State v. BenjaminState v. Benjamin
Sherry Watters, Orleans Indigent Defender Program, Scott N. Hensgens, Student Attorney, Tulane Law School Community Service Program, New Orleans, for Appellant Jerome Benjamin.
WALTZER, Judge.
STATEMENT OF THE CASE
Defendant, Jerome Benjamin was charged by bill of information with being a convicted felon in possession of a firearm, a violation of
STATEMENT OF FACTS
We reviewed the testimony both at the hearing on the motion to suppress and at
At trial Officer Burmaster testified that in his expert opinion the fingerprints taken of the defendant in court when compared with fingerprints taken from the reverse side of a Bill of Information charging the defendant with two counts of armed robbery, to which the defendant had pled guilty, were identical and established that the defendant was the same person who had previously plead guilty to the two counts of armed robbery, forming the predicate offense for the alleged
The defendant testified and readily admitted that he had previously pled guilty to two counts of armed robbery. According to the defendant, he was walking down No. Johnson Street, when Officers Rome and Pollard pulled up behind him with sirens and a flashlight. He testified that he kept walking but he was ordered to stand against the car. As he argued with the officers, he fled the scene because he did not like the way the officers were “handling” him. He testified that he ran through a yard, jumped a fence and collapsed on Lamanche Street. He testified that an officer then came up and asked him if hе had any drugs. He answered that he did not have any drugs. He stated that the officer began to hit him. He told the officer that he had been shot. After being questioned by the officer where he had been shot, he showed the officer the wound. The officer responded that he did not run like he had been shot. He testified that the officer handcuffed him and placed him in the police
ASSIGNMENT OF ERROR
The defendant complains that he did no more than walk down the street and that the trial court erred in failing to grant the defendant‘s motion to suрpress the evidence, because:
a) before the stop of the defendant occurred the officers lacked reasonable suspicion for an investigatory stop; and
b) the seizure of the allegedly discarded firearm exceeded the bounds of a permissible investigatory stop.
THE APPLICABLE LAW
The authorization for a temporary stop by a police officer of a person in a public place is set forth in
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 his name, address, and an explanation of his actions.
See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Guy, 575 So.2d 429 (La.App. 4 Cir.), writ denied 578 So.2d 930 (La.1991); State v. Smith, 573 So.2d 1233 (La.App. 4 Cir.), writ denied 577 So.2d 48 (La.1991); State v. Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990); State v. Jones, 483 So.2d 1207 (La.App. 4 Cir.), writ denied 488 So.2d 197 (La.1986). As this Court noted in Johnson:
Reasonable suspicion is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect‘s rights. State v. Jones, supra. Mere suspicion of activity is not a sufficient basis for police interference with an individual‘s freedom. State v. Williams, 421 So.2d 874 (La.1982).
Johnson, 557 So.2d at 1033. See also Guy; Smith.
An investigatory stop is a “seizure” that must be justified by some objective manifestation that the person is or is about to be involved in criminal activity. The detaining officers must have knowledge of specific, articulable facts which, if taken together with rational inferences from those facts, reasonably warrant the stop. State v. Vance, 93-1389 (La.App. 4 Cir. 2/25/94), 633 So.2d 819. A seizure violative of the Louisiana Constitution,
The fact that a person runs or flees does not in and of itself establish probable cause. Flight does not always indicate guilt. It may result from fear and possibly other causes. Even when flight does appear reasonаbly designed to avoid apprehension, reasonable cause will not arise unless flight, combined with other information upon which the officer is entitled to rely, would indicate to a reasonable mind that the combination of circumstances is inconsistent with any innocent pursuit. State v. Hathaway, 411 So.2d 1074 (La.1982); State v. Patterson, 588 So.2d 392 (La.App. 4 Cir.1991).
Evidence abandoned by a citizen and recovered by the police as a direct result of an unconstitutional seizure may not be used in a resulting prosecution against the citizen. State v. Tucker, 626 So.2d 707 (La.1993); State v. Chopin, 372 So.2d 1222 (La.1979). When the citizen is stopped without reasonable cause or when a stop without reasonable cause is imminent the right to be left alone is violated and renders unlawful any resultant seizure of abandoned property. Tucker.
ANALYSIS
In the instant case, Officers Pollard and Rome pursued the defendant merely because he grabbed at his waistband and ran down the street. Neither officer testified that they ordered the defendant to stop or had any conversation with the defendant. Neither testified that the defendant was known to him or that the defendant was known to engage in criminal activity. Neither officer saw defendant with drugs or a weapon. The officers did not even testify that the area was notorious for criminal activity; more significantly, neither officer saw the defendant with drugs or a weapon. Adjusting one‘s trousers by tugging оn the waistband without any other indicia of suspicious behavior is innocent activity. There was no testimony that there was a tip on a hotline or that a call was made to describe the defendant as being armed. When the defendant adjusted his waistband and ran, the officers operated on a mere belief that the defendant was fleeing because he was secreting either a weapon or drugs in his waistband. Concerning the defendant‘s behavior the officers testified that “he grabbed his waistband and started running,” and “he observed the police car and just started fleeing holding on to his waistband.” Officеr Rome testified that he saw no gun when he first saw the defendant but saw him ... “just holding his waistband.” Officer Marquez admitted that he “did not see or know what reason they had for stopping him [the defendant].” Officer Pollard testified that when “the defendant saw us he ran on No. Johnson, pulling his waistband.” The officers did not articulate any knowledge or facts to justify the belief that the defendant had committed, was committing or was about to commit a crime.
It was during the chase of the defendant that Officer Pollard testified that he observed defendant discard a weapon which he later retrieved. The defendant‘s stop was imminent. Two оfficers were chasing the defendant on foot and two were following in police units cutting off any escape routes that the defendant might take. He was surrounded by the police. In fact, the testimony was to the effect that the officers’ aim was to try to cut him off, give him a short cut and make him turn so that he would have no escape possibility.
Furthermore, when the defendant encountered Officer Rome, the officer did not apprehend and question the defendant as to why he ran and why he grabbed at his waistband. The defendant was never given the opportunity to explain his actions, which is the purpose of an investigatory stop. Instead, Officer Rome handcuffed the defendant and arrested him. There was no reasonable suspicion to detain the defendant. All the while there were no articulable facts that the defendant was fleeing as a result of the commission or attempted commission of a crime. Although the defendant‘s running from the scene upon seeing the officers is a factor to be considered, flight without more is insufficient to justify an investigatory stop where the officers did not know what might be in the defendant‘s waistband. State v. Roberson, 549 So.2d 931 (La.App. 3 Cir. 1989); State v. Ellington, 96-0766 (La.App. 4 Cir. 9/4/96), 680 So.2d 174; State v. Denis, 96-0956 (La.App. 4 Cir. 3/19/97), 691 So.2d 1295, writ denied 97-1006 (La.6/20/97), 695 So.2d 1352. Running and pulling on the waistband served as an impermissible substitute for the requisite reasonable suspicion. It is not a crime to run from the police while clutching one‘s waistband.
Where officers, as here, do not have the right to make an investigatory stop,
CONCLUSION AND DECREE
Since the defendant‘s actions did not rise to the level of reasonable suspicion to justify the pursuit and the stop of the defendant, and because the weapon was discarded when the illegal stop was imminent, the seizure of the weapon was also illegal, and because no probable cause existed for Officer Rome to arrest the defendant following the chase, the defendant‘s arrest was illegal. The trial court committed error when he denied the motion to suppress the evidence. Because the illegally obtained evidence was admitted at trial, the conviction and the sentence are reversed and the case is remanded for further proceedings.
CONVICTION AND SENTENCE REVERSED. CASE REMANDED TO TRIAL COURT FOR FURTHER PROCEEDINGS.
BYRNES, J., dissents with reason.
BYRNES, Judge, dissenting with reasons.
I respectfully dissent based on my conclusion that an investigatory stop was reasonable, and the defendant abandoned the weapon without any prior unlawful intrusion into his right to be free from governmental interference so that the weapon was lawfully seized. The gun and the defendant‘s subsequent statement (that he had to get rid of the gun because he didn‘t want to go back to jail) were properly submitted at trial.
In reviewing the totality of circumstances, the officer‘s past experience, training and common sense may be considered in determining his inferences from the facts at hand were reasonable. State v. Jackson, 26,138 (La.App. 2 Cir.1994), 641 So.2d 1081. Flight, nervousness, or a startled look at the sight of a police officer may be one of the factors leading to a finding of reasonable cause to stop under
The crucial issue in the present case is whether the officers “stopped” the defendant before the defendant discarded the weapon because if property is abandoned without any prior unlawful intrusion into a citizen‘s right to be free from governmental interference, then such prоperty may be lawfully seized. State v. Britton, 93-1990 (La.1/27/94), 633 So.2d 1208. In such cases, there is no expectation of privacy and, thus, no violation of a person‘s custodial rights. State v. Andrishok, 434 So.2d 389 (La.1983).
An “actual stop” occurs when an individual submits to a police show of authority or is physically contacted by the police. State v. Tucker, 626 So.2d 707 (La.1993), opinion reinstated on rehearing by 626 So.2d 720 (La. 1993). 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, an actual stop of the individual is virtually certain. Id., 626 So.2d at 712. To determine whether an actual stop of an individual is imminent, the following factors may be useful in assessing the extent of police force employed and determining whether that force was virtually certain to result in an actual stop of an 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., 626 So.2d at 712-713.
In the present case, there was no “actual stop” of thе defendant prior to his abandonment of the weapon. Thus, this court must look to the factors set forth in Tucker, supra, to determine if there was an “imminent actual stop” at the time he abandoned the property, and if so, whether the officers had reasonable suspicion of criminal activity to support the imminent actual stop.
In Tucker, id., acting on repeated complaints of drug-related activity, the police conducted a drug sweep in certain high-crime areas. The sweep began when approximately ten to twelve marked police vehicles carrying 20 to 30 officers converged. When two men noticed the approaching police cars, they quickly broke apart and began to leave. Officer Wilson stopped his car and began to get out while simultaneously ordering the two men to “halt” and “prone out.” One man lay down immediately. The other, Tucker, moved several steps and tossed away a plastic bag. He then lay down. The Louisiana Supreme Court noted:
....while the
Fourth Amendment only protects individuals from “actual stops” by law enforcement officers, [California v.] Hodari D, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)], our constitution also protects individuals from “imminent actual stops.” Therefore, it becomes incumbent upon us to now determine what constitutes an “actual stop” and an “imminent actual stop” as those terms were used in Belton.
... We agree with the United States Supreme Court, an “actual stop” of an individual has not occurred when a police officer yells “Halt!” at a fleeing form which continues to flee. Thus, we hold that an individual has not been “actually stopped” unless he submits to a police show of authority or he is physically contacted by the police.
The Louisiana Supreme Court stated that it “cannot conclude an actual stop of Tucker was ‘virtually certain’ to оccur at the time he abandoned the evidence. Thus, at the time Tucker abandoned the marijuana he had not been unconstitutionally seized.” Id., 626 So.2d at 713. The Supreme Court upheld Tucker‘s conviction.
In State v. Wilson, 95-0619 (La.App. 4 Cir. 6/7/95), 657 So.2d 549, while three uniformed police officers were in a marked police car patrolling the area, they saw a group of men in the courtyard of the Desire Housing Project. The police drove about two car lengths up onto the grass to observe what was going on. The defendant started walking away from the group. When the officers in the police car got about five feet from the subject, he dropped a pill bottle аnd ran. This court noted:
The officer testified that the police car did not have its top lights or siren on. The police were not out of the car when the defendant dropped the bottle, they did not approach the defendant with their weapons drawn, and they did not try to apprehend the defendant until after he dropped the bottle and ran away. Under the totality of circumstances, we do not find that there was any force used by the police that was virtually certain to result in an imminent actual stop of the defendant when he abandoned the bottle.
In State v. Clark, 612 So.2d 232 (La.App. 4 Cir.1992), the officer had reasonable suspicion of criminal activity so as to justify the stop of the defendant, where the officer saw the defendant carrying a cigarette shaped
In State v. Ganier, 591 So.2d 1328 (La. App. 4 Cir.1991), police officers were patrolling a housing project in New Orleans known to be a center of drug trafficking. The defendant saw the officers, turned “suspiciously“, began to walk away slowly, and then began to run. The officers chased the defendant until he was apprehended. This court found that two factors were sufficient to justify a stop of the defendant: the area‘s reputation for drug trafficking, and the suspicious actions of the defendant. This court noted:
... Drug activity and crimes which it generates have become a major problem endangering innocent people and severely taxing police resources. Although an innocent individual who has nothing to hide from police might flee so that such flight would be irrational, the action of fleeing in itself is inherently suspicious and justifies an investigation by a police officer exercising common sense. This is not а case of a man merely standing on a street corner who is detained by the police simply because he is there.
In State v. Britton, 93-1990 (La.1/27/94), 633 So.2d 1208, police officers observed several subjects kneeling and apparently shooting dice in front of a gasoline station. The men saw the marked police car and disbursed. The defendant walked “hastily” into the gas station with the officers in pursuit, only several feet behind. The defendant removed an object from his pants pocket and placed it in a display rack. The Louisiana Supreme Court found that the police “did not forcibly detain him [the defendant], оr make a show of their authority signalling that some form of detention was imminent, until after he discarded the packet of cocaine.” Id., 633 So.2d at 1209.
In State v. Ricard, 94-0975 (La.App. 4 Cir. 1994), 640 So.2d 880, in a high crime area the defendant appeared to be intoxicated and ignored the officers’ order to stop. The defendant clenched his hand and attempted to put it into his coat pocket. Believing that the defendant was reaching for a gun, the officer grabbed the defendant‘s hand and opened it, finding a cocaine pipe. This court found that the officers articulated specific reasons for suspecting that the defеndant had a weapon, and the evidence was legally seized.
In State v. Laird, 95-1082 (La.App. 4 Cir. 5/8/96) 674 So.2d 425, the defendant was standing next to a female whom the officers were investigating a weapons violation. When the defendant saw the officers, he ran up the stairs into to the female‘s apartment. An officer chased the defendant up the stairs and followed the defendant into the apartment where he saw the defendant discard a white object near a refrigerator. After the officer detained the defendant, another officer recovered the piece of plastic containing several rock-like objects which appeared to be cocaine and placed the defendant under arrest, advising him of his Miranda rights. The defendant first said he had no knowledge of the cocaine but then he admitted possessing it and discarding it. Although the officers did not enunciate that the incident took place in a high crime area, this court found that the officers had reasonable suspicion to make an investigatory stop of the fleeing defendant because he was standing next to the female “who was reported to have a gun or was looking for a gun. The police could reаsonably believe that the defendant may have had the gun, or that [the female] might be getting the gun from the defendant.” Based on the fact that he was standing with the female being investigated for a weapon violation, and the defendant began to run, the officers had reasonable suspicion
In the present case, there was no “actual stop” of the defendant prior to his abandonment of the weapon. Just as in Tucker, supra, where there were several police officers on the street, the defendant ran and tried to conceal something. None of the officers yelled for him to stop or halt. The defendant abruptly ran away from the officers before they exited their cars and followed the defendant on foot. They did not order the defendant to stop, and they did not draw guns before the defendant ran. Under the totality of circumstances I do not find that the police forcibly detained the defendant before he abandoned the weapon; moreover, the officers had reasonable suspicion for an investigatory stop of the defendant based on the fact that not only did the defendant run, but he also reached for his waistband as if to conceal something. When the defendant Jerome Benjamin ran away, motioned as if he were trying to conceal something, and then threw down the weapon, an “actual stop” of the defendant was not imminent at the time he abandoned the evidence under the totality of the circumstances in the present case. There was no expectation of privacy and thus no violation of the defendant‘s custodial rights so that the weapon was lawfully seized. When the defendаnt discarded the weapon, the reasonable suspicion to make an investigatory stop gave rise to the level of probable cause to arrest the defendant for carrying a concealed weapon.
The majority states: “Adjusting one‘s trousers by tugging on the waistband without any other indicia of suspicious behavior is innocent activity.” However, in the present situation when the defendant grabbed at his waistband, he also ran when he saw the police. The present case is not a situation of a man merely jogging down the street. The officer‘s common sense would alert them that the defendant was committing or had committed a crime.
In the present case, the officer articulated that the defendant acted in a suspicious manner by running away, as well as reaching for his waistband, giving the officer reason to believe that the subject may be reaching for a weapon and/or he may be trying to conceal something illegal. Deference should be given to the experience of the policemen who were present at the time of the incident; a certain look or gesture may not mean anything to the ordinary person; however, a pоliceman has sound judgment based on long experience to interpret these acts. State v. Short, 96-1069 (La.App. 4 Cir. 5/7/97) 694 So.2d 549. In particular, if he feels that a subject may be reaching for a weapon, the officer should react for his safety and the safety of a fellow officer under the conditions and events as they occur. Under the totality of circumstances the officer had a reasonable belief that the defendant was trying to conceal something illegal or was carrying a concealed weapon, so that an investigatory stop was authorized under
The test for determining whether one has а reasonable expectation of privacy is not only whether the person had an actual or subjective expectation of privacy, but, rather whether that expectation is of a type which society at large is prepared to recognize as being reasonable. State v. McKinney, 93-1425 (La.App. 4 Cir. 5/17/94), 637 So.2d 1120; State v. Lambright, 525 So.2d 84 (La.App. 3 Cir.1988), writ denied 530 So.2d 83 (La.1988).
There was prior justification for the officer‘s intrusion into the protected area to make an investigatory stop. Under the totality of circumstances, the intrusiveness of the seizure of the abandoned weapon did not invade an expectation of privacy which society is prepared to recognize as reasonable.
The trial court properly denied the defendant‘s motion to suppress the evidence of the gun and the defendant‘s statement. Accordingly,