Opinion
NO. 2012 KA 0978
02-15-2013
STATE OF LOUISIANA v. ISAIAH SMITH, JR.
Joseph L. Waitz, Jr. District Attorney Ellen Daigle Doskey Assistant District Attorney Houma, Louisiana Counsel for Plaintiff/Appellee State of Louisiana Bertha Hillman Thibodaux, Louisiana Counsel for Defendant/Appellant Isaiah Smith, Jr.
NOT DESIGNATED FOR PUBLICATION
Appealed from the
32nd Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Case No. 558460
The Honorable John R. Walker, Judge Presiding
Joseph L. Waitz, Jr.
District Attorney
Ellen Daigle Doskey
Assistant District Attorney
Houma, Louisiana
Counsel for Plaintiff/Appellee
State of Louisiana
Bertha Hillman
Thibodaux, Louisiana
Counsel for Defendant/Appellant
Isaiah Smith, Jr.
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
THERIOT , J.
The defendant, Isaiah Smith, Jr., was charged by bill of information with possession of cocaine, a violation of La. R.S. 40:967(C). The defendant pled not guilty. The defendant filed a motion to suppress the evidence, which was denied. Following a jury trial, the defendant was found guilty as charged. The defendant was sentenced to three years imprisonment at hard labor. The defendant now appeals, designating one assignment of error. We affirm the conviction and sentence.
FACTS
On December 26, 2009, between 10:30 p.m. and 11:00 p.m., Deputy Steam Fitch, with the Terrebonne Parish Sheriff's Office, was on road patrol when he was called out to the Ashland North subdivision in Houma because of a complaint about fireworks. Deputy Fitch testified at trial that Ashland North was a high-crime area where thefts, burglaries, shootings, and drug-related crimes occurred. As Deputy Fitch drove slowly through the neighborhood in a marked police unit, he observed the defendant walking and looking in backyards. The defendant then reached into his front pocket. Deputy Fitch put his unit's spotlight on the defendant and told him to remove his hand from his pocket. As the defendant pulled out his hand, Deputy Fitch saw that he was holding a small balled-up bag. The defendant then tossed the bag on the ground. The deputy approached the defendant and asked him what he threw on the ground. The defendant became nervous and replied he did not throw anything. Deputy Fitch handcuffed the defendant and patted him down for weapons. The deputy then retrieved the bag the defendant had thrown on the ground. The bag contained .13 grams of cocaine. Deputy Fitch brought the defendant to his unit and Mirandized him. The defendant testified at the motion to suppress hearing that he did not throw a bag of cocaine to the ground and that he had no knowledge of the contents of the bag found by Deputy Fitch.
Pursuant to Miranda v.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues the trial court erred in denying his motion to suppress the cocaine seized by Deputy Fitch. Specifically, the defendant contends that Deputy Fitch did not have reasonable suspicion to conduct an investigatory stop, and that he was seized when the deputy shined the spotlight on him.
When the constitutionality of a warrantless search and seizure is placed at issue by a motion to suppress, the state bears the burden of proving the admissibility of evidence seized without a warrant. La. Code Crim. P. art. 703(D); State v. Warren, 2005-2248 (La. 2/22/07), 949 So.2d 1215, 1226. Trial courts are vested with great discretion when ruling on a motion to suppress. State v. Long, 2003-2592 (La. 9/9/04), 884 So.2d 1176, 1179, cert. denied. 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005). When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751. In determining whether the ruling on defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n.2 (La. 1979).
The Fourth Amendment of the United States Constitution and Article I, § 5 of the Louisiana Constitution protect persons from unreasonable searches and seizures. The police may not, therefore, make a warrantless arrest of a citizen without probable cause that the citizen has engaged in criminal conduct. In order to discourage police misconduct, evidence recovered as a result of an unconstitutional search or seizure is inadmissible. Consequently, property abandoned by an individual and recovered by the police as a direct result of an unconstitutional seizure may not be used in a subsequent prosecution. If, however, property is abandoned prior to any unlawful intrusion into a citizen's right to be free from governmental interference, then the property may be lawfully seized and used in a resulting prosecution. In this latter situation, the citizen has no reasonable expectation of privacy and there is no violation of his custodial rights. State v. Dobard, 2001-2629 (La. 6/21/02), 824 So.2d 1127, 1129-1130.
In State v. Fisher, 97-1133 (La. 9/9/98), 720 So.2d 1179, 1182-83, our supreme court recognized a useful three-tiered analysis of interactions between citizens and the police from United States v. Watson, 953 F.2d 895, 897 n. 1 (5th Cir.), cert. denied, 504 U.S. 928, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992). In the first tier, there is no seizure or Fourth Amendment concern during mere communication with police officers and citizens where there is no coercion or detention. The second tier consists of brief seizures of a person, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), if the officer has an objectively reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal activity. See State v Belton. 441 So.2d 1195, 1198 (La. 1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The third tier is custodial arrest where an officer needs probable cause to believe that the person has committed a crime. See State v. Hamilton, 2009-2205 (La. 5/11/10), 36 So.3d 209, 212.
Within the first tier, officers have the right to engage anyone in conversation, even without reasonable grounds to believe that they have committed a crime. Further, the police do not need probable cause to arrest or reasonable suspicion to detain an individual each time they approach a citizen. Hamilton, 36 So.3d at 212. See Dobard, 824 So.2d at 1130. The protections from unwarranted, forcible governmental interference, therefore, are not implicated when an individual encountered by a law enforcement officer remains free to disregard the encounter and walk away. It is only when the citizen is actually stopped without reasonable cause or when a stop without reasonable cause is imminent that the right to be left alone is violated, thereby rendering unlawful any resultant seizure of abandoned property. State v. Tucker, 626 So.2d 707, 710-711 (La. 1993). See Belton, 441 So.2d at 1199.
The Tucker court, in adopting the U.S. Supreme Court's pronouncement in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), held that an individual has been "actually stopped," i.e., seized for purposes of La. Const, art. I, § 5, when he submits to a police show of authority or when he is physically contacted by the police. Additionally, the Tucker court determined that even when an actual stop has not been effectuated, our constitution still mandates a finding that an individual has been seized if an actual stop is "imminent." An actual stop is imminent "only when the police come upon an individual with such force that, regardless of the individual's attempts to flee or elude the encounter, an actual stop of the individual is virtually certain" Dobard, 824 So.2d at 1130 (citing Tucker, 626 So.2d at 712 (emphasis in original)).
In determining whether an "actual stop" of an individual is "imminent," we find that the focus must be on the degree of certainty that the individual will be "actually stopped" as a result of the police encounter. This degree of certainty may be ascertained by examining the extent of police force employed in attempting the stop. It is only when the police come upon an individual with such force that, regardless of the individual's attempts to flee or elude the encounter, an actual stop of the individual is virtually certain, that an "actual stop" of the individual is "imminent." Tucker, 626 So.2d at 712. The Tucker Court listed the following factors for use in assessing the extent of police force employed and determining whether or not that force was virtually certain to result in an "actual stop" of the individual: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter. Tucker, 626 So.2d at 712-13; State v. Collins, 93-1198 (La. App. 1st Cir. 5/20/94), 637 So.2d 741, 744.
Thus, the issue in this case is whether and at what point the defendant was seized for constitutional purposes. While the defendant was clearly seized at some point during the encounter with Deputy Fitch, i.e., when he was patted down and later when he was handcuffed and Mirandized, the defendant argues that he was seized when Deputy Fitch shined the spotlight on him. According to the defendant, he submitted to this show of police authority and an "actual stop" occurred when Deputy Fitch turned the light on him. The defendant further asserts that shining a spotlight on him was a show of police force '"virtually certain' to result in an 'actual stop.'" We do not agree.
Deputy Fitch testified at trial that it was about 10:30 at night when he saw the defendant, and that the streetlight in that area was knocked out. When the defendant put his hand in his pocket, Deputy Fitch, for reasons regarding officer safety, utilized his spotlight in the dark area so that he could see what the defendant was doing with his hand and to verify he did not have a weapon. When the deputy told the defendant to get his hand out of his pocket, the defendant tossed the plastic bag containing cocaine on the ground. While the defendant was clearly seized and subsequently arrested after throwing the drugs on the ground, at the moment the defendant tossed the drugs as he stood in the spotlight, no Fourth Amendment stop or seizure had occurred. While the use of a spotlight to illuminate an individual or an automobile on a public street may constitute a seizure when combined with other circumstances, such as a blocking action taken by the police to impede any progress, see, e.g., Chopin, 372 So.2d at 1224-25, it does not alone cause the encounter to lose its consensual character because it may also indicate to the reasonable person that the officer is carrying out his community caretaking function, and such conduct is frequently necessary to protect officers during any type of nighttime police-citizen encounter. State v. Richardson, 2009-0638 (La. 10/20/09), 23 So.3d 254, 257-58 (per curiam).
Further, there was no Fourth Amendment stop or seizure when Deputy Fitch told the defendant to remove his hand from his pocket. When the defendant placed his hand in his pocket, it created a concern for the deputy's safety. The request for the defendant to remove his hand from his pocket was not coupled with any search, pat down, or intrusion into the privacy of the defendant. It was merely a reasonable, self-protective safety precaution for the deputy in case the defendant had some sort of concealed weapon, especially given the high-crime area they were in. See Hamilton, 36 So.3d at 213-14.
We find, as well, that Deputy Fitch's actions prior to the defendant's throwing the drugs on the ground did not constitute an imminent actual stop. Deputy Fitch was alone when he encountered the defendant. The deputy did not impede the defendant's progress with his police unit, or turn on his lights or siren. When the deputy approached the defendant to talk to him, he did not draw his weapon. Under these circumstances, it is clear Deputy Fitch did not come upon the defendant with such force that, regardless of the defendant's attempts to flee or elude the encounter, an actual stop of him was virtually certain. See Tucker, 626 So.2d at 712. See also State v. Jackson, 2000-3083 (La. 3/15/02), 824 So.2d 1124, 1125-27 (per curiam); State v. Sykes, 2004-1199 (La. App. 4th Cir. 3/9/05), 900 So.2d 156, 159-61; Collins, 637 So.2d at 744.
Based on the foregoing, we find the defendant abandoned the cocaine before any actual or imminent actual stop occurred. Deputy Fitch, thus, lawfully seized the drugs. The trial court did not err or abuse its discretion in denying the motion to suppress and, accordingly, the assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).