State v. MorrisonState v. Morrison
Defendant, Daryl Morrison, was charged with possession of Phenmetrazine (Preludin) in violation of
1. The trial court erred by denying the motion to suppress.
2. The trial court erred by failing to explain the meaning and consequences of classification as a felony offender.
Assignment of error number two was not briefed and therefore is considered abandoned.
Defendant contends that the trial court erred in denying his motion to suppress the evidence seized at the time of his arrest.
The motion to suppress was submitted on testimony presented at the preliminary hearing. The only witnesses at the hearing were two police officers. Evidence adduced reveals that at about 8:00 p.m. on March 14, 1983, officers Michael Dickinson and Bart Thompson of the Baton Rouge City Police Department were on patrol in an unmarked police car. Officer Dickinson testified that as he and his partner stopped at the intersection of Cain and 38th Streets in Baton Rouge, they saw several black males standing on the corner in front of a service station and convenience store. He noticed one man, later identified as Daryl Morrison, take a item out of his right pocket, drop it to the ground and kick it under a vehicle parked nearby. The officer stated that he drove into the station and retrieved the dropped matchbox which contained pink tablets. This substance was later determined by crime lab tests to be phenmetrazine (preludin). Officer Dickinson also testified that he and his partner were about ten yards away and still in their car when defendant kicked the matchbox under the vehicle. Officer Thompson‘s testimony was slightly different. He stated that they were pulling into the service station when defendant threw down an object and kicked it under the car. The officer then exited the car; Officer Thompson detained defendant while Officer Dickinson retrieved the matchbox.
The
When police officers make an investigatory stop without legal right to do so, property abandoned or otherwise disposed of as a result thereof cannot be legally seized. State v. Bethley, 452 So.2d 367 (La.App. 1st Cir.1984). If, however, the property is abandoned without any prior unlawful intrusion into a person‘s right to be free from government interference, then such property may be lawfully seized. State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Bethley, supra. In such cases, there is no expectation of privacy and thus no violation of a person‘s custodial rights. As our courts have previously held, “it is only when the
The crucial inquiry is whether, at the time defendant threw down the matchbox containing the phenmetrazine, the police officers had effected an actual or imminent unlawful detention.
We do not find the officers’ conduct in the instant case to be intrusive. The officers did not even exit their car and approach defendant until after he threw down his matchbox. Even accepting the testimony by Officer Thompson that the matchbox was thrown down when the car pulled into the station, there was no violation of defendant‘s rights. By just driving into the parking area of a service station/convenience store the officers did not intrude upon or restrict defendant‘s freedom of activity or movement.
Defendant could not expect to carry contraband and drop it with impunity when he saw an approaching police officer. There is no expectation of privacy when property is abandoned and no constitutional prohibition against seizure of abandoned property. State v. Bethley, supra.
Thus, this assignment of error is without merit.
PATENT ERROR
We note that the trial judge illegally ordered defendant to pay $200.00 as a special condition of probation to the Louisiana Victim‘s Compensation Fund.
At the time of defendant‘s offense, March 14, 1983,
When a court suspends the imposition of the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:
(1) To the victim in restitution to compensate for his loss and inconvenience.
(2) To the indigent defender program for that court.
(3) To the criminal court fund to defray the costs of operation of that court.
(4) To the sheriff and clerk of court for costs incurred.
Further, the Crime Victims Reparations Act, Acts 1982, No. 250 § 1, designated as
The trial court may, at any time during the probation period, change the conditions of probation.
CONVICTION AFFIRMED, SENTENCE AFFIRMED BUT CONDITION OF PROBATION ORDERING PAYMENT TO THE LOUISIANA VICTIM‘S COMPENSATION FUND VACATED, REMAND FOR RECONSIDERATION OF CONDITIONS OF PROBATION.