State v. Pautard

• Decision Date: 31 March 1986
• Docket Number: Nos. 85-K-1323,85-K-1575,s. 85-K-1323
• Citation: 485 So.2d 909
• Parties: STATE of Louisiana v. Janice PAUTARD. STATE of Louisiana v. Johnny DUNCAN. 485 So.2d 909
• Court: Louisiana Supreme Court

Page 909

485 So.2d 909

STATE of Louisiana v. Janice PAUTARD.

STATE of Louisiana v. Johnny DUNCAN.

Nos. 85-K-1323, 85-K-1575.

485 So.2d 909

Supreme Court of Louisiana.

March 31, 1986.

Rehearing Denied May 9, 1986.

Robert J. Roux, Alton T. Moran, Office of Public Defender, Baton Rouge, for Pautard.

William J. Guste, Jr. Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bryan Bush, Dist. Atty., Kay Kirkpatrick, Dennis Weber, Asst. Dist. Attys., for State.

Robert J. Roux, Office of Public Defender, Jeff C. Calmes, Baton Rouge, for Duncan.

MARCUS, Justice.

Janice Pautard (a/k/a Janice Rigsby) and Johnny Duncan were charged in the same information with possession of Diazepam, a controlled dangerous substance, in violation of La.R.S. 40:969(C). Duncan filed a motion to suppress the evidence which was joined in by Pautard. ¹ Following an evidentiary hearing, the trial judge denied the motion to suppress. Defendants withdrew their former pleas of not guilty and entered pleas of guilty as charged, reserving the right to appeal the ruling of the trial judge denying the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). After determining that the pleas were made voluntarily and with an understanding of the nature of the charges, the trial judge accepted the pleas of guilty. A presentence investigation was ordered. Pautard was sentenced to serve three years at hard labor. The judge suspended the sentence and placed her on active probation for three years with special conditions. The court of appeal affirmed the conviction and sentence. ² Duncan was sentenced to serve three years at hard labor. His sentence was also suspended and he was placed on active probation for a period of five years with special conditions, one of them being that he serve four months in the parish jail. His conviction and sentence were also affirmed by the court of appeal. ³ Upon applications by defendants, we granted certiorari and consolidated the cases to review the correctness of the denial of the motion to suppress. ⁴

Evidence adduced at the suppression hearing reveals that about 3:00 a.m. on March 26, 1983, Sergeant Phillip Hilbun of the Baton Rouge Police Department was patrolling the north Baton Rouge area when he observed a white Chevrolet with two caucasian occupants, a male driver and a female passenger, parked at a closed service station at the intersection of 38th and Cain Streets. Sergeant Hilbun, a thirteen-year veteran of the police force, had been working the north Baton Rouge area for six or seven years. He testified that the location, sometimes referred to by residents as the "shooting gallery," had a reputation as a narcotics-trafficking area. Sergeant Hilbun circled the block in his police unit and then concealed his vehicle and himself from view behind some bushes approximately 150 to 200 feet from the Chevrolet. From this position, Sergeant Hilbun observed a black male approach the driver's side of the Chevrolet and converse with the occupants for a couple of minutes. He further testified that because it was dark and he was not very close, he did not see if any specific items passed between the black male and the occupants of the vehicle. The black male then turned and walked away. As the vehicle started up to drive away, the occupants observed the police officer. Sergeant Hilbun testified that he tried to get them to stop but the vehicle went a few blocks, turned right, went another few blocks and again turned right before finally stopping on Pritcher Street behind the Gus Young Community Center. During pursuit of the vehicle, Sergeant Hilbun radioed for a backup unit, informing the unit that it appeared that the passenger, Janice Pautard, was eating something and he was concerned that she was destroying evidence. Officers Wilson and Causey responded to the radio call. Officer Wilson testified that when he approached, the Chevrolet was already coming to a stop, and Sergeant Hilbun was behind it with his red lights on.

Sergeant Hilbun noticed that the Chevrolet had an out-of-state license plate. He then told the driver, Johnny Duncan, to exit the vehicle. After observing that Duncan was unarmed, Sergeant Hilbun asked him for identification. As he approached the vehicle, he detected the aroma of marijuana smoke in the vehicle. The defendants were advised of their Miranda rights. When Sergeant Hilbun commented on the smell of marijuana, Pautard stated that the couple had smoked marijuana earlier in the evening at Larry's PoBoy Restaurant. Sergeant Hilbun also noticed that Duncan had several cash bills protruding from his shirt pocket. The officers requested permission to search the vehicle. Duncan gave his consent. No contraband was found in the vehicle.

After the search of the vehicle, defendants were advised again of their Miranda rights. Sergeant Hilbun frisked Duncan for a dangerous weapon but none was recovered. He then told Duncan of his suspicions and requested permission from him to search his boots. Duncan consented and removed his boots. A single pill was recovered from within Duncan's sock. Pautard also gave her permission to the officers to search her purse and handed it over to Officer Wilson. A single pill was found in a change purse or cigarette holder in her purse. During this time, Pautard made several statements. She stated that they had come to the area to purchase narcotics but the deal did not go through and that they had been "ripped off" there once before. She also admitted that they had purchased the two pills at Larry's PoBoy Restaurant earlier in the evening. ⁵ Both defendants were arrested. An analysis of the pills revealed that they were Diazepam (Valium), a Schedule IV controlled dangerous substance.

Defendants contend that Sergeant Hilbun possessed neither reasonable cause to believe that they were committing an offense to justify an investigatory stop nor probable cause to arrest when he stopped their vehicle. They further contend that the consent to search the vehicle and their persons and belongings was either coerced or was tainted by the illegal stop or arrest. We find that the investigatory stop was legal and the consent to search was freely and voluntarily given by defendants. For these reasons, we find, as did the court of appeal, that the trial judge correctly denied the motion to suppress the evidence.

The fourth amendment to the federal constitution and art. 1, Sec. 5 of the Louisiana constitution protects people against unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.Code Crim.P. art. 215.1, as well as both the federal and state jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Andrishok, 434 So.2d 389 (La.1983). We have held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Belton, supra; State v. Andrishok, supra.

Sergeant Hilbun was an experienced police officer, having served thirteen years with the Baton Rouge Police Department at the time of the detention and arrest. At least six of these years were spent patrolling the area of 38th and Cain and Sergeant Hilbun knew of its reputation as a drug-trafficking area. At 3:00 a.m., he observed a black male approach two white persons in a vehicle parked in a closed service station. After the person departed and the occupants of the vehicle noticed Sergeant Hilbun, they quickly exited the area and did not stop until they were pulled over by Sergeant Hilbun several blocks away. During the pursuit, Sergeant Hilbun radioed to a backup unit that he saw the passenger eating something, and he was concerned that evidence was being destroyed. We conclude that Sergeant Hilbun's knowledge of these facts, in conjunction with the reasonable inferences drawn therefrom, was sufficient to give a trained police officer reasonable cause to believe that defendants were engaged in criminal conduct. Hence, the subsequent investigatory stop of defendants was legal.

Having found a legal investigatory stop, we now must determine if the subsequent searches of defendants' persons and belongings and seizure of evidence were lawful.

It is well settled under the federal and our state constitutions that a search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions. One of the specifically established exceptions to both a warrant and probable cause is a search conducted pursuant to consent. When the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving the consent was given freely and voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Owen, 453 So.2d 1202 (La.1984); State v. Bourgeois, 388 So.2d 359 (La.1980).

After defendants were advised of their Miranda rights, Duncan gave his consent to search the vehicle. Nothing was recovered. Defendants were again advised of their Miranda rights, and after the officers voiced their suspicions, Duncan consented to a search of his boots and removed them, and Pautard gave Officer Wilson her permission to search her purse and handed it over. The drugs in question were seized as a result of these searches. Pautard freely admitted that they had smoked marijuana and...