State v. Keller
| Decision Date | 08 September 1981 |
| Docket Number | No. 81-KA-0057,81-KA-0057 |
| Citation | 403 So.2d 693 |
| Parties | STATE of Louisiana v. Elmer J. KELLER. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Michael Fanning, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
James C. Lawrence, Gerdes, Valteau & Cade, New Orleans, for defendant-appellant.
*
On July 17, 1980, the defendant, Elmer J. Keller, was charged by bill of information with unlawful possession of phencyclidine (PCP), in violation of LSA-R.S. 40:967(C). The defense filed a motion to suppress evidence which was denied after a hearing on August 28, 1980. The defendant thereupon pled guilty to unlawful possession of phencyclidine, reserving the right to appeal the trial court's denial of the motion to suppress evidence. State v. Crosby, 338 So.2d 584 (La.1976). The defendant was sentenced to pay a fine of $250.00 or to serve sixty days in the parish prison.
The following facts were adduced from the hearing on the motion to suppress evidence. On June 27, 1980, at approximately 3:00 AM, the defendant was driving in the French Quarter area of New Orleans when he allegedly became drowsy and parked his car on the 200 block of Dauphine Street, so that he could rest. The defendant thereupon fell asleep in the driver's seat. The motor of his car was running, the lights were on and music was playing from either a radio or tape deck.
Sergeant Paul M. Melancon, the arresting officer, stated that upon noticing the defendant slumped over the steering wheel, he approached the vehicle, opened the driver's door, cut off the ignition, and tried to awake the defendant. Sergeant Melancon was accompanied by two other officers and they were all in plain clothes. Melancon then described the ensuing events as follows:
The defendant claims that after he fell asleep the following events ensued:
The plastic bag found on the defendant contained white powder which proved to be phencyclidine.
Defendant has assigned only one error. The defense contends that the trial court erred in denying the motion to suppress the evidence seized in a warrantless search of the defendant's person. The defense argues that the search did not qualify as a search incident to an arrest or an investigatory stop and frisk. The alleged error is broken down into the following contentions:
1. At the time defendant was ordered from his car and patted-down no probable cause existed for his arrest.
2. The search of defendant's person cannot be justified as incidental to an arrest for resisting an officer.
3. Assuming that the police may have been justified in investigating the defendant, the pat-down search which ultimately culminated in the seizure of the evidence was illegal.
Inasmuch as the defendant entered a plea of guilty following the denial of his motion to suppress the evidence with a reservation of his right to appeal that issue under State v. Crosby, supra, the factual questions relate only to the validity of the search and seizure. The trial court evidently accepted Officer Melancon's version of the facts rather than the defendants. The question turned on credibility and we find no error in the trial court's finding to which we must give great weight. State v. Kent, 371 So.2d 1319 (La.1979).
The United States and Louisiana Constitutions prohibit unreasonable searches and seizures. U.S.Const. Amend. 4; La.1974 Const. Art. 1, § 5. These provisions prohibit all warrantless searches, except in limited and exigent circumstances established by well-recognized exceptions. State v. Aguillard, 357 So.2d 535 (La.1978); State v. Lain, 347 So.2d 167 (La.1977). The State has the burden of proving the admissibility of any evidence seized without a warrant. LSA-C.Cr.P. art. 703(D); State v. Bazile, 386 So.2d 349 (La.1980); State v. Franklin, 353 So.2d 1315 (La.1978).
In State v. Wade, 390 So.2d 1309 (La.1980) we said:
The facts of this case do not fall specifically within the rationale of the Terry progeny. Officer Melancon testified that he initially approached the defendant slumped over the steering wheel because he thought the defendant might have been injured, as opposed to being suspicious that defendant had just committed a crime. The officer stated that he did not initially intend to arrest the defendant. We feel that a person slumped over a steering wheel in a vehicle with the engine running, at 3:00 AM in the French Quarter of New Orleans provides an officer with sufficient reasonable suspicion to make an investigatory stop short of an arrest. 1 Whether the officer thought the person was injured, asleep, intoxicated or drugged, the...
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...of the vehicle in the French Quarter of New Orleans, to be sufficient reasonable suspicion to make an investigatory stop. State v. Keller, 403 So.2d 693, 696 (La.1981). FN32. See Tex. Penal Code § 49.01(2)(A). (The definition of “intoxicated” includes “not having the normal use of mental or......
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