State v. Jerrold J. Francis.State v. Jerrold Francis.

• Decision Date: 16 February 2011
• Docket Number: Nos. 2010–KA–1149,2010–KA–1150.,s. 2010–KA–1149
• Citation: 60 So.3d 703
• Parties: STATE of Louisianav.Jerrold J. FRANCIS.State of Louisianav.Jerrold Francis.
• Court: Court of Appeal of Louisiana — District of US

60 So.3d 703

STATE of Louisiana

v.Jerrold J. FRANCIS.State of Louisiana

v.Jerrold Francis.

Nos. 2010–KA–1149

2010–KA–1150.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 16, 2011.

Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for State of Louisiana.Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.(Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).PAUL A. BONIN, Judge.

[4 Cir. 1] During a frisk following a Terry stop, police officers seized cocaine from Jerrold Francis. The officers arrested Mr. Francis for possession of cocaine, a violation of LA. R.S. 40:967 C, and for resisting an officer, a violation of LA. R.S. 14:108. During pretrial proceedings, Mr. Francis filed a motion to suppress the evidence, asserting that the stop-and-frisk was unconstitutional and that the cocaine seized should be excluded from evidence. After the district judge denied his motion, Mr. Francis entered pleas of guilty to both offenses. But he reserved his right to appeal the denial of his motion to suppress the evidence. See State v. Crosby, 338 So.2d 584 (La.1976).

Because the objective circumstances surrounding the officer's frisk of Mr. Francis do not support a finding that the officer reasonably suspected that Mr. Francis was armed and dangerous, we find that the frisk following the stop was unreasonable and that the trial court abused its discretion in denying the motion to suppress evidence. We accordingly reverse the trial court's ruling on the motion, vacate Mr. Francis' guilty pleas, and remand for further proceedings. We explain our reasoning in detail in the following Parts.

[4 Cir. 2] I

Police officers Rodney Brown and Clinton Lawrence were on, as they characterize, proactive patrol ¹ late at night near the Iberville Housing Project in downtown New Orleans. They observed Mr. Francis pacing on the sidewalk near a building located at the intersection of Iberville and North Robertson streets. The building at this intersection houses a clinic and a security company—both of which were closed.

Describing himself as “curious” about why Mr. Francis was pacing in front of closed businesses, Officer Brown along with Officer Lawrence exited the police car. They walked over to Mr. Francis to ask him why he was there. As they approached, Officer Brown noticed that Mr. Francis had his right hand in his pocket. He ordered Mr. Francis to remove his hand from his pocket. Mr. Francis complied. Mr. Francis held his hand out in a manner that showed the officers that he was holding a cigarette lighter.

The officers then asked Mr. Francis for some identification, and when he told them that he had none, the officers put him on the car and patted him down. As Officer Lawrence conducted the pat down, he kicked Mr. Francis' legs further apart, causing Mr. Francis' body to shift. It was then that Officer Brown noticed that a clear blue plastic bag was in Mr. Francis' right hand. Officer Brown moved Mr. Francis' hand and saw that the bag contained six pieces of cocaine. As the officers were placing Mr. Francis in handcuffs, Mr. Francis attempted to flee—managing to run only a few feet before the officers captured him.

[4 Cir. 3] At the hearing on the motion to suppress, when asked why he elected to pat down Mr. Francis, Officer Brown said, “he was standing there with his hand in his pocket.” Mr. Francis, however, removed his hand from his pocket when ordered to do so, revealing that he was holding a blue lighter. Officer Brown explained: “We had to check him to see if he had any type of weapons on him. We're not going to just stand there and interact with somebody when we don't know if they're armed.” On cross-examination, Officer Brown noted that it was his standard procedure to pat a person down before speaking to him during a pedestrian check at night and in the dark.

Following the arrest, Officer Brown took Mr. Francis to Central Lockup, where deputies told him that he must first take Mr. Francis to University Hospital for treatment for head injuries he had sustained during his arrest.

II

Before we discuss Mr. Francis' assignments of error regarding the validity of the Terry stop and frisk, we briefly address an evidentiary matter. Officer Brown, on direct examination, testified that he stopped Mr. Francis near the intersection of Iberville and North Robertson streets. Officer Brown identified this as a “crime area,” and counsel for the defense objected on grounds that the area's reputation for crime was irrelevant, and counsel orally moved to strike the statement. The trial court sustained the objection but did not rule on the motion to strike.

An individual's presence, in an area of expected crime, standing alone, is of course insufficient to support a reasonable, particularized suspicion that a person is involved in criminal activity. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). But we have recognized that the reputation of [4 Cir. 4] an area is an articulable fact upon which an officer may rely in determining reasonable suspicion. See State v. Ratliff, 98–0094, p. 3 (La.App. 4 Cir. 5/19/99), 737 So.2d 252, 254. Inquiry into the criminal character of an area is a legally relevant contextual consideration when analyzing a Terry stop. Adams v. Williams, 407 U.S. 143, 144, 147–48, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Because Officer Brown's testimony that the area in question had a reputation for criminal activity was relevant, the trial court should not have sustained the objection. In any event, we note that the trial court later articulated, in stating its reason for denying the motion to suppress, that this incident took place in the Iberville Project. In our review and evaluation of the trial court's finding of reasonable suspicion, we accept that the stop took place in an area with a reputation for high crime ² and consider that as one circumstance in the totality of the circumstances surrounding the stop and frisk of Mr. Francis.

III

The Fourth Amendment to the U.S. Constitution, applicable to the states through the Fourteenth Amendment, protects the right of the people “against unreasonable searches and seizures.” U.S. Const. Amend. IV; see also Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Similarly, the Louisiana Constitution protects “persons, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const. Art. 1, § 5. “Reasonableness is always the touchstone in striking the balance between [4 Cir. 5] legitimate law enforcement concerns, such as officer safety, and protected individual privacy interests.” State v. Bell, 09–574, p. 14 (La.App. 4 Cir. 12/9/09), 28 So.3d 502, 512. Accordingly, our inquiry under the Fourth Amendment always centers on reasonableness. And an appellate court ultimately reviews a finding of reasonableness under the Fourth Amendment de novo standard. See State v. Pham, 01–2199, p. 4 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218.

Unless justified by narrowly drawn exceptions to the warrant requirement, searches and seizures conducted without warrants issued on probable cause are per se unreasonable. State v. Surtain, 2009–1835, p. 7 (La.3/16/10), 31 So.3d 1037, 1043, citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). To enforce the mandates of the Fourth Amendment and La. Const. Art. 1, § 5, evidence recovered pursuant to an unconstitutional search or seizure is inadmissible. Mapp, 367 U.S. at 657, 81 S.Ct. 1684; State v. Hamilton, 2009–2205, p. 3 (La.5/11/10), 36 So.3d 209, 211. At a suppression hearing, the State bears the burden of proving the admissibility of evidence seized without a warrant. La.C.Cr.P. Art. 703 D. Aside from the ultimate determination of reasonableness, a trial court's determination of a motion to suppress evidence is entitled to great weight and will not be set aside absent an abuse of discretion. See State v. Wells, 2008–2262, p. 5 (La.7/6/10), 45 So.3d 577, 581; see State v. Pham, supra.

With these general Fourth Amendment precepts in mind, we turn now to a specific Fourth Amendment considerations of the stop first and then of the frisk of Mr. Francis.

[4 Cir. 6] 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.” LA. C.CR.P. art. 215.1 A; see also Terry, supra. “Reasonable suspicion” sufficient to effect a stop has been defined as something less than probable cause for arrest: a 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. Williams, 07–0700, p. 11 (La.App. 4 Cir. 2/13/08), 977 So.2d 1101, 1111.

In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy it entails and consider the totality of the circumstances in determining whether reasonable suspicion exists. State v. Marzett, 09–1080, pp. 5–6 (La.App. 4 Cir. 6/9/10), 40 So.3d 1204, 1208. The detaining officers must have knowledge of specific articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the stop. Id. The officer's past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable, and deference should be given to the experience of the officers present at the time of the incident. Id. “A hunch or suspicion is simply insufficient to establish reasonable grounds to stop a person.” State v. Lange, ...