State v. RileyState v. Riley
Defendant, Gary Riley, was charged by bill of information with possession of cocaine, a violation of
On October 13, 1989 police officers Gus Bethea and Dwight Rousseve were on a routine patrol of the Pauger Street and North Villere Street area, in a marked police
The officers then reentered the vehicle themselves and pursued the defendant. They lost sight of him about four blocks away from the location of the attempted stop, when he went into an alley. Officer Bethea then proceeded to chase the defendant on foot and located him. A scuffle ensued. Officer Rousseve caught up with them and assisted Officer Bethea in arresting the defendant.
At trial the defendant stipulated that the substance in the three plastic bags was cocaine, relieving the State of that element of proof. He testified at trial that he was sitting on a porch step when he saw the officers put the other two men in the car. He then started to walk off “because of them always arresting me every time they see me.” The defendant further testified that he stopped when ordered but that the officers had pushed him into the alley, hitting him in the head with brass knuckles. He denied having cocaine in his possession that evening.
A review of the record for errors patent reveals that there are none.
As his first assignment of error, the defendant argues that the arresting officers did not have reasonable cause to conduct an investigatory stop and that the property abandoned as a result of the stop was not lawfully seized.
It is well settled that property cannot be seized legally if it was abandoned pursuant to an infringement of the person‘s property rights. 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 is imminent that the “right to be left alone” is violated, thereby rendering unlawful any resultant seizure of abandoned property. State v. Belton, 441 So.2d 1195, 1199 (La.1983), cert. den. Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).
The
In Belton the Louisiana Supreme Court stated:
“The totality of the circumstances, `the whole picture,’ must be considered in determining whether reasonable cause exists. (Citations omitted). Although flight, nervousness, or a startled look at the sight of a police 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.” Id. at 1198. (Citations omitted).
Furthermore, we find that the decision of the United States Supreme Court in California v. Hodari D., ___ U.S. ___, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), is applicable to the instant case. In Hodari D., the defendant was standing with a group of other young men in a high crime area when they were approached by a uniformed police officer. Upon seeing the police, the defendant fled and discarded the contraband during flight. Unlike the present case, in Hodari D., the State conceded that the officers lacked reasonable cause to pursue the defendant. The only question remaining was whether or not the defendant was seized within the meaning of the Fourth Amendment. If so, the contraband discarded as a result was fruit of an illegal search and must be excluded. If not, the contraband was abandoned and could be lawfully recovered. The Supreme Court held that where there is an application of physical force, however slight, there is a seizure, even though the subject does not yield. The Court further held that, absent physical force a seizure is effected where there is submission to a show of authority. Thus, property abandoned by a defendant who is fleeing the police is subject to lawful seizure for Fourth Amendment purposes because it was abandoned prior to the stop or seizure of the person. Applying this standard to the facts of the instant case, we find that there was no seizure of the defendant‘s person and the three abandoned bags of cocaine were lawfully seized. We therefore find that the trial judge did not err in denying defendant‘s motion to suppress the evidence.
As his second assignment of error, defendant claims the trial court erred in imposing jail time in default of payment of costs, as he is an indigent. This assignment has merit.
It is unconstitutional to impose a fine or costs upon an indigent defendant, in default of which jail time must be served. State v. Ellzey, 496 So.2d 1090 (La.App. 4th Cir.1986). Representation by the Orleans Indigent Defendant Program indicates indigency. State v. Huffman, 480 So.2d 396 (La.App. 4th Cir.1985).
The record in this matter reflects that the defendant was represented by appointed counsel throughout the proceedings. We therefore find the trial court erred in imposing additional jail time in lieu of payment of court costs.
Accordingly, for the above reasons defendant‘s conviction is affirmed. We amend defendant‘s sentence to delete that portion imposing additional jail time in default of payment of court costs, and, as amended, the sentence is affirmed.
CONVICTION AFFIRMED, SENTENCE AMENDED, AS AMENDED, AFFIRMED.