State v. Oliver

• Decision Date: 22 September 1999
• Docket Number: No. 99-K-1585.,99-K-1585.
• Citation: State v. Oliver, 752 So.2d 911 (La. App. 1999)
• Parties: STATE of Louisiana v. Terry OLIVER and Debra Oliver.
• Court: Court of Appeal of Louisiana

752 So.2d 911

STATE of Louisiana v. Terry OLIVER and Debra Oliver.

No. 99-K-1585.

Court of Appeal of Louisiana, Fourth Circuit.

September 22, 1999.

Harry F. Connick, District Attorney of Orleans Parish, Richard M. Exnicious, Assistant District Attorney, New Orleans, LA, Counsel for Relator.

(Court composed of Judge WILLIAM H. BYRNES III, Judge MIRIAM G. WALTZER and Judge PATRICIA RIVET MURRAY).

WALTZER, Judge.

STATEMENT OF THE CASE

On 23 April 1999 the State filed a bill of information charging the defendant with possession of marijuana—first offense, a violation of La. R.S. 40:966(D)(1). On 19 May 1999 the defendant pleaded not guilty and filed a motion to suppress. On 2 June 1999 the trial court declared that it would hear the motion to suppress the evidence in conjunction with the trial. After hearing all the testimony, the trial court granted the defendant's motion to suppress. The State objected and noticed its intent to file for writs. The trial court set the return date on 16 June 1999. On that day the trial court appears to have granted the State's motion for extension of time to 23 June 1999.¹ The State timely filed its application on 23 June 1999. The 23 June 1999 minute entry noted that the State had filed its writ application and set a status hearing on 30 June 1999. The 30 June 1999 entry noted the State's writ application and that the defendants were in court and were dismissed until further notice.

STATEMENT OF THE FACTS

Officer Brian Baye testified that on the night of 11 April 1999 he and his partner, Officer Robert Gisevius, conducted a vehicle stop. The officers approached the truck and "detected a strong odor of burning marijuana coming from the vehicle." The officers asked the driver and the passenger to exit the vehicle. At that time Officer Gisevius observed a partially smoked hand-rolled cigarette on the driver's side floorboard. He retrieved it and discovered that it was a marijuana cigarette. Officer Gisevius informed Officer Baye of what he found. Officer Baye arrested both subjects for possession of marijuana. Officer Gisevius continued to search the vehicle and found an additional partially smoked hand-rolled marijuana cigarette inside the ashtray. After Officer Baye arrested Oliver, a search of her purse revealed a cigarette package containing four complete and one partially smoked hand-rolled cigarettes, which the officers believed to contain marijuana.

Officer Baye stated that he and Officer Gisevius initially observed the vehicle stop in the middle of the intersection of Decatur and St. Peter Streets. The position of the vehicle in the middle of the intersection caused problems for the numerous pedestrians, who were trying to use the crosswalk. The officers followed the vehicle to North Peters and Esplanade Avenue before conducting the traffic stop. The officers also observed that the truck did not have a rear view mirror.²

On cross-examination Officer Baye stated that the French Quarter Festival was being held that weekend, during which thousands of people were present. When asked about his reason for stopping the truck which was right in front of the police car at the intersection, Officer Baye testified: "We initially stopped them not to issue any citations, but just to advise them of the violations that they had along with—" The officer stated that the violations involved stopping in the middle of a cross walk blocking pedestrians and the missing rear view mirror. When he was asked whether he intended only to give a warning, he answered: "Correct." Officer Baye admitted that issuing the warning was not a high priority item on such a chaotic night. The officer pointed to nothing else suspicious that made the officers follow the Oliver vehicle for six blocks. Officer Baye said that he could not recall that he saw anyone smoking marijuana when the he and Officer Gisevius pulled over the vehicle. Officer Gisevius was the first to smell the marijuana as he approached the driver's side of the truck. Officer Baye admitted that he did not see a marijuana cigarette when he stopped the vehicle. Officer Gisevius spotted the cigarette on the floorboard after the officers had removed the occupants and Officer Baye was detaining them at the back of the truck. Officer Gisevius searched the truck to see if there were other drugs in it. Officer Baye conceded that usually during a traffic stop, the occupants of the car remain inside the vehicle.

It was stipulated that William Giblen, a criminologist, would have testified that the items tested positive for marijuana. It was clarified that the cigarettes found on the floorboard and in the ashtray tested positive for marijuana, but the cigarettes from Mrs. Oliver's case in her purse tested negative; however, the blunts in the cigarette case tested positive.

At the conclusion of the testimony the trial court stated:

Allright, counsel, I've heard the testimony of the investigating officer and I think his testimony was very candid. I think he was very truthful in his testimony. I - it's the Court's opinion that it was a real stretch in stopping these people for a traffic violation in the French Quarter for blocking an intersection and then following this vehicle for a period of six blocks before stopping was effected. Had there been, what I consider to be a legitimate traffic violation, I think the officer's stop would have been a valid one. But blocking an intersection or coming - going too far up on an intersection blocking pedestrian flow across an intersection on a holiday in the French Quarter, the French Quarter Festival, I think is really stretching the reason for the stop. Therefore, I do not feel that the officer had a valid reason to stop the vehicle and I'm going to sustain counsel's motion to suppress the evidence in this case.

ANALYSIS

The State argues that the officers had reasonable cause to stop the truck even though they did not issue a traffic citation. The State contends that the officers observed the truck stop in the middle of the crosswalk; that violation of an ordinance³ provided reasonable cause to stop the vehicle.

In State v. Mitchell, 97-2774 c/w 98-1128 and 1129 p. 9 (La.App. 4 Cir. 2/3/99), 731 So.2d 319, 326-27, this Court discussed reasonable cause to stop a vehicle:

An individual cannot be stopped in his vehicle by a police officer, who does not have a warrant, unless the officer has reasonable suspicion that the individual is committing, has committed, or is about to commit a criminal offense, including the violation of a traffic regulation. La.C.Cr.P. art. 215.1; State v. Mock, 95-2156 (La.App. 4 Cir. 5/29/96), 675 So.2d 819. See also State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879. See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La. 1983); State v. Smith, 94-1502 (La.App. 4 Cir. 1/19/95), 649 So.2d 1078.

Reasonable suspicion for an investigatory stop is something less than probable cause. It must be determined under the facts of each case whether the officer had sufficient articulable knowledge of particular facts and circumstances to justify an infringement upon an individual's right to be free from governmental interference. State v. Albert, 553 So.2d 967 (La.App. 4th Cir.1989). The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Belton, 441 So.2d 1195 (La.1983), cert. den. Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Anderson, 96-0810 (La.App. 4 Cir. 5/21/97), 696 So.2d 105. An investigative stop must be justified by some objective manifestation that the person stopped is or is about to be engaged in criminal activity, or else there must be reasonable grounds to believe that the person is wanted for past criminal conduct. State v. Moreno, 619 So.2d 62, 65 (La. 1993). See also State v. Eddie, 96-2787 (La.App. 4 Cir. 4/30/97), 694 So.2d 503.

The trial court is vested with great discretion when ruling on motion to suppress. State v. Scull, 93-2360 (La.App. 4 Cir. 6/30/94), 639 So.2d 1239, 1245 writ denied, 94-2058 (La.11/11/94), 644 So.2d 391.

Officer Baye testified that he saw the truck stop partially blocking a crosswalk on Decatur Street during the French Quarter Festival when there were thousands of people in the French Quarter. Although the officer also noted a missing rear view mirror in his testimony, the reason for the stop was the partial obstruction of the crosswalk. The State's argument focuses only on the violation relating to the crosswalk. Yet the officers followed the Oliver truck for six blocks after it stopped in the intersection before pulling it over. Officer Baye clearly testified that the officers did not intend to issue a citation; the officers intended only to give a warning. In fact the officers never issued a traffic citation. The trial court concluded that the officers did not have a valid reason for stopping the truck. The trial court did not abuse its discretion under the circumstances.

APPLICATION FOR WRIT OF CERTIORARI GRANTED; JUDGMENT OF THE TRIAL COURT AFFIRMED; RELIEF DENIED.

MURRAY, J., CONCURS WITH REASONS.

BYRNES, J., DISSENTS WITH REASONS.

MURRAY, J., concurring with reasons:

The State asserts that because the police officers made a valid traffic stop, the failure to issue a citation is not grounds for suppressing the evidence. However, as the trial court noted, the police officer's testimony did not establish that a traffic violation had occurred. He testified that the defendants' vehicle partially blocked a pedestrian crosswalk when it stopped for a red light, which is permissible under La. R.S. § 32:143 A. While the officer also stated that "the rear view mirror was missing," La. R.S. § 32:354 B requires an interior rearview mirror only if there is no exterior mirror on the right side of the vehicle, something the policeman did not mention.

BYRNES, J., dissenting with...