State v. Shoemaker

• Decision Date: 16 October 1990
• Docket Number: No. 90,90
• Citation: State v. Shoemaker, 569 So.2d 169 (La. App. 1990)
• Parties: STATE of Louisiana v. Harry L. SHOEMAKER, III. /KW/0434.
• Court: Court of Appeal of Louisiana

Page 169

569 So.2d 169

STATE of Louisiana v. Harry L. SHOEMAKER, III.

No. 90/KW/0434.

Court of Appeal of Louisiana First Circuit.

Oct. 16, 1990.

Writ Denied Jan. 4, 1991.

Bryan Bush, Dist. Atty. by Monisa Thompson, Asst. Dist. Atty., Baton Rouge, for plaintiff/appellee.

James Boren, Baton Rouge, for defendant/appellant.

Before SAVOIE, CRAIN and FOIL, JJ.

SAVOIE, Judge.

This matter is before us on remand from the Louisiana Supreme Court. State v. Shoemaker, 563 So.2d 889 (La.1990). The only issues presented for our review are:

1. alleged error in the trial court's denial of the motion to suppress, and in ruling the stop of defendant's car constitutionally permissible; and

2. alleged error in barring Dr. Olinde Dart's testimony on the issue of the alleged illegality of the arresting officer's actions which immediately preceded the stop.

The Louisiana Supreme Court remanded this matter to us for briefing, argument and an opinion.

Defendant, Harry L. Shoemaker, III, was charged with driving while intoxicated, first offense, a violation of LSA-R.S. 14:98 and with improper lane usage, a violation of LSA-R.S. 32:79. He filed a motion to suppress. After a hearing, the trial court denied the motion to suppress; defendant sought review of that ruling. In an unpublished action, this court denied defendant's application for writs and remanded the matter. State v. Shoemaker, III, KW 90 0434, April 16, 1990. Defendant then sought review by the Louisiana Supreme Court, and that Court granted his application for supervisory relief and vacated this court's ruling. Pursuant to that order, this court has heard oral argument and reviewed the record and briefs from relator and respondent.

The following testimony was elicited at the pretrial hearing on the motion to suppress. The testimony of the arresting officer, Louisiana State Trooper Glenn Verrett, reveals that, on Easter Sunday (March 26, 1989) at approximately 11:00 p.m., he came to a stop behind a vehicle driven by defendant. Defendant was evidently awaiting a traffic signal change at the intersection of Airline Highway and Highland Road in Baton Rouge. His vehicle was in the right lane of a four-lane divided highway and was northbound. When the traffic signal turned green, defendant proceeded north on Airline Highway and soon attained the legal speed limit of between 50 and 55 miles per hour. Trooper Verrett testified that he followed defendant's vehicle for an approximate distance of three-quarters of a mile before concluding that he should stop the vehicle. During an estimated one-half mile distance, the trooper saw defendant's vehicle drift across the center line and straddle the center line for as much as one-tenth of a mile, then drift back into the right lane and continue to drift all the way onto the right road shoulder and proceed for an approximate one-tenth mile distance before again drifting to the left, across the center line, and then back again onto the right road shoulder.

Trooper Verrett testified that the lines marking the lanes were clearly visible; he did not observe any obstructions, potholes, road defects, or any other apparent reason for defendant's erratic driving and improper lane usage. He stated that after he had made the decision to stop defendant, he radioed in the vehicle license tag number and informed his troop of his intent to stop the vehicle. Trooper Verrett testified that he intended to issue a citation for improper lane usage and that, based upon his experience that improper lane usage is indicative of probable driving while intoxicated, he suspected defendant was more than likely driving while intoxicated.

Defendant testified and admitted the consumption of two beers and two Crown Royal and water drinks on the evening he was stopped. He stated he had been to a bar called "Fred's" for several hours listening to a band until 10:00 p.m. and then to another bar to eat a hot dog. Defendant testified that he is 5'9" tall and weighs 195 pounds. He claims to have been unaware that a police officer was following him and, instead, stated he believed he was being pursued by some "nut." Defendant stated he was being "tailgated" and that the bright lights from the car following him blinded him by way of the rearview mirror. During cross-examination, defendant admitted he did not recall whether his rearview mirror was on day or night vision. Additionally, defendant stated that while the trooper's driving concerned him, it only may have caused him to move slightly from his lane, and he denied that his car substantially moved from his lane.

ASSIGNMENT OF ERROR NUMBER ONE:

By means of this assignment of error, defendant complains that the stop of his vehicle was unconstitutional for several reasons. He claims the trooper intentionally precipitated the confrontation and that the trooper did not have probable cause nor reasonable suspicion to make the stop.

The Fourth Amendment to the Federal Constitution and art. I, sec. 5, of the Louisiana Constitution protect 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 LSA-C.Cr.P. art. 215.1, as well as by both federal and state jurisprudence. Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), State v. Belton, 441 So.2d 1195, 1198 (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, 391 (La.1983). It has been 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 examining 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. State v. Williams, 416 So.2d 91, 93 (La.1982); State v. Myers, 490 So.2d 700, 702 (La.App. 2nd Cir.), writ denied, 493 So.2d 1221 (La.1986); State v. Williams, 489 So.2d 286, 289 (La.App. 4th...