STATE of Louisiana v. Michael RICHARDSON
No. 89-KA-2034
Court of Appeal of Louisiana, Fourth Circuit
January 31, 1991
Writ Denied April 26, 1991
575 So. 2d 421
Harry F. Connick, Dist. Atty., Pamela S. Moran, Asst. Dist. Atty., New Orleans, for appellee.
Before BARRY, CIACCIO and ARMSTRONG, JJ.
CIACCIO, Judge.
Defendant, Michael Richardson, was charged by bill of information with possession of cocaine, a violation of
Facts
On November 18, 1988, the Special Operations Division of the New Orleans Police Department was conducting an undercover narcotics surveillance called “Operation Crackdown” in the St. Bernard Housing Project. From about 7:30 p.m. to shortly after midnight, Officer James Daughtry observed the activity in the courtyard at the 1400 block of Milton Street at its intersection with Duplessis Street. Using a pair of high-powered binoculars, Daughtry observed what he referred to as “narcotics trafficking” by defendant and others over the course of the evening. He then saw defendant enter the back of a maroon Chevrolet which drove out of the courtyard down Milton Street.
Officer Daughtry radioed a description of defendant to the other officers in the vicinity. Defendant was described as wearing blue jeans, a gray sweatshirt and a red cap.
Officer Barry Marquez, a member of the Special Operations Division, also participated in the surveillance of this courtyard on the date in question. Between midnight and 12:30 a.m., he and several other officers who were waiting in the area converged on the courtyard. Several people in the area were ordered to lie on the ground. Officer Marquez then noticed a vehicle parked nearby and saw three men sitting in it. He ordered the occupants out of the car
Officer Marquez testified that as defendant exited the vehicle, he dropped a brown vial to the ground. After ordering defendant and the others to lie on the ground, Officer Marquez picked up the vial and found it contained fifteen pieces of “crack” cocaine. Defendant was then handcuffed and arrested.
We have reviewed the record for any errors discoverable by an inspection of the pleadings and proceedings and have found none.
Assignment of Error No. 1
By his first assignment of error, defendant contends that the trial court erred in denying his motion to suppress the evidence. He argues that the officers did not have reasonable cause or suspicion to stop defendant, and therefore the subsequent seizure of the abandoned property and arrest of defendant were illegal.
Both federal and state jurisprudence, as well as
Where officers do not have the right to make an investigatory stop, property abandoned or otherwise disposed of as a result thereof cannot be legally seized by the police officers. If, however, property is abandoned without any prior unlawful intrusion into a citizen‘s right of freedom from governmental interference, then such property may be lawfully seized. State v. Andrishok, supra.
At the hearing on the motion to suppress, Officer Marquez testified that he had received information from another surveillance officer on the scene that several individuals were engaging in drug transactions at the observed location. This area was known for its high incidence of drug trafficking and was the target of a special police effort in conjunction with the federal government to crackdown on drug dealers and purchasers. Once the descriptions of the subjects believed to be engaging in drug transactions had been received from the surveillance team, Officer Marquez along with several other officers made a decision to converge on the area. The officers approached the area in plainclothes, identified themselves as police officers, and ordered several subjects, who the officers believed may have been carrying weapons, to lie on the ground. Officer Marquez stated that this was done for both the safety of the police officers, as well as for that of those in the courtyard.
While the officers were scanning the area for the subjects who fit the descriptions given to them by the surveillance team, Officer Marquez noticed three men sitting in a parked car near the courtyard. He stated that because snipers with high powered weapons are sometimes located near the area of narcotics traffic, he ordered the occupants out of the vehicle, both for their safety as well as for that of the police officers. At this point, Officer Marquez recognized defendant who exited the vehicle wearing jeans, a gray sweatshirt and a red cap as fitting the description given to him of one of the subjects involved in drug transactions earlier that night. He then noticed defendant throw down a brown plastic vial which was later found to contain the illegal substance.
We find that the police in this case had reasonable suspicion to make an investigatory stop of defendant. They had been given descriptions of several subjects who
Under these circumstances, we find that Officer Marquez‘s initial confrontation in ordering defendant out of the car which was situated in close proximity to the suspected criminal activity was the lawful exercise of their right to conduct an investigatory stop under
Assignment of Error No. 2
By his second assignment, defendant argues that he was denied his constitutional right to a jury trial when the trial court failed to ascertain on the record whether a waiver was knowingly and intelligently made by him.
Both
Louisiana jurisprudence has consistently held that in order for a waiver to have been knowingly and intelligently made, the record on appeal must show some manifestation of an effective waiver. State v. Muller, 351 So.2d 143, 146 (La. 1977). The courts have further held that the preferable practice is for the trial judge to advise the defendant personally on the record of his right to trial by jury and require the defendant to waive the right personally either in writing or by oral statement in open court on the record. State v. Wilson, 437 So.2d 272 (La.1983); State v. Kahey, 436 So.2d 475 (La.1983). However, the Louisiana Supreme Court has upheld cases in which such a waiver has been made by a defendant‘s attorney, rather than the defendant personally, when the defendant was considered to have understood his right to a jury trial and still consented to such a waiver. State v. Phillips, 365 So.2d 1304, 1308-09 (La.1978); cert. denied, 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979).
In the present case, defendant appeared personally at his arraignment, and the transcript from this hearing reflects that he was expressly informed by the trial judge of his right to a jury trial and his right to elect trial by judge. Defendant affirmatively stated at that time that he understood those rights. On the date this matter was initially set for trial, the trial court, after a bench conference with defense counsel, stated in open court that defendant had elected trial by judge. Defendant did not object to this assertion, although he was present in court at the time. This matter was continued for trial on the following day, when the trial court stated on the record at the start of trial that defendant had waived his right to trial by jury. Again, defendant was present in court at this time but made no indications that he had not agreed to proceed to trial before the judge alone.
We find no error in the determination of the trial judge that this defendant gave his informed consent to the waiver of the jury trial. The trial judge expressly informed defendant at the arraignment of his right to choose between a judge trial and a jury trial, and defendant indicated on the record that he understood these rights. Further,
Accordingly, for the reasons assigned, defendant‘s conviction and sentence are affirmed.
AFFIRMED.