State v. PhippsState v. Phipps
This case comes before the court on review of a conviction of possession of marijuana.1 After the trial court denied defendant‘s motion to suppress the marijuana discovered in an allegedly illegal search, defendant entered a conditional plea of guilty, reserving the right to seek review of the denial of his pretrial motion. State v. Crosby, 338 So.2d 584 (La.1976). On defendant‘s application, we granted certiorari to determine whether the police officer‘s investigatory detention of defendant and his companions complied with the guidelines of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), for a forceful stop restraining a person‘s freedom to leave. 422 So.2d 427.
At about 1:00 a.m. on the Sunday before Mardi Gras, a deputy sheriff noticed four young men walking through a parking lot heading toward a public street. Suspicious of their nocturnal activities, the deputy ordered the young men to stop. As a precautionary safety measure, he also ordered them to place their hands on the parked car
In Terry v. Ohio, above, an experienced police officer observed two men on a street corner. The officer watched them take turns walking in front of a store, peering into the window, walking a short distance before turning around and then walking back toward the corner, again stopping to peer into the store on the return trip. The two men conferred with each other numerous times and occasionally with a third person. After seeing the men behave in this manner for 10 minutes, the officer, justifiably suspicious that the men were planning a crime, interrupted their conversation, identified himself, and asked for their names. He then frisked the men and discovered loaded revolvers on two of them.
The United States Supreme Court, noting that the officer would have been remiss in his duty if he had not investigated the extremely suspicious activity that he observed, approved the stop and frisk procedure utilized by the officer as reasonable. The Court held that the articulable and suspicious circumstances provided reasonable cause for the forceful stop and that the protective search for weapons was reasonably necessary to neutralize the potentially dangerous situation while the officer conducted a proper investigation.
The federal and state constitutions prohibit only those searches and seizures which are unreasonable. The critical determination in each case is the reasonableness of the police conduct under the specific circumstances of the particular case. The officer in Terry had reasonable cause, on the basis of the specific circumstances that he had observed, to believe that the three men were planning an armed robbery, and he reasonably proceeded to seize their persons for the purpose of an immediate investigation into their activities. The additional step of conducting a protective search for weapons also constituted reasonable behavior under the particular circumstances. Thus, the reasonableness of the seizure of the men and of the protective search was measured against the known facts and circumstances under which the seizure and search occurred.
By marked contrast, the officer in the present case, according to his own testimony (which was the only evidence offered by either side at the hearing on the motion to suppress), had no reasonable basis whatsoever for the initial stop of the four young men.3 See State v. Franklin, 353 So.2d 1315 (La.1978). Compare State v. Smith, 392 So.2d 454 (La.1980).
The officer testified merely that he saw the four young men in the early morning hours walking across a parking lot toward the street in an area where a Mardi Gras parade had taken place only a few hours before. He did not describe any actions on their part which were indicative of criminal activities. While he testified that he recognized one of the young men (not defendant) as a “known burglar” and believed he was violating a “juvenile curfew“, the officer did not state any objective facts underlying this assertion. Indeed, he candidly conceded on cross-examination that he had never seen the “known burglar” before and that he was mistaken in believing that the young man was a juvenile. He further admitted that his purpose in effecting the stop was merely “to check `em out [to] see what they were doing“. Moreover, he had not received any information that night concerning burglaries or other crimes in the area, and he did not testify as to any prior
In summary, the officer (whose testimony was the only evidence presented) failed to articulate any objective factual basis for a reasonable belief that the young men were then engaged (or about to be engaged) in criminal activities.4 The prosecution‘s evidence establishes no more than the officer‘s unfounded hunch that criminal activity was afoot merely because the group was seen walking on the street during the late evening of a popular and public social event.
The fact that four young people are merely walking about on the street at late hours of the night does not, without more, constitute a reasonable and lawful basis for a stop which restrains a person‘s freedom to leave. See Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).5 Since the prosecution‘s evidence establishes nothing more than that bald fact, the trial court erred in ruling that the forceful stop was legal.
Accordingly, the conviction and sentence are set aside, the motion to suppress is granted, and the case is remanded.
Notes
“In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and the appellant‘s right to personal security and privacy tilts in favor of freedom from police interference.
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“When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practice exceeds tolerable limits.” 443 U.S. at 52-53, 99 S.Ct. at 2641.