State v. Tyler

• Decision Date: 24 November 1999
• Docket Number: No. 98-KA-1667.,98-KA-1667.
• Parties: STATE of Louisiana v. Tyrone TYLER.
• Court: Court of Appeal of Louisiana — District of US

749 So.2d 767

STATE of Louisiana v. Tyrone TYLER.

No. 98-KA-1667.

Court of Appeal of Louisiana, Fourth Circuit.

November 24, 1999.

COPYRIGHT MATERIAL OMITTED

Amy C. Ellender, Louisiana Appellate Project, Mer Rouge, Louisiana, Counsel for Defendant.

Harry F. Connick, District Attorney, Charles E.F. Heuer, Assistant District Attorney, Parish of Orleans, New Orleans, Louisiana, Counsel for Plaintiff.

Court composed of Judge WILLIAM H. BYRNES, III, Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, Sr.

BAGNERIS, Judge.

STATEMENT OF THE CASE

Defendant Tyrone Tyler was charged by bill of information on January 21, 1998 with possession of cocaine, a violation of LSA-R.S. 40:967(C). Tyler pled not guilty at his January 28, 1999 arraignment. After a hearing on February 13, 1998, the trial court denied Tyler's motion to suppress the evidence. On April 21, 1998, Tyler withdrew his not guilty plea and entered a plea of guilty as charged, reserving his right, pursuant to State v. Crosby¹, to appeal the trial court's denial of his motion to suppress the evidence. The State filed a habitual offender bill of information, and Tyler admitted to having been previously convicted of a specific felony offense. The trial court adjudicated Tyler a habitual offender. Tyler waived all delays and was sentenced to thirty months at hard labor. The trial court granted Tyler's motion for appeal.

The record was lodged with this court on July 6, 1998, and supplemented on October 14, 1998, with the transcript of the motion to suppress hearing. Tyler filed his brief on November 3, 1998. The State filed its brief on September 1, 1999.

FACTS

Police Officer Michael Eberhardt, of the New Orleans Police Department, testified that on December 4, 1997, he and his partner, Officer Veit, were investigating a complaint that had been telephoned in to an Alcohol, Tobacco and Firearms ("ATF") hotline regarding activities at the intersection of North Galvez Street and Coffin Avenue. The officers observed Tyler and some other individuals standing in front of a store on that corner; at least one of these individuals was drinking a bottle of beer. The officers stopped the car to advise the men that they were violating a municipal ordinance. Officer Eberhardt testified that when he and his partner exited the vehicle, Tyler and another individual made sudden movements and quickly moved to a car parked in front of the store. Officer Eberhardt noticed that the driver leaned into the car and reached under the seat. Tyler was on the passenger side of the vehicle. Officer Eberhardt testified that he was concerned for his safety, believing that the driver might be retrieving a weapon.

The officers asked the driver and Tyler to step away from the vehicle and come back to the police car. Officer Eberhardt stated that he patted down the driver for weapons. Officer Eberhardt testified that he went to the vehicle and observed two marijuana cigarettes on the driver's side of the vehicle. Officer Eberhardt further stated that he watched his partner, Officer Veit, pat down Tyler for weapons and recover a cigarette pack that contained a crack pipe from his front shirt pocket.

On cross-examination, Officer Eberhardt testified that he believed, but he could not be certain, that Tyler had a bottle of beer, and that there was a six-pack of beer minus one beer inside of the car on the passenger side of the vehicle. Officer Eberhardt testified that he was unaware of any movement made by Tyler to retrieve or conceal anything. However, Officer Eberhardt reiterated that Tyler and the driver acted suspiciously in that, as soon as they saw the police, they moved toward the car.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, Tyler argues that the trial court erred in denying his motion to suppress the evidence for the following reasons: (1) the police officers did not have reasonable suspicion to stop Tyler; and (2) Officer Veit did not have lawful cause to frisk Tyler and/or go into his pocket.

The Stop

The Fourth Amendment to the United States Constitution and Article 1, Sec. 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. Searches and seizures outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.

State v. Stan, 97-2195, p. 5 (La.App. 4 Cir. 10/29/97), 703 So.2d 83, 85, writ denied, 97-2852 (La.2/18/98), 709 So.2d 762, quoting State v. Basile, 97-1162 (La.App. 4 Cir. 9/24/97), 700 So.2d 1062, writ denied, 97-2503 (La.12/19/97), 706 So.2d 455.

On trial of a motion to suppress, the State has the burden of proving the admissibility of all evidence seized without a warrant. La.C.Cr.P. art. 703(D); State v. Jones, 97-2217, p. 10 (La.App. 4 Cir. 2/24/99), 731 So.2d 389, 395. A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the district court had the opportunity to observe the witnesses and weigh the credibility of their testimony. Jones, supra.

"A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense . " La.C.Cr.P. art. 215.1; State v. Sheehan, 97-2386, p. 3 (La.App. 4 Cir. 12/9/98), 740 So.2d 127, 129; State v. Bentley, 97-1552, p. 7 (La.App. 4 Cir. 10/21/98), 728 So.2d 405, 410 writ denied, 98-3213 (La.5/7/99), 741 So.2d 27. Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989. "Reasonable suspicion" is something less than the probable cause needed for an arrest, and must be based upon particular articulable facts and circumstances known to the officer at the time the individual is approached. State v. Williams, 98-3059, p. 3 (La.App. 4 Cir. 3/3/99), 729 So.2d 142, 144; State v. Smiley, 99-0065, p. 3 (La.App. 4 Cir. 3/3/99), 729 So.2d 743745, writ denied, 99-0914 (La.5/14/99), 743 So.2d 651. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Mitchell, 97-2774, p. 8 (La.App. 4 Cir. 2/3/99), 731 So.2d 319, 326.

In the instant case, Officer Eberhardt testified that he and Officer Veit stopped to investigate the group of individuals standing on the corner for violations of a municipal ordinance relating to drinking from open containers.² Officer Eberhardt testified that the driver of the vehicle, who was among the group of individuals on the corner, was arrested for possession of marijuana and for violating the open container ordinance. In addition, Officer Eberhardt at first stated that he "believed" Tyler had a bottle of beer, and that inside of the vehicle, on the passenger side, where Tyler was entering, there was a bag with a six-pack of beer bottles, and one was missing. However, when asked whether he was certain of that fact, Officer Eberhardt stated: "I believe that's correct. I'm not certain of that. No."

Nevertheless, Officer Eberhardt and Officer Veit had reasonable suspicion to believe that a crime — drinking from or carrying an open glass container—was being committed. Further, the police officers were justified in approaching the group in which Tyler was standing.³

The police officers had observed Tyler make a sudden movement and quickly walk to a car in response to seeing them. Flight, nervousness, or a startled look at the sight of police may be one of the factors leading to a finding of reasonable suspicion to stop under La. C.Cr.P. art. 215.1. State v. Poche, 99-0039, p. 6 (La.App. 4 Cir. 1999), 733 So.2d 730, 733. However, such reaction to police presence is not in and of itself enough to give rise to reasonable suspicion to believe a person is committing, has committed, or is about to commit a crime. State v. Lavigne, 95-0204, p. 5 (La.App. 4 Cir. 1996), 675 So.2d 771, 775, writ denied, 96-1738 (La.1/10/97), 685 So.2d 140; State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Thus, based on flight alone, at this point, the officers could not have had reasonable suspicion to stop defendant.

The police officers had lawful cause to stop Tyler's companion, who was observed drinking from and/or carrying an open glass container in violation of the City's open container ordinance. Nevertheless, mere association with someone whom police lawfully stop is insufficient to furnish a reasonable suspicion that the individual is committing, has committed, or is about to commit a crime.

In State v. Slan, 624 So.2d 451 (La.App. 4 Cir.1993), reversed on other grounds, 93-2590 (La.3/3/94), 632 So.2d 749, an undercover officer purchased cocaine with marked currency. The police officers drove away and they observed the defendant talking to Atkins. Both men were subsequently arrested. The marked currency was found only on Atkins. This Court held that police had no reasonable suspicion to stop Atkins, nor probable cause to arrest him.

In State v. Johnson, 94-1170 (La.App. 4 Cir. 8/23/95), 660 So.2d 942, writs denied, 95-2331, 666 So.2d 1092, 95-3044 (La.2/2/96), 666 So.2d 1105, this Court held that police had reasonable suspicion to believe the defendant was engaged in criminal activity where the defendant was in a high drug trafficking area at 1:00 a.m.; he turned and walked away at the sight of police; and he was in the company of an individual who discarded a gun at the sight of police. Thus, something besides mere association is required. The suspicion must be individualized, and the association should be something more than being in the company of a person whose only crime is drinking from an open glass container.

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