State v. Haynes

• Decision Date: 28 October 1987
• Docket Number: No. 19158-KA,19158-KA
• Citation: 514 So.2d 1206
• Parties: STATE of Louisiana, Appellee, v. Jerry L. HAYNES, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1206

514 So.2d 1206

STATE of Louisiana, Appellee, v. Jerry L. HAYNES, Appellant.

No. 19158-KA.

Court of Appeal of Louisiana Second Circuit.

Oct. 28, 1987.

Hunter, Scott, Blue, Johnson & Ross by Robert C. Johnson, Monroe, for appellant.

William J. Guste, Jr., Atty. Gen., William B. Faust, III, Asst. Atty. Gen., Baton Rouge, James A. Norris, Jr., Dist. Atty., Marcus R. Clark, Asst. Dist. Atty., Monroe, for appellee.

Before HALL, C.J., and MARVIN and NORRIS, JJ.

HALL, Chief Judge

Defendant, Jerry Lenal Haynes, appeals his conviction for possession of phencyclidine (PCP) in violation of LSA-R.S. 40:966. The defendant was convicted unanimously by a twelve person jury and sentenced to seven years at hard labor. Defendant appeals and has assigned seven errors for review. Finding these assignments to have no merit, we affirm.

On July 27, 1986 at approximately 12:42 a.m., Louisiana State Trooper Powdrill noticed the defendant driving 35 miles per hour southbound in a 50 mile per hour speed zone on Louisiana Highway 165. She noticed that the defendant was driving very erratic which included weaving across both lanes of traffic and onto the shoulder several times. The defendant ignored the trooper's red warning lights, flashing bright lights, and the spotlight pointed at him. Defendant continued to drive until the trooper pulled along side the defendant's vehicle. Defendant stopped his vehicle in the middle of two lanes of travel on an overpass. The trooper stopped approximately a half car length behind the defendant at an angle with her headlights and spotlights shining readily on the defendant's vehicle. The trooper requested that the defendant exit his vehicle. Defendant ignored the request and at that point the trooper called for a back-up unit which arrived shortly thereafter. When the back-up unit arrived the trooper again shouted for the defendant to exit his vehicle. Defendant exited the vehicle using slow trudging motions. The trooper then noticed that defendant had a brown bottle in his left hand. At this time the trooper ordered him to put the bottle down. Defendant placed the bottle on the car. The defendant appeared glassy eyed and intoxicated. Defendant failed a field sobriety test and could not recite his ABC's. At that point defendant was arrested for driving while intoxicated and a narcotics officer was called to check the composition of the brown bottle.

Officer Kirk Petterson of the Metro Narcotics Unit arrived on the scene and recognized the brown bottle as being the type of bottle in which phencyclidine is usually transported. The officer also smelled the contents and determined that it probably was phencyclidine. Officer Petterson noticed a brown paper bag on the hump of the front seat of defendant's vehicle. This bag was facing towards the driver and open so that the contents were visible. This bag contained Sherman cigarettes, plastic wrap and tinfoil which are used to traffic phencyclidine.

At some point an inventory search was conducted and a list compiled of all the items contained in defendant's vehicle.

Assignment of Error No. 1

Defendant contends that the trial court erred in not suppressing the evidence obtained from his stop and arrest since the stop was not based upon reasonable suspicion and the arrest was not based on probable cause, and no exception to the warrant requirement existed.

The Fourth Amendment to the United States Constitution and LSA-La.Const. Art. 1 § 5 protects persons against unreasonable searches and seizures. State v. Daley, 459 So.2d 66, 69 (La.App. 2d Cir.1984) writ denied 462 So.2d 1264 (La.1985). This includes seizures that involve only a brief detention short of the traditional arrest. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-1878, 20 L.Ed.2d 889 (1968). Because of the limited nature of the seizures less intrusive than a traditional arrest, investigative stops may be justified on facts that do not amount to probable cause for an arrest. State v. Flowers, 441 So.2d 707 (La.1983) cert. denied 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984).

According to Flowers, there are at least three inquiries involved in determining whether a seizure was a valid investigatory stop:

"(a) Whether the intrusion was an arrest or a stop;

(b) Whether the stop was of a type which is reasonable in view of the public interest served and the degree of invasion entailed; and

(c) Whether the particular stop was warranted by a reasonable suspicion based on specific, articulable facts and rational inferences from those facts."

There is no doubt that the initial intrusion was a stop. It is also clear that the public interest is best served by allowing police officers to investigate erratic driving behavior of a motorist on Louisiana highways. The critical issue in this case is whether this particular stop by Officer Powdrill was warranted by a reasonable suspicion based on specific, articulable facts and rational inferences from those facts.

Officer Powdrill testified that she observed the defendant weaving across both lanes of travel and onto the shoulder at least three times. The defendant was driving at an unusually slow speed. The defendant also ignored the trooper's warning lights, flashing bright lights and the spot light which the trooper had pointed at him. The erratic driving behavior alone was enough to arouse the reasonable suspicion to stop the defendant.

While the stop of the defendant is based upon reasonable suspicion, the arrest must be based upon probable cause. Probable cause is determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted by his training and experience. State v. Johnson, 422 So.2d 1125 (La.1982). It further exists when the facts and circumstances within the officer's knowledge, or of which he had reasonably trustworthy information, were sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Daley, supra; State v. Hathaway, 411 So.2d 1074 (La.1982).

There is no doubt that the arrest of the defendant was based upon probable cause. Defendant could barely stand and he was unable to perform the field sobriety test. He was incoherent and he walked and stopped using jerking motions. Defendant could not recite his ABC's. He was totally unable to communicate or function in the ordinary sense. Although defendant did not test positive for alcohol intoxication, the arresting officer was reasonable in believing defendant was intoxicated by being under the influence of alcohol or drugs.

Two groups of items were seized when the defendant was arrested. First, there was a brown bottle which was placed on top of the car by the defendant after he exited the vehicle. Secondly, the officers confiscated items which were inside the automobile in plain view. The state contends that both groups of items were validly seized since they fall within the "plain view" exception to the warrant requirement.

A warrantless search and seizure is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Talbert, 449 So.2d 446 (La.1984); State v. Hernandez, 410 So.2d 1381, 1383 (La.1982). The burden of proof is upon the State to affirmatively show that one of the exceptions applies. LSA-C.Cr.P. Art. 703(D); State v. Hernandez, supra.

In State v. Owens, 480 So.2d 826 (La.App. 2d Cir.1985) writ denied 486 So.2d 748, cert. denied --- U.S. ----, 107 S.Ct. 145, 93 L.Ed.2d 87, this court stated:

"For plain view to apply Coolidge requires (A) a lawful initial intrusion, (B) that the incriminating evidence must be discovered inadvertently, and (C) that it be 'immediately apparent' that the item observed is evidence or contraband. The third requirement of plain view as mandated by Coolidge was changed in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), wherein the court required only that the officer have probable cause to believe that the item observed was evidence or contraband rather than requiring the item observed to be immediately apparent as contraband or evidence. The Brown court stated probable cause to believe the items viewed are evidence or contraband 'merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief ... that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such belief be correct or more likely true than false. A 'practical non-technical' probability that incriminating evidence is involved is all that is required.' See State v. Camp, 459 So.2d 53 (La.App. 2d Cir.1984); State v. Huston, 445 So.2d 67 (La.App. 2d Cir.1984); State v. Ray, 471 So.2d 831 (La.App. 2d Cir.1985); State v. Burns, 471 So.2d 949 (La.App. 2d Cir.1985)."

The prior justification for the initial intrusion was the swerving and weaving of the defendant's automobile on Highway 165. When the defendant exited the vehicle he had a brown bottle in plain view which he placed on top of the vehicle at the request of the officer. There is no doubt that this evidence was discovered inadvertently since the officer had no reason to believe contraband would be in the defendant's hand as he exited the vehicle. The narcotics officer was also reasonable in his belief that this brown bottle contained contraband. This officer was experienced in narcotic violations and knew the type container phencyclidine was transported in. Considering the defendant's unusual behavior and the smell of phencyclidine, Officer Petterson was reasonable in believing the bottle contained contraband or would be useful as evidence and therefore, was justified in seizing the...