State v. Winesberry
| Decision Date | 29 June 1970 |
| Docket Number | No. 50447,50447 |
| Citation | 237 So.2d 364,256 La. 523 |
| Parties | STATE of Louisiana v. Larry WINESBERRY. |
| Court | Louisiana Supreme Court |
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, John E. Unsworth, Jr., Asst. Dist. Attys., for plaintiff-relator.
H. W. O'Brien, Jr., New Orleans, for defendant-respondent.
The defendant was charged in a bill of information with the possession of a narcotic drug, a crime defined by R.S. 40:962(A). The district judge after a hearing sustained a motion to suppress evidence (a marijuana cigarette and gleanings of marijuana), and the State, having reserved and perfected a bill of exception to this ruling, sought certiorari, which we granted.
On December 26, 1969, at about 8:45 p.m. two members of the New Orleans Police Department were cruising in a marked police unit in the 3100 block of St. Thomas Street in New Orleans. They noted two men (one of whom was the defendant here) walking toward the moving police vehicle in the middle of the street about one block ahead. As the car approached, the men moved to the side of the street. The police stopped their car and got out. The driver observed the defendant's companion make a throwing motion toward the back of a parked car. The driver went over to the parked car and there found a .22-caliber pistol. After informing the defendant and his companion of their constitutional and legal rights and questioning each of them as to the ownership of the pistol, the officers placed the defendant's companion under arrest on a charge of carrying a concealed weapon, handcuffed him, and put him into the back of the police car.
The defendant after being patted down for weapons was also placed in the back of the car. He testified that he did not remember whether he was told at that time that he was under arrest, but stated that he was handcuffed when he was put into the police car. The officers' testimony is that they did not then arrest or handcuff the defendant, but that because of the combination of circumstances they had reason to suspect that he had committed or was about to commit a crime, and since they did not want to chance his running away, they decided to restrain him in order to check both the weapon and the defendant with the N.C.I.C.1 Having quickly received an answer which absolved the defendant from any cause for arrest or further detention, one of the officers opened the back door of the automobile to allow the defendant to leave. According to the testimony, as the defendant stepped out of the car, the officer saw a hand-rolled cigarette on the floor which he recognized as a typical marijuana reefer. He then placed the defendant under arrest for possession of a narcotic. Later, gleanings of marijuana were found in the defendant's clothing.
The first question to be answered is whether the restraint of defendant was an illegal arrest or detention which would taint the evidence sought to be suppressed.
Code of Criminal Procedure Article 215.1 pertinently provides:
'A. A law enforcement officer may stop any person in a public place whom (sic) he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.
'B. When a law enforcement officer has stopped a person for questioning pursuant to this Article, and reasonably suspects that he is in danger of life or limb, he may search the outer clothing of such person for a dangerous weapon or for any other thing the possession of which may constitute a crime.
This type of legislation is commonly referred to as a 'stop and frisklaw'. Its very purpose is to set forth standards of conduct under which the police may stop and detain one whose actions reasonably should cause suspicion that the person is committing, has committed, or is about to commit an offense. It is the circumstances of each case which determine the right to stop, the right to frisk, and the nature of the temporary detention. Here a combination of circumstances was weighed: The defendant's companion had attempted to hide a pistol. The defendant denied knowing anything about the gun...
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State v. Saia
...a warrantless arrest by the time hands were laid on. We have heretofore adopted the rationale of these decisions in State v. Winesbery, 256 La. 523, 237 So.2d 364 (1970) and State v. Williams, 262 La. 317, 263 So.2d 306 (1972). It is injudicious to depart from those precedents now. Evidence......
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State v. Monk
...and police have the right to retrieve it. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). In sum, there is no merit to this bill. BILLS OF EXCEPTIONS NOS. 17 AND 27 Defendants moved to sequester the jury venire......
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State v. Amphy
...on the basis of grounds constituting less than the probable cause required for an arrest. Cf., however, State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). Such sort of temporary (an hour or so) detention does not, however, necessarily offend federal constitutional guarantees against un......
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