State v. AllenState v. Allen
Relator seeks to reverse the trial court’s ruling granting the defendant’s motion to suppress. Relator contends the trial court erred in finding no probable cause and granting the motion to suppress the evidence. We agree.
STATEMENT OF THE CASE
On March 14, 2001, the State filed a bill of information charging the defendant with possession of cocaine, a violation of
STATEMENT OF THE FACTS
At the April 20, 2001 hearing Officer Darren Brazley was the only witness. The officer testified that on January 26, 2001, at about 7:30 p.m. he was' sitting at the intersection of Warrington and Mirabeau. He was looking northbound at Warrington. Officer Brazley stated that the area was a high crime area with a lot of armed robberies and car burglaries. The officer “observed Eugene Allen walk southbound on Warrington towards [sic] Mirabeau real close to the vehicles, you know, his eyes moving to the right to the vehicle side.” Officer Brazley said that the defendant was looking toward the parked vehicles and was walking very close to them. Officer Brazley “moved in on him [defendant], turned on the blue strobe light, and stopped him.” The officer was driving an unmarked police car, a white Crown Victoria, and he put the blue light on the dashboard. According to the officer, when he “hit the blue light,” the defendant discarded the white towel in his | ¡¡left hand. After the defendant discarded the towel, he took three or four steps backward very rapidly. The officer exited his car, and showed his badge. He said: “ ‘Freeze.’ He froze.” Officer Brazley ordered the defendant to the front of the vehicle and told him to place his hands on the hood of the car. The defendant complied. The officer then “retrieved the towel which was about two to three feet east of him.” He looked into the towel and found a chrome tube, a metal pipe with a burned screen inside and an unburned screen. Officer Brazley thought that he had found a crack pipe. The officer advised the defendant that he was under arrest for drug paraphernalia, advised him of his rights, handcuffed him, and transported him to the Third District. The crime lab analysis was positive for cocaine.
On cross-examination Officer Brazley stated that he was assigned to the special section on armed robberies and aggravated batteries and was on proactive patrol that night in an unmarked unit. He had been parked facing north on Warrington for about five minutes when he saw the defendant. The cars were parked in diag
DISCUSSION
The State argues that the evidence was properly seized because: 1) the defendant was not stopped (and no stop was imminent) at the time that he discarded the towel; or alternatively, 2) the police officer had reasonable cause to stop the defendant.
This Court discussed evidence seized as a result of an imminent stop in State v. Washington, 00-0619, pp. 2-3 (La.App. 4 Cir. 1/31/01),
It has long been held that property cannot be seized legally if it was abandoned pursuant to an infringement of the person’s rights. However:
if ... property is abandoned without any prior unlawful intrusion into a citizen’s right to be free from government interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person’s custodial rights.
State v. Belton,441 So.2d 1195 , 1199 (La.1983), cert. den. Belton v. Louisiana,466 U.S. 953 ,104 S.Ct. 2158 ,80 L.Ed.2d 543 (1984). See also State v. Britton, 93-1990 (La.1/27/94),633 So.2d 1208 ; State v. Tucker,626 So.2d 707 (La.1993), opinion reaffirmed and reinstated on rehearing by626 So.2d 720 (La.1993); State v. Dennis,98-1016 (La.App. 4 Cir. 9/22/99) ,753 So.2d 296 ; State v. Laird,95-1082 (La.App. 4 Cir. 5/8/96) ,674 So.2d 425 . As noted by the Court in Britton: “the police do not need probable cause to arrest or reasonable suspicion for an investigatory stop every time they approach a citizen in a public place.” Britton, 93-1990 at p. 2,633 So.2d at 1209 .
An “actual stop” occurs when an individual submits to a police show of authority or is physically contacted by the police. State v. Tucker, supra. An “imminent actual stop” occurs when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter,*96 an actual stop of the individual is virtually certain. Id. The Supreme Court listed the following factors to be considered in assessing the extent of police force employed in determining whether that force was “virtually certain” to result in an “actual stop” of the individual: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter. Id. An actual stop is imminent “when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain.” Tucker,626 So.2d at 712 .
If a defendant abandons property as a result of an actual stop or an imminent actual stop, the officers involved must have at least reasonable cause or suspicion to support the stop. Police officers may stop a person whom they “reasonably believe is committing, has committed, or is about to commit an offense.” La.C.Cr.P. art. 216.1; Terry v. Ohio,
In making a brief investigatory stop on less than probable cause to arrest, the police “ ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” State v. Kalie, 96-2650, p. 3 (La.9/19/97),699 So.2d 879 , 881 (quoting United States v. Cortez,449 U.S. 411 , 417,101 S.Ct. 690 , 695,66 L.Ed.2d 621 (1981)). The police must therefore articulate something more than “ ‘inchoate and unparticularized suspicion’ or “hunch.” ’ ” United States v. Sokolow,490 U.S. 1 , 7,109 S.Ct. 1581 , 1585,104 L.Ed. 1 (1989) (quoting Terry v. Ohio,392 U.S. 1 , 27,88 S.Ct. 1868 , 1883,20 L.Ed.2d 889 (1968)). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest. The police need have only “ ‘some minimal level of objective justification....’” Sokolow,490 U.S. at 7 ,109 S.Ct. at 1585 (quoting INS v. Delgado,466 U.S. 210 , 217,104 S.Ct. 1758 , 1763,80 L.Ed.2d 247 (1984)). A reviewing court must take into account the “totality of the circumstances — the whole picture,” giving deference to the inferences and deductions of a trained officer that might well elude an untrained person. Cortez,449 U.S. at 418 ,101 S.Ct. at 695 . The court must also weigh the circumstances known to the police “ ‘not in terms of library analysis by scholars, but as understood by those |Kversed in the field'of law enforcement.’ Id. ”
State v. Wilson, 99-2334 p. 4 (La.App. 4 Cir. 3/15/00),
Reasonable suspicion for an investigatory stop is something less than probable cause. It must be determined under the facts of each case whether the officer had sufficient articulable knowledge of particular facts and circumstances to justify an infringement upon an individual’s right to be free from governmental interference. State v. Oliver,
In Illinois v. Wardlow,528 U.S. 119 , 124,120 S.Ct. 673 , 676,145 L.Ed.2d 570 (2000), the U.S. Supreme Court stated:
An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Brown v. Texas,443 U.S. 47 ,99 S.Ct. 2637 ,61 L.Ed.2d 357 (1979). But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a “high crime area” among the relevant contextual considerations in a Terry analysis. Adams v. Williams,407 U.S. 143 , 144 and 147-148,92 S.Ct. 1921 , 1922 and 1924,32 L.Ed.2d 612 (1972).
|fiSee also State v. Ratliff,
In State v. Wilson,
In State v. Poche,
In the present case the patrol car approached Poche with its bar lights flashing. It depends on the circumstances to determine if the flashing lights indicate that an actual stop was imminent. The police can flash their lights to show that they are present on the street without having the intent to detain someone. It would be permissible for the deputies to drive up to the defendant to see if he needed help, and there would be no imminent actual stop. When the patrol car stopped in this case, Deputy Renau-din was five feet away from the defendant when the deputy opened his car door. At that time, the two deputies had not detained Poche, and-under the circumstances where the police flashed their lights and pulled up without telling Poche anything, an actual stop was not virtually certain to occur. The deputies’ actions did not constitute an actual stop or an imminent actual stop.
Id. at p. 10,
In the present case Officer Brazley testified that on January 26, 2001, at about | R7:30 p.m. he was parked for about five minutes in a high crime area, where a number of armed robberies and car burglaries had occurred, when he saw the defendant slowly walking southbound on Warrington toward Mirabeau “real close to the vehicles.” The defendant was walking along the curb and looking toward the vehicles parked diagonally in spaces by an apartment complex (some with the front of the car to the curb and others with the back to the curb), “his eyes moving to the right to the vehicle side.” The officer, who was driving an unmarked car, observed the defendant for about thirty seconds. Then the officer moved in, “turned on the blue
The issue then becomes whether an imminent stop occurred prior to the abandonment of the property. Under the factors enumerated in State v. Tucker,
In the instant case, after reviewing the evidence, we find that the cocaine pipe was abandoned prior to a stop or imminent stop; thus, the evidence is admissible, and the trial court’s ruling granting the motion to suppress the evidence was error. Therefore, it must be reversed.
In State v. Frosch,
Unlike Frosch, the defendant here was not jiggling the door handles on the parked cars. According to the officer’s testimony, the defendant never touched the cars. Additionally, he did not run away. Officer Brazley observed the defendant walking slowly along the curb of a public street looking toward the diagonally parked cars for about thirty seconds before deciding to detain him.
CONCLUSION
Accordingly, we find that there was no imminent stop, the cocaine pipe was Improperly seized, and trial court’s decision to grant the motion to suppress was error. Therefore, the trial court’s ruling is reversed and this matter is remanded to the trial court.
WRIT GRANTED, REVERSED AND REMANDED.
Notes
. In State v. Bell,