State v. Tucker

• Decision Date: 24 June 1992
• Docket Number: No. 23902-KA,23902-KA
• Citation: 604 So.2d 600
• Parties: STATE of Louisiana, Plaintiff/Appellee, v. Clarence TUCKER, Defendant/Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 600

604 So.2d 600

STATE of Louisiana, Plaintiff/Appellee, v. Clarence TUCKER, Defendant/Appellant.

No. 23902-KA.

Court of Appeal of Louisiana Second Circuit.

June 24, 1992.

Writ Granted Dec. 11, 1992.

Indigent Defender Office by Richard E. Hiller, Shreveport, for defendant/appellant.

Clarence Tucker, in pro. per.

Richard Ieyoub, Atty. Gen., Paul J. Carmouche, Dist. Atty., Powell Layton and Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for plaintiff/appellee.

Before MARVIN, NORRIS and STEWART, JJ.

NORRIS, Judge.

After a jury trial, appellant Clarence Tucker was found guilty of two counts of possession of marijuana with intent to distribute. La.R.S. 40:966 A(1). He was adjudicated an habitual offender and sentenced to 25 years at hard labor on each count, the sentences to be served concurrently.

Tucker appeals, urging six assignments of error. We find that the trial court erred in denying Tucker's motion to suppress evidence gathered on the second count. Accordingly, we reverse the conviction and sentence on that count and remand for further proceedings. However, we find no merit in appellant's assignments as to the first count. Tucker's conviction and sentence on count one are thus affirmed.

FACTS

In the early morning of February 28, 1990, Shreveport police stopped Clarence Tucker in connection with a reported attempted burglary. The ensuing search revealed a handgun, 26 rolled marijuana cigarettes, a number of small plastic bags, and considerable cash. Tucker was arrested for possession of a firearm by a convicted felon (La.R.S. 14:95.1) and possession of marijuana with intent to distribute (R.S. 40:966 A(1)). Tucker was released later that day, after having been given a "felony summons," due to crowded jail conditions. R.p. 70.

Tucker was stopped again on March 2, 1990 during a drug sweep, code-named "Operation Thor," conducted jointly by the Shreveport and State police departments. On this occasion, police seized a plastic bag containing 47 rolled marijuana cigarettes which Tucker had thrown away. He was arrested and charged with possession of marijuana with intent to distribute.

A jury found Tucker guilty of two counts of possession with intent to distribute. Tucker was adjudicated a third felony offender on count one, and sentenced as such to 25 years at hard labor. He was sentenced on the second count to 25 years at hard labor, to be served concurrently with count one.

Tucker appeals, urging six assignments of error. The facts of the incidents leading to the two counts will be detailed as they apply to the individual assignments.

DISCUSSION

Tucker submitted pro se briefs in support of his appeal. However, Tucker is represented on appeal by an attorney who has filed and briefed assignments of error. Because Tucker is not entitled to be both represented and representative, his pro se arguments will not be considered. State v. Gene, 587 So.2d 18 (La.App.2d Cir.1991); State v. Hughes, 587 So.2d 31 (La.App.2d Cir.), writ denied 590 So.2d 1197 (1991).

Assignment # 1: Motion to Suppress

Tucker argues that the police did not have lawful grounds to detain or search him on either February 28 or March 2, and that the warrantless searches of his person were therefore unreasonable and in violation of his constitutional rights. U.S. Const., Fourth Amendment; La. Const. Art. 1, Secs. 2, 13, and 16. He thus claims, in his first assignment, that the trial court erred by denying his motion to suppress the evidence seized during these searches.

Where a warrantless search has occurred, the State has the burden of showing that one of the exceptions to the warrant requirement is applicable. State v. Roberds, 393 So.2d 715 (La.1981). A search pursuant to a lawful investigatory stop is such an exception. La.C.Cr.P. art. 215.1; Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In order to stop a person temporarily for an investigation, the officer must have a reasonable suspicion that the person has committed, is committing or is about to commit a crime. La.C.Cr.P. art. 215.1; Terry v. Ohio, supra. "Reasonable suspicion" is something less than the probable cause required for an arrest, but the detaining officer must be able to articulate specific reasons for his suspicion of criminal activity. State v. Rodriguez, 396 So.2d 1312 (La.1981); State v. Meyers, 520 So.2d 842 (La.App.2d Cir.1987). The officer must have had sufficient facts within his knowledge to justify an infringement of the suspect's rights. Mere suspicion of criminal activity is not sufficient for police interference with an individual's freedom. State v. Williams, 421 So.2d 874 (La.1982).

In assessing the reasonableness of such a stop, the court must balance the need to search and seize against the invasion of privacy the search and seizure entails. State v. Flowers, 441 So.2d 707 (La.1983), cert. denied 466 U.S. 945 (1984). The totality of the circumstances must be considered in determining whether reasonable cause exists. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); 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).

Once a police officer has made an investigatory stop, he may frisk the outer clothing of the person stopped; where the officer has reason to believe dangerous weapons may be present, he may search the person. La.C.Cr.P. art. 215.1.

Where officers do not have the right to make an investigatory stop, property abandoned or otherwise disposed of as a result thereof cannot be legally seized by police officers. If, however, property is abandoned without any prior unlawful intrusion into a citizen's right of freedom from governmental interference, then such property may be lawfully seized. State v. Andrishok, 434 So.2d 389 (La.1983).

February 28th Arrest

At the hearing on Tucker's motion to suppress evidence, Shreveport Police Officer Kenner testified that, shortly before 4:00 a.m. on February 28, 1990, he heard a radio broadcast from police headquarters describing a burglary in progress at 4408 Ledbetter St. The broadcast stated that when the victim turned on the lights, she observed the black male who had been trying to break into her bedroom window flee toward his motorcycle parked on Ledbetter. Kenner, who was only a block or two away, responded immediately to the call. As Kenner approached the scene, Officer Phillips radioed to him that he was already proceeding down Ledbetter and had spotted two men standing in the street next to a motorcycle. Kenner turned onto Ledbetter from the opposite direction as Phillips, and also observed the two men. Kenner then approached the men with his headlights on.

Kenner testified that "there were no other people in that area at that particular time, there was no other motorcycle, and we arrived at the scene within minutes." R.p. 201. It is clear that, at this point, Kenner had reasonable grounds to make an investigatory stop and talk to these two men: both answered the general description given by the victim, and were standing virtually across the street from the victim's home and next to the motorcycle she mentioned when she called the police only minutes before. See State v. Bolden, 380 So.2d 40 (La.1980); State v. Johnson, 557 So.2d 1030 (La.App. 4th Cir.1990).

Kenner further testified that, as he drew closer to the two subjects, he recognized one of them as Clarence Tucker. Kenner stated that he had known Tucker for years; recently he investigated a complaint of unauthorized use of a vehicle involving Tucker, checked his record and learned not only that Tucker had prior burglary convictions, but also that he habitually carried weapons. Kenner saw a bulge in Tucker's coat pocket, thought it looked like a weapon, and concluded that a pat-down search for weapons was necessary for his own safety. He then asked Tucker to place his hands on the motorcycle.

Under these facts Kenner had sufficient basis to reasonably suspect that Tucker had committed a crime and to reasonably believe his safety was threatened; he was therefore entitled to conduct a pat-down search for weapons. C.Cr.P. art. 215.1; Terry v. Ohio, supra; State v. Hunter, 375 So.2d 99 (La.1979); State v. Bolden, supra. This initial search revealed a .25 caliber handgun.

At the hearing, Kenner stated his understanding that Tucker was known to carry more than one weapon. He thus continued his pat-down search, finding a flashlight, a single-edged razor blade, approximately $180 in cash, a plastic bag containing 26 hand-rolled cigarettes (which he believed to be marijuana), and a quantity of very small empty plastic bags.

We find that Kenner's continued search after finding the handgun was justified, particularly in light of the burglary report and the advanced hour. Moreover, Kenner's discovery of the weapon gave him probable cause to arrest Tucker for possession of a handgun by a convicted felon. After the arrest, the other items seized from Tucker, including the 26 marijuana cigarettes, would have been found inevitably during the search incident to arrest. See State v. Sanchez, 516 So.2d 415 (La.App. 1st Cir.1987), writ denied 523 So.2d 1334 (1988).

Kenner's search was reasonable, based on articulable suspicions linking Tucker to a reported crime and on the officer's own personal knowledge of the suspect. The evidence seized during this search was properly admitted at trial. See Terry v. Ohio, supra. The trial court did not err by denying Tucker's motion to suppress the items seized from his person during the February 28 incident.

March 2nd Arrest

On March 2, police targeted the area surrounding Roby's Arcade, where they had been informed drug sales were taking place. Shreveport Police Officer Wilson and State Police Officer Jackson, in one of the lead vehicles, approached the Arcade with headlights off at approximately 10:30 p.m. Officer Wilson...