State v. EdwardsState v. Edwards
The defendant, Tyrone Edwards, was charged by bill of information with being a convicted felon in possession of a firearm in violation of
FACTS
On April 17, 1993, at approximately 4:18 a.m., Officer Mark Smith of the St. Charles Parish Sheriff‘s Office was dispatched to investigate a report of a suspicious vehicle occupied by two subjects and parked along the side of Louisiana Highway 18, near its intersection with I-310. When Officer Smith arrived on the scene, he observed a blue pick-up truck parked on the shoulder of the roadway near the line separating the lane of travel from the shoulder. In the truck were two men who appeared to be asleep. Officer Smith noticed that the passenger, later identified as Mr. Jolly, had an open “long-neck” bottle of beer in his lap.
Officer Smith attempted unsuccessfully to awaken the two individuals by knocking on the window of the truck. Officer Smith then attempted to open the driver‘s door of the truck, but it was difficult to open. The rattling of the door awakened the driver, Tyrone Edwards. Mr. Edwards helped Officer Smith to open the door which was apparently unlocked but “hung up.” Officer Smith requested identification and ask if there was a problem. In response to the officer‘s question, both men admitted that they were drinking for quite some time and had pulled over to “sleep it off“.
After the two men produced their driver‘s licenses, Officer Smith ran each name through the police computer. Through that check Officer Smith received information over his police radio that the defendant had a previous murder conviction. At that same moment defendant advised Officer Smith of the murder conviction.
At that point Officer Smith ordered the defendant to exit the truck so that a pat down search for weapons could be conducted. The defendant stumbled while exiting the truck and exhibited other signs of intoxication. When asked about weapons, the defendant told Officer Smith that there was a.22 caliber rifle located behind the seat of the truck which he owned. For safety purposes before retrieving the gun, Officer Smith instructed the defendant to step to the rear of the truck and the passenger to place his hands on the dashboard. The officer then seized the rifle from behind the seat of the truck and requested the assistance of a backup unit before unloading the rifle.
After the responding officer arrived on the scene, he ordered Mr. Jolly to exit the truck. Officer Smith advised the defendant of his Miranda rights and the defendant started “acting as if he was going to get sick.” When the defendant regained his composure,
On appeal the defendant argues that the trial court erred in denying the motion to suppress. He asserts the evidence was obtained pursuant to an illegal investigatory stop and arrest.
Both the
However, law enforcement officials do not need reasonable cause or probable cause to detain each time they encounter a citizen, for not all police-citizen contact involves a “seizure.” Policemen enjoy the same liberty possessed by every citizen to address questions to other persons. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); State v. Sims, supra. A person is “seized” within the meaning of the Fourth Amendment only when that person either submits to the police show of authority or is physically contacted by the police. California v. Hordari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). A person is seized within the meaning of
Additionally a limited frisk or patdown weapons search incident to an investigatory stop may be conducted in order to prevent harm to the police officers and ensure their safety. State v. Wade, 390 So.2d 1309 (La.1980), cert. denied, 451 U.S. 989, 101 S.Ct. 2326, 68 L.Ed.2d 848 (1981). The circumstances under which an officer may make such a pat-down for weapons must be based on whether or not a reasonably prudent man would be warranted in the belief that his safety or that of others was in danger. Terry v. Ohio, supra; State v. Keller, 403 So.2d 693 (La.1981). Such belief “is not reasonable unless the officer is ‘able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.‘” State v. Keller, 403 at 697, citing Terry v. Ohio, supra, and Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917, 935 (1968). It is not necessary that the investigating officer establish that it was more probable than not that the detained individual was armed and dangerous; it is sufficient that he establish a substantial possibility of danger. State v. Hunter, 375 So.2d 99 (La.1979).
In the instant case, the officer approached a truck parked on the side of the road in which two men were asleep. His purpose was to investigate. When he was unable to awaken the occupants by knocking, he attempted to open the unlocked truck door. Up to this point, there was no force used, nor demands made upon the defendant. Thus, there was no seizure for which probable cause or reasonable cause was necessary.
Given the knowledge obtained by Officer Smith that the defendant was a convicted murderer, we find that a pat down search was justified. The weapon found in the defendant‘s sock was sufficient to support the charge that the defendant was a convicted felon in possession of a firearm. Consequently, defendant‘s arguments regarding the legality of the seizure of the second weapon from the truck are irrelevant.
Our review of errors patent on the record shows that the defendant was not given credit for time served in accordance with
CONVICTION AFFIRMED, SENTENCE AMENDED AND AS AMENDED AFFIRMED.