STATE of Louisiana
v.
Ernest J. DOBARD.
Supreme Court of Louisiana.
*1128 Riсhard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, Andre R. Belanger, for Appellant.
*1129 Derek J. Honore, for Respondent.
KIMBALL, Justice.
We granted certiorari to consider whether evidence abandoned by defendant during a "vice check" of a bar and its patrons was recovered by the police as a direct result of an unconstitutional seizure. For the reasons discussed herein, we conclude that, notwithstanding the fact that the оfficers harbored an uncommunicated subjective intent to search defendant, defendant was not illegally seized prior to his abandonment of crack cocaine. Therefore, we find the evidence was lawfully seized and can be used against defendant in a prosecution for possession of crack cocaine.
Facts and Procedural History
On the evening of March 6, 2001, five Third District Narcotics Detectivеs assigned to the Vice Unit entered Lo Dee's bar at 3506 Hamburg Street in the St. Bernard Housing Development for the purpose of conducting a "vice check." One of the detectives, Officer Harold Wischan, described a "vice check" as follows:
We go into an establishment, check patrons for weapons, narcotics, warrants; make sure that the bar is up to par with the codes, license, things of that nature.
Upon entering the bar, the officers, who were in plain clothes, announced their presence and Officer Wischan observed defendant, Ernest Dobard, sitting by himself in a well-lit booth along the wall to the right. When Officer Wischan and his partner approached, defendant acted in a suspicious manner, turning his head so that the detectives could not see his face, and Officer Wischan observed defendant discard something with his left hand off the bench seat. Defendant then got up from the booth and attempted to walk away. The officer stopped him and Officer Wischan's partner retrieved four pieces of what appeared to be crack cocaine from the booth area where defendant had been sitting. Defendant was advised of his rights and placed under arrest for possession of crack cocaine.
The retrieved substances subsequently tested positive for cocaine and, on May 4, 2001, the State charged defendant with possession of crack cocaine in violation of La. R.S. 40:967(C)(2). On May 9, 2001, defendant entered a plea of not guilty. On July 23, 2001, the trial court held a hearing on defendant's motion to suppress the evidence. The State called one witness, Officer Wischan, and after hearing testimony and argument, the trial court suppressed the evidence, found no probable cause to bind defendant over for trial, and released defendant. The State's motion for a stay was denied.
The court of appeal denied the State's application for supervisory writs and request for a stay order, finding a stop of defendant was imminent at the time he discarded the crack cocaine and such stop was not based on any reasonable suspicion. State v. Dobard,
This court granted certiorari upon the State's application to consider the correctness of the trial court's determination that the evidence was the product of an illegal seizure. State v. Dobard, 01-2629 (La.3/8/02),
Discussion
The Fourth Amendment of the United States Constitution and Article 1, Section 5 of the Louisiana Constitution protect persons from unreasonable searches and seizures. The police may not, therefore, make a warrantless arrest of a citizen without probable cause that the citizen has engaged in criminal conduct. State v. Tucker,
These constitutional protections, however, do not proscribe all interaction between the police and other individuals. Police officers "have the right to engage anyone in conversation, even without reasonable grounds to believe that they have committed a crime." State v. Johnson, 01-2436, p. 3 (La.1/25/02),
In order to discourage police misconduct, evidence recovered as a result of an unconstitutional search or seizure is inadmissible. Consequently, property abandoned by an individual and recovered by the police as a direct result of an unconstitutional seizure may not be used in a subsequent prosecution. Tucker,
In Tucker, this court, adopting the U.S. Supreme Court's pronouncement in California v. Hodari D.,
In the instant case, the relevant inquiry is whether, at the time defendant abandoned the crack cocaine, the police officers had illegally accomplished an actual or imminent actual stop.
At the suppression hearing, Officer Wischan testified that the officers in his unit entered Lo Dee's bar wearing рlain clothes to conduct a "vice check," which he described as a check of patrons for weapons, *1131 narcotics, and warrants, and a check of the bar for code or license violations. Officer Wischan explained that the officers announced their presence upon entering the bar and he then observed defendant sitting alone in a booth to his right along the wall. He testified that as he and his partner approached defendant, defendant turned his head so that the officers could not see his face and discarded something off the bench seat with his left hand. Defendant then got up and attempted to walk off. Officer Wischan stopped defendant and his partner retrieved four pieces of crack cocaine from the booth arеa.
On cross-examination, Officer Wischan explained why he approached defendant as follows:
Q: To check what?
A: For weapons for our safety. When we first go in a bar, we want to check for our safety first, make sure it's secure, then we go and start checking the business for their license and everything else.
Q: So you were going over to search this man?
A: No, I was going to make sure that he had no weapons in his sightin his grasp, where he could just reach down and grab a gun or something and shoot one of us.
Finally, on redirect examination, the following exchange took place between Officer Wischan and the Assistant District Attorney:
Q: Okay. Now, Officer, did you put your hands on this defendant or stop him in any way before he threw down this material?
A: No, ma'am.
Q: All right. At what point did he throw the drugs down, the four pieces of crack?
A: When we first started to approach him.
Q: When you first started to approach him?
A: Right.
As an initial matter, we note the vice unit had no authority whatsoever to enter a bar and search its patrons for narcotics.[1] Had the officers been searching defendant's person for narcotics based solely on the fact it was conducting a so-called "vice check," then any contraband recovered would clearly be inadmissible in a subsequent prosecution. In the instant case, however, the record contains no indication that the officers made any attempt to search defendant, or any other patron, for narcotics.
The officers had the right to check the bar's compliance with applicable laws, see e.g. La. R.S. 26:93(B),[2] and to be present *1132 in Lo Dee's bar, a public establishment, during its normal business hours. See 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.4(b) (3rd ed. 1996) ("[A]s an ordinary matter law enforcement officials may accept a general public invitation to enter commercial premises fоr purposes not related to the trade conducted thereupon. On this basis, courts have consistently held that police, albeit motivated by an investigative purpose, conducted no search by merely entering such premises as a ... pool hall, bar, [or] restaurant....") (collecting cases) (footnotes omitted); 1 WILLIAM E. RINGEL, SEARCHES & SEIZURES, ARRESTS AND CONFESSIONS, (2nd ed. 2002) ("An observation made by a government agent when he is present on premises open to the public under the same circumstances as any other member of the public does not constitute a search within the meaning of the Fourth Amendment.") (collecting cases). See also Lewis v. U.S.,
By merely announcing their presence as police officers when they entered the bar and starting to approach defendant, the officers had not yet seized defendant when he discarded the crack cocaine. The record does not reveal that the officers had drawn thеir weapons, physically contacted defendant, ordered or signaled him to stop, or otherwise asserted any *1133 official authority over him when he panicked and discarded the contraband. See Jackson at pp. 2-3,
Furthermore, at the point defendant discarded the crack cocaine, an actual stop of defendant was not imminent. The officers had not yet indicated by word or action that a forcible detention was about to take place. In fact, the officers had not yet used any force, let аlone come upon defendant "with such force that, regardless of [his] attempts to flee or elude the encounter, an actual stop" of him was virtually certain. Tucker,
The fact that the officers might have held a subjective intent to search patrons of Lo Dee's bar for narcotics or weapons is of no moment because defendant discarded the contraband before, rathеr than after, the officers acted to effectuate their subjective intent. This was made clear in our recent decisions in Jackson and Johnson, supra. In both of those cases, police officers received a tip from an informant that a certain described individual was selling drugs in a specified location. In Jackson, once the officers reached the location and found the situation as described by the informant, they observed defendant Jackson "walking fast" to the porch of a double house. The officers stopped, got out of their vehicle, and positioned themselves at the fence in front of the property where they identified themselves as police officers. Defendant Jackson appeared startled and dropped a packet of cocaine from thе porch to the ground. This court held defendant was not actually stopped, nor was an actual stop imminent, when he discarded the cocaine, and the evidence was legally seized because the contraband was discarded before the officers acted on their subjective intent to stop defendant on the basis of the confidential informant's tip. Likewise, in Johnson, the officers found thе scene as described by the anonymous informant and parked their unmarked car no more than four or five feet from defendant. As they exited the vehicle and defendant realized they were police officers, defendant threw down a bag containing heroin. While recognizing that the tip provided by the anonymous informant did not alone provide reasonable suspicion or probablе cause that defendant was engaged in criminal activity, this court held the heroin was legally seized since defendant discarded it before the officers took any steps to effectuate their uncommunicated intent to conduct an investigation on the basis of the tip.
Under the circumstances presented in this case, the officers had a right to be present in the bar and, while there, to approach defendant. The officers' identification of themselves and approach towards defendant effectuated neither an actual stop nor an imminent actual stop of defendant. Defendant threw down the crack cocaine prior to any unlawful intrusion into his right to be free from governmental interference. Thus, at the time defendant abandoned the crack cocaine, he had not been illegally seized. Once the officers observed defendant's nervous behavior and saw him discard something off the booth seat and then attempt to walk away, they had at least reasonable cause to believe defendant was engaged in criminal conduct and could therefore stop him and retrieve the discarded evidence. For these reasons, the trial court erred in granting defendant's motion to suppress the crack cocaine *1134 and in finding a lack of probable cause.
Conclusion
For the foregoing reasons, the crack cocaine abandoned by defendant prior to any unlawful intrusion into his right to be free from governmental interference was lawfully seized. The trial court's determination that the evidence should be suppressed and its finding of a lack of probable cause are therefore reversed. The case is remanded to the trial court for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
JOHNSON, J., dissents and assigns reasons.
CALOGERO, C.J., dissents and assigns reasons.
JOHNSON, J., dissenting.
Trial courts are vested with great discretion when ruling on a motion to suppress. State v. Scull,
The evidence adduced at the suppression hearing reveals that the police officers entered the bar to check the bar's license. Rather than checking the license upon entering the establishment, the officers proceeded to "check patrons for weapons, narcotics, [and] warrants...." (Emphasis added). Two of the officers immediately approached defendant, who was seated alone at a booth. As the trial court indiсated, none of the patrons would have been approached had this been a more "upscale" establishment with more affluent patrons.
CALOGERO, Chief Justice, dissents and assigns the following reasons.
I do not believe that the district court judge abused his discretion when he granted defendant's motion to suppress the evidence. State v. Burkhalter,
NOTES
Notes
[1] La. R.S. 14:95.4 provides that any person entering an alcoholic beverage outlet shall be deemed to have consented to a reasonable search of his or her person for any firearm by a law enforcement officer without the necessity of a warrant. While this statute permits a warrantless search of patrons of certain alcoholic beverage outlets for firearms, it is not relevant under the facts of this case and its applicability has not been asserted by the State.
[2] La. R.S. 26:93, part of this state's Alcoholic Beverage Control Law, provides in part:
The procedure for the suspension or revocatiоn of permits shall be substantially as follows:
A. The commissioner shall have periodic examinations made of the business of all persons holding permits under this Chapter. If a violation of any provision of this Chapter or of any rule or regulation of the commissioner is observed, the commissioner may give the permittee a written warning. If the permittee has been previously warned or if the violation is of a sufficiently serious nature, the commissioner may instruct any agent or employee of the commissioner to prepare and file, upon information and belief based upon the facts in hand, a petition for suspension or revocation of the permit, setting forth the facts and circumstances of the violation, and shall thereupon summon the permittee to appear and shоw cause why the permit should not be suspended or revoked.
B. The secretary of the Department of Revenue, municipal authorities, sheriffs, and other law enforcing officers shall have periodic investigations made of the business of all permittees within their respective jurisdictions. If any violation of any provision of this Chapter or of any rule or regulation of the commissioner is observеd, such authorities may give the permittee a written warning. If the permittee has been previously warned or if the violation is of a sufficiently serious nature, they shall file an affidavit with the commissioner, setting forth the facts and circumstances of the violation. Thereupon, the commissioner shall summon the permittee to appear and show cause why his permit should not be suspended or revoked.