State v. SchulerState v. Schuler
William Schuler was charged by bill of information with possession or dealing in an unregistered or illegally transferred weapon in violation of
On appeal, defendant relies on two assignments of error:
(1) The trial court erred when it denied defense motion to suppress.
(2) The trial court erred when it imposed an excessive sentence.
ASSIGNMENT OF ERROR NUMBER 1:
Defendant contends the trial judge erred in denying his motion to suppress the physical evidence. Evidence adduced at the preliminary examination1 reveals that on or about March 7, 1982, Lieut. Bradford of the East Baton Rouge Sheriff‘s Office and another deputy were working extra detail at the Disco Palace in the City of Baton Rouge.2
Having been advised by the manager of the Disco Palace that defendant was acting suspiciously and had an unusual bulge in the back of his left leg, Lieut. Bradford went to the rear of the facility where he observed that defendant‘s behavior was unusual and loud. As defendant leaned over to shoot pool, Lieut. Bradford also observed something bulging out of the back of defendant‘s trousers.
Lieut. Bradford admitted that he was not certain of the identity of the bulge but knew that it was “something that shouldn‘t be there.” At that point Lieut. Bradford approached defendant, identified himself and frisked defendant for weapons. The barrel of a .20 gauge sawed-off shotgun was removed from defendant‘s left back area, and the stock of the gun was removed from the center of defendant‘s back. One shell was found in the gun and two other shells were found in defendant‘s right front pocket. Defendant was thereafter placed under arrest.
In determining the validity of the seizure of the gun, there are two actions of Lieut. Bradford that must be examined: the initial detention of defendant and the subsequent frisk. If either action was not justified, the evidence obtained is inadmissible.
The Fourth Amendment to the United States Constitution and
Reasonable cause to suspect a detainee of criminal activity is something less than probable cause and must be determined under the facts of each case. The determinative factor in such a query is
Although Lieut. Bradford was not certain of the identity of the bulge observed on defendant‘s person, he suspected that it might be a weapon.3 Such a situation presented an immediate danger to the public, particularly in a night club setting. The potential for harm was high not only to the investigating officer, but also to the innocent patrons.
In State v. Wade, 390 So.2d 1309, 1312-1313 (La.1980), cert. denied, 451 U.S. 989, 101 S.Ct. 2326, 68 L.Ed.2d 848 (1981), the Louisiana Supreme Court noted:
The purpose of allowing a limited weapons search is to prevent harm to police officers by allowing action prior to a crisis stage. Terry, supra. Police officers are not required to stand by and give a suspect the first move before taking action. “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. Equally important is the protection of the suspect, presumed innocent by law, from the harm that could result to him should he naively do an act interpretable as reaching for a weapon at a time when a police officer may reasonably suspect the presence of a weapon. Within this class of actions could be such innocent acts as reaching into the back pocket to produce a wallet or thrusting a hand into a jacket for a pack of cigarettes.
It is sufficient that an officer establish a substantial possibility of danger by pointing to particular facts which support such an inference. State v. Bolden, supra, at 42. Such was clearly the case here. Lieut. Bradford was justified in conducting a limited protective search of defendant for weapons.
Accordingly, the trial judge did not err in denying defendant‘s motion to suppress the gun obtained. Assignment of Error Number 1 is without merit.
ASSIGNMENT OF ERROR NUMBER 2:
Defendant next urges that the sentence imposed was excessive in violation of
Defendant was sentenced to serve five years at hard labor, the maximum period of incarceration under
Defendant argues that the court considered only defendant‘s extensive criminal record in imposing the sentence and did not consider any of the mitigating factors required to be considered under
When the trial judge recites some of the
Although defendant argues failure of the trial judge to articulate every mitigating factor enumerated in
We cannot say that the sentence imposed is excessive under the circumstances. We find that the trial judge fully considered the range of sentencing alternatives and individualized the sentence to the particular defendant for the particular crime involved.
The assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.