|Jn this criminal proceeding, defendant/appellant Travis Turner appeals his guilty plea conviction of possession of a firearm by a felon in violation of La.R.S. 14:95.1 and his 10-year sentence. Mr. Turner entered a Crosby guilty plea 1 , reserving his right to appeal the denial of his motion to suppress evidence. 2 For the reasons that follow, we affirm.
On August 5, 2008, Mr. Turner pleaded guilty as charged. The trial judge sentenced him to the negotiated 10-year hard labor sentence without benefit of parole, probation or suspеnsion of sentence. Before that the trial judge conducted a suppression hearing and denied the motion to suppress.
| ¡¡Suppression Hearing
Officer Robert Goertz was the sole witness. He testified that at approximately 1:50 a.m. on April 21, 2005, he was on patrol in the 2500 block of Illinois Avenue in Kenner when he observed several males standing in a parking lot outside an apartment complex. He explained the area was being patrolled as the result of anonymous calls аbout possible drug activity. Officer Goertz stated he decided to approach the men to conduct field interviews.
Mr. Turner was walking away when he approached. Officer Goertz called out to Mr. Turner because he wanted to question him. In response, Mr. Turner swung a bottle of Jim Seagram at Officer Goertz so hard that Mr. Turner fell to the ground. A brief scuffle ensued and in the end Mr. Turner was handcuffed. A “pat down” search revealed a loaded revolver in Mr. Turner’s back right рocket and a box of ammunition in his front sweatshirt pocket.
Law
The State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La.C.Cr.P. art. 703(D);
State v. Honeycutt,
08-126, p. 6 (La.App. 5 Cir. 5/27/08),
It is well-established that law enforcement officers have the right to stop and interrogate one reasonably suspected of criminal activity. La.C.Cr.P. art. 215.1;
Terry v. Ohio,
Although reasonable suspicion is required for a police officer to stop an individual, it is not required every time an officer approaches a citizen in a public place. Police officers possess the same right as any citizen to approach an individual and ask a few questions.
State v. Jackson,
00-3083, p. 3 (La.3/15/02),
For purposes of the Fourth Amendment, a person is “seized” when that person submits to the police show of authority or is physically contacted by the police.
California v. Hodari D.,
In its reasons for denying the motion, the trial court concluded that Officer Goertz had reasonable suspicion to approach Mr. Turner for a field interview after observing the congregating of males at 1:53 a.m. in an area where there had been anonymous repоrts of drug activity. We conclude that the ruling of the trial judge denying Mr. Turner’s motion to suppress the evidence was correct, but not for the grounds that the trial judge stated.
Assignments of Error
The Police Encounter
Appellate counsel and Mr. Turner 3 both argue that the trial court erred because there was no reasonable suspicion to justify the investigatory stop. Counsel contends that Mr. Turner was seized the moment Officer Goertz approached him to conduct a field interview because a stop was imminent. Counsel and Mr. Turner maintain that at thе time Officer Goertz approached there was no reasonable suspicion that a crime had been, was being or would be committed. They assert that the anonymous tips of possible drug activity were insufficient to justify an investigatory stop. Counsel argues that there were no indicia of reliability and no independent corroboration of the tip. Counsel further contends there was no evidence regarding Officer Goertz’s experience or knowledge of the area as a high crime area.
| „The officer was patrolling an area in which there had been several complaints of drug activity. When he arrived, he spotted the defendant and others standing near an apartment complex. Upon the officer’s approach on foot, the defendant attempted to flee by walking away. The defendant’s presence in the early morning hours in a known crime area coupled with his flight upon the officer’s approach was sufficient to justify an investigatory stop.
Alternatively, the state argues that even if the officer lacked the requisite reasonable suspicion, he still had the right to engage the defendant in conversation without reasonable grounds to believe that he committed a crime. Upon approaching the defendant, the officer never indicated to him that a detention was imminent. There were no guns drawn and the defendant was not surrounded by the police. The officer never ordered the defendant to submit to his authority and he never attempted to assert any official authority over the defendant by ordering or signaling him to stop. In fact, he had not yet physically restrained the defendant when the defendant hit the officer with a bottle. Therefore the defendant was never seized fоr purposes of the Fourth Amendment during the initial encounter.
Counsel argues the facts of the case are identical to
State v. Camese,
Camese is distinguishable. Unlike the present ease, the officer in Camese conducted a pat down search pursuant to an investigatory stop lacking reasonable suspicion for doing so. In contrast, in the present case, Mr. Turner walked away when Officer Goertz approached and there was no “pat down” search until after his arrest for swinging the bottle at the officer. The instant case turns on the type of police encounter that occurred prior to Mr. Turner’s swinging the bottle. Stated differently, the issue is whether the defendant was “seized” prior to Mr. Turner’s swinging the bottle.
In State v. Sylvester, supra, the Louisiana Supreme Court determined the encounter between the pоlice officers and the defendant did not constitute an investigatory stop for which reasonable suspicion was required. In Sylvester, the officers were on patrol in response to various citizen complaints of drug activity in a specific area when they observed two men inside a parked vehicle. When the officers approached the vehicle in their police unit, the occupants fumbled around as if trying to hide something. The officers then parked their vehicle in front of the men’s vehicle and one of the officers exited. When the officer exited his unit, the defendant jumped out of the car with a clenched fist. The officer ordered him to turn around and put his hands on the car. The defendant complied and a syringe fell to the ground.
The Supreme Court found the initial encounter between the officer and the de
Also, in
State v. Thomas,
arrest warrant. They arrested the defendant and conducted a pat down, which revealed no сontraband.
In finding that the encounter between the officers and the defendant did not constitute a stop, this Court noted that no weapons had been drawn, the police unit’s lights had not been activated and the defendant gave the officers his name upon request. This Court commented that nothing indicated the officers coerced the defendant or that he was not free to leave or walk away. This Court further noted, with significance, that the pat down did not oсcur until after it was discovered that the defendant had an outstanding warrant.
|9 Similar to the officer in Thomas, in the present case Officer Goertz testified he had no reason to believe that Mr. Turner had committed a crime or would be committing a crime and that he approached Mr. Turner to conduct a field interview. However, instead of responding to the police officers like the defendant in Thomas, Mr. Turner started to walk away when Officer Goertz approached.
A citizen has the legal right to walk away from the encounter or not respond.
State v. Neyrey,
Furthermore, at the point that Mr. Turner swung the bottle, an actual stop of Mr. Turner was not imminent. Officer Goertz had not yet indicated by word or action that a forcible detention was about to occur. Officer Goertz had used no force and had not come upon Mr. Turner with such force that an actual stop was virtually certain regardless of any attempt by Mr. Turner to flee or elude the | inencounter. The record shows Officer Goertz simply called to Mr. Turner as he was walking away that he wanted to question him.
Thus, contrary to Counsel’s and Mr. Turner’s assertions, Mr. Turner was not seized at the time he swung the bottle at Officer Goertz. Therefore, the officer did not need reasonable suspicion to justify an investigatory stop.
We also note that once Mr. Turner reacted to the approach of the officer by swinging a bottle at him, Officer Goertz had probable cause to arrest him for assault on a police officer. The officer testified that he “charged” Mr. Turner with aggravated battery in addition to the instant charge. The subsequent “pat down” search that revealed the firearm was a legal search incident to an arrest. 5
As such, this assignment lacks merit because the motion to suppress was properly deniеd.
Hearsay/Right to Confrontation
In his pro se supplement, Mr. Turner argues that the testimony of Officer Goertz regarding anonymous callers was inadmissible hearsay violating his right to confrontation guaranteed by the Sixth Amendment of the United States Constitution and Article 1, § 16 of the Louisiana Constitution. He complains that the officer at the suppression hearing gave unreliable hearsay testimony when he testified that he was in the area because of anonymous callers. According to Mr. Turner, the officer was only present there as a result of a mere hunch. He asserts that the hunch is insufficient to establish reasonable grounds to stop a person. He also contends that the erroneous admission of hearsay was prejudicial and attributable to the trial court’s reason for denying the motion to suppress and thus it was far from harmless.
InAs previously stated, we conclude that Mr. Turner was not seized at the time he swung the bottle at Officer Goertz. Therefore, the officer did not need rеasonable suspicion to justify an investigatory stop.
In any event, hearsay evidence is permitted in a motion to suppress hearing.
In 1980, the Louisiana Supreme Court explained that the hearsay rule is not required to be applied at supрression hearings.
State v. Smith,
Except as otherwise provided by legislation, the provisions of the Code of Evidence apply to the determination of questions of fact in all contradictory judicial proceedings. La.C.E. art. 1101(A)(1). Article 1101 excludes certain proceedings from the application of the Code and relaxes the Code’s application in certain proceedings.
Under subsection (C) of Article 1101 certain proceedings are excluded from application of the Code, but a hearing on a motion to suppress is not one of the listed excluded proceedings. However, in subsection (B), application of the Code is relaxed for certain proceedings and the provisions are made applicable only to the extent that the provisions facilitate the legislative objectives underlying the proceeding. It provides, in pertinent part, as follows:
B. Limited applicability. Except as otherwise provided by Article 1101(A)(2) and other legislation, in the following proceedings, the principles underlying this Code shall serve as guides to the admissibility of evidence. The specific exclusionary rules and other provisions, however, shall be applied only to the extent that they tend to promote the purposes of the proceeding.
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| t ¡>(4) Prеliminary examinations in criminal cases, and the court may consider evidence that would otherwise be barred by the hearsay rule.
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(8) Hearings on motions and other summary proceedings involving questions of fact not dispositive of or central to the disposition of the case on the merits, or to the dismissal of the case, excluding in criminal cases hearings on motions to suppress evidence and hearings to determine mental capacity to procеed.
The Official Comment (i) pertinently provides:
(i) [S]ubparagraph (B)(8) coupled with Paragraph A continues in effect the requirement that formal evidentiary rules generally apply in hearings on motions to suppress evidence.
The comment, however, does not constitute a part of the law. La.C.Cr.P. art. 10. Although the official comment suggests that hearsay evidence is inadmissible in hearings on motions to suppress evidence, that interpretation was not accepted by the Louisiana Supreme Cоurt in
State v. Jones,
07-1865 (La.9/18/07),
Moreover, the officer’s reference to anonymous callers was nonhearsay because the statement was not offered for the truth of the mattеr asserted, but |13merely to explain the officer’s actions in patrolling the area. La.C.E. art. 801(C).
7
Therefore, Mr. Turner was not denied his right to confrontation.
See: Crawford v. Washington,
Accordingly, this assignment lacks merit.
Error Patent
In brief, the State indicates that it conducted an error patent review and noticed that the sentence was illegally lenient because the trial judge failed to impose the mandatory fine. Likewise, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920;
State v. Oliveaux,
The trial judge failed to impose the mandatory fine of “not less than one thousand dollars nor more than five thousand dollars” under La.R.S. 14:95.1(B). Thus, Mr. Turner received an illegally lenient sentence. The State, however, did not object at the time of sentencing and did not appeal the error. In brief, it asks this Court to remand for resentencing in order to impose the mandatory fine.
The Louisiana Supreme Court has held that an appellate court has the authority to correct an illegally leniеnt sentence that fails to impose a mandatory fine.
State v. Decrevel,
03-0259, p. 1 (La.5/16/03),
In certain circumstances, this Court, while finding the omission of the imposition of a fine in such cases to be error, has, nevertheless, as a matter of | udiscretion, refrained from amending the defendant’s sentence to impose a fine.
See, e.g. State v. Young,
In this case, the issue was not raised by the State in the trial court or by an appeal. The State merely argued it in its opposi
Decree
Accordingly, for the reasons stated, Mr. Turner’s conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.
Notes
. State
v. Crosby,
. The State notes in brief that although Mr. Turner pleaded guilty under Crosby, he did not expressly reserve his right to appeal the suppression ruling. We disagree. Before accepting the plea, the trial judge entered into a colloquy with Mr. Turner. He specifically asked him the following questions: (1) Did he understand that he was pleading under Crosby? (2) Did he understand this meant that he was going to appeal the suppression ruling? (3) Did he understand that if he lost on appeal, his plea would stand? (4) Did he understand that if he won on appeal, the case would return to the trial judge and they would decide what to do? Mr. Turner agreed that this was his understanding. Thus, Mr. Turner made a sрecific reservation of the sole pre-trial judgment to contest on appeal and assigned error to the judgment that was contained in that reservation.
. Mr. Turner filed a supplement to counsel's appellate brief.
.
See State v. Dobard,
01-2629, p. 8 (La.6/21/02),
. "It is well established searches incident to arrest conducted immediately before formal arrest are valid if probable cause to arrest existed prior to the search.”
State v. Sherman,
05-0779, p. 9 (La.4/4/06),
. In
State v. Castleberry,
98-1388 (La.4/13/99),
.
Compare: State v. Young,
99-1264, p. 9 (La.App. 1 Cir. 3/31/00),