State v. Freeman

• Decision Date: 12 February 1987
• Docket Number: No. KA-6168.,KA-6168.
• Citation: 503 So.2d 501
• Parties: STATE of Louisiana v. Junius FREEMAN.
• Court: Court of Appeal of Louisiana — District of US

503 So.2d 501

STATE of Louisiana v. Junius FREEMAN.

No. KA-6168.

Court of Appeal of Louisiana, Fourth Circuit.

February 12, 1987.

COPYRIGHT MATERIAL OMITTED

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Terry M. Boudreaux, Asst. Dist. Atty., New Orleans, for appellee.

Ferdinand J. Kleppner, Metairie, for appellant.

Before BARRY, KLEES and LOBRANO, JJ.

LOBRANO, Judge.

Defendant, Junius Freeman, was charged by bill of information with possession of marijuana and possession of cocaine, violations of LSA R.S. 40:966(D)(1), and LSA R.S. 40:967 respectively. On December 30, 1985, defendant was arraigned and pled not guilty. On January 9, 1986, defendant's Motion to Suppress the seized contraband was denied following an evidentiary hearing. On February 5, 1986, defendant, following a judge trial, was found guilty as charged on the possession of marijuana charge. On that same day, following a six (6) member jury trial, defendant was also found guilty as charged on the possession of cocaine charge. On April 1, 1986, defendant was adjudged a multiple offender pursuant to LSA R.S. 15:529.1(A)(1). Defendant waived all delays and was sentenced to six (6) months in Orleans Parish Prison on the possession of marijuana conviction and five (5) years at hard labor on the possession of cocaine conviction, which sentence is without benefit of parole consideration for one-half of the sentence and without benefit of good time, sentences to run consecutively.

FACTS:

On November 20, 1985, between the hours of 12:45 p.m. and 1:30 p.m., Officers Keene, Payton and Bardy conducted a mobile surveillance of defendant and his residence at 323 Socrates St., apartment A.

On the previous day, a confidential informant told Officer Keene that defendant was distributing narcotics from his front porch. The informant described defendant to Officer Keene and took him to defendant's residence to point out the location in question. The informant told Officer Keene he had witnessed defendant engaging in drug transactions at the Socrates address and the defendant kept his narcotics above his back door.

At the time of the surveillance, the officer's observed defendant sitting on his front porch. The officers observed two complete transactions and one partial transaction, in the same manner as described by the informant before arresting defendant. During the first transaction, a male approached defendant and handed defendant what appeared to be an unknown quantity of U.S. currency. Defendant took the money and entered the front door of his house. The male waited on the sidewalk. The officers, drove around the block to a position enabling them to see defendant's back door. From their parked police car, the officers observed defendant open the back door, reach above the door, remove an object and several minutes later replace the object above the door. The officers then drove back to the front of the house and observed defendant exit the front door and hand something to the waiting man on the sidewalk. Shortly thereafter, the second transaction occurred when a female approached defendant and handed him what appeared to be an unknown quantity of U.S. Currency. Defendant, again, took the money and entered his residence. The female waited outside. The officers were not able to witness the completion of this transaction because they were detained by traffic while driving around the block. At approximately 1:30 p.m., the third transaction took place. A second male approached defendant and handed him some money. Defendant took the money and went inside the house. The officers drove around the block and parked their car on the side street. This time they exited the car and walked up to the side of the house. They again observed defendant open the back door, reach above the door, remove an object, take something from it and replace the object above the door. It was at this time the officers decided to arrest defendant. As they approached the front of the house, the waiting male ran off. One of the officers ran after him but was unable to apprehend him. As defendant exited the front of his house he was placed under arrest. In his hand defendant was carrying four bags of cocaine. The officers seized the cocaine. One officer then went to the rear of the house and seized the object they observed defendant remove from above his rear door. The object was a brown manila envelope containing twelve (12) bags of marijuana.

Defendant appeals his conviction and sentence alleging the following specifications of error:

1. The court erred in refusing to suppress physical evidence seized from the defendant and/or from the premises of the defendant.

2. The court erred in failing to sustain the defendant's objection and instruct the jury appropriately when the state, in opening argument referred to what witnesses "believed".

3. The court erred in permitting Officer James Keene to testify about what he thought was handed to the defendant and further about the meeting allegedly occurring at approximately 12:45 p.m.

4. The court erred in failing to sustain the defendant's objection to testimony by Officer Lee Payton as to speculation that an individual he saw speaking with the defendant was a "prospective buyer".

5. The court erred in allowing into evidence State's Exhibits 1, 2 and 3, the cocaine, marijuana and lab report, respectively.

6. The court erred in refusing to grant a new trial and in its refusal to allow reconsideration and retrial of a Motion to Suppress Evidence.

7. The court erred in permitting the defendant to be charged as a multiple offender, in view of the erroneous information concerning maximum sentences which was given to the defendant at the time of his initial conviction.

8. The court erred in sentencing the defendant to incarceration in the Orleans Parish Prison for a period of six months and in the Department of Corrections for a period of five years, to run consecutively, which sentences were excessive and overly harsh in view of the nature of the crimes in question.

SPECIFICATIONS OF ERROR 1, 5 AND 6:

No warrant was obtained to either arrest defendant or search for and seize any contraband in his possession. The question becomes whether the warrantless arrest and seizure of the cocaine and marijuana were constitutional, based on probable cause, thus justifying the trial court's denial of defendant's Motion to Suppress the seized contraband.

A warrantless arrest must be based upon probable cause. State v. Nicholas, 397 So.2d 1308 (La.1981); State v. Tuesno, 456 So.2d 186 (La.App. 4th Cir. 1984). Probable cause for an arrest exists when the facts and circumstances within the arresting officer's knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a man of average caution to believe the person to be arrested has committed or is committing an offense. C.Cr.P. Art. 213; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Elliot, 407 So.2d 659 (La.1981); State v. Herbert, 351 So.2d 434 (La.1977). It is to be judged by the probabilities and practical considerations of everyday life on which average men, particularly average police officers, can be expected to act. State v. Smith, 377 So.2d 1220 (La.1979); State v. Landry, 454 So.2d 313 (La.App. 4th Cir.1984).

In the instant case, the officers received information from a confidential informant that defendant was dealing narcotics from the front porch of his residence. The informant stated to Officer Keene on the previous day that defendant would meet the "buyer" on his front porch, take the "buyer's" money and retrieve the narcotics from above his rear door. This is the exact scenario observed by the officers during the mobile surveillance. Furthermore, Officer Keene testified this informant had provided reliable information in the past on several occasions and that he personally observed defendant engaging in narcotics transactions from his residence.

Probable cause for an arrest may be based upon hearsay information received from a confidential informant, State v. LeCompte, 441 So.2d 249 (La.App. 4th Cir. 1983), writ denied 446 So.2d 314 (La.1984), provided the information is first measured against the test established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The Gates test is a flexible one based upon the facts and circumstances of each case. It is a practical, non-technical method of establishing probable cause. State v. Rose, 503 So.2d 499 (La.App. 4th Cir.1986). Furthermore, the circumstances upon which the arresting officer acts must show that criminal conduct is more probable than non-criminal activity. State v. Herbert, supra; State v. Tuesno, supra.

Probable cause to arrest can also be established by corroborating facts. State v. LeCompte, supra. In State v. Tate, 407 So.2d 1133 (La.1981), our Supreme Court stated:

"An informant's tip can be significantly buttressed if either independent observations by the affiant corroborate sufficient details of the tip (whether suspicious or not) to negate the possibility that the informant fabricated his report, or independent observations by the affiant contribute to a showing of probable cause by revealing not merely normal patterns of activity but activity that reasonably arouses suspicion."

Unquestionably, the transactions observed by the officers revealed not "merely normal patterns of activity" but activity that reasonably aroused suspicion because of their similarity to the informants tip and their familiar association with illegal drug transactions.

The officer's independent observations permitted "the suspicion engendered by the informant's report to ripen into a judgment that a crime was probably being committed." Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Thus, the officers had probable cause to arrest defendant and to seize the cocaine from his hand, an area...