State v. BeltonState v. Belton
Clifton Belton, Jr. was charged by bill of information with possession of phenmetrazine (preludin) in violation of
ASSIGNMENTS OF ERROR NOS. 1 AND 2 (NO. 82-KA-2061)
Defendant contends the trial judge erred in denying his motions to suppress physical evidence seized prior to his arrest and physical evidence and an inculpatory statement obtained after his arrest.
Evidence adduced at the suppression hearing reveals that at about 10:00 p.m. on November 12, 1981, Officers Joseph Booth and Jay Thompson of the Louisiana State Police and Officer Royce Thompson of the Baton Rouge City Police Department were on a routine patrol in an unmarked police car. The officers, who were dressed in plain clothes, were on an “armed robbery patrol” and were looking for suspects for whom outstanding warrants had been issued. As they approached the Bradley Road Cafe, the officers saw defendant and several other persons standing outside of the bar. Officer Booth described defendant‘s stance as the same one that he normally exhibits when he is “holding narcotics.” When asked to explain how one normally looks when one is in possession of narcotics, Officer Booth stated: “Standing around like you have nothing to do, not talking to anybody, with your hands in your pocket[s].”
According to Officer Booth, the bar was “renowned in this area for being a place where people stand outside on the sidewalk and sell narcotics.” Similarly, Officer Jay Thompson described it as a “known ... hangout for drug dealers and armed robber[s] and the like.” The officers also testified that they were familiar with defendant and knew that he dealt narcotics because they had previously taken drugs from him. Defendant admitted that he also knew these officers. He then described an encounter with these officers at the Bradley Road Cafe about a week before his arrest. According to defendant, he had just gotten out of jail and was standing in front of the bar talking to friends when the officers
Being suspicious of both defendant and the Bradley Road Cafe, the officers stopped at the bar to look around. Defendant immediately became nervous when he saw them drive into the parking lot and then suddenly turned around and ran into the bar as the officers were getting out of their patrol car. Upon seeing defendant flee, the officers ran after him, identified themselves as police officers, called defendant by name, and ordered him to stop. When asked by the trial judge what precipitated this action, Officer Booth responded, “Mr. Belton recognized us and ... [h]e drawed up straight and looked like he got nervous and then he turned around and immediately made for the door as we exited the vehicle and ordered him to halt.” Officer Booth further testified that it was “more than likely” that he had his weapon drawn as he ran into the bar. Defendant did not mention seeing the officer‘s weapon.
The officers were only about five to eight steps behind defendant by the time they entered the bar. Once inside, the officers scanned the premises, spotted defendant standing near the end of the bar and then immediately approached him. He was ordered to stand up against a wall and was “patted ... down for weapons.” Officer Jay Thompson looked around the area where defendant was originally standing when they entered the bar and spotted a rolled up portion of a brown paper bag on the floor. According to Officer Thompson, this is “the common way on Bradley Road of concealing drugs.” Therefore, he picked it up and discovered that it contained fifteen tablets. Both Officers Booth and Thompson recognized them as preludin. Officer Thompson testified that a barmaid told Officer Booth that she saw defendant drop the drugs when he ran in the bar.
Defendant was arrested and transported to the city police armed robbery office where, after being advised of his rights, he signed a waiver of rights form. Thereafter, he orally admitted that the preludin tablets were his. In searching him prior to booking, Officer Thompson found another preludin tablet in defendant‘s shirt pocket. Later chemical analysis confirmed that all sixteen tablets were preludin. It is conceded that the arrest and all searches and seizures were conducted without a warrant.
The fourth amendment to the federal constitution and
The totality of the circumstances, “the whole picture,” must be considered in determining whether reasonable cause exists. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Although flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, State v. Chopin, supra; State v. Truss, 317 So.2d 177 (La.1975), this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause, State v. Williams, 421 So.2d 874 (La.1982); State v. Wade, 390 So.2d 1309 (La.1980).
The purpose of the fourth amendment, however, is not to eliminate all contact
When police officers make an investigatory stop without the legal right to do so, property abandoned or otherwise disposed of as a result thereof cannot be legally seized. If, however, 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. It is only when the citizen is actually stopped without reasonable cause or when a stop without reasonable cause is imminent that the “right to be left alone” is violated, thereby rendering unlawful any resultant seizure of abandoned property. State v. Andrishok, supra; State v. Chopin, supra; State v. Ryan, 358 So.2d 1274 (La.1978).
In the instant case, the crucial inquiry is whether, at the time defendant disposed of the preludin tablets, the police officers had effected an actual or imminent unlawful detention. When the officers drove up to the Bradley Road Cafe and saw defendant standing out front, they had a right to stop the patrol car, get out, look around, and converse with him. No detention or attempted detention of defendant in fact occurred. It is arguable that if the police officers had detained him at this moment, the stop would have been without reasonable cause. The only facts and circumstances known by them were the following: defendant previously had had narcotics taken from him; he was standing as if he were presently holding narcotics; and, the particular location, the Bradley Road Cafe, was a notorious narcotics outlet. But, just as the officers arrived, defendant recognized them and ran inside the bar. At this point, the officers had reasonable cause to believe that defendant was engaged in criminal conduct. Flight from the approaching officers, coupled with the other facts and circumstances known by the officers, was sufficiently suspicious to justify an investigatory stop based on reasonable cause to believe defendant had committed, was committing, or was about to commit a crime. Therefore, it was not an unlawful intrusion on defendant‘s right to be free from governmental interference when the officers ran after him and ordered him to stop. This was a permissible attempted investigatory detention. Since the narcotics that were intentionally dropped by defendant as he ran into the bar were abandoned prior to any unlawful police conduct, they were lawfully seized. Once in lawful possession of the preludin tablets, the police had probable cause to arrest him. Accordingly, the confession and the single tablet of preludin seized after his lawful arrest were properly obtained. Hence, the trial judge correctly denied defendant‘s motions to suppress.
Assignments of Error Nos. 1 and 2 are without merit.
ASSIGNMENT OF ERROR NO. 1 (NO. 82-KA-2120)
Defendant contends the trial judge erred in finding him to be a second felony offender. He argues the state failed to prove that his guilty plea to simple burglary (prior conviction) was properly Boykinized. Defendant further contends the trial judge improperly received additional evidence on this issue after the state had rested its case. He argues that this conduct was contrary to
A proceeding pursuant to the habitual offender law is not a prosecution for a separate criminal charge. It is to enhance the penalty for the subsequent offense; it only involves the sentencing for that crime. State v. Walker, 416 So.2d 534 (La.1982); State v. Scott, 395 So.2d 714 (La.1981). Hence, the trial judge‘s actions in the instant case in taking the matter under advisement and then considering additional evidence four days later is not contrary to
Accordingly, Assignment of Error No. 1 is without merit.
DECREE
For the reasons assigned, defendant‘s conviction and sentence are affirmed.
DENNIS, J., concurs.
DIXON, C.J., dissents with reasons.
CALOGERO, J., dissents. The police did not have authority to stop defendant under
DIXON, Chief Justice (dissenting).
I respectfully dissent.
Here the majority relies on
Defendant obviously wished to avoid a confrontation with the police, as is his right. (The police had threatened to arrest him the next time they saw him at the bar). But in the exercise of his “right to be let alone,” the opinion jumps to the conclusion that the police were given reasonable cause to believe defendant was engaged in criminal conduct. The explanation is puzzling: “Flight ... coupled with the other facts and circumstances known by the officers, was sufficiently suspicious to justify an investigatory stop based on reasonable cause to believe defendant had committed, was committing, or was about to commit a crime.”
The police in this case did not have reasonable or probable cause to believe defendant was engaged in criminal activity until after he was against the wall, and after the barmaid told them she had seen the defendant throw down the contraband.
Until that point, the police had simply arrested defendant, as they had threatened the week before, and were looking for a reason to take him in.
Notes
The normal order of trial shall be as follows:
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(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument;....