State v. Washington
| Decision Date | 23 June 1993 |
| Docket Number | No. 25072-KA,25072-KA |
| Citation | 621 So.2d 114 |
| Parties | STATE of Louisiana, Appellee, v. WASHINGTON, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Indigent Defender Board by Charles Smith, Alfred R. Beresko, Shreveport, for appellant.
Richard Ieyoub, Atty. Gen., Baton Rouge, James M. Bullers, Dist. Atty., Whitley R. Graves and Charles Minifield, Asst. Dist. Attys., Minden, for appellee.
Before MARVIN, LINDSAY and STEWART, JJ.
The defendant, Elvis Washington, appeals his conviction and sentence for possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1. For the following reasons, we affirm the defendant's conviction and sentence.
At approximately 2:15 a.m. on May 5, 1991, Deputy John R. Mendenhall, of the Webster Parish Sheriff's Office, was patrolling the streets of Cullen, Louisiana, when he saw two men behind a closed rooming house owned by Mrs. Essie Moore. The rooming house was locked and boarded up, but the owner had complained to law enforcement officials that people frequently broke into the house to smoke crack cocaine.
Deputy Mendenhall recognized the defendant, having seen him in court recently on another charge. The deputy spoke to the two men who then separated and approached Deputy Mendenhall's vehicle from each side. Deputy Mendenhall radioed for assistance.
As the defendant approached, he informed the deputy that he had a gun, but that it did not have a bullet in the chamber. The defendant produced the weapon and laid it on the hood of Deputy Mendenhall's vehicle.
The defendant was arrested for carrying a concealed weapon. However, the defendant was subsequently charged by bill of information with possession of a firearm by a convicted felon after it was learned that the defendant had previously been convicted of possession of cocaine on February 26, 1991. That conviction was affirmed by this court on April 18, 1992. State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992).
The defendant filed a motion to suppress the firearm, alleging that Deputy Mendenhall did not have reasonable suspicion or probable cause to stop him and therefore the gun was seized incident to an invalid investigatory stop. Following a hearing, the motion was denied by the trial court.
Thereafter, the defendant entered a plea of guilty to possession of a firearm by a convicted felon, reserving his right to appeal the trial court judgment which overruled his motion to suppress evidence.
Pursuant to the Louisiana Sentencing Guidelines, the defendant was sentenced to serve 66 months at hard labor.
The defendant has appealed his conviction and sentence. On appeal, he contends that the trial court erred in failing to grant his motion to suppress the firearm, that his underlying felony conviction for possession of cocaine was not final at the time he is alleged to have illegally possessed a firearm and that the trial court erred in its use of prior convictions in arriving at his sentence under the Sentencing Guidelines.
The defendant argues that the trial court erred in failing to sustain his motion to suppress evidence of the firearm. The defendant contends that Deputy Mendenhall did not have reasonable suspicion to stop him and therefore, the firearm obtained pursuant to the invalid investigatory stop was not admissible against him. This argument is without merit.
Investigatory stops are authorized by federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In this state, such stops are authorized under LSA-C.Cr.P. Art. 215.1 which provides:
A. 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 and may demand of him name, address, and an explanation of his actions.
B. When the law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.
C. If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.
The Fourth Amendment's protection against unreasonable search and seizure extends to an investigatory stop of a person. State v. Albert, 553 So.2d 967 (La.App. 4th Cir.1989).
The right to make an investigatory stop must be based on reasonable cause to believe that the suspect has been, is, or is about to be engaged in criminal activity. State v. Patterson, 588 So.2d 392 (La.App. 4th Cir.1991); State v. Thibodeaux, 531 So.2d 284 (La.App. 3rd Cir.1987).
Reasonable cause for an investigatory stop is something less than probable cause, but the officer must have "articulable knowledge" of particular facts, which in conjunction with reasonable inferences drawn therefrom provide reasonable grounds to suspect the detainee of criminal activity. State v. Thibodeaux, supra; State v. Rodriguez, 396 So.2d 1312 (La.1981).
Reasonable cause must be determined in each case by whether the officer has sufficient articulable knowledge of facts and circumstances to justify an infringement on the individual's right to be free from government interference. State v. Tucker, 591 So.2d 1208 (La.App. 2d Cir.1991), writ denied 594 So.2d 1317 (La.1992).
To assess the validity of an investigatory stop under Terry v. Ohio, supra, and its Louisiana statutory equivalent, LSA-C.Cr.P. Art. 215.1, the critical inquiry focuses on the knowledge in the officer's possession at the time of the stop and whether that knowledge constitutes reasonable cause for such a stop. State v. Williams, 421 So.2d 874 (La.1982).
The totality of the circumstances must be considered in determining whether reasonable cause exists. State v. Patterson, supra. Under Terry v. Ohio, supra, the test for determining reasonableness requires balancing the need to search or seize against the invasion which it entails. State v. Albert, supra.
In the present case, Deputy Mendenhall spotted the defendant and another man at approximately 2:15 a.m. behind a rooming house which was a place known for drug activity. The rooming house had been broken into on several occasions. The area was extremely dark. According to Deputy Mendenhall, he asked the defendant and the other man to approach his vehicle. When they voluntarily complied, the defendant also volunteered that he had a gun. The defendant removed the gun from the waistband of his trousers and placed it on the hood of Deputy Mendenhall's vehicle.
Deputy Mendenhall's testimony was corroborated by that of Deputy Billy G. Allen, Jr. Deputy Allen responded to Deputy Mendenhall's call for assistance and observed the defendant remove the gun from his person and place it on the hood of the vehicle. According to Deputy Allen, the defendant was not searched and the defendant voluntarily surrendered the weapon he was carrying.
The defendant gives a slightly different version of the incident. The defendant claims that Deputy Mendenhall approached and said that he was looking for him. He stated that Deputy Mendenhall noticed a bulge under the defendant's shirt and upon inquiry, the defendant took the gun out of his waistband and surrendered it.
The defendant argues that Deputy Mendenhall was "looking for someone to stop and question for whatever reason." He argues that "simply to say that the area was a heavy drug area is not sufficient reason to stop Elvis Washington that night." The record does not support this argument.
Deputy Mendenhall observed the defendant and his companion in the early morning hours behind the rooming house which had been the subject of numerous complaints of criminal activity. The area was in total darkness. Under these circumstances, the officer was clearly authorized to inquire as to the defendant's activities. Before the officer even made his inquiry, however, the defendant voluntarily approached the officer and produced the weapon. There was no search.
The trial court was correct in denying the defendant's motion to suppress. When Deputy Mendenhall approached the defendant and his companion, he had reasonable cause to make an investigatory stop. Further, according to the testimony given by both the law enforcement officials and the defendant, the defendant voluntarily surrendered his firearm to Deputy Mendenhall.
This assignment of error has no merit.
The defendant contends that his guilty plea was not valid, because he was not a "convicted felon" at the time the present offense was committed on May 5, 1991. The defendant had been found guilty of possession of cocaine on February 26, 1991, but that conviction was not affirmed until April 23, 1992. The defendant argues that because his conviction for possession of cocaine was not final at the time he was found to be in possession of a firearm, he was not a convicted felon.
The issue raised by the defendant was squarely addressed in the case of State v. Bailey, 461 So.2d 336 (La.App. 2d Cir.1984). In that case, the trial court sustained a motion to quash a bill of information charging the defendant with possession of a firearm by a convicted felon because, at the time the bill was filed, the defendant's appeal of the predicate felony offense was still pending. The trial court found that the term "convicted of" used in LSA-R.S. 14:95.1 means a conviction that has become final either because it was not appealed or because it was affirmed on appeal.
This court reversed the trial court judgment. State v. Bailey, supra, contains a detailed discussion of the definition of "conviction" in both the context of habitual offender proceedings and cases charging a defendant with possession of a firearm by...
To continue reading
Request your trial
-
State v. Dappemont
...604 So.2d 600 (La.App. 2 Cir.1992), affirmed in part, reversed in part on other grounds, 626 So.2d 720 (La.1993); State v. Washington, 621 So.2d 114 (La.App. 2 Cir.1993), writ denied, 626 So.2d 1177 (La.1993). The intrusiveness of a search is not measured so much by scope as it is by whethe......
-
State v. Campbell, 99-KA-0892.
...and seize against the invasion of privacy the search and seizure entails. State v. Tucker, 626 So.2d 707 (La.1993); State v. Washington, 621 So.2d 114 (La.App. 2 Cir.1993), writ denied, 626 So.2d 1177 (La.1993). The totality of the circumstances must be considered in determining whether rea......
-
State v. Thompson
... ... Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish that his attorney was ineffective, Defendant must satisfy a two-prong test, as discussed in Strickland, ... Page 1282 ... supra. First, Defendant must show that his attorney's performance was deficient, which requires a ... ...
-
State v. Lawrence
... ... State v. Albert, 553 So.2d ... 967 (La.App. 4 Cir.1989). Police need only some minimal level of objective justification for reasonable grounds for an investigatory stop. State v. Washington, 2000-1936 (La.12/15/00), 775 So.2d 1066, citing State v. Katie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 ... In assessing the reasonableness of an investigatory stop, the court must balance the need to search and seize against the invasion of privacy that the search and ... ...