopped, Officer Jackson testified:
Because [Defendant] almost got struck by the vehicle which caused his partner who he was with to move to the right. So it caused [Defendant] to go to the left because he was in the middle of the street, so he went on the left side of the street and [Defendant] was left-Mr. Marlin was on the right. I stopped them because I didn't know if they were intoxicated or what was going on. Why were they in the street, why did he almost get hit by the vehicle. And I wanted to interview them and let them know that, you know, that's not a safe procedure.
Due to the risk of harm that Defendant's action posed to his own safety, the officers acted reasonably in stopping Defendant to tell him not to walk in the roadway and to determine whether he was intoxicated. Terry, supra, recognizecatthat officers can detain individuals to resolve ambiguities in their conduct. In a recent decision, the United States Supreme Court explained Terry as follows:
In allowing [detentions to resolve ambiguities in conduct], Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal...
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