State v. Isidore

• Decision Date: 23 May 2001
• Docket Number: No. 2000-KA-2781.,2000-KA-2781.
• Citation: 789 So.2d 79
• Parties: STATE of Louisiana v. Lamar J. ISIDORE.
• Court: Court of Appeal of Louisiana — District of US

789 So.2d 79

STATE of Louisiana v. Lamar J. ISIDORE.

No. 2000-KA-2781.

Court of Appeal of Louisiana, Fourth Circuit.

May 23, 2001.

COPYRIGHT MATERIAL OMITTED

Richard P. Ieyoub, Attorney General, Darryl W. Bubrig, Sr., District Attorney, PointealaHache, Gilbert V. Andry IV, Assistant District Attorney, New Orleans, Counsel for State of Louisiana.

Mary Constance Hanes, Louisiana Appellate Project, New Orleans, Counsel for Lamar J. Isidore.

Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS Jr., and Judge DAVID S. GORBATY.

JONES, Judge.

Lamar J. Isidore appeals his conviction for possession of heroin under State vs. Crosby, 338 So.2d 584 (La.1976). He was sentenced to serve seven years at hard labor without benefit of probation, parole or suspension of sentence. We reverse.

FACTS

Plaquemines Parish Deputy Sheriff Steven R. Vogt testified at trial that on August 22, 1999 he received a complaint from a citizen who saw two individuals get into a Cadillac or Lincoln-type automobile and drive off as the citizen was exiting a bar. The citizen then discovered that a gun was missing from underneath the seat of his vehicle, and suspected that the two men he had seen were connected to the theft. The citizen subsequently informed Deputy Vogt that one of the men was Lamar Isidore. The prosecutor refreshed the deputy's memory with his investigative report, and the deputy recalled the name of the citizen-complainant. That night, Deputy Vogt stopped a vehicle for speeding on Highway 15. Deputy Vogt testified that the vehicle was the same type of vehicle described by the citizen in the missing gun complaint. The deputy asked the driver of the vehicle who his passenger was, and was told "Lamar." The deputy asked Isidore to step out of the vehicle and Deputy Vogt patted Isidore down because he suspected he was connected to the theft of the gun. The deputy removed Isidore's baseball cap because of the known possibility that weapons could be in or underneath it. When the deputy shook the cap, a small cellophane packet fell out of the hatband. The deputy testified that he could see the substance through the bag, and testified that it "looked consistent with narcotics." After advising Isidore of his rights, the deputy asked him what the substance was, and he admitted that it was cocaine. The substance was later found to be heroin. Deputy Vogt searched the vehicle with the consent of the driver, but found no weapons. Deputy Vogt testified that no backup officers were ever called to the scene, and that he was alone.

Deputy Vogt further testified on cross examination that at his discretion he decided not to issue a speeding citation to the driver. He also admitted that he patted down Isidore in part because he knew he had a prior drug arrest, and knew that weapons were involved in many drug cases. Deputy Vogt testified he was looking for the stolen gun, but also for any weapon that could be hidden in a baseball cap, such as a knife, a razor blade or a fish hook. He opined that a person who steals a gun might have another type of weapon. While he agreed with defense counsel that those items could be found by a patdown, he testified that an officer could be cut by patting such an item, and therefore caps needed to be removed. Defense counsel questioned Deputy Vogt about a report entry that he stopped the vehicle because it was swerving. Deputy Vogt then testified that he stood corrected, and stated: "that must have been the [reason for the] stop." Deputy Vogt admitted that he had stopped Isidore on other occasions and had not patted him down.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR

By his sole assignment of error, Isidore argues that the district court erred in denying his Motion to Suppress the evidence, as both the stop and pat-down frisk were unlawful.

Isidore first argues that there was no reasonable suspicion to stop him. Warrantless searches and seizures fail to meet constitutional requisites unless they fall within one of the narrow exceptions to the warrant requirement. State v. Edwards, 97-1797, p. 11 (La.7/2/99), 750 So.2d 893, 901, cert. denied, Edwards v. Louisiana, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). On trial of a Motion to Suppress, the State has the burden of proving the admissibility of all evidence seized without a warrant. La.C.Cr.P. art. 703(D); State v. Kirk, 00-0190, p. 3 (La. App. 4 Cir. 11/15/00), 773 So.2d 259, 262; State v. Jones, 97-2217, p. 10 (La.App. 4 Cir. 2/24/99), 731 So.2d 389, 395. A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the court has the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Devore, 00-0201, p. 6 (La.App. 4 Cir. 12/13/00), 776 So.2d 597, 600-601; State v. Mims, 98-2572, p. 3 (La.App. 4 Cir. 9/22/99), 752 So.2d 192, 193-194.

La.C.Cr.P. art. 215.1(A) codifies the U.S. Supreme Court's authorization of protective searches for weapons in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and provides:

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.

"Reasonable suspicion" to stop 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 a detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect's rights. State v. Jones, 99-0861, p. 10 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 36-37; State v. Litties, 98-2517, p. 3 (La.App. 4 Cir. 9/15/99), 742 So.2d 735, 737. Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989; State v. Tyler, 98-1667, p 4 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 770. In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy that it entails. State v. Carter, 99-0779, p. 6 (La.App. 4 Cir. 11/15/00), 773 So.2d 268, 274. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Lipscomb, 99-2094, p. 11 (La.App. 4 Cir. 9/13/00), 770 So.2d 29, 36; State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The detaining officers must have knowledge of specific, articulable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. State v. Jackson, 99-2993, p. 3 (La.App. 4 Cir. 10/18/00), 772 So.2d 808, 810; State v. Dennis, 98-1016, p. 5 (La.App. 4 Cir. 9/22/99), 753 So.2d 296, 299. In reviewing the totality of the circumstances, the officer's past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. Hall, 99-2887, p. 4 (La.App. 4 Cir. 10/4/00), 775 So.2d 52, 57; State v. Cook, 99-0091, p. 6 (La.App. 4 Cir. 5/5/99), 733 So.2d 1227, 1231. Deference should be given to the experience of the officers who were present at the time of the incident. State v. Ratliff 98-0094, p. 3 (La.App. 4 Cir. 5/19/99), 737 So.2d 252, 254, writ denied, 99-1523 (La.10/29/99), 748 So.2d 1160.

Isidore first argues that Deputy Vogt's testimony was incredible. Isidore points out that the deputy first testified that he stopped the vehicle for speeding, and that he knew the vehicle was speeding because he clocked it with his radar. However, he did not recall how fast it was traveling. The prosecutor subsequently asked if he remembered what the speed was as reflected on his radar gun, and the deputy replied that the vehicle had been traveling approximately fifty miles per hour in a thirty-five miles per hour zone. He said on cross-examination that other than speeding, the driver had done nothing wrong. When confronted with his narrative report stating that he stopped the vehicle because it was swerving, Deputy Vogt said that must have been the reason for the stop. Isidore notes that the deputy testified that he observed the traffic offense prior to noticing that the vehicle matched the description of the one possibly involved in the gun theft. Isidore also argues that the narrative report reflects that the deputy began following the vehicle because it matched the description of the one involved in the gun theft, but did not stop the vehicle until after he observed the traffic violation. Defense counsel did not cross examine Deputy Vogt on this point, and the report, though contained in the record, was not introduced as evidence at the hearing. There is no indication that the district court considered the narrative report in ruling on the motion, and the narrative report cannot be considered.¹

The district court had reason to question Deputy's Vogt's credibility, as he admittedly testified inaccurately as to the reason for the stop. The district court was mindful of this fact, but specifically stated that the court had nothing from which to conclude that the officer was lying. The court believed the officer's revised testimony that he stopped the vehicle for a traffic violation. Further, Isidore does not suggest that a traffic violation is insufficient grounds for an investigatory stop. Thus, it cannot be said the discrepancy in Deputy Vogt's testimony so undermined his credibility that the district court's credibility determination was an abuse of discretion. Isidore also cites what he characterizes as an inconsistency in that Deputy Vogt testified that he suspected that both subjects had been involved in drug activity, but had no personal knowledge of that fact. Later, the deputy confirmed the prosecutor's statement that he suspected or thought that the two men were involved in drug activity. There is no...