State v. WashingtonState v. Washington
Pursuant to State v. Crosby,
The observing officer notified his fellow officers in the area to stop Washington, who аppeared to be involved in narcotics transactions. Two officers in an unmarked car thereupon drove up to him, exited, identified themselvеs as police officers, and asked him to stop because they wanted to speak with him. Their guns were not drawn and their vehicle did not block defendаnt’s path of travel on the sidewalk. Immediately, Washington turned to the wall of a building and shook a washcloth in his left hand. One of the officers observed a small glassine packet fall to the ground in front of the defendant. The officer’s partner then placed defendant’s hands against the wall, while the other offiсer retrieved the washcloth from Washington. Two more glassine bags fell out and the officers then placed the defendant under arrest. Tests disclosed thаt the bags contained heroin.
In denying the motion to supress the contraband seized, the trial judge found that the officers had not arrested defendant at the time that they told him to “stop”. The judge concluded: “That was an investigatory stop and it did not amount to that kind of arrest where Mr. Washington could not have left. And, in thе interim, the package was falling and then they had probable cause to arrest him....”
In his sole assignment of error, defendant contends the trial judge errеd because the heroin was seized during an arrest without probable cause. According to defendant, he was under arrest when the officers abruptly еxited their unmarked car, identified themselves as police officers, and ordered him to stop. Defendant argues that the officers had no probable cause to arrest him since his prior actions in conversing with various individuals and receiving money from them were at least as consistent with innocent аctivity as with guilty behavior. He asserts that prior to his arrest he had not been acting suspiciously, talking to known narcotics addicts, or carrying a containеr in which drugs could have been hidden. Defendant contends that he did not drop the glassine bag until after the officers had arrested him by restraining his liberty in such a manner thаt he did not feel free to leave.
If a police officer reasonably suspects that an individual has been, is, or is about to engage in criminal conduct, he may stop him for questioning and may demand that he state his name and address and explain his actions. LSA-C.Cr.P. Art. 215.1. Unlike an arrest, an investigatory stop requirеs “something less” than probable cause. It must be based on “reasonable cause” to believe the detainee is engaged in criminality. State v. Ossey,
This court has hеld that police officers . patrolling in an area notorious for drug trafficking are justified in stopping an individual after observing him exchange a concealed object with another person con
In State v. August, supra, police officers patrolling an area known for heavy drug trafficking observed the defendant lean into a car parked in the center of the road and take two dollars from the driver. After the defendant saw the police officers, he began to walk away suspiciously. An officer ordered him to stop and, while frisking him for weapons, observed the defendant thrоw a bag of marijuana cigarettes to the ground. We held that the marijuana abandoned in response to the valid investigatory stop was admissible into еvidence.
Similarly, in the instant case, an experienced police officer conducting a surveillance in a drug trafficking area observed thаt defendant’s behavior was consistent with drug dealing. Defendant suspiciously received cash from three different persons in a short span of time and returned to retrace his steps a few minutes later. Under these circumstances, like the trial judge, we conclude that the officers had reasonable сause to make an investigatory stop. Washington was not arrested until after the packet of heroin was dropped in plain view of the officеrs during the course of the valid stop. Accordingly, the trial judge properly denied the motion to suppress the evidence seized.
An arrest, as distinguished from аn investigatory stop, is the taking of one person into custody by another by actually restraining the arrestee either through force or his submission. LSA-C.Cr.P. Art. 201. In the cases cited by defendant, the parties were arrested and restrained. See State v. Tomasetti,
Although we affirm defendant’s conviction upon his рlea of guilty to the offense charged, we note an error patent on the record concerning defendant’s subsequent plea of guilty as a multiple offender.
Although defendant has not raised the issue, we note that the trial judge failed to advise defendant of his Fifth Amendment rights before accepting his guilty plea as a multiple offender. During the colloquy on the multiple bill, the judge informed Washington that the State was obligated to prove that he was the same person who had pled guilty to a prior offense, that not more than five years had elapsed from the time of the prior conviction, and that hе had been properly Boykin-ized upon pleading guilty to his prior offense. Nonetheless, the Supreme Court has held that the court must also advise the dеfendant of his statutory right to remain silent. The judge’s failure to so advise Washington invalidates his guilty plea to the multiple bill. See
Accordingly, defendant’s conviction on his plea of guilty to possession of heroin is affirmed. Defendant’s sentence as a multiple offender is vacated, and the matter is remanded to the trial court for resentenc-ing.
CONVICTION AFFIRMED;
SENTENCE VACATED;
REMANDED FOR RESENTENCING.