Opinion
2013 KJ 0312
06-11-2013
STATE OF LOUISIANA IN THE INTEREST OF J.J.
Camille A. Morvant II District Attorney Rachael Carothers Thibodaux, Louisiana Attorneys for Plaintiff/Appellee, State of Louisiana Assistant District Attorney Nelson D. Taylor, Sr. Thibodaux, Louisiana Attorney for Defendant/Appellant, J.J.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
City Court of Thibodaux and
Ward Two of the Parish of Lafourche
State of Louisiana
Trial Court No. 3530
The Honorable Mark D. Chiasson, Judge Presiding
Camille A. Morvant II
District Attorney
Rachael Carothers
Thibodaux, Louisiana
Attorneys for Plaintiff/Appellee,
State of Louisiana
Assistant District Attorney
Nelson D. Taylor, Sr.
Thibodaux, Louisiana
Attorney for Defendant/Appellant,
J.J.
BEFORE: PARRO, WELCH, AND DRAKE, JJ.
DRAKE , J.
The state filed a petition alleging that J.J., a sixteen-year-old child, should be adjudicated delinquent and/or in need of services based upon the commission of the offense of illegal carrying of a weapon (Count 1), a violation of La. R.S. 14:95; the offense of resisting an officer (Count 2), a violation of La. R.S. 14:108; the offense of illegal carrying of a firearm or dangerous weapon by a student or nonstudent on school property, at school-sponsored functions or in a firearm-free zone (Count 3), a violation of La. R.S. 14:95.2; and the offense of illegal possession of a handgun by a juvenile (Count 4), a violation of La. R.S. 14:95.8. The child filed a "Motion to Suppress Evidence, Motion to Dismiss Charges[,]" which the juvenile court denied. Thereafter, pursuant to a plea agreement with the state, the child entered admissions to Counts 3 and 4 of the petition, reserving his right to challenge the ruling on his motion to suppress under State v. Crosby, 338 So.2d 584, 588 (La. 1976). The court accepted the plea, and the child was adjudicated a delinquent as to Counts 3 and 4. He was then committed to the Office of Juvenile Justice, in secure care, until his eighteenth birthday on each count, to run concurrently. The child has appealed, assigning error to the juvenile court's denial of his motion to suppress and motion to dismiss charges. For the following reasons, we affirm the adjudications and dispositions.
Counts 1 and 2 were continued without date.
The child was adjudicated a delinquent for simple robbery, a violation of La. R.S. 14:65, on October 26, 2010. Because the child had previously been adjudicated delinquent for a crime of violence under La. R.S. 14:2B, the maximum penalty for his adjudication under La, R.S. 14:95.8 was five years. See La. R.S. 14:95.8B(4) & La. R.S. 14:2B(23).
FACTS
The following facts were revealed at the hearing on the motion to suppress. On September 4, 2012, Officers Stephen Amador and Corey Brooks with the Thibodaux Police Department were patrolling the Government Circle Area, which Officer Brooks testified was a high-crime area. While patrolling in an unmarked police unit, the officers encountered a vehicle coming from Cedar Street and turning onto Government Circle. Officer Amador noticed that neither the driver nor the passenger was wearing a seatbelt, and Officer Brooks observed the vehicle fail to signal upon turning. Officer Brooks recognized the passenger of the vehicle to be the subject child.
Officer Amador activated the unit's lights and sirens and attempted to pull the vehicle over for the traffic violations. The driver of the other vehicle pulled over to the side of the road, and both occupants jumped out and fled on foot. Officer Amador remained in his unit, drove farther down Government Circle, and attempted to cut off the driver and the child as they ran.
Both officers testified that the location where the actual traffic stop took place is a firearm-free zone.
Officer Brooks exited the vehicle and began to chase the driver and the child. He yelled several times at the child to stop running. He followed both the driver and the child until they started running in opposite directions. When the two split, Officer Brooks pursued the child because he was closer to him than the driver. As the child began to jump a fence, Officer Brooks was approximately three or four feet behind him. Officer Brooks testified:
I jumped the fence and I saw [the child] reaching into his waistband area. At that point, I drew my weapon. At this point, he was up on his feet and he was behind like a swimming pool that was in that backyard. I kept giving out verbal commands to "Show me your hands. Show me your hands." He refused to. I started engaging towards [the child] still with my service weapon on him. At this point, [the child] came out of his waistband area with a black handgun and threw it in the air and it landed into the yard across the fence.
When questioned by the court, Officer Brooks clarified that he was on top of the fence, which was about five or six feet tall, attempting to climb over it when he saw the child reach into his waistband. Once he climbed over the fence, he drew his weapon and gave the child verbal commands to show his hands. The child refused to do so, and the two circled the swimming pool. As the officer walked towards the child with his weapon drawn, the child turned around, looked at him, continued to back up, and threw the handgun over a fence into another yard. The child continued to back up farther before complying with Officer Brooks's order to get on the ground.
When Officer Amador saw Officer Brooks chasing the child, he exited his vehicle and began running towards them. He witnessed the child throw the handgun. As Officer Brooks held the child at gunpoint, Officer Amador handcuffed him, and he was taken into custody. The handgun was secured by Sergeant Kevin Brooks, who was the shift commander on patrol that day.
MOTION TO SUPPRESS
In his sole assignment of error, the child argues that the juvenile court erred in denying his motion to suppress and motion to dismiss the charges. Specifically, he contends that Officer Brooks did not have reasonable suspicion or probable cause to detain or arrest him and that the handgun was seized pursuant to an unlawful arrest under La. R.S. 14:108.
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. See 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.
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. State v. Dobard, 2001-2629 (La. 6/21/02), 824 So.2d 1127, 1130.
The Louisiana Supreme Court has recognized a useful three-tiered analysis of interactions between citizens and police set forth in 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). See State v. Fisher, 97-1133 (La. 9/9/98), 720 So.2d 1179, 1182-83. In the first tier, there is no seizure or Fourth Amendment concern during mere communication between 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. The third tier is custodial arrest in which an officer needs probable cause to believe that the person has committed a crime. The "probable cause" or "reasonable cause" needed to make a full custodial arrest requires more than the "reasonable suspicion" needed for a brief investigatory stop. Fisher, 720 So.2d at 1183.
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. State v. Hamilton, 2009-2205 (La. 5/11/10), 36 So.3d 209, 212. Within the second tier, the investigatory stop recognized by the United States Supreme Court in Terry, 392 U.S. 1, 88 S.Ct. 1868, the 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. Fisher, 720 So.2d at 1183. The second tier has been codified in La. Code Crim. P. art. 215.1, which permits an officer to "stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his action."
The first issue is whether the officers had the right to stop the car. If there was a right to stop the car, the next question is whether the officers had a right to chase the child once he ran from the vehicle. The officers testified that the vehicle at issue was being pulled over for failing to signal a left turn and for violations of the seatbelt statute. "The decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." State v. Waters, 2000-0356 (La. 3/12/01), 780 So.2d 1053, 1056 (quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996)). Even relatively minor traffic violations provide an objective basis for lawfully detaining a vehicle and its occupants. Waters, 780 So.2d at 1056.
Louisiana Revised Statutes 32:295.1(F) was amended by Acts 1999, No. 1344, § 1, effective January 2000, which prohibited police from searching a vehicle and its occupants solely based upon a seatbelt violation. However, the amended statute did not prohibit the police from stopping a vehicle, detaining the occupants, and issuing traffic citations when the occupants of the vehicle were not wearing seatbelts. State v. Young, 2002-1073 (La. App. 4 Cir. 6/4/02), 820 So.2d 1182, 1187. Therefore, officers can legally stop a vehicle for seatbelt violations of either the driver or passenger. Additionally, La. R. S. 32:104(B) requires a driver to give a turn signal prior to making a right or left turn. Officer Brooks observed the driver of the vehicle fail to signal prior to making a left turn, thereby violating La. R.S. 32:104(B). The officers were entitled to stop the vehicle from moving ahead and detaining the occupants in order to issue the traffic citations. Young, 820 So.2d at 1187.
Acts 2009, No. 166 § 1, effective June 26, 2009, amended La. R.S. 32:295.1 to require all occupants of the vehicle to wear seatbelts while the vehicle is in forward motion. At the time Young was decided, only front seat occupants were required to wear seatbelts.
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Defendant argues that even if the officers were entitled to detain the driver, they had no authority to detain him, the passenger. Officer Amador testified that he noticed both the driver and the passenger not wearing a seatbelt. Louisiana Revised Statutes 32:295.1 requires both a driver and a passenger to wear a seatbelt in a vehicle that is moving forward. The officers were entitled to stop the vehicle and issue citations to both the driver and the passenger.
Even assuming that the passenger in this case, the child, had not committed a seatbelt violation, "[f]or the duration of a traffic stop, ... a police officer effectively seizes 'everyone in the vehicle,' the driver and all passengers." Arizona v. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 784, 172 L.Ed.2d 694 (2009). The Supreme Court stated:
[A] lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity.The officers in the present case had every right to detain the passenger of a vehicle pending an inquiry into a vehicular violation. Once an officer has lawfully stopped a vehicle for a routine traffic violation, he is authorized to order both the driver and passengers out of the vehicle pending completion of the stop. State v. Jones, 2011-1009 (La. App. 5 Cir. 3/27/12), 91 So.3d 480, 484; see also State v. Cure, 2011-2238 (La. 7/2/12), 93 So.3d 1268, 1270-72, cert. denied, 133 S.Ct. 549, 184 L.Ed.2d 357 (2012). A traffic stop of a vehicle communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will. Arizona, 555 U.S. at 333.
Arizona, 555 U.S. at 327.
The officers both testified that the lights and sirens on their vehicle were on when they stopped the vehicle. Once the vehicle pulled over, both occupants immediately fled on foot away from the officers. The child argues that the officers did not have reasonable suspicion to chase him. However, notwithstanding the fact that the officers had the right to detain the passenger of a lawfully stopped vehicle, once the child ran from officers, reasonable suspicion could arise. Flight from police officers, alone, will not provide justification for a stop. State v. Benjamin, 97-3065 (La. 12/1/98), 722 So.2d 988, 989. However, flight is highly suspicious and is one of the factors to be considered in finding reasonable cause or reasonable suspicion. Id. Furthermore, unprovoked flight in a high-crime area is sufficient to give police officers reasonable suspicion of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000); State v. Morgan, 2009-2352 (La. 3/15/11), 59 So.3d 403, 406-07. The Louisiana Supreme Court has "expressly held or at least implied that the defendant's flight from police officers is the most important factor in the totality of the circumstances analysis." Morgan, 59 So.3d at 408.
It is only when a defendant is stopped without reasonable cause that the right to be left alone is violated, thereby rendering the seizure of any abandoned property unlawful. State v. Gibson, 2012-350 (La. App. 5 Cir. 10/30/12), 103 So.3d 641, 651. The officers had reasonable suspicion for an investigatory stop of the driver and passenger, the child, for seatbelt violations. Once the lawful investigatory stop was made, officers could detain the vehicle and its occupants. From their past experience, under the totality of the circumstances, it was apparent that the flight of the driver and the child combined with the high-crime area also gave the officers reasonable suspicion to suspect the child of criminal activity. See Morgan, 59 So.3d at 406. Officer Brooks also testified that he recognized both occupants of the vehicle and knew the child to be a juvenile. The child was lawfully stopped, and his unprovoked flight in a high-crime area gave the officers reasonable suspicion of criminal activity, which allowed the officers to legally seize the abandoned property. Arizona, 555 U.S. at 333; See State v. Morgan, 59 So.3d at 407 & 411.
The officers were reasonably justified in both stopping the vehicle and pursuing the child who ran from the vehicle. Accordingly, the gun discarded by the child could be lawfully seized, because once abandoned by the child, he no longer had any expectation of privacy in the property seized. State v. Thomas, 543 So.2d 540, 542 (La. App. 4th Cir.), writ denied, 548 So.2d 1229 (La. 1989).
The child also argues that his flight from the officer did not rise to the level of resisting arrest pursuant to La. R.S. 14:108, thereby invalidating the seizure of a weapon at the conclusion of the chase. One who obstructs an officer acting in his official capacity to make a lawful detention commits the crime of resisting an officer. See La. R.S. 14:108(A). Flight alone amounts to obstruction of an officer only after the officer gives notice of his intention to make an arrest. State v. Hawkins, 422So. 2d 1155, 1156 (La. 1982). After the officers made a legal traffic stop whereby both the driver and the passenger, the child, were to be detained for questioning, the child ran from the officers. When the child started running, Officer Brooks told the child, "Stop running. You're under arrest. Stop running." Officer Brooks pursued the child and continued to yell, "Stop running. Stop running...You're under arrest." The child discarded the weapon after being told he was under arrest and continued his flight from Officer Brooks. The officer's reasonable suspicion ripened into probable cause given the totality of the circumstances that the child engaged in flight, was known to be a juvenile to Officer Brooks, and was in a high-crime area.
An officer may make a warrantless arrest when the officer has probable cause to believe that the person to be arrested has committed an offense. Gibson, 103 So.3d at 650. Probable cause to arrest without a warrant exists when the facts and circumstances known to the arresting officer are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed or was committing a crime. State v. Brisban, 2000-3437 (La. 2/26/02), 809 So.2d 923, 927. While mere suspicion is insufficient to justify an arrest, a police officer need not have sufficient proof to convict in order to arrest. State v. Wells, 2008-2262 (La. 7/6/10), 45 So.3d 577, 583. Furtive actions and flight at the approach of law enforcement officers may, when coupled with other specific knowledge, give rise to the existence of probable cause. Gibson, 103 So.3d at 650.
Given these facts, probable cause to arrest the child for resisting an officer existed from the time he broke into headlong flight. See La. R.S. 14:108. In continuing to flee as Officer Brooks, who had identified himself, pursued the child, commanded the child to stop, and informed the child he was under arrest, the child committed the offense of resisting an officer "acting in his official capacity and authorized by law to make a lawful arrest ...." See La. R.S. 14:108(A). For these reasons, we find no error or abuse of discretion by the juvenile court in denying the motion to suppress and motion to dismiss the charges. Accordingly, the child's adjudications and dispositions are affirmed.
AFFIRMED.