State v. Myers
| Decision Date | 15 December 1999 |
| Docket Number | No. 32,777-KA.,32,777-KA. |
| Citation | 756 So.2d 343 |
| Parties | STATE of Louisiana, Appellee, v. Lenard Stanley MYERS, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Louisiana Appellate Project by Amy C. Ellender, Mer Rouge, Counsel for Appellant.
Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Tommy J. Johnson, Donna Frazier Hall, Assistant District Attorneys, Counsel for Appellee.
Before CARAWAY, PEATROSS, KOSTELKA, JJ.
A unanimous jury found Lenard Stanley Myers ("Myers") guilty as charged of possession of cocaine, a Schedule II controlled dangerous substance, La. R.S. 40:967(C). The court sentenced Myers to four years at hard labor with credit for time served but suspended the balance of the sentence and placed Myers on three years active supervised probation with special conditions. Additionally, the trial court ordered that the defendant pay court costs or serve twenty-five days in the parish jail. We affirm the conviction and sentence.
While conducting a series of drug-buy stops near a known "crack house" in the 3100 block of Harp Street in Shreveport, Louisiana, Shreveport Police Officer Mike McConnell ("McConnell") stopped Myers for questioning after he saw him exit the house on June 9, 1996, at approximately 4:15 p.m. In order to calm Myers' nervousness, McConnell explained that Myers had been stopped because he fit the description of a suspect for whom police were looking. McConnell also conducted a pat-down search of the suspect. Although then finding no weapons, McConnell later "could see [a matchbox] through the [left] breast pocket" of Myers' white shirt. McConnell asked the defendant if he smoked; Myers responded that he did not. McConnell then inquired about the purpose for the matchbox. Myers asked "What matchbox?" and then reached for the matchbox in his pocket. Being aware that drug suspects carry razor blades and/or crack cocaine in matchboxes, McConnell stopped Myers and removed the matchbox himself. McConnell then shook the box and reported hearing a "strange rattle" inside. Myers volunteered that he had found the matchbox and did not know what was in it. Thereafter, McConnell opened the box and discovered .5 grams of what a field test and a later crime lab analysis identified as crack cocaine. McConnell arrested Myers.
Myers filed a motion to suppress all physical evidence recovered by McConnell claiming that both the stop and subsequent search were illegal. After a hearing, the trial court denied the motion. Upon conviction, Myers appealed.
In assignment of error number two, Myers complains that the evidence was insufficient to convict him of possession of cocaine. It is appropriate that we first address the sufficiency of the evidence complaint. State v. Hearold, 603 So.2d 731 (La.1992). The criterion for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational fact-trier could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Glower, 30,745 (La.App.2d Cir.06/24/98), 715 So.2d 101. That standard, initially enunciated in Jackson and now legislatively embodied within La.C.Cr.P. art. 821, is applicable in cases involving both direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983); Clower, supra.
The crime of possession of cocaine is the knowing and intentional possession of cocaine without a valid prescription or order from a practitioner while acting in the course of his profession. La. R.S. 40:967(C). In this case, McConnell discovered cocaine in a matchbox seized from the pocket of Myers' shirt. The jury obviously rejected Myers' claim that he found the box and his denial of knowledge of the contents. Considering Myers' exit from a known drug location, we find this conclusion to have been a reasonable one. When viewed in the light most favorable to the state, this evidence is sufficient to convict Myers of the crime of possession of cocaine.
Myers contends in assignment of error number one that the trial judge erroneously refused to suppress the evidence seized from the matchbox because the officer had neither a reasonable suspicion of criminal activity to justify the stop nor an articulable belief that he was in danger to justify the subsequent search and seizure of evidence.
Great weight is afforded to the trial court's determination of a motion to suppress, as it had the opportunity to observe the witnesses and to weigh the credibility of their testimony. State v. Jackson, 31-836 (La.App.2d Cir.03/31/99), 736 So.2d 967. In ruling on a motion to suppress, the reviewing court may consider evidence presented at trial in addition to evidence presented at the motion to suppress. State v. Fisher, 97-4133 (La.09/09/98), 720 So.2d 1179.
The right of law enforcement officers to temporarily detain and interrogate persons reasonably suspected of criminal activity is well established. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The right to make an investigatory stop must be based upon reasonable suspicion to believe that the suspect has been, is, or is about to be engaged in criminal activity. Jackson, supra. Reasonable suspicion for an investigatory stop is something less than probable cause, but the officer must have "articulable knowledge" of particular facts which, in conjunction with reasonable inferences drawn therefrom, provide reasonable grounds to suspect the detainee of criminal activity. Id. Whether an officer has a reasonable suspicion to make an investigatory stop should be determined under the totality of the circumstances, in light of the officer's experience, training, and common sense. The officer's experience may be a consideration in ascertaining whether his inferences from the given facts were reasonable. Id. Indeed, to assess the validity of an investigatory stop, the critical inquiry focuses on the officer's knowledge at the time of the stop. State v. Branch, 30,733 (La.App.2d Cir.07/06/98), 714 So.2d 1277, writ denied, 98-2359 (La.01/08/99), 734 So.2d 1227.
Flight, a furtive gesture, nervousness, or startled behavior at the sight of a police officer is not, by itself, sufficient to justify an investigatory stop. However, this type of conduct may be a factor leading to a finding of reasonable suspicion. Id. Reputation of an area is an articulable fact upon which an officer can rely and which is relevant to a determination of reasonable suspicion to support an investigatory stop. State v. Willis, 31,561 (La. App.2d Cir.01/20/99), 728 So.2d 493. Further, presence in a high crime area, coupled with nervousness or flight or suspicious actions upon approach of the officers, is enough to justify an investigatory stop. State v. Taylor, 363 So.2d 699 (La.1978); Jackson, supra. Such a high crime area is a place in which the character of the area gives color to conduct which might not otherwise raise the suspicion of an officer. State v. Buckley, 426 So.2d 103 (La.1983).
In this case, McConnell testified that on June 9, 1996, he observed Myers exit a known drug location with a package; McConnell had previously made numerous drug arrests at the location. On that day, other arrests had also been effectuated through the drug-buy operation. McConnell stopped Myers after following him in his police car approximately one block north of the drug location. Myers appeared to be unaware that he was being followed. When McConnell made contact with him, however, Myers became very nervous and fidgety. Based upon McConnell's past experience, training, and common sense, and Myers' nervous demeanor and departure from a known drug house where arrests had earlier been made, we find that a reasonable suspicion that Myers had or was engaging in criminal activity existed. Accordingly, McConnell's investigatory stop of Myers was legal. We next address the legality of the search and seizure of the matchbox.
The seizure of contraband other than weapons during a lawful Terry stop was justified under the "plain-view" doctrine in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). That doctrine permits the seizure of an object without a warrant if police are lawfully in a position to view it, if its incriminating character is immediately apparent, and if police have a lawful right of access to it. Willis, supra. Simply stated, the rule is that if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).
In this case, Myers testified that he had previously conducted a pat-down search for weapons when he saw "[a matchbox] through the [left] breast pocket" of Myers' white shirt. Accordingly, the matchbox was in plain view. Because McConnell was lawfully in a position to view the evidence (during the lawful Terry stop), and there exists no issue regarding his lawful access to it, the crucial inquiry under these facts is whether the incriminating nature of the item was immediately apparent to McConnell so as to justify the seizure and search of the matchbox. More succinctly stated, the issue under these facts is "whether an officer, relying on years of practical experience and knowledge commonly accepted, has probable cause to seize the [matchbox] in plain view." Texas v. Brown, supra, at 735, 103 S.Ct. 1535.
Pursuant to the United State Supreme Court's analysis and resolution of similar facts and issues in Texas v. Brown, supra, we find that McConnell legally seized and searched the matchbox pursuant to the "plain view" exception to the Warrant Clause of the Fourth Amendment.
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