STATE of Louisiana v. Ernest J. DOBARD.
No. 2001-KK-2629.
Supreme Court of Louisiana.
June 21, 2002.
824 So.2d 1127 (2002)
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 thаt the officers 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 Narcotiсs Detectives 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
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 State v. Dobard, 01-1416 (La.App. 4 Cir. 8/27/01) (unpublished decision).
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), 810 So.2d 1155.
Discussion
The Fourth Amendment of the United States Constitution and
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), 806 So.2d 647, 648 (quoting State v. Duplessis, 391 So.2d 1116, 1117 (La.1980)). The police do not need probable cause to arrest or reasonable cause to detain an individual each time they approach a citizen. State v. Belton, 441 So.2d 1195, 1199 (La.1983). As long as the person approached by a law enforcement officer remains free to disregard the encounter and walk away, the foregoing constitutional provisions are not implicated. Tucker, 626 So.2d at 710; Belton, 441 So.2d at 1199.
In ordеr 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, 626 So.2d at 710. If, however, property is abandoned prior to any unlawful intrusion into a citizen‘s right to be free from governmental interference, then the property may be lawfully seized and used in a resulting prosecution. Id. In this latter situation, the citizen has no reasonable expectation of privacy and there is no violation of his custodial rights. Id. Because these rules of inadmissibility are intended to protect individuals from unwarranted, forcible governmental interference, “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.” Id. at 710-11 (quoting Belton, 441 So.2d at 1199) (emphasis in original).
In Tucker, this court, adopting the U.S. Supreme Court‘s pronouncement in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), held that an individual has been “actually stopped,” i.e., seized, for purposes of
In the instant сase, 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 plain clothes to conduct a “vice check,” which he described as a сheck of patrons for weapons,
On cross-examination, Officer Wischan explained why he aрproached 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 sight—in 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.
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 their wеapons, physically contacted defendant, ordered or signaled him to stop, or otherwise asserted any
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 forсe, let alone 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, 626 So.2d at 712.
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 contrabаnd before, rather 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 paсket of cocaine from the 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 confidentiаl informant‘s tip. Likewise, in Johnson, the officers found the 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 providе reasonable suspicion or probable 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
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, 93-2360 (La.App. 4 Cir. 6/30/94), 639 So.2d 1239; writ denied, 94-2058 (La.11/11/94), 657 So.2d 1021. Accordingly, I would respect the trial court‘s decision and affirm the decision to suppress the evidence in this case.
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 aрproached defendant, who was seated alone at a booth. As the trial court indicated, 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, 428 So.2d 449 (La.1983). When explaining the procedure for a “vice check,” one officer testified that the officers “go into an establishment, check patrons for weapons, narcotics, warrants; make sure that the bar is up to par with codes, license, things of that nature.” Given this testimony, I believe that the district court judge could have reasonably determined that the officers’ purpose for entering the bar was not simply to investigate the licensing of the establishment but rather to conduct a warrantless search of the patrons. Therefore, I would not reverse the district court‘s suppression of the evidence.
Notes
The procedure for the suspension or revocation 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 fоrth the facts and circumstances of the violation, and shall thereupon summon the permittee to appear and show 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 rеspective jurisdictions. If any violation of any provision of this Chapter or of any rule or regulation of the commissioner is observed, 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.