State v. Sims

• Decision Date: 10 January 1983
• Docket Number: No. 81-KA-3018,81-KA-3018
• Citation: 426 So.2d 148
• Parties: STATE of Louisiana v. Caster D. SIMS.
• Court: Louisiana Supreme Court

Page 148

426 So.2d 148

STATE of Louisiana v. Caster D. SIMS.

No. 81-KA-3018.

Supreme Court of Louisiana.

Jan. 10, 1983.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whitten, Dist. Atty., George H. Meadors, Asst. Dist. Atty., for plaintiff-appellee.

C. Sherburne Sentell, Minden, for defendant-appellant.

BLANCHE, Justice.

Defendant, Caster Sims, was charged by separate bills of information with operating a motor vehicle while intoxicated (La.R.S. 14:98), resisting an officer (La.R.S. 14:108), and possession of marijuana (La.R.S. 40:966). The three offenses were joined for trial. After a bench trial, the defendant was found guilty of each offense as charged. He was sentenced to fines amounting to a total of $525 in addition to receiving a total of 100 days in the parish jail. Each jail sentence was ordered suspended, and the defendant was placed on supervised probation.

FACTS

During the early morning hours of February 4, 1981, Claiborne Parish Deputy Sheriff George Shirey was on patrol on U.S. Highway 79 near Pine Hill. Shortly after midnight, Shirey spotted a vehicle on the northbound shoulder of U.S. 79 off the paved portion of the highway. As Shirey drove slowly past the parked car, he noticed that its headlights were on and its motor was running. He also observed that a person was seated inside the car, under the steering wheel, slumped over and apparently asleep. After he passed the car, Shirey returned and pulled his police car behind the parked vehicle.

Shirey walked from his car to the parked vehicle and tapped on the driver's door in an attempt to arouse the subject. Upon closer examination, the deputy recognized the person inside the car and knew him to be Caster Sims. Shirey opened the car door and called the defendant's name. Again, Sims did not awaken. The deputy touched the defendant on the shoulder. Sims awoke, but appeared disoriented. At this time, the deputy noticed a faint odor which he believed to be alcohol. The deputy further noted that the defendant was mumbling and slurring his words.

Shirey asked to see Sims' driver's license. The defendant stood up to look for his license in his wallet, but fell back into the car seat. Deputy Shirey asked Sims to step to the rear of his vehicle in order to use the police headlights in the search for the license. As Sims walked to the rear of his car, Shirey observed that he swayed and supported himself against the car.

Suspecting that the defendant was intoxicated, Shirey asked Sims to perform two field sobriety tests. Sims did poorly on both tests. Shirey then placed Sims under arrest for DWI and for no driver's license on his person. ¹

Deputy Shirey informed the defendant that he was under arrest and asked him to put his hands on the car to be handcuffed. Although Sims put his hands on the car, he refused to be handcuffed. The deputy had to use physical force to place the cuffs on the defendant.

Once the defendant was handcuffed and seated in the back of the police car, Shirey returned to the defendant's vehicle to turn off the lights, motor and stereo. He noticed several music tapes in addition to a mounted tape player in the defendant's car. The deputy then walked back to the police car and radioed for a wrecker to bring the defendant's vehicle to the sheriff's office. Sims requested that his car not be moved.

Defendant's car was towed to the Claiborne Parish Sheriff's Office with Shirey and Sims following in the police car. At the sheriff's office, Sims was given an auto-intoxication test. He registered .081 percent.

After the intoxication test was administered, Deputy Shirey informed Sims that he was going to inventory his car. Sims did not respond. Shirey then proceeded to inventory the car for valuables. Plastic bags containing marijuana were found in the glove compartment of the defendant's car.

ASSIGNMENT OF ERROR NOS. 7 AND 8

By these assignments, the defendant argues that the trial court erred in denying his motion to suppress. He essentially contends that Deputy Shirey's initial encounter with him resulted in an unlawful seizure which tainted all evidence secured thereafter.

Both the Fourth Amendment to the United States Constitution and La.Const. art. 1, § 5 require that a "seizure" of a person by a law enforcement official be founded upon an objective justification. When the "seizure" takes the form of an arrest, the police officer must have probable cause to believe that the person arrested has committed an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Hathaway, 411 So.2d 1074 (La.1982); See also La.C.Cr.P. art. 213. To temporarily detain a person for purposes of investigation, the officer must have a reasonable suspicion that the person is committing, has committed, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Lanter, 391 So.2d 1152 (La.1980); See also La.C.Cr.P. art. 215.1.

However, law enforcement officials do not need reasonable cause or probable cause to detain each time they encounter a citizen, for not all police-citizen contact involves a "seizure." Policemen enjoy the same liberty possessed by every citizen to address questions to other persons. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (Harlan, J. concurring). A person is "seized" within the meaning of the Fourth Amendment and La.Const. art. 1, § 5 only when the law enforcement official, by means of physical force or show of authority, has in some way restrained the liberty of the citizen. State v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); See State v. Salazar, 389 So.2d 1295 (La.1980).

In this case, Deputy Shirey stopped to investigate, for he felt that the defendant Sims might be in trouble. He had previously observed the defendant slumped over the steering wheel of his car which had its motor running and its lights on. The deputy knocked on the driver's door in hopes of arousing Sims. When Sims did not awaken, Deputy Shirey opened the car door, called the defendant's name, and tapped him on the shoulder. The defendant awoke and voluntarily responded to the deputy's request for a driver's license, but he could not find his license in his wallet.

We find that, given the circumstances involved in this case, the deputy acted lawfully when he investigated the parked car.

When Deputy Shirey asked Sims for his license, he had reasonable cause to detain the defendant for purposes of further investigation. Within the deputy's knowledge at that time were the following facts: the defendant had been asleep and slumped over the wheel of his car which had its motor running; he smelled of alcohol; and he slurred and mumbled his words as he spoke. Thus, Shirey had reason to suspect that Sims had committed the offense of DWI and could lawfully detain him for investigation.

Prior to the time that Sims was requested to produce his driver's license, the deputy needed no probable or reasonable cause to detain, for he had not "seized" the defendant. The facts indicate that Shirey approached the parked vehicle merely to assist the driver. Shirey shook the defendant to arouse him, but only after he had knocked on the car door and had called the defendant's name. No demands were made upon the defendant or force applied. No "seizure" had occurred, for Deputy Shirey had not restrained the liberty of the defendant, either by means of physical force or show of authority. ²

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 9

The defendant claims that the trial court erred in denying his motion to suppress the marijuana found in the glove compartment of his car. He asserts that the marijuana was seized during an impermissible warrantless search.

The record clearly establishes that Deputy Shirey conducted a search of the defendant's car without a warrant. Therefore, the burden of proof shifted to the state to show affirmatively that the search and seizure were justified under the well-recognized exceptions to the warrant requirements of the Fourth Amendment and La.Const. art. 1, § 5. State v. Crosby, 403 So.2d 1217 (La.1981); State v. Hatfield, 364 So.2d 578 (La.1978).

The state contends that Deputy Shirey's search of the defendant's vehicle was a valid inventory search. Both this court and the United States Supreme Court have recognized a true inventory search to be an exception to the warrant requirement. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); State v. Jewell, 338 So.2d 633 (La.1976). To fall within the inventory exception, however, the state must prove that the impoundment of the defendant's vehicle was necessary and that the inventory of the vehicle's contents was necessary and reasonable in its scope. State v. Crosby, 403 So.2d 1217 (La.1981); State v. Jewell, 338 So.2d 633 (La.1976).

There are several factors which we have considered to be significant in determining whether a true inventory search has been conducted: (1) the vehicle could not have remained safely at or near the place it was stopped; (2) the search was not conducted in the field; (3) the tow truck was called before the search commenced; (4) formal impoundment procedures were followed; (5) the vehicle operator was asked if he consented to a search, if the car contained valuables, or if he would consent to the agency's failure to afford him the protection of an inventory search; (6) arrangements were made for someone designated by the operator to take possession or protective custody of the vehicle for him. State v. Hardy, 384 So.2d 432 (La.1980); State v. Killcrease, 379 So.2d 737 (La.1980); State v. LaRue, 368 So.2d 1048 (La.1979).

Applying these factors to our...