State v. JonesState v. Jones
Facts
The record shows the following facts. On November 30, 1993, at approximately midnight, Alexandria Police Officers Johnson and Bruce were driving in their police cruiser along Seventh Street, a high crime and drug area in Alexandria, when they spotted the defendant, Albert Jones. Upon observing Officers Johnson and Bruce, Jones hastily fled, running in the direction of Eighth Street, toward a vacant lot. After watching Jones run away from them, Officer Johnson radioed for assistance to Alexandria Police Officers Fairbanks and Laborde, who were then sitting in their police cruiser parked one block away in front of a vacant lot on Eighth Street. In his radio communication, Officer Johnson informed Officer Fairbanks that a black male wearing dark jeans and a dark jacket was fleeing in the direction of Eighth Street by means of a vacant lot, and had done so immediately after seeing police cruiser. After spotting the defendant running toward them through the vacant lot, Officers Fairbanks and Laborde exited their vehicle. With lighted flashlights drawn, they began running toward the defendant.
During the ensuing footchase, the officers identified themselves to Jones and commanded him to stop and get face down on the ground. However, the defendant, then approximately twenty-five to thirty feet away from the officers, only slowed his rapid pace enough to cast aside a shiny chrome crack pipe with a scorched blackened end and a clear plastic bag containing a substance that resembled crack cocaine. Moments later, Officer Laborde and Officer Bruce apprehended the defendant while Officer Fairbanks retrieved the defendant‘s abandoned objects. After the defendant‘s abandoned objects were identified by Officer Fairbanks as drug contraband, the defendant was then arrested. Thereafter, Officer Fairbanks secured the contraband and placed it in a properly marked evidence envelope.
Later, the shiny chrome crack pipe with the scorched blackened end and the clear plastic bag containing a substance that resembled crack cocaine were tested for the presence of crack cocaine. The residue on the crack pipe tested positive for cocaine, but the substance in the clear plastic bag tested negative. Instead, the substance in the clear plastic bag was identified as “foogaboom“—a counterfeit crack cocaine usually made of soap, candles, or any other non-narcotic substances suitable to fool drug purchasers. On January 18, 1994, based upon the presence of the cocaine residue found in the crack pipe, the defendant was charged by bill of information with possession of crack cocaine.
On March 29, 1994, the defendant filed a motion to suppress physical evidence. This motion was set for hearing and denied on May 3, 1994. On May 17-19, 1994, the defendant was tried by jury and convicted for possession of cocaine. During the trial, after proving a sufficient chain of custody, the state introduced the crack pipe and plastic bag into evidence. The state also placed into
Assignment of Error # 1: Motion to Suppress
The defendant contends that the district court erred when it denied his motion to suppress the physical evidence abandoned by him during the investigatory stop. He argues that the investigatory stop evolved into an unlawful arrest without probable cause pursuant to the holding of State v. Tucker, 626 So.2d 707 (La.1993).
The lawful seizure of abandoned property recovered during an investigatory stop or an arrest depends upon the existence of either a reasonable suspicion or a reasonable cause. See
In Tucker, the Louisiana Supreme Court held that an investigatory stop could rise to the level of an arrest when an arrest was “virtually certain” to occur. The court promulgated six factors useful for reaching this determination: (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 the police officers involved in the encounter. Id. at 712. After weighing these factors, the court in Tucker concluded that the distance of “several feet” between the defendant and the police when the defendant abandoned property, the camouflaged darkness of the night, and the availability of areas to conceal himself in the urban environment of the City of Shreveport precluded a finding that an arrest of the defendant had been “virtually certain” to occur. Id. at 713.
Likewise, the facts of this case also suggest that it was not “virtually certain” or imminent that an arrest of the defendant was going to occur. Jones had a lead of over twenty-five feet when he discarded and abandoned the drug contraband. Jones was also in an open field in the dark hour of midnight wearing dark clothing, and he presumably had ample areas available to him for the purpose of concealing himself from the police. Therefore, we conclude that an arrest of Jones during this investigatory stop was not “virtually certain” to occur.
The investigatory stop initiated by the officers in this case only evolved into an arrest after Jones provided the probable cause by abandoning and discarding drug contraband. Probable cause to arrest exists when the facts and circumstances known to the arresting officer and of which he has reasonable, trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Moreno, 619 So.2d 62 (La.1993). The determination of probable cause involves factual and practical considerations of everyday life on which average men, particularly average police officers, can be expected to act. State v. Ogden, 391 So.2d 434 (La.1980).
The right of law enforcement officers to stop and interrogate persons reasonably suspected of criminal conduct is recognized by Louisiana Code of Criminal Procedure article 215.1 and both state and federal jurisprudence. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983); State v. Chopin, 372 So.2d 1222 (La.1979). However, an investigatory stop must be based upon reasonable cause sufficient to believe that the individual has been, is, or is about to be engaged in criminal conduct.
The reasonable cause needed to justify an investigatory stop is something less than the probable cause needed for an arrest, depending upon the facts of each case. The officer must have sufficient knowledge of particular facts to reasonably suspect the individual of criminal activity to justify infringement of the individual‘s right to be free from governmental interference. State v. Belton, supra. The totality of the circumstances must be considered in determining whether reasonable cause exists. Id. (citing United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).
The nature or reputation of the area of suspected criminal activity is relevant to a determination of reasonable cause; it is an important articulable fact upon which an officer may legitimately rely. Areas known to be high crime areas are places where the character of the area gives color to conduct which might not otherwise arouse the suspicion of the police. State v. Buckley, 426 So.2d 103 (La.1983). In addition, a police officer‘s experience and training may be considered in deciding whether he made reasonable inferences from the facts at hand. See State v. Bordelon, 538 So.2d 1087 (La.App. 3d Cir.1989); State v. Fikes, 616 So.2d 789 (La.App. 2d Cir.1993).
While flight, furtive gestures, nervousness, or a startled look at the sight of a law enforcement officer is, by itself, insufficient to justify an investigatory stop, this type of conduct may be highly suspicious, and therefore may be one of the factors leading to a finding of reasonable cause. State v. Balthazar, 617 So.2d 1319 (La.App. 3d Cir.), writ denied, 625 So.2d 170 (La.1993).
Given the defendant‘s rapid flight immediately upon seeing Officers Johnson and Bruce approaching him in their police cruiser, the defendant‘s presence in a well known high crime and drug area, and the arresting officers’ past experience and training in narcotics law enforcement, as supported by the record, we conclude that there was reasonable cause for the officers to initiate an investigatory stop of the defendant. As expressed by the Fourth Circuit in State v. Ganier, 591 So.2d 1328 (La.App. 4th Cir. 1991):
Drug activity and crimes which it generates have become a major problem endangering innocent people and severely taxing police resources. Although an innocent individual who has nothing to hide from police might flee so that such flight would be irrational, the action of fleeing in itself is inherently suspicious and justifies an investigation by a police officer exercising common sense. This is not the case of a man merely standing on a street corner who is detained by the police simply because he is there.
Evidence abandoned by a defendant during a lawful investigatory stop may be lawfully seized.
When police officers make an investigatory stop without the legal right to do so, property abandoned or otherwise disposed of as a result thereof cannot be legally seized. If, however, property is abandoned without any prior unlawful intrusion into a citizen‘s right to be free from government interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person‘s custodial rights. 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. State v. Andrishok, supra; State v. Chopin, supra; State v. Ryan, 358 So.2d 1274 (La.1978).
State v. Belton, 441 So.2d at 1199. It is clear that Jones abandoned property during a lawful investigatory stop. We find that the discarded evidence was properly seized. We also find that there was sufficient probable cause to arrest the defendant. Accordingly, the district court properly denied the defendant‘s motion to suppress the abandoned
Assignment of Error # 2: Sufficiency of the Evidence
In his second assignment of error, the defendant argues that there was insufficient evidence to prove beyond a reasonable doubt that he intended to possess cocaine in violation of
When the issue of sufficiency of the evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983) (citing State v. Richardson, 425 So.2d 1228 (La.1983)).
To convict a defendant for possession of cocaine pursuant to
In the case sub judice, the state proved Jones’ guilty knowledge using circumstantial evidence. When the state uses circumstantial evidence to prove an element of a crime, it must exclude every reasonable hypothesis of innocence in order to convict.
A conviction for possession of controlled dangerous substances may rest on the possession of mere traces or residue of the substance. See State v. Fontenot, 578 So.2d 1032 (La.App. 3rd Cir.1991), writ denied, 582 So.2d 1305 (La.1991); State v. Spates, 588 So.2d 398 (La.App. 2d Cir.1991); State v. White, 535 So.2d 929 (La.App. 2d Cir.1988), writ denied, 537 So.2d 1161 (La. 1989). However, the amount of drug contraband seized has some bearing on a defendant‘s guilty knowledge, especially when there are no other corroborating circumstances. State v. Trahan, supra; State v. Spates, supra; accord, State v. Fontenot, supra.
In State v. Trahan, supra, the Louisiana Supreme Court confronted the issue of whether the state had presented sufficient evidence to convict two defendants, Trahan and Leleaux, for possession of trace amounts of cocaine. Notably, the defendants’ possession was premised upon constructive rather than actual physical possession because the drug contraband was not recovered from either defendants’ person, but from defendant Trahan‘s bedroom in a trailer home rented by defendant Leleaux. 425 So.2d at
In State v. White, supra, the defendant was convicted of possession of PCP. The defendant fled from law enforcement officials before he was arrested. While conducting a search incidental to the defendant‘s arrest, the police seized a glass tube containing trace amounts of PCP from the defendant‘s jacket pocket. When asked about the glass vial, the defendant told the police that they “didn‘t have nothing on him” because there was not enough PCP in the glass vial for them to test. Although consuming the entire amount of the drug contained in the glass vial, tests confirmed that the vial contained PCP. The Second Circuit affirmed the defendant‘s conviction, finding that there was enough corroborating evidence of the defendant‘s guilty knowledge to distinguish its case from Trahan.
In State v. Fontenot, supra, this court affirmed a defendant‘s conviction for possession of trace amounts of cocaine. After performing a custodial search of the defendant for a non-drug related offense, police seized a small crack pipe taped to the inside of the defendant‘s underwear. Tests performed on the crack pipe revealed the presence of cocaine residue. At trial, the defendant testified that he was only holding the pipe for a friend. However, based upon his former experience as an undercover agent for the Calcasieu Parish sheriff‘s office, the defendant freely admitted that the pipe was used for smoking crack cocaine. He also stated that he knew that the pipe did not contain any visible crack cocaine. This court affirmed the conviction, finding that a reasonable trier of fact could have concluded beyond a reasonable doubt that the defendant knowingly possessed cocaine. Fontenot, 578 So.2d at 1034-35.2
In State v. Spates, supra, the defendant was convicted for possession of a trace amount of cocaine found on a piece of radio antenna converted into a special crack pipe called a “straight shooter.” In Spates, the defendant submitted to a search without flight and made no inculpatory statements to the police or at trial. The Second Circuit affirmed the defendant‘s conviction, finding that the defendant‘s mere physical possession of a device without any utility other than the ingestion of crack cocaine was, when presented in a light most favorable to the prosecution, enough evidence to support a conviction for possession of cocaine beyond a reasonable doubt. Spates, 588 So.2d at 402. In reaching its conclusion, the Second Circuit correctly held that the factual situations in Spates, White, and Fontenot were distinguished from the situation in Trahan because Spates, White and Fontenotaddressed actual physical possession of drug contraband, rather than constructive possession as did the court in Trahan. Id.
Like the courts in Spates, White, and Fontenot, we are also presented with a factual situation distinguishable from the Supreme Court‘s holding in Trahan because this case addresses sufficiency of the evidence for a conviction based upon actual physical possession, rather than constructive possession of drug contraband. Notwithstanding this distinction, Jones’ guilty knowledge and intent to possess drug contraband in the present case is further corroborated by his flight,3 like the defendant in White.
Errors Patent
Our review of the record reveals two errors patent. First, during sentencing, the defendant was not advised of the prescriptive period for post-conviction relief. Second, the defendant was not given credit for time served.
AFFIRMED AS AMENDED AND REMANDED WITH INSTRUCTIONS.