State v. Broussard, 769 So. 2d 1257

Lead Opinion

hWALTZER, J.

Defendant, Paul Broussard, appeals his conviction and sentence for attempted possession of cocaine.

STATEMENT OF THE CASE

On 8 June 1994, the appellant Paul Broussard was charged with one count of possession of 28 to 200 grams of cocaine.¹ At his arraignment on 16 June 1994 he pled not guilty. The court heard and denied his motion to suppress the evidence on 19 July 1994. Broussard’s writ application was denied, since he had an adequate remedy on appeal if ultimately convicted. On 14 March 1995, Broussard waived his right to a jury and was tried by the judge. At the conclusion of the trial, the court found him guilty of attempted possession of 28 to 200 grams of cocaine. On 27 March 1995, the court found him to be a second offender, and on 11 April 1995 it sentenced him to serve seven and a half years at hard labor without benefit of parole, probation, or suspension of sentence. The court also imposed and suspended a fine of $25,000. Broussard filed motions to correct an illegal sentence, which the trial court denied. Our court, in an unpublished disposition, ^amended Broussard’s sentence to delete the portion denying parole eligibility beyond the first five years.

On 17 December 1996, the trial court denied Broussard’s motion for out-of-time appeal. However, on 19 June 1998, the court granted a motion to amend sentence and amended the sentence to seven years at hard labor as a second offender, the first five years without benefit of parole. On that same date, the court granted Broussard an out-of-time appeal.

FACTS

On 7 May 1994, narcotics officers were conducting an undercover operation on N. Villere Street. Det. Carkum posed as a potential buyer, while Sgt. Bardy monitored the buy from a nearby location via an audio transmission. Both officers were driving unmarked vehicles, but Bardy testified his car was a type easily identified as a police car. Off. Gay was among a few other officers who were working backup. Det. Carkum drove onto N. Villere, and near the corner of St. Ann and Villere he was flagged down by a man later identified as Freddie Allen. Allen told Det. Carkum to exit his car. Det. Carkum complied, and he and Allen talked briefly in front of a grocery store. Allen walked to a woman, later identified as Betty Hills, who was standing on a nearby porch. Allen obtained a rock of cocaine from Hills, walked back to Det. Carkum, and gave it to him in exchange for a marked $20 bill. As Det. Carkum began leaving, he noticed Allen walk to a Jeep parked nearby. Allen entered the Jeep and spoke with the defendant Paul Broussard. Allen and Brous-sard spoke briefly, and then Allen left the Jeep, and Broussard began driving from the scene.

At that point, the officers decided to detain Allen, Hills, and Broussard. Sgt. Bardy testified he approached Broussard’s Jeep and turned his vehicle across the Jeep’s path, cutting it off. He testified Broussard | 3began backing up, and at that point Off. Gay pulled his car behind Brous-sard’s Jeep. The officers ordered Brous-sard out of the Jeep. However, Broussard could not easily exit because of injuries he had received in an earlier shooting. Sgt. Bardy and Off. Gay helped Broussard from the Jeep, and Bardy frisked Brous-sard for weapons. As Sgt. Bardy’s hand passed over Broussard’s pants pocket, Bardy felt a bulge of lumps which crackled and which he believed to be a bag of crack cocaine. Sgt. Bardy reached into Brous-sard’s pocket and retrieved twelve bags of crack cocaine totaling approximately sixty grams of cocaine.

Other officers arrested Hills and Allen. Officers seized a matchbox from Hills containing seven pieces of crack cocaine. Other officers seized the marked $20 bill from Mien. The substances seized from Hills and Broussard, as well as the rock Allen sold to Det. Carkum, all tested positive for cocaine.

Sgt. Bardy testified that he did not see Broussard actually engage in any criminal activity prior to stopping him, but he feared Allen may have passed the marked $20 bill to Broussard when Allen briefly entered the Jeep. He testified, however, that he only monitored the buy between Det. Carkum and Allen through the audio transmission. He admitted that when he gave the order to stop all the parties, he was under the impression Allen was still in the Jeep. When he stopped the Jeep, Allen had already exited it. Sgt. Bardy testified that Det. Carkum indicated in his audio transmission that he believed Broussard may have been another potential buyer when Allen entered the Jeep.

Off. Gay, who actually observed the undercover buy, testified he saw Allen enter the Jeep and speak briefly with Broussard before exiting it. He testified he believed Allen may have given Broussard the marked money or |4may have been involved in another drug sale. However, he admitted he did not see Allen give Brous-sard the money, and he further admitted he did not see Allen go to Hills after visiting Broussard. He testified that he parked his vehicle behind Broussard’s Jeep after Sgt. Bardy stopped Broussard’s Jeep with his vehicle.

Det. Carkum testified as to the drug sale between him and Allen. He testified he did not know why Allen might have entered Broussard’s Jeep because he walked back to his vehicle and drove off right after completing the transaction.

Freddie Allen testified Broussard is married to his niece. Allen admitted selling the cocaine to Det. Carkum, and he testified he obtained the cocaine from another niece, Betty Hills. He denied that Broussard was involved in the cocaine sale. He testified Broussard had just pulled up at the time of the sale, and he entered the Jeep merely to briefly greet Broussard. He testified that the marked $20 bill was seized from him.

Betty Broussard testified she is Brous-sard’s wife and Allen’s niece. She testified that her husband used cocaine prior to his arrest. She admitted she was not at the scene at the time of his arrest.

DISCUSSION AND RECOMMENDATION

A. Errors Patent

A review of the record for errors patent reveals none.²

B. Assignment of Error

By his sole assignment of error, the appellant contends the trial court erred by denying his motion to suppress the evidence. He contends the | ^officers had neither reasonable suspicion to stop him nor a reasonable belief that he was armed which would have allowed them to frisk him.

The initial inquiry, however, is whether the officers detained or arrested the appellant when they stopped him. If the officers’ actions were a mere detention, they would have only needed reasonable suspicion of criminal activity to stop him. State v. Allen, 95-1754 (La.9/5/96); 682 So.2d 713; State v. Smiley, 99-0065 (La.App. 4 Cir. 3/3/99); 729 So.2d 743, writ den. 99-0914 (La.5/14/99); 743 So.2d 651; State v. Sneed, 95-2326 (La.App. 4 Cir. 9/11/96); 680 So.2d 1237, writ den. 96-2450 (La.3/7/97); 689 So.2d 1371. However, if the officers’ actions constituted an arrest, the officers had to have probable cause to believe the appellant himself was engaged in, or was about to become engaged in, criminal activity. State v. Wilson, 467 So.2d 503, 515 (La.1985), cert. den. Wilson v. Louisiana, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985); State v. Blue, 97-2699 (La.App. 4 Cir. 1/7/98); 705 So.2d 1242, writ den. 98-0340 (La.3/27/98); 716 So.2d 887; State v. Johnson, 94-1170 (La.App. 4 Cir. 8/23/95); 660 So.2d 942, writ den. 95-2331 (La.2/2/96); 666 So.2d 1092, and State v. Dibartolo, 95-3044 (La.2/2/96); 666 So.2d 1105.

In State v. Smith, 99-2129 (La.App. 4 Cir. 4/26/00); 761 So.2d 642, officers followed the defendant for six blocks and then stopped him, using a “box-in maneuver”, wherein one officer pulled his vehicle in front of the defendant’s truck while another officer blocked the back of the defendant’s truck. On review, this court found that this type of detention was an arrest. This court stated:

LSA-C.Cr.P. art. 201 provides that an arrest is the taking of one person into custody by another by actual restraint of the person. In determining whether a person has been seized under the Fourth Amendment, the court must determine whether or |finot a reasonable person would have believed he was free to leave. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In State v. Allen, 95-1754, p. 6 (La.9/5/96); 682 So.2d 713, 719, the Supreme Court stated:

This court has considered this issue and determined that “it is the circumstances indicating the intent to effect an extended restraint on the liberty of the accused, rather than the precise timing of an officer’s statements: ‘You are under arrest,’ that are determinative of when an arrest is actually made.” State v. Giovanni, 375 So.2d 1360, 1363 (La.1979) (quoting State v. Sherer, 354 So.2d 1038, 1042 (La.1978)); see also State v. Davis, 558 So.2d 1379, 1382 (La.App.1990)[sic]; State v. Simms, 571 So.2d 145, 148 (La.1990). In both Giovanni and Simms, this court found an arrest based on the fact that the defendant was not free to leave.

Smith, supra at 645. This court found that the position of the officers’ vehicles was such that the defendant was not free to leave, and thus the detention was an arrest. In addition, one of the officers admitted the defendant was under arrest when the officers stopped him.

In State v. Bruser, 95-0907 (La.App. 4 Cir. 9/15/95); 661 So.2d 152, the officers activated their lights in order to stop the defendant. After he exited his car, the officers advised him he was under investigation for narcotics violations and advised him of his Miranda rights. This court found there was no arrest because the officers did not order him from his car or physically restrain him.

In State v. Wade, 390 So.2d 1309 (La.1980), cert. den. Wade v. Louisiana, 451 U.S. 989, 101 S.Ct. 2326, 68 L.Ed.2d 848 (1981), police officers “raced their vehicle until they pulled along side” the fleeing suspect, then stopped their vehicle and jumped out, blocking the suspect’s path. The Louisiana Supreme |7Court concluded that this was an investigatory stop, even though some degree of force was used to accomplish this stop.

In State v. Solomon, 93-1199 (La.App. 3 Cir. 3/2/94); 634 So.2d 1330, the suspect fled as the police officers approached on foot. The officers gave chase, caught him, and informed him that “they merely wanted to speak with him.” When the defendant began struggling, the deputies handcuffed him. The Louisiana Third Circuit, citing recent cases focusing on the intent of the officers to determine whether a stop is actually an arrest, held that the officers’ intent was to question the defendant, not to formally arrest him. The court found that the defendant was handcuffed only because of his violent struggle with the deputies, and that the stop was brief and reasonable to investigate possible criminal activity.

In State v. Francise, 597 So.2d 28 (La.App. 1 Cir.1992), writ den. 604 So.2d 970 (La.1992), police officers activated the lights and siren on the police vehicle, while immediately behind the suspect’s vehicle. The suspect defied the officers’ act by accelerating rather than stopping. The officers successfully stopped the defendant’s vehicle, drew their weapons, ordered the defendant and another passenger from the vehicle, and had them place their hands on the vehicle. The Louisiana First Circuit held that the officers’ actions constituted an arrest. Likewise in State v. Raheem, 464 So.2d 293 (La.1985), the Supreme Court found that “when the officers stopped the Cadillac, drew their weapons, ordered the defendants out of the car, and had them place their hands on the vehicle, an arrest occurred.” In State v. Kinnemann, 337 So.2d 441 (La.1976), the Court found that defendants were arrested where police officers stopped their vehicle using blue lights and a siren, removed the defendant from the vehicle, and | sphysically restrained the defendants before contraband was found in the vehicle.

The case closest to the situation before this Court is that of Smith, with the only exception being that the officers did not admit they had intended to arrest-him at the time they stopped him. However, it appears that the lack of this affirmative statement from the officers would not be enough to distinguish Smith to the extent that this court could find that the appellant reasonably believed that he could leave when the officers boxed-in his car and ordered him to exit it. Thus, it appears the officers arrested him when they stopped him in this manner, and as such they needed probable cause to do so lawfully.

Under the above circumstances, the officers did not have probable cause to arrest the appellant. There is no indication that they had any information linking the appellant to any drug activity. Their observations and the undercover buy gave them probable cause to arrest Allen and Hills, as they were both physically involved in the sale to the undercover officer. However, the only circumstance which tied the appellant to the drug sale was Allen’s entrance into the Jeep in which the appellant was sitting. One officer admitted he was not on the scene, but only monitored the sale via an audio transmission. He also admitted that when he pulled his vehicle in front of the appellant’s Jeep, he believed ■ Allen was still in the Jeep. The undercover officer who bought the crack from Allen testified he only saw Allen enter the Jeep as he (the officer) was leaving the scene. The only officer who actually saw Allen during his brief time inside the Jeep testified that he only saw Allen and the appellant speaking, and then he saw Allen leave the Jeep and the appellant drive away from the scene. The officer testified he was concerned that Allen might have passed the marked money | gto the appellant, but he admitted he did not see Allen giving anything to the appellant. The officer also testified that he thought the appellant might be another buyer. However, he admitted that after Allen left the Jeep, Allen did not go to Hills to get the cocaine, and that the appellant drove away just after Allen exited the Jeep. As such, although it is somewhat arguable that the appellant’s proximity to the undercover drug sale might have given the officers reasonable suspicion to stop the appellant, these circumstances did not constitute probable cause to believe the appellant was involved in Allen’s and Hills’ drug operation in any way. Thus, the officers did not have probable cause to arrest the appellant, and the cocaine the officers discovered after removing the appellant from the Jeep was unlawfully seized. The trial court erred by refusing to suppress the evidence.

CONCLUSION

Accordingly, Broussard’s conviction is reversed, his sentence vacated, and the case remanded.

CONVICTION REVERSED, SENTENCE VACATED AND CASE REMANDED.

BYRNES, J., DISSENTS WITH REASONS.

Notes

1 . Freddie Allen was charged in a separate count with the possession with the intent to distribute cocaine. He eventually pied guilty. His conviction and sentence are not the subject of this appeal.

2 . Although the minute entry of 19 June 1998 does not indicate the sentence is to be served without parole for five years, the transcript of this re-sentencing so provides. When there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983).

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Dissenting Opinion

hBYRNES, J.,

Dissents with Reasons.

I respectfully dissent based on my conclusion that the trial court properly denied the defendant, Paul Broussard’s motion to suppress.

To detain an individual or a motorist, reasonable suspicion of criminal activity is required. State v. Shaw, 31,786 (La.App. 2 Cir. 3/31/99), 736 So.2d 951. A law enforcement officer may stop a person in a public place whom he reasonably believes is committing, has committed, or is about to commit an offense. La. C.Cr.P. Art. 215.1. “Reasonable suspicion” for an investigatory stop is something less than the probable cause required for an arrest. State v. Vance, 93-1389 (La.App. 4 Cir. 2/25/94), 633 So.2d 819. A reviewing court must take into account the “totality of the circumstances — whole picture,” giving deference to the inferences and deductions of a trained police officer “that might well elude an untrained person.” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048. Deference should be given to the experience of the policemen who were present at the time of the incident; in reviewing the totality of circumstances, the officer’s past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. Short, 96-1069 (La.App. 4 Cir. 5/7/97), 694 So.2d 549.

In State v. Huntley, supra. 708 So.2d at 1049, the Louisiana Supreme Court stated:

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 an “ ‘inchoate and unparticularized suspicion or “hunch.”’” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 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. 1, 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, 499 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 versed in the field of law enforcement.” Id. [Emphasis added.]

In State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879, 881, the Louisiana Supreme Court found that: “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken so long as the circumstances, viewed objectively, justify that action,” citing Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723-1724, 56 L.Ed.2d 168 (1978). Even if the officers do not articulate reasons justifying a stop and search, the officers need “articulable facts” taking into account the entire picture. If the officers were required to articulate the factors, the cases would express that the ^officers need to have articulated facts; however, the officers only need articulable facts, taking into account the entire picture. In other words, the officers need not articulate reasons justifying a stop; however, articulable facts must be found or determined from the record under the totality of circumstances.

In State v. Gray, 99-47 (La.App. 5 Cir. 6/1/99), 738 So.2d 668, the police officer was alone on patrol at 1:06 a.m. in Reserve, Louisiana, when he observed five young males standing by a parked car with illuminated lights. The officer turned his vehicle around and drove back to the parked car to investigate because he thought that one of the subjects was a juvenile who was in violation of the curfew ordinance. As the officer approached, one of the subjects fled into an apartment, but the others remained standing by the parked car. The officer asked the remaining individuals to approach the police vehicle and to remove their hands from their pockets. The officer testified that the defendant refused to comply. The defendant would not approach the police vehicle and kept his hands in his pockets although the officer repeatedly asked the defendant to remove them. The officer personally escorted the defendant to the police vehicle. The officer asked the four individuals to produce identification and to place their hands on the police vehicle so he could conduct a weapons check. The defendant refused to remove his hands from his pockets and the officer handcuffed the defendant for the sole purpose of a limited weapons frisk. The officer also requested that a backup unit come to the scene. Under the totality of circumstances, specifically where the defendant became nervous, would not take his hands out of his pockets, or would not approach the police vehicle, the appellate court found that the officer had the requisite reasonable suspicion to justify the investigatory stop and frisk for weapons. The facts constituted an investigative stop rather than an arrest.

14An investigatory stop, requiring only a reasonable suspicion, is as complete a restriction on the liberty of movement as an arrest; a stopping for investigation is not lesser intrusive because the restriction of movement is incomplete, but rather because it is briefer than an arrest. State v. Vincelli, 555 So.2d 21 (La.App. 1 Cir.1989); State v. Walker, 530 So.2d 1200 (La.App. 2 Cir.1988), writ denied 532 So.2d 763 (La.1988); State v. Senegal, 95-796 (La.App. 3 Cir. 12/6/95), 664 So.2d 832. Inherent in an officer’s right to make an investigatory stop of an individual and to demand his name, address, and explanation of his actions is the right to detain the subject temporarily to verify information given or to obtain information independently of his cooperation. State v. Cabanas, 594 So.2d 404 (La.App. 1 Cir.1991), writ denied 598 So.2d 371 (La.1992); State v. Moncriffe, 522 So.2d 1187 (La.App. 4 Cir.1988).

In State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, writ denied 99-1077 (La.9/24/99), 747 So.2d 1118, a confidential informant provided a tip about illegal narcotics sales from a certain residence, and described that suspect named Brian Williams would be leaving the residence at a certain time, carrying illegal narcotics. The officers observed the described suspect leave the house, get into a car matching the informant’s description, and drive away. Two other vehicles left the house at the same time. The officers decided to conduct an investigatory stop on all three vehicles based on the information obtained from the confidential informant. The police radioed Deputy Villani, who was in a nearby police unit. Deputy Villani made a routine stop of the vehicle, had the occupants exit for safety purposes, and obtained their identifications. The passenger was identified as the defendant, Brian Williams. Upon looking into the car with his flashlight, Deputy Villani saw clear plastic bags in plain view. The field tested Isbags were positive for narcotics. The defendant was transported to the residence, where he gave his consent to search. The owner of the house also gave her consent to search the premises. Other narcotics, drug paraphernalia, and drugs were found.

Williams contended that the drugs from his car was the result of an invalid stop. He characterized the initial stop as an “arrest” requiring the officers to have probable cause to believe that the defendant was committing a crime, rather than to have reasonable suspicion of criminal activity. The defendant testified that his ex-fiance’ picked him up to go for a talk when the vehicle was stopped, the deputy-put him on the ground, and searched the vehicle. The appellate court found that the informant’s tip could provide the police officer with reasonable cause to detain and question a suspect. The Fifth Circuit stated:

Here, the evidence supports the conclusion of the trial court that Officer Villani had a reasonable suspicion of criminal activity pursuant to C.Cr.P. art. 215.1 sufficient to justify the initial stop. Defendant characterizes the detention at that point as being an arrest, rather than a stop. We do not find that the circumstances indicated an intent to effect an extended restraint on the liberty of the defendant until after the drugs were discovered in plain view. The officer ascertained the identification of the occupants and removed them from the vehicle for safety reasons. Considering his information of the suspect as having illegal drugs, such action is reasonable. Until the point that the drugs were discovered, this was a lawful investigatory stop under C.Cr.P. art. 215.1.

Id. p. 12, 735 So.2d at 71.

In Williams, an officer’s initial investigatory stop, in which he ascertained the identification of the occupants and removed them from the vehicle for safety reasons, was lawful, based on the officer’s information from a confidential informant that the suspect had illegal drugs. The officers had reasonable cause to believe that the defendant or someone in the vehicle that he was driving, was |ficommitting or was about to commit a crime, thus warranting a valid investigatory stop.

In the present case, there was clearly reasonable suspicion to justify an investigatory stop of the defendant, given the observations of the police. In Williams, supra, the reliable confidential informant gave information that warranted an investigatory stop of the vehicles leaving a residence. In the present ease, there was no informant’s tip confirmed by the officers’ observation of the described suspect leaving the residence at the time provided in the tip. However, in the present case, the police actually observed a drug transaction with an undercover agent. Sergeant Bob Bardy testified that just after the subject Freddie Allen engaged in a narcotics transaction and sold drugs to Detective Duane Corkum, an undercover officer, the defendant Paul Broussard was in a Jeep on the scene. Allen got into the Jeep, and Officer Corkum broadcast that possibly another drug deal was taking place. Allen left the jeep. When the defendant Brous-sard was driving away, he headed toward Sergeant Bardy’s direction. Sergeant Bardy decided to stop the defendant Broussard because he thought that Allen might have passed on the marked money to the defendant, and Officer Corkum’s broadcast showed that he also believed that another drug transaction may have taken place with Allen in the Jeep. Sergeant Bardy got out of his car and screamed, “Police. Stop.” Sergeant Bardy testified that the defendant Broussard “then put his Jeep in reverse and attempted to flee at which time Detective Gay, who was the additional support officer for Officer Corkum, was following the Jeep and he stopped in back of the Jeep, stopping his escape efforts .”

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 [7and in 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. State v. Tucker, 626 So.2d 707, 712-713 (La.1993), opinion reinstated on rehearing by 626 So.2d 720 (La.1993).

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 |snot been “actually stopped” unless he submits to a police show of authority or he is physically contacted by the police.

Tucker, 626 So.2d at 712. [Emphasis added.]

The Louisiana Supreme Court stated that it “could not conclude an actual stop of Tucker was ‘virtually certain’ to occur 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 the present case, Sergeant Bardy yelled at the defendant to stop. At this point the officer had reasonable suspicion for an investigatory stop because the drug transaction between Freddie Allen and the undercover officer had just taken place; and Allen got into the Jeep with Brous-sard. The officer had reason to believe that Broussard was involved with Allen’s drug dealing. Allen could have handed the cash to Broussard or could have replenished his drug supply. It made no difference that Allen got out of the Jeep before the police stopped it. Allen had contact with Broussard so that the officers could believe that Broussard was Allen’s companion in drug dealing or another drug transaction had taken place. The officers had reason to believe that Broussard had engaged in illegal conduct, and an investigatory stop was justified. When Sergeant Bardy yelled to Broussard to stop, which equaled an imminent actual stop, Brous-sard' tried to back up the Jeep to get away. At this point, based on Broussard’s attempt to flee, the officers’ suspicions had additional support to make the actual stop. Officer Gay, who was following behind the Jeep, was justified in stopping his vehicle to keep Broussard from fleeing. The circumstances did not indicate an intent to effect an extended restraint on the liberty of the defendant until after the drugs were discovered during lathe safety pat-down pursuant to an investigatory stop. The officers properly made an investigatory stop rather than an arrest.

La. C.Cr.P. art. 215.1(B) provides for a limited frisk for weapons during an investigatory stop:

When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.

The officer need not be absolutely certain that the person is armed, but the officer must be warranted in his belief that his safety or that of others is in danger. State v. Smith, 94-1502 p. 5 (La.App. 4 Cir. 1/19/95), 649 So.2d 1078, 1082. It is clear that an officer may make a protective search of the suspect for his own safety and the safety of others. State v. Davis, 92-1623 (La.1994), 637 So.2d 1012, cert. denied, Davis v. Louisiana, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

In State v. Wartberg, 586 So.2d 627 (La.App. 4 Cir.1991), this court noted that any person who is suspected of dealing drugs is probably armed with a weapon and officers need not refer to specific particular facts concerning the danger to their safety.

In the present case, one undercover officer had just had a drug transaction with Freddie Allen. This articulable factor, that drugs were involved, provided a reason for the officers to fear for their safety. Sergeant Bardy testified that Broussard had crutches and told the sergeant that he had been shot a week earlier in the same neighborhood. These factors supported the officers’ concern for their safety and the officers’ reason for a pat-down frisk of the defendant. Given the facts and circumstances known to the officers and because weapons and violence | inare commonly associated with illegal drug activity, the officers could reasonably infer that Brous-sard was armed and dangerous, thus justifying the safety pat-down search of the defendant.

Although the actions of the subjects may have been innocent if considered individually, under 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, the officers had reason to justify the investigatory stop. The safety frisk of Broussard was justified based on a proper investigatory stop.

Considering that the officers had reasonable suspicion for an investigatory stop, this case would fall within the “plain feel” exception recognized in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Under Dickerson, when a police officer lawfully pats down a suspect’s clothing for weapons and feels an object whose contour or mass makes its identity immediately apparent to be contraband, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.

In State v. Lavigne, 95-0204 (La.App. 4 Cir. 5/22/96), 675 So.2d 771, writ denied, 96-1738 (La.1/10/97), 685 So.2d 140, a crack pipe was lawfully seized because it was immediately apparent to the officer that the object felt like a crack pipe based on the officer’s sense of touch. The officer could not know for certain until he actually looked at it to confirm that it appeared to be a crack pipe.

In the present case, Officer Bardy testified that: “when I placed my hand on his pockets I heard a crinkling sound and felt a lump like substance, at which time I believed this to be lumps and crackling consistent with crack cocaine.” When asked why he though Broussard possessed contraband. Officer Bardy further In answered: “The consistency of the packaging, the lump feeling, the crackling of the plastic and more so in effect that we were in the area where a drug deal had transpired and coupled with his evasive actions in attempting to flee from me as I was alongside of his Jeep.” The record shows that Officer Bardy had completed over twenty years of police service and was the Commander of the Narcotics Division. Under the totality of circumstances, giving deference to the police officer’s training, the crack cocaine was properly seized pursuant to an investigatory stop because of the officer’s immediate and reasonable belief that it was crack cocaine based on the officer’s sense of touch. There was no invasion of the defendant’s privacy beyond that already authorized by the officer’s search for weapons. The officer found twelve individual packages of contraband in Broussard’s pocket. The contraband was properly seized pursuant to an investigatory stop and valid safety pat-down search. The officers had probable cause to arrest the defendant at that point.

Focusing on the intent of the officers, the officers’ intent was to make an investigatory stop and not to formally arrest the defendant at the time of the stop. The stop was brief and reasonable to investigate possible criminal activity. See State v. Solomon, 93-1199 (La.App. 3 Cir. 3/2/94); 634 So.2d 1330.

Accordingly, I would affirm the defendant’s conviction and sentence.

Case Details

Case Name: State v. Broussard

Court Name: Louisiana Court of Appeal

Date Published: Oct 4, 2000

Citations: 769 So. 2d 1257; 99 La.App. 4 Cir. 2848; 2000 WL 1584620; 2000 La. App. LEXIS 2598; No. 99-KA-2848

Docket Number: No. 99-KA-2848

Court Abbreviation: La. Ct. App.