State v. JacksonState v. Jackson
The defendant, Bryan O‘Neal Jackson, pled guilty as charged to possession of cocaine, a violation of
FACTS
On October 31, 1996, Officers Curtis Hawkins and Carl Washington were on bicycle patrol when they saw the defendant sitting on a concrete parking barrier in the parking lot of John‘s Number 1 Beer Store. The store is located in an area of Ruston known for drug trafficking and violence. On many prior occasions, police officers—including Officer Hawkins—had removed weapons from people selling drugs in John‘s parking lot. The owner of John‘s had requested that the police remove people loitering on the premises and had several large “No Loitering” signs placed at both ends of the building. The defendant had been ordered by police to leave the premises on several prior occasions at the request of the owner.
Officer Hawkins approached the defendant and performed a pat-down search for weapons while Officer Washington observed. Officer Washington testified that the defendant appeared to be nervous throughout the encounter. Officer Washington stated that after Officer Hawkins commenced a pat-down search, the defendant tried to remove his hands from the wall and put them into his right front pants pocket. Officer Washington testified that during the course of the pat-down search, the defendant made a statement, containing the word “dope,” to a bystander who asked what “the police had him for.” He testified that he then observed Officer Hawkins reach into the defendant‘s right front pants pocket and withdraw from it a brown paper towel containing what appeared to be crack cocaine.
Officer Hawkins testified that as he and Officer Washington approached, the defendant was acting nervous, looking from side to side, and he thought that the defendant was going to run away. Therefore, based on his knowledge of the “high crime” neighborhood, of the drug sales that took place in this parking lot, the fact that he removed weapons from people in this area all the time, and his numerous previous requests to the defendant to leave the premises, Officer Hawkins asked the defendant to put his hands on the wall and commenced a pat-down search of the defendant. Officer Hawkins testified that the defendant continuously made attempts to move his hand to his waistline or front pocket area after the pat-down search had commenced, leading Officer Hawkins to believe that the defendant was reaching for a weapon. Finally, Officer Hawkins testified that in response to a question from a bystander, during the pat-down search, the defendant made a statement to the effect of: “He got me with a pocket full of dope.”
Officer Hawkins felt a lump in the defendant‘s right front pants pocket during the pat-down search and Officer Washington was able to see it as well. After the defendant stated that the officers had “got him with a pocket of dope,” Officer Hawkins
The defendant was charged by bill of information with possession of cocaine, a violation of
MOTION TO SUPPRESS
The defendant contends that the trial court erred in denying his motion to suppress certain incriminating evidence seized from his person by the police.
Great weight is afforded to the trial court‘s determination of a motion to suppress, as it had the opportunity to observe the witnesses and to weigh the credibility of their testimony. State v. Goodjoint, 30,727 (La.App.2d Cir.6/24/98), 716 So.2d 139; State v. White, 27,188 (La.App.2d Cir.8/23/95), 660 So.2d 515; State v. Jackson, 26,138 (La.App.2d Cir.8/17/94), 641 So.2d 1081.
The question to be initially analyzed is the lawfulness of the officer‘s original investigatory stop. The right of law enforcement officers to temporarily detain and interrogate persons reasonably suspected of criminal activity is well established. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Fauria, 393 So.2d 688 (La.1981); State v. White, supra;
Flight, a furtive gesture, nervousness, or startled behavior at the sight of a police officer is not, by itself, sufficient to justify an investigatory stop. However, this type of conduct may be a factor leading to a finding of reasonable cause. State v. White, supra; State v. Jackson, supra. Further, presence in a high crime area, coupled with nervousness or flight or suspicious actions upon approach of the officers is enough to justify an investigatory stop. State v. Taylor, 363 So.2d 699 (La. 1978); State v. White, supra. Such a high crime area is a place in which the character of the area gives color to conduct which might not otherwise raise the suspicion of an officer. State v. Buckley, 426 So.2d 103 (La.1983).
In this case, the officers testified that the defendant was sitting on a parking barrier outside of the very same business
Additionally, while: Officer Hawkins was conducting the pat-down search, the defendant continually removed his hand from the wall in an attempt to reach into his right front pants pocket or around his waistline area. Officer Hawkins felt and Officer Washington saw a bulge in the defendant‘s right front pocket. While the officers never testified that they were able to identify, by plain feel, the object in the defendant‘s pocket, the defendant made a voluntary statement to a third party, uninvolved with the arrest, that the officers got him with a pocket full of dope. After the defendant made this statement, Officer Hawkins reached into the defendant‘s pocket and removed the crack cocaine. Thus, the search and seizure were lawful.
This assignment of error is without merit.
DEFAULT TIME
The defendant also asserts that the trial court erred in ordering him to serve jail time in the event of his failure to pay a court-ordered fine.
An indigent person may not be incarcerated because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Wilkerson, 29,979 (La.App.2d Cir.10/29/97), 702 So.2d 64. This defendant has not suffered any penal consequences at this time from failure to pay his fine. If the defendant fails to timely pay his fine, the trial judge should determine the defendant‘s ability to pay prior to imposing jail time as a consequence of this failure.
CONCLUSION
The defendant‘s conviction and sentence are affirmed.
AFFIRMED.