State v. Moultrie

182 So.3d 1017

STATE of Louisiana

v.Joseph Michael MOULTRIE.

No. 2014 KA 1535.

Court of Appeal of Louisiana, First Circuit.

Oct. 23, 2015.

Joseph Waitz, Jr., District Attorney, Marian M. Hamilton, Assistant District Attorney, Houma, LA, for Plaintiff/Appellee, State of Louisiana.

Margaret S. Sollars, Thibodaux, LA, for Defendant/Appellant, Joseph Michael Moultrie.

Before McDONALD, CRAIN, and HOLDRIDGE, JJ.

CRAIN, J.

The legal issue that must be resolved in this criminal case is whether the defendant's constitutional rights were violated when a police officer, without a search warrant, opened the lid of a barbecue grill located next to a trailer that the defendant claimed as his residence and seized drug evidence found therein. Finding that the seized drug evidence was the product of an unconstitutional search, we reverse the trial court's ruling on the motion to suppress, reverse the defendant's conviction that was dependent upon the inadmissible drug evidence, vacate the defendant's habitual offender adjudication and sentence, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On the night of October 27, 2010, Terrebonne Parish Sheriff's Office Narcotics Task Force agents doing street-level drug enforcement were patrolling the area around the Daniel Turner Trailer Park, a known high-crime area in Houma, Louisiana. At approximately 11:00 p.m., their undercover unit turned into the trailer park where agents observed the defendant standing alone in the middle of the street. In the immediate area where the defendant was standing, two house trailers sat side by side, with a short concrete driveway located between the two trailers. The defendant, who was facing the agents, seemed to recognize the undercover unit as law enforcement and quickly walked out of the street and between the trailers. The trailer nearest the approaching undercover unit blocked the agents' sight of the defendant for a few seconds. As the undercover unit pulled in front of the driveway, the agents observed the defendant walking back toward them. The blue lights on the undercover unit were activated, and die agents exited the unit.

Agent Russell Madere made contact with the defendant at the street. At the same time, Agents Dallas Bookenberger and Joseph Renfro walked up the driveway holding flashlights to see if the defendant had discarded drugs or a weapon. On the ground, the agents observed tom baggies, which appeared to have cocaine and marijuana residue on them.¹ As the agents continued up the driveway, they saw a barbecue grill and a dilapidated car. Agent Renfro noticed that the grill lid sat at an angle, rather than flush, and that there was "disturbed" dew on the handle of the grill lid, in contrast to undisturbed dew on most everything else. Agent Renfro lifted the grill lid and found approximately two ounces (fifty grams) of crack cocaine packaged for sale. At trial it was established that the street value of the cocaine was approximately $10,000.00.

The defendant was arrested and read his Miranda rights. Upon questioning by Agent Bookenberger, the defendant indicated that he lived at the trailer, that the barbecue grill belonged to his family, and that he had no knowledge of the drugs found by the officers.

The trial court denied the defendant's motion to suppress the drug evidence, and a jury found the defendant guilty as charged of possession with intent to distribute cocaine. See La. R.S. 40:967A(1). The defendant was adjudicated a second-felony habitual offender and sentenced to twenty years imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant now appeals.

SUPPRESSION OF THE EVIDENCE

The defendant contends that the trial court erred in denying his motion to suppress. 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. State v. Hunt, 09–1589 (La.12/1/09), 25 So.3d 746, 751. In conducting its review, the appellate court may consider not only the evidence adduced at the hearing on the motion, but also all pertinent evidence given at the trial of the case. State v. Leger, 05–0011 (La.7/10/06), 936 So.2d 108, 122.

The Fourth Amendment to the United States Constitution and Article I, Section 5, of the Louisiana Constitution protect people against unreasonable searches and seizures. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the State can affirmatively show that the warrantless search and seizure was justified by one of the narrowly drawn exceptions to the warrant requirement. See La. Code Crim. Pro. art. 703D; State v. Thompson, 02–0333 (La.4/9/03), 842 So.2d 330, 335. A search incident to an investigatory stop is one such exception. See Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993) ; State v. Carter, 13–1952 (La.12/2/13), 130 So.3d 308, 311–12. On appeal, the defendant contends that the agents lacked justification for the investigatory stop.

An officer may stop a citizen in a public place and question him based upon a reasonable suspicion that the individual has committed or is about to commit an offense. See La. Code Crim. Pro. art. 215.1 ; Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000) ; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; State v. Summers, 15–1363 (La.7/29/15), 170 So.3d 960, 963. Whether reasonable suspicion exists requires weighing the totality of the circumstances known to the police at the time of the stop. See State v. Gates, 13–1422 (La.5/7/14), 145 So.3d 288, 302. It is well established that the reputation of an area is an articulable fact upon which law enforcement may legitimately rely, and is therefore relevant in considering whether there existed a particularized and objective basis for suspecting the defendant had committed, or was about to commit a criminal offense. See State v. Temple, 02–1895 (La.9/9/03), 854 So.2d 856, 859–60. Further, an individual's nervous, startled behavior, or flight in a high-crime area gives rise to reasonable suspicion for an investigatory stop. See Wardlow, 528 U.S. at 125, 120 S.Ct. at 677 ; State v. Lewis, 00–3136 (La.4/26/02), 815 So.2d 818, 821.

We find that under the particular facts of this case, the agents had reasonable suspicion to stop and question the defendant. The agents were in a known high-crime area at approximately 11:00 p.m. when they observed the defendant standing alone in the middle of the street. The lighting in the area was bad. Upon recognizing the presence of law enforcement, the defendant quickly walked away, purposefully avoiding visual contact with the agents for a very brief period of time. When the agents, just seconds later, arrived at the driveway where the defendant had disappeared, the defendant reappeared, walking back toward them. Considering these facts, it was reasonable for the agents to stop and detain the defendant.

Incident to an investigatory stop, officers are justified in conducting a protective search for weapons that might be used to harm them. See Dickerson, 508 U.S. at 373, 113 S.Ct. at 2136 ; U.S. v. Rideau, 969 F.2d 1572, 1575–76 (5th Cir.1992) (on rehearing en banc ); Carter, 130 So.3d at 311–12. Such a search does not typically extend beyond a limited pat-down of the defendant's body and the area within his reach. However, rigid adherence to artificial lines defining the scope of these searches can result in the failure to consider the realities of the risks faced by these law enforcement officers. The reasonableness of the scope of such a search must be measured against the circumstances existing at the time. Cf. Summers, 170 So.3d at 964 ; see also Rideau, 969 F.2d at 1575–76.

The agents' search of the open areas where the defendant briefly disappeared before returning for questioning was a reasonable search incident to the investigatory stop. The trailer park where the stop occurred was well-known to the agents for its high rate of drug crimes and shootings. That, coupled with the darkness of night and the defendant's suspicious disappearance then reappearance, justified the agents scanning the area for contraband. More importantly, a minimally intrusive search of the area to ensure that no-one else was present who might harm the officers while the defendant was being questioned was reasonable and appropriate.

However, a search incident to a Terry investigatory stop must, considering the totality of the circumstances, be narrowly tailored to ensure the safety of the officers during questioning of the individual.² Cf. State v. Duhe, 12–2677 (La.12/10/13), 130 So.3d 880, 886–87. At the motion to suppress hearing, the trial court stated, "If I had been a policeman on the scene that night I would have been concerned that there was a weapon in that barbecue pit within reach of that defendant." The testimony of the agents, however, established that the defendant was detained at the street, some thirty feet from the grill. Under the totality of the circumstances, opening the grill exceeded the limited scope of the permissible search justified by the stop.

The trial court determined that the officers were justified in opening the grill by the exigent circumstances exception to the warrant requirement. Exigent circumstances are exceptional circumstances which, when coupled with probable cause, justify entry into a protected area that, without those exceptional circumstances, would be unlawful.³ State v. Hathaway, 411 So.2d 1074, 1079 (La.1982). The Supreme Court has defined "exigent circumstances" as "a plausible claim of specially pressing or urgent law enforcement need."...