State v. Thomas
Decision Date | 20 June 1977 |
Docket Number | No. 59088,59088 |
Citation | 349 So.2d 270 |
Parties | STATE of Louisiana v. Frank THOMAS and Alberta Talbert. |
Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
Elizabeth A. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
Defendants were charged with possession of heroin with intent to distribute, La.R.S. 40:966(A). Frank Thomas was convicted as charged and sentenced to life imprisonment at hard labor. Alberta Talbert was convicted of possession of heroin and sentenced as a multiple offender, La.R.S. 15:529.1, to four years at hard labor. Upon appeal, we find merit in their assignment of error relating to the denial of the motion to suppress the heroin seized incidental to defendants' arrests.
On August 8, 1975, at approximately 1:25 p.m., two New Orleans policemen on routine patrol drove through a semi-circular driveway in a housing project. * They observed Alberta Talbert, whom they did not know at the time, seated on the passenger side of an automobile legally parked in the driveway. Then the officers saw Frank Thomas walking towards the car carrying in his hands a tinfoil covered object about the size of a baseball. One policeman had previously participated in numerous arrests involving heroin wrapped in foil. The patrol car was unmarked and the policemen were in plain clothes. Frank Thomas looked in the direction of the officers, lowered the package to his side and quickened his pace. He entered the parked vehicle as the patrol car pulled alongside. One officer observed Thomas hand the tinfoil package to Alberta Talbert, who transferred it to her right side. After coming to a stop slightly past the parked car, the officers got out and approached Thomas' vehicle. The officers told Thomas and Talbert that they were under arrest and asked them to step out of the car. One of the policemen then recovered the package from behind the door handle on the passenger side of the car. He removed the tinfoil wrapper and found two inner packages containing 49 packets of brownish powder. The officers testified that they had recognized Frank Thomas before the arrest. Both claimed to know that he was a user of heroin and a suspected pusher. However, the officers did not disclose any of the facts upon which they based these conclusions.
The Fourth Amendment to the United States Constitution provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Article I, § 5 of the 1974 Louisiana Constitution provides:
A warrantless arrest, no less than an arrest pursuant to a validly issued warrant, must be based on probable cause. State v. Ranker, 343 So.2d 189 (La.1977); State v. Jackson, 337 So.2d 508 (La.1976); State v. Scott, 320 So.2d 538 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975); State v. Odom, 292 So.2d 189 (La.1974). Probable cause exists when facts and circumstances within the arresting officer's knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Marks, 337 So.2d 1177 (La.1976); State v. Randolph, 337 So.2d 498 (La.1976); State v. Gilmore, 323 So.2d 459 (La.1975); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). While the officer need not have sufficient proof to convict, mere suspicion is not enough to justify an arrest. State v. Ranker, supra; State v. Randolph, supra.
LaFave, "Street Encounters" and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich.L.Rev. 40, 73-74 (1968) observes:
(Footnotes omitted.)
Applying these principles to the instant case, we conclude that the facts and circumstances within the officers' knowledge were insufficient to provide probable cause for the arrests. In essence, the officers acted on the following observed facts: (1) Frank Thomas was seen carrying an object wrapped in tinfoil, and one of the officers had seen foil used for packaging heroin in numerous other cases; (2) Thomas held the package on his side and quickened his pace, as if startled, after seeing the two plain clothes officers in the unmarked patrol car; and (3) after...
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