Statev. Harris

• Decision Date: 02 August 2012
• Docket Number: No. 2011–KA–0941.,2011–KA–0941.
• Citation: 98 So.3d 903
• Parties: STATE of Louisiana v. Terrell HARRIS.
• Court: Court of Appeal of Louisiana — District of US

98 So.3d 903

STATE of Louisiana

v.Terrell HARRIS.

No. 2011–KA–0941.

Court of Appeal of Louisiana, Fourth Circuit.

Aug. 2, 2012.

Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.

Edward R. Greenlee, Louisiana Appellate Project, LaPlace, LA, for Defendant/Appellant.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).

PAUL A. BONIN, Judge.

[4 Cir. 1]The trial court accepted Terrell Harris' guilty plea to the offense of simple possession of cocaine. Pleading under Crosby, Mr. Harris reserved his right to appeal the trial court's adverse pretrial rulings which had denied his motion to suppress the evidence of the cocaine and the motion to suppress his statement.¹ Mr. Harris argues that the police did not have reasonable suspicion under Terry to stop him for questioning during which cocaine was discovered in his mouth. He further argues that his ensuing incriminating statement must also be suppressed because either the warning given to him was constitutionally deficient under Miranda or it was the “fruit of the poisonous tree” under Wong Sun. The prosecution argues in response that the police had reasonable suspicion to stop Mr. Harris and that the trial court's ruling denying suppression of the statement was not in error or, if it was error, it was harmless error under Arizona v. Fulminante.

Upon our review of the two rulings,² we first conclude that the trial judge did not abuse her discretion in finding that the police had reasonable suspicion to stop Mr. Harris and that as a matter of law the police-interference with Mr. Harris [4 Cir. 2]was reasonable and the cocaine discovered in his mouth would be admissible at a trial and thus affirm that ruling. We next conclude, however, that the trial judge abused her discretion in her application of the controlling law in finding that the rights-warning given to Mr. Harris following the cocaine's discovery and his consequent arrest provided him with the absolute prerequisites of a sufficient Miranda-warning and, accordingly, reverse that ruling.

Ordinarily, upon such a finding we would vacate the guilty plea and remand for a trial. Because, however, it is not evident that the suppression of the statement (but not the evidence of the cocaine) would necessarily impel Mr. Harris to withdraw his guilty plea, we only reverse the trial court's ruling on Mr. Harris' motion to suppress his statement and remand the matter to the district court for further proceedings to afford Mr. Harris, within thirty days of the finality of this judgment, to file a motion to withdraw his guilty plea. If he timely files such a motion, the trial court shall permit him to withdraw his guilty plea and proceed to a trial on the merits at which the cocaine evidence seized from his mouth would be admissible. We explain our conclusions below.

I

In this Part we explain our conclusion that the police had reasonable suspicion to conduct a Terry-stop of Mr. Harris such that the trial court's denial of the suppression of the cocaine discovered during the stop was correct. First, we will address the burden of proof before the trial court and the applicable exclusionary rule considerations arising out of the Fourth Amendment and Louisiana's constitution. We will then discuss the facts which were developed at [4 Cir. 3]the hearing on the motions to suppress and explain next the trial judge's application of the “reasonable suspicion” test to the facts. Finally, we will address the standards under which we review the trial court's ruling.

A

At the suppression hearing, the prosecution bears the burden of proving the admissibility of evidence seized without a warrant. La.C.Cr.P. Art. 703 D. Typically, unless justified by narrowly drawn exceptions to the warrant requirement, searches and seizures conducted without warrants issued on probable cause are per se unreasonable. State v. Surtain, 09–1835, p. 7 (La.3/16/10), 31 So.3d 1037, 1043,citing Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). The seizure of evidence which is in plain view is one of those exceptions so long as the prior intrusion is itself justified by one of the recognized exceptions. See Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (“It is well established that under certain circumstances the police may seize evidence in plain view without a warrant.”). “Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate.” Id. And, of course, one of the best known exceptions is the warrantless investigatory stop based upon reasonable suspicion. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, an offense).

The Fourth Amendment to the U.S. Constitution, applicable to the states through the Fourteenth Amendment, protects the right of the people “against unreasonable searches and seizures.” U.S. Const. Amend. IV;see also Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Louisiana Constitution, too, protects “persons, [4 Cir. 4]property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const. Art. 1, § 5. Indeed, the protection against unreasonable searches and seizures under the state constitution is in limited circumstances even greater than that under the federal constitution. See State v. Tucker, 626 So.2d 707 (La.1993) (see discussion, post ).

“Reasonableness is always the touchstone in striking the balance between legitimate law enforcement concerns, such as officer safety, and protected individual privacy interests.” State v. Bell, 09–574, p. 14 (La.App. 4 Cir. 12/9/09), 28 So.3d 502, 512. Accordingly, any inquiry under the Fourth Amendment and Article 1, Section 5 always centers on reasonableness.

Thus, in this case the prosecution is obliged not only to establish that the cocaine was in plain view but also that the preceding police intrusion was reasonable. The point determinative of the police intrusion for purposes of the Fourth Amendment and of Louisiana's similar protection is, however, slightly but importantly different.

The governmental intrusion required for triggering a Fourth Amendment inquiry includes the necessary (but not sufficient) component that “a person is ‘seized’ only when, by physical force or show of authority, his freedom of movement is restrained.” U.S. v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (emphasis added); see also California v. Hodari D., 499 U.S. 621, 627–628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Thus, “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. In the absence of restraint of the person imposed by physical force or show of authority there is no “foundation whatever for invoking constitutional safeguards.” [4 Cir. 5]Id. at 553, 100 S.Ct. 1870. “Mendenhall establishes that the test for existence of a ‘show of authority’ is an objective one.” Hodari D., 499 U.S. at 628, 111 S.Ct. 1547. The test is “not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person.” Id. And even “with respect to a show of authority as with respect to application of physical force,” a “seizure” does not occur unless the subject yields. Id. at 626, 111 S.Ct. 1547.

The governmental intrusion required for triggering an Article 1, Section 5 inquiry is, however, somewhat different. For the purposes of the Louisiana constitutional protection, Hodari D. only sets the limits for determining whether an actual stop has occurred. See Tucker, 626 So.2d at 712. The Hodari D. requirement that there must be an “actual stop” before property is abandoned or discarded in order to trigger any inquiry under the Fourth Amendment does not, however, fully dispose of the inquiry under Louisiana's constitution. Id. Because citizens of Louisiana have “greater protections” than those provided by the Fourth Amendment, her citizens have “ additional protections” from governmental intrusion, including the protection of individuals not only from an “actual stop” but also from an “imminent actual stop.” Id. (emphasis in original), explicitly relying on State v. Belton, 441 So.2d 1195 (La.1983).

An imminent actual stop “is only when the police come upon an individual with such force that, regardless of the individual's attempt to flee or elude the encounter, an actual stop of the individual is virtually certain.” Tucker, 626 So.2d at 712 (emphasis in original). Illustrative of the factors to be used in assessing whether the force police used was virtually certain to result in an actual stop include (1) the officers' proximity to the individual at the outset of the encounter, (2) whether the individual is surrounded by officers, (3) whether the officers are [4 Cir. 6]approaching with weapons drawn, (4) the mobility of the police vis-à-vis the individual, (5) the location and characteristics of the area of the encounter, and (6) the numbers of officers involved in the encounter. Id. at 712–713. Thus, for the purposes of Louisiana constitutional law, the intrusion can occur as early as an imminent actual stop.

B

We turn now to a discussion of the facts. At the outset, however, we emphasize that only one witness, Chris Durning, a New Orleans police detective, testified. Mr. Harris did not avail himself of the provisions of La.C.Cr.P. Art. 703 E(...