State v. Tucker
| Decision Date | 24 May 1993 |
| Docket Number | 92-K-2130,Nos. 92-KO-2093,s. 92-KO-2093 |
| Citation | 626 So.2d 707 |
| Parties | STATE of Louisiana v. Clarence TUCKER. |
| Court | Louisiana Supreme Court |
Rehearing Denied Nov. 18, 1993.
Clarence Tucker, pro se.
Richard Ieyoub, Atty. Gen., Paul Carmouche, Dist. Atty., Catherine M. Estopinal, Asst. Dist. Atty., for respondent.
*
We granted the State's writ application 1 in this matter to resolve a split among the circuits regarding the moment when, during a police encounter, a citizen becomes "seized" within the meaning of La. Const. Art. I, Sect. 5. Specifically, we address the impact, if any, of the recent United States Supreme Court decision in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) on an individual's rights against unreasonable searches and seizures in the State of Louisiana. In the consolidated matter, we granted the defendant's pro se writ application 2 to assess his claim that the evidence introduced at trial was insufficient to support his conviction.
This case involves charges stemming from two separate, unrelated incidents, occurring some three days apart. The first incident began at approximately 3:30 a.m. on February 28, 1990. On that date and at that time, Shreveport Police received a report of an attempted burglary in progress in the 4500 block of Ledbetter Street in Shreveport. The caller reported that she had scared the burglar, a black male, and that he had run to a motorcycle in the street in front of her residence.
Shreveport Police Officer Richard Kenner responded to the call within minutes and saw a black male standing beside a motorcycle at the described location. As Officer Kenner approached he recognized the black male as Clarence Tucker, Officer Kenner having had previous dealings with Tucker. Officer Kenner recalled that Tucker was known for carrying one or more concealed handguns and as Officer Kenner approached he could see a bulge in Tucker's right jacket pocket. Based on these facts, Officer Kenner conducted a brief pat-down search of Tucker. This search revealed a .25 caliber automatic pistol, a plastic bag containing 26 rolled marijuana cigarettes, a single edged razor-blade, a number of small plastic bags, and considerable cash. Tucker was arrested for possession of a firearm by a convicted felon (La.Rev.Stat. 14:95.1) and possession of marijuana with intent to distribute (La.Rev.Stat. 40:966(A)(1)).
Three days later, on March 2, 1990, acting on repeated complaints of drug-related activity in and around Roby's Arcade, Shreveport and Louisiana State Police conducted a drug sweep of this area. This sweep was part of an ongoing police action, code-named "Operation Thor," which had as its goal reclaiming certain high-crime areas from drug trafficking and gang-related activities. The sweep began at around 10:30 p.m. when approximately ten to twelve marked police vehicles carrying 20 to 30 officers converged on Roby's Arcade. Shreveport Police Officer C.W. Wilson and State Police Officer Steven Jackson approached Roby's in the lead marked police cruiser.
As Officers Wilson and Jackson approached, they observed Tucker and another man standing huddled together by a parked car outside the Arcade. When the two men noticed the approaching police cars, they quickly broke apart and began to leave the scene. As they did, Officer Wilson stopped his car and began to get out while simultaneously ordering the two men to "halt" and "prone out." One of the men lay down immediately. Tucker, however, moved several steps toward the rear of the Arcade and tossed away a plastic bag. He then obeyed the police command and lay down. The police retrieved the bag Tucker had thrown and found it contained 47 rolled marijuana cigarettes. Tucker was then placed under arrest for possession of marijuana with intent to distribute.
As a result of these two incidents, Tucker was charged with and convicted of two counts of possession with intent to distribute a controlled dangerous substance (La.Rev.Stat. 40:966(A)(1)), count one arising from the February 28 incident and count two arising from the March 2 incident. The district court found Tucker a third felony offender on count one and, as such, sentenced him to 25 years at hard labor. The court also sentenced Tucker to 25 years at hard labor on count two with the sentences to run concurrently. Tucker appealed. 3
Addressing count one, the appellate court found the police detention and pat-down search of Tucker lawful based on the arresting officer's reasonable, articulable suspicions that Tucker had been involved in a reported crime and that Tucker, who this Officer personally knew frequently carried concealed handguns, appeared to be carrying a handgun at this time. Thus, the court concluded, the marijuana found in Tucker's possession pursuant to this search had been lawfully seized and was not improperly admitted into evidence against Tucker at his trial. The appellate court further found the evidence presented against Tucker was sufficient to allow a reasonable trier of fact to conclude beyond a reasonable doubt that Tucker was guilty of the offense of which he was convicted. Accordingly, Tucker's conviction on count one was affirmed.
Addressing count two, the appellate court found Tucker was seized when Officers Wilson and Jackson approached and ordered Tucker to "halt" and "prone out," commands which, the appellate court surmised, would cause a reasonable person to believe detention was imminent. The appellate court further found the police lacked reasonable, articulable suspicion that Tucker was engaged in, was about to engage in, or had just completed engaging in criminal conduct at the moment when he was seized and, therefore, this seizure was unconstitutional under La. Const. Art. 1, Sect. 5. Because Tucker discarded the plastic bag containing the marijuana cigarettes after this unlawful seizure, the court of appeal found the marijuana was a fruit of Tucker's unlawful seizure and, hence, was inadmissible. Accordingly, the appellate court reversed the trial court's denial of Tucker's motion to suppress this evidence and reversed Tucker's conviction on count two.
Tucker's pro se writ application (92-KO-2093) seeks review of the appellate court's conclusion that the evidence presented against him was sufficient to support his conviction on count one. The State's writ application (92-K-2130) seeks review of the appellate court's conclusion that the bag of marijuana which Tucker threw away as he was being ordered to halt and prone out was inadmissible against him. We first address the State's writ application.
La. Const. Art. 1, Sect. 5 provides in part:
Section 5. Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search.
Implementing the protections provided by this provision, this court has held the police may not make a warrantless arrest of a citizen without probable cause that the citizen has engaged in criminal conduct. State v. Zielman, 384 So.2d 359, 363 (La.1980); State v. Tomasetti, 381 So.2d 420, 423 (La.1980); State v. Mendoza, 376 So.2d 139, 141 (La.1979). We have further held that while the police may briefly detain and interrogate an individual, a less encroaching intrusion on an individual's right to be free from governmental interference than an arrest, the police may only do so based upon reasonable, articulable suspicion that the individual has engaged in, is engaging in, or is about to engage in criminal conduct. La.Code Crim.Proc. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389, 391 (La.1983); State v. Chopin, 372 So.2d 1222, 1224 (La.1979).
In an effort to discourage police misconduct in violation of these standards, evidence recovered as a result of an unconstitutional search or seizure has been held inadmissible. Thus, evidence abandoned by a citizen and recovered by the police as a direct result of an unconstitutional seizure may not be used in a resulting prosecution against the citizen. Chopin, 372 So.2d at 1224. If, however, a citizen abandons or otherwise disposes of property prior to any unlawful intrusion into the citizen's right to be free from governmental interference, then such property may be lawfully seized and used against the citizen in a resulting prosecution. In this latter case, there is no expectation of privacy and thus no violation of a person's custodial rights. Chopin, Id.; State v. Ryan, 358 So.2d 1274, 1275 (La.1978).
The foregoing standards of police conduct and rules of inadmissibility of unlawfully seized evidence are intended to protect individuals from unwarranted, "forcible" governmental interference. State v. Neyrey, 383 So.2d 1222, 1224 (La.1979). These protections are not implicated, therefore, when an individual encountered by a law enforcement officer remains free to disregard the encounter and walk away. State v. Belton, 441 So.2d 1195, 1199 (La.1983); State v. Lanter, 391 So.2d 1152, 1154 (La.1980); Neyrey, supra, 383 So.2d at 1224; State v. Shy 373 So.2d 145, 147-48 (La.1979). 4 Thus, "[i]t is only when the citizen is actually stopped without reasonable cause or when a stop without reasonable cause is imminent that the 'right to be left alone' is violated, thereby rendering unlawful any resultant seizure of abandoned property." Belton, 441 So.2d at 1199 (emphasis added). See also, Andrishok, 434 So.2d at 391; Chopin, 372 So.2d at 1224.
It is against this backdrop that we assess the effect, if any, of the United States Supreme Court's...
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