State v. MortonState v. Morton
- Reporters:
- ,
- Before:
- Edward A. Dufresne Jr., Clarence E. McManus, Walter J. Rothschild
EDWARD A. DUFRESNE, JR., Chief Judge.
On June 21, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Donald Morton, with possession of a firearm while in possession of cocaine, a violation of
FACTS
In the early morning hours of April 20, 2006, Deputy Christopher Thomas, along with other deputies of the Jefferson Parish Sheriffs Office, were patrolling a known high crime area in Marrero. At approximately 3:57 a.m., while driving in the 1200 block of Marshall Drive, Deputy Thomas observed several individuals standing in the street and in a yard. In particular, he noticed one subject sitting on the porch steps in the dark and a couple of other subjects standing on the roadway next to a parked car. As the deputies approached the area in marked police units, these individuals attempted to hide near vehicles and behind anything else that was avаilable to them. The officers assisting Deputy Thomas detained two individuals, Sean and Mark Foucher, who were hiding next to vehicles trying to avoid detection.
Deputy Thomas focused his attention on the individual that he had seen sitting on the steps. This person, later identified as defendant, moved from the porch steps and knelt down next to the stеps. Seeing this suspicious activity, Deputy Thomas parked his vehicle, exited it, and instructed defendant to step away from the porch. When defendant did not comply, Deputy Thomas drew his weapon and ordered defendant to come out several more times. Defendant eventually complied with the officer‘s request. Howеver, prior to his coming out, Deputy Thomas observed defendant reach into his waistband and retrieve a chrome object that he threw on the ground. Defendant then walked towards Deputy Thomas.
Because of safety concerns, Officer Thomas immediately handcuffed defendant and conducted a pat down search оf his clothing to check for weapons. During the pat down, Officer Thomas felt a bulge in one of defendant‘s pockets. When defendant refused to identify the object, Deputy Thomas checked defendant‘s pocket and retrieved a film canister and a plastic bag containing several off-white rock-like substances. A subsequеnt field test proved that the substance was positive for crack cocaine. Defendant was then placed in the police car while Deputy Thomas went back to the area where he saw defendant discard the chrome object. While searching that area, the officer found a fully loaded chrome nine millimeter handgun.
Defendant testified in his own behalf both at trial and at the suppression hearing.
Mark Foucher, defendant‘s neighbor who was also detained that night, testified that the poliсe searched defendant three times and did not recover any weapons or drugs from defendant. He also testified that he did not see defendant discard a chrome object. Mark Foucher corroborated defendant‘s testimony that an individual named Robert was in defendant‘s yard and attempted to run from police but his shirt snagged on the handrail next to the steps.
DENIAL OF MOTION TO SUPPRESS EVIDENCE
On appeal defendant challenges the trial court‘s denial of his motion to suppress evidence. He argues that the police did not observe any suspicious activity or any crime being committed, and therefore, the police did not have reasonable suspicion for an invеstigatory stop. Defendant further argues that this illegal investigatory stop immediately turned into an arrest without probable cause when the deputy drew his weapon and handcuffed him without ascertaining his identity or his right to be on his own porch. Lastly, defendant asserts that Deputy Thomas unlawfully seized the cocaine in his pocket when he knew it wаs not a gun. For the reasons which follow, we find no merit to defendant‘s arguments.
The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence was derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidenсe from trial. State v. Bessie, 05-284 (La.App. 5 Cir. 11/29/05), 917 So.2d 615, 619.
The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal activity is, however, recognized by
In a hearing on a motion to suppress, the State has the burden of establishing the admissibility of evidence seized without a warrant.
When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048, 1049. Factors that may support reasonable suspicion for an investigatory stop include an officer‘s experience, his knowledge of rеcent criminal patterns, and his knowledge of an area‘s frequent incidence of crimes. While an individual‘s mere presence in a high crime area alone is insufficient to justify an investigatory stop, his presence in a high crime area coupled with nervousness, startled behavior, flight or suspicious actions upon the approach of the officers, gives rise to reasonable suspicion for an investigatory stop. State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1076. When evaluating the totality of the circumstances, a defendant‘s evasive conduct in response to police presence is a factor that is accorded significant weight. State v. Enclade, 03-353 (La.App. 5 Cir. 9/16/03), 858 So.2d 8, 13.
In the instant case, considering the totality оf the circumstances, we find that the police had reasonable suspicion to stop defendant. The evidence at both the suppression hearing and the trial established that the area was a known high crime area. Specifically, Officer Thomas testified that he and the other deputies were patrolling this areа because it is known to be a high drug crime and drug trafficking area. He testified that the police get frequents calls from this area, and that there are also frequent random shootings. In addition, he has personally made arrests in that area for narcotics and weapons offenses. Deputy Michael Borne, one of the аssisting officers, testified that there had been a murder at the address where the incident took place three days earlier. There was also testimony about defendant‘s evasive actions. Deputy Thomas testified that as the officers approached the area, defendant and his companions attempted tо hide. In particular, defendant moved from the porch steps and knelt down beside them, and the Foucher brothers attempted to hide behind vehicles. Considering the high crime nature of the area as well as the suspicious actions and evasive conduct displayed by defendant and his companions in the early morning hours, we find that the officers had reasonable suspicion to conduct an investigatory stop. See State v. Adams, 01-3231 (La.1/14/03), 836 So.2d 9, 11, where the Louisiana Supreme Court noted that defendant‘s flight, furtive gesture in reaching behind to her waistband, and her attempt to conceal herself behind a vehicle in an area known for violent crime, clearly provided a partiсularized objective basis for an investigatory stop.
In the present case, Deputy Thomas testified that he had seized several guns in that area. During the incident, Deputy Thomas observed defendant throw down something chrome. Since defendant had attempted to hide from the deputies, was kneeling next to the porch steps in a dark area, refused to comply with Deputy Thomas’ order to come out, and, then, in an area where Deputy Thomas had seized several guns, threw down a chrome object that originally was in his waistband, we conclude that Deputy Thomas was justified in drawing his gun and handcuffing defendant in order to effectuate the Terry stop. Since police officеrs should not be required to take unnecessary risks in performing their duties, they are authorized to take such steps as are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terry stop. State v. Porche, 943 So.2d at 339. Considering the totality of the circumstances, Officer Thomas was justified in his decision to handcuff defendant аs a safety precaution; those actions did not rise to the level of an arrest. See State v. Gray, 99-47 (La.App. 5 Cir. 6/1/99), 738 So.2d 668, and State v. Enclade, 03-353 (La.App. 5 Cir. 9/16/03), 858 So.2d 8, where this court found that the officer‘s decision to handcuff the defendant during an investigatory stop was justified as a safety precaution and did not rise to the level of an arrest.
Once the police had the reasonable suspiсion to stop defendant, the police had the right to conduct a Terry pat down search for weapons. However, such a search “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Terry v. Ohio, 392 U.S. at 26, 88 S.Ct. at 1882. When an officer is conducting a pat down search, the “plаin feel” exception allows the seizure of contraband where the incriminating character of the object is immediately apparent to the officer without any additional form of search or examination to identify it as contraband. State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 577, citing Minnesota v. Dickerson, 508 U.S. 366, 366, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993).
During the pat down, the officer felt a bulge in defendant‘s pockets. Deputy
Even though the officer did not have the right to seize the narcotics from defendant‘s pocket, we note that the cocaine would have been inevitably discovered in a search incident to arrest once the officer retrieved the gun thrown down by defendant. “The inevitable discovery doctrine `is in reality an extrapolation from the independent source doctrine: Because the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.‘” State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, 127, quoting Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 2534, 101 L.Ed.2d 472 (1988). A functional similarity exists between the independent source and the inevitable discovery doctrines because they both seek to avoid excluding evidence the police “would have obtained ... if no misconduct had taken place.” The State bears the burden of proving by a preponderance of the evidence that “the information ultimately or inevitably would have been discovered by lawful means....” State v. Lee, 976 So.2d at 127, quoting Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984). See also, State v. Vigne, 01-2940 (La.6/21/02), 820 So.2d 533, 539.
In the present case, Deputy Thomas could have retrieved the chrome object dropped by defendant before conducting a pat down search for weapons. Upon discovering that the chrome object that he saw defendant remove from his waistband and drop on the ground was a weapon, Deputy Thomas could have arrested defendant for possession оf a firearm by a convicted felon. During the suppression hearing, defendant admitted that he told Deputy Thomas that he was a convicted felon on parole for a drug violation. Therefore, Deputy Thomas had probable cause to arrest defendant for being a felon in possession of a firearm. The search inсident to arrest would have led to the inevitable discovery of the cocaine. Accordingly, the trial judge did not err in denying defendant‘s motion to suppress evidence.
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to
For the reasons set forth herein, we affirm defendant‘s conviction and sentence.
AFFIRMED.