State v. Anderson

320 So.3d 443

STATE of Louisiana

v.Tony L. ANDERSON

NO. 2020 KA 0473

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: FEBRUARY 19, 2021

Hillar C. Moore, III, District Attorney, Dylan C. Alge, Assistant District Attorney, Baton Rouge, Louisiana, Attorneys for State of Louisiana

Jane L. Beebe, Addis, Louisiana, Attorney for Defendant-Appellant, Tony L. Anderson

BEFORE: THERIOT, WOLFE, AND HESTER, JJ.

WOLFE, J.

Defendant, Tony Anderson, was charged by bill of information with five offenses: (Count 1) possession with intent to distribute marijuana, a violation of La. R.S. 40:966 ; (Count 2) possession with intent to distribute MDMA, a violation of La. R.S. 40:966 ; (Count 3) possession with intent to distribute heroin, a violation of La. R.S. 40:966 ; (Count 4) possession of a firearm while in possession of cocaine, a violation of La. R.S. 14:95(E) ; and (Count 5) possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. Defendant pled not guilty.

Defendant filed a motion to suppress, which the trial court denied following a hearing. Later, Count 1 was dropped and Count 4 was amended to possession of cocaine, a violation of La. R.S. 40:967. Defendant then withdrew his plea of not guilty and pled guilty to the remaining amended charges, reserving his right to appeal the denial of the suppression motion pursuant to State v. Crosby , 338 So.2d 584 (La. 1976). The trial court imposed a sentence of two years imprisonment at hard labor for Counts 2, 3, and 4, and a sentence of eight years imprisonment at hard labor for Count 5, all to be served concurrently. Defendant now appeals. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

On April 8, 2016, Corporal James Thomas, Jr. of the Baton Rouge Police Department was working "extra duty" with his partner. The pair went to a nearby Chevron gas station to get a drink. Upon arriving, they saw "a group of subjects" standing in front of the gas station. The group dispersed when the uniformed police officers exited their unmarked vehicle. The officers observed defendant walk away at a fast pace toward a parked vehicle, "like he wasn't trying to be seen[.]" The vehicle was parked at a gas pump. Cpl. Thomas stated that he and his partner both noted that the group's dispersal and defendant's pace, together with his trying not to make eye contact, appeared to them to be "something suspicious." Cpl. Thomas testified that the gas station was known to be the location of drug activity.

Cpl. Thomas approached defendant, who was by then sitting in the passenger seat of the vehicle. Cpl. Thomas smelled the odor of marijuana through the open passenger side window, and he ordered defendant to exit the car and place his hands on the hood. The visibly shaking defendant kept attempting to grab the back of his pants, despite being told not to do so by Cpl. Thomas. As a result, Cpl. Thomas grabbed defendant's hands and put them behind his back while defendant attempted to pull away. Cpl. Thomas then called his partner for assistance, and both officers were able to place defendant in handcuffs. Cpl. Thomas advised defendant of his rights, and defendant informed the officers he had a gun in his back pocket, and that he had been reaching for it. A subsequent search of defendant's pockets revealed narcotics and a firearm. During cross-examination, Cpl. Thomas testified that when they went to the gas station, they were not responding to any calls nor were they looking for any specific suspects or vehicles matching a description.

ASSIGNMENT OF ERROR: MOTION TO SUPPRESS

In his sole assignment of error, defendant contends the trial court erred in denying the motion to suppress because he was detained and arrested without either reasonable suspicion or probable cause. Defendant argues that the police did not identify or articulate any legitimate or specific reason, such as a complaint or criminal investigation, for why they approached defendant while he was seated in his legally parked vehicle. Defendant further claims that neither his apparent unwillingness to engage with the police nor the odor of suspected marijuana justified defendant's detention and subsequent search.

The State asserts Cpl. Thomas presented both reasonable suspicion and probable cause to support defendant's detention and subsequent arrest. The State reasons that Cpl. Thomas had the right to approach defendant, and once Cpl. Thomas smelled marijuana, he gained the right to arrest defendant and search defendant and the vehicle. However, in the State's view, Cpl. Thomas did not detain defendant until he was ordered from the vehicle and later handcuffed.

In its oral reasons, the trial court observed that the officers had the right to approach defendant and speak with him, even absent reasonable suspicion that a crime had occurred. Additionally, the court observed that under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police have the authority to detain an individual with a lessened burden of reasonable suspicion that would not justify an arrest. The Fourth Amendment to the United States Constitution guarantees, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" See also La. Const. art. I, § 5. A warrantless search is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Cox, 2018-0769 (La. App. 1st Cir. 2/22/19), 272 So.3d 597, 602, writ denied, 2019-00604 (La. 9/17/19), 278 So.3d 973, cert. denied, ––– U.S.––––, 140 S.Ct. 1279, 206 L.Ed.2d 262 (2020). When evidence is seized without a warrant, the state shall have the burden of proving the admissibility of the evidence. La. Code Crim. P. art. 703(D).

As an initial matter, law enforcement officers enjoy the same liberty possessed by every citizen to address questions to other persons. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980). Police officers do not need probable cause or reasonable suspicion each time they attempt to converse with a citizen. State v. Neyrey, 383 So.2d 1222, 1224 (La. 1979) ; State v. Harris, 2011-0779 (La. App. 1st Cir. 11/9/11), 79 So.3d 1037, 1041 ; see also, Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) ("Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions."); and, State v. Spears, 2014-0289 (La. App. 1st Cir. 9/19/14), 2014 WL 4668761, at *2, writ denied, 2014-2172 (La. 5/22/15), 170 So.3d 983 ("[M]ere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention.").

Moreover, pursuant to the investigatory stop recognized by the United States Supreme Court in Terry v. Ohio, supra, a police officer may briefly seize a person 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 conduct or is wanted for past criminal acts. Similarly, La. Code Crim. P. art. 215.1(A) provides that an officer's reasonable suspicion of crime allows a limited investigation of a person. Reasonable suspicion to stop is something less than the probable cause required for an arrest, and a reviewing court must look to the facts and circumstances of each case to determine whether a detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect's rights. State v. Robertson, 97-2960 (La. 10/20/98), 721 So.2d 1268, 1269 ; State v. Kelly, 2015-0570 (La. App. 1st Cir. 11/9/15), 2015 WL 6951553, at *3.

The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Leboeuf, 2016-0810 (La. App. 1st Cir. 10/28/16), 2016 WL 6330439, at *3, writ denied, 2016-2126 (La. 9/15/17), 225 So.3d 477. The detaining officer must have knowledge of specific, articulable facts which, taken together with rational inferences from those facts, reasonably warrant the stop. State v. Flowers, 441 So.2d 707, 714 (La. 1983). cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984) ; State v. Matthews, 2015-1281 (La. App. 1st Cir. 2/26/16), 191 So.3d 1080,1083-84, writ not considered, 2016-1182 (La. 11/15/16), 209 So.3d 787. The officer's past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable, and deference should be given to the experience of the officers present at the time of the incident. State v. Bell, 2014-1046 (La. App. 1st Cir. 1/15/15), 169 So.3d 417, 422.

Further, the detection of the odor of marijuana by experienced law enforcement officers has long been recognized as probable cause to justify a search. See State v. Gordon, 93-1923 (La. App. 1st Cir. 11/10/94), 646 So.2d 1005, 1010 ("Detecting marijuana by means of smell does not constitute a search, and there is no reasonable expectation of privacy from lawfully positioned officers with inquisitive nostrils."); State v. Traylor, 31,378 (La. App. 2d Cir. 12/9/98), 723 So.2d 497, 499 (Odor of marijuana emanating from vehicle in which defendant was passenger allowed officers to reasonably suspect defendant was smoking, thus possessing, marijuana.); cf. State v. Arnold, 2011-0626 (La. 4/27/11), 60 So.3d 599, 600 (per curiam) ("[S]trong odor" of marijuana emanating from vehicle provided probable cause to search passenger compartment of vehicle.).

Additionally, an officer may conduct a pat down of the driver and any passengers, if he has a reasonable suspicion that the person is armed and dangerous. Arizona v....