Opinion
NO. 2013 KA 1786
05-22-2014
STATE OF LOUISIANA v. LAMONT JAMES NIXON
Joseph L. Waitz, Jr. District Attorney Houma, Louisiana and Ellen Daigle Doskey Assistant District Attorney Houma, Louisiana Attorneys for Plaintiff/Appellee, State of Louisiana Bertha M. Hillman Thibodaux, Mississippi Attorney for Defendant/Appellant, Lamont James Nixon
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
32nd Judicial District Court,
In and for the Parish of Terrebonne,
State of Louisiana
No. 648451
The Honorable David W. Arceneaux, Judge Presiding
Joseph L. Waitz, Jr.
District Attorney
Houma, Louisiana
and
Ellen Daigle Doskey
Assistant District Attorney
Houma, Louisiana
Attorneys for Plaintiff/Appellee,
State of Louisiana
Bertha M. Hillman
Thibodaux, Mississippi
Attorney for Defendant/Appellant,
Lamont James Nixon
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
DRAKE, J.
The defendant, Lamont James Nixon, was charged by bill of information with one count of possession with intent to distribute marijuana (count I), a violation of La. R.S. 40:966(A)(1); and one count of possession of heroin (a Schedule I controlled dangerous substance) (count II), a violation of La. R.S. 40:966(C), and initially pled not guilty. Thereafter, alleging an illegal search and seizure, he moved to suppress use of the drugs as evidence. Following a hearing, the trial court denied the motion to suppress, and the defendant pled guilty on count I, reserving his right to seek review of the court's ruling on the motion to suppress. See State v. Crosby, 338 So. 2d 584 (La. 1976). He was sentenced to six years at hard labor, suspended, and two years probation. He now appeals, contending the trial court erred in denying the motion to suppress. For the following reasons, we affirm the conviction and sentence on count I.
The State dismissed count II prior to the defendant's guilty plea on count I. (R. 3, 95).
FACTS
Terrebonne Parish Sheriff's Office Narcotics Task Force Agent Travis Sanford testified that East Street in Terrebonne Parish was considered a high-crime area, and shots had been fired at him several times in that area while he was conducting narcotics investigations. On August 31, 2012, at approximately 5:30 p.m., he and Lieutenant Agent Russell Madere were on patrol in the area of East Street, in an unmarked pickup truck (equipped with lights and siren), but wearing Sheriff's Office fatigues. The Agents saw a group of young men huddled in a circle on the driveway of a residence, approximately five to ten feet from the street, in the Daniel Turner Trailer Park. The Agents drove past the men, but turned around to investigate what they were doing. After the Agents parked their truck in front of the residence, the defendant reached down, picked up what appeared to be a shoe box, and started walking away, hurriedly, from the other young men. The Agents activated the blue lights on their truck, exited the vehicle, and commanded the defendant to stop. The defendant, however, began running toward the entrance of the trailer. Agent Sanford chased the defendant into the trailer, continuing to give him loud orders to stop. Agent Sanford testified he was afraid the defendant was trying to obtain a weapon from inside the home, was trying to obtain a tactical advantage, or was attempting to discard evidence. According to Agent Sanford, the front door of the residence was open when he and the defendant entered. Agent Sanford indicated that, as soon as the defendant entered the residence, he threw the shoe box into the kitchen area. The shoe box went over a kitchen counter and landed on the floor. Thereafter, Agent Sanford handcuffed the defendant and removed him from the home. While conducting a security sweep of the residence, Agent Sanford saw the shoe box had fallen open and contained ninety-seven grams of packaged marijuana (consistent with distribution), some currency, and the defendant's identification. A subsequent pat-down of one of the men outside the residence revealed sixteen grams of marijuana, packaged consistently with the marijuana found in the shoe box.
The defendant testified he was outside of his residence at 938 East Street with five of his friends when the truck pulled up and stopped. He claimed initially that he did not know who was in the truck, then said there were "cops" with their guns drawn, so he ran into his house and put his shoe box of marijuana in the refrigerator. He stated he and his friends were going to smoke the marijuana. According to the defendant, Agent Sanford opened the door of the residence and entered after the defendant had put the shoe box in the refrigerator. The defendant claimed Agent Sanford handcuffed him and then looked in the refrigerator to see what the defendant had hidden there. The defendant also claimed Agent Sanford stated, "Well, I seen two black guys and a group of white dudes and we already knew what was up."
MOTION TO SUPPRESS EVIDENCE
In his sole assignment of error, the defendant argues Agent Sanford had an insufficient basis to approach him and illegally entered the residence.
The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. C.Cr.P. art. 703(A). The State shall have the burden of proving the admissibility of any evidence seized without a warrant. La. C.Cr.P. art. 703(D). A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the district court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jones, 2001-0908 (La. App. 1 Cir. 11/8/02), 835 So. 2d 703, 706, writ denied, 2002-2989 (La. 4/21/03), 841 So. 2d 791.
A three-tiered analysis governs the Fourth Amendment's application to interactions between citizens and police. At the first tier, mere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention. State v. Copies, 2005-2517 (La. App. 1 Cir. 6/9/06), 938 So. 2d 147, 154, writ denied, 2006-2466 (La. 4/27/07), 955 So. 2d 684.
At the second tier, the investigatory stop recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), 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. Louisiana Code of Criminal Procedure article 215.1(A) provides that an officer's reasonable suspicion of crime allows a limited investigation of a person. However, reasonable suspicion is insufficient to justify custodial interrogation, even though the interrogation is investigative. Copies, 938 So. 2d at 154.
Lastly, at the third tier, a custodial "arrest," the officer must have "probable cause" to believe that the person has committed a crime. Louisiana Code of Criminal Procedure article 213(3) uses the phrase "reasonable cause." 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. Id.
The "reasonable cause" standard of Article 213(3) is equivalent to "probable cause" under the general federal constitutional standard. To read Article 213 as allowing an arrest on less than probable cause would put the article afoul of the Fourth Amendment. Caples, 938 So. 2d at 154 n.3.
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The Louisiana Supreme Court has recognized that in regard to brief investigatory stops, the level of suspicion required to justify the stop need only rise to the level of some minimal level of objective justification. In determining whether sufficient suspicion existed for the stop, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer that might well elude an untrained person, while also weighing the circumstances known to the police, not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. Id. at 154-55.
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), recognized that flight, nervousness, or a startled response to the sight of a police officer are, by themselves, insufficient to justify an investigatory stop, but nevertheless may be "highly suspicious," and may be considered along with other facts and circumstances in the reasonable cause inquiry. Further, under Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000), flight is not the equivalent of a mere refusal to cooperate for purposes of the Fourth Amendment. State v. Lewis, 2000-3136 (La. 4/26/02), 815 So. 2d 818, 821 (per curiam), cert. denied, 537 U.S. 922, 123 S.Ct. 312, 154 L.Ed.2d 211 (2002). Given the highly suspicious nature of flight from a police officer, the amount of additional information required in order to provide officers with a reasonable suspicion that an individual is engaged in criminal behavior is greatly lessened. State v. Benjamin, 97-3065 (La. 12/1/98), 722 So. 2d 988, 989.
It is a basic principle of the U.S. Fourth Amendment that searches and seizures inside a home without a warrant are presumptively unreasonable. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be erased without a warrant. Payton v. New York, 445 U.S. 573, 586-90, 100 S.Ct. 1371, 1380-82, 63 L.Ed.2d 639 (1980). An exception to the wan-ant requirement exists, however, for police entry into a residence in hot pursuit of a suspect, under exigent circumstances, where there is probable cause to arrest the suspect. See U.S. v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300 (1976); State v. Hathaway, 411 So.2d 1074, 1078 (La. 1982).
Hot pursuit means some sort of a chase, but it need not be an extended hue and cry in and about the public streets. Santana, 427 U.S. at 42-43, 96 S.Ct. at 2410. Exigent circumstances are exceptional circumstances which, when coupled with probable cause, justify an entry into a "protected" area that, without those exceptional circumstances, would be unlawful. Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence. State v. Farber, 446 So. 2d 1376, 1380 (La. App. 1 Cir.), writ denied, 449 So. 2d 1356 (La. 1984). Probable cause to arrest exists when facts and circumstances within the arresting officer's knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Although mere suspicion cannot justify an arrest, the officer does not need sufficient proof to convict. Farber, 446 So. 2d at 1379. Determination of probable cause for an arrest does not rest on the officer's subjective beliefs or attitudes, but turns on a completely objective evaluation of all of the circumstances known to the officer at the time of his challenged action. State v. Kalie, 96-2650 (La. 9/19/97), 699 So. 2d 879, 880 (per curiam).
An exception to the search-warrant requirement also exists for items in plain view. Two conditions must be satisfied to trigger the applicability of the doctrine: (1) there must be a prior justification for an intrusion into the protected area; and (2) it must be immediately apparent without close inspection that the items are evidence or contraband. "Immediately apparent" requires no more than probable cause to associate the property with criminal activity. State v. Howard, 2001-1487 (La. App. 1 Cir. 3/28/02), 814 So. 2d 47, 53, writs denied, 2002-1485 (La. 5/16/03), 843 So. 2d 1120 and 2006-2125 (La. 6/15/07), 958 So. 2d 1180.
In denying the motion to suppress evidence, the trial court noted it had no reason to doubt the credibility of Agent Sanford. Moreover, the defendant had admitted under oath he was guilty of a felony, i.e., he was in possession of marijuana and intended to distribute the drug to his friends. The court also noted the defendant only decided to testify that the marijuana was not in plain view after it became apparent that the ruling on the motion to suppress would depend on whether or not the marijuana was in plain view.
The trial court found the marijuana, the money, and the I.D. were in plain view, and Agent Sanford had reasonable suspicion of criminal activity, based on the defendant's reaction to the presence of the police and the high-crime area where the incident occurred, and had a right to follow the defendant into the residence.
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 the instant case, there was no error or clear abuse of discretion in the denial of the motion to suppress. The narcotics agents attempted to talk to the defendant, implicating no Fourth Amendment concerns. The defendant, however, picked up a shoe box and began hurriedly walking away. Thereafter, he refused to obey police commands to stop and ran toward a trailer with the shoe box. The trial court credited Officer Sanford's testimony that he followed the defendant into the trailer through an open door because he was afraid the defendant was trying to obtain a weapon from inside the home, was trying to obtain a tactical advantage, or was attempting to discard evidence. Considering the totality of the circumstances, and giving deference to the inferences and deductions of Agent Sanford, there was objectively reasonable suspicion that the defendant had been engaged in narcotics activity. The defendant was attempting to evade the police, while carrying a shoe box, in an area well-known for narcotics activity. Additionally, he was refusing police commands to stop, and was attempting to enter a trailer with the shoe box. These actions created an exigency requiring immediate police action. See Santana, 427 U.S. at 43, 96 S.Ct. at 2410 ("a suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place"); Warden v. Hoyden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782 (1967) ("[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others."). Further, a door that is unattended and open to the public diminishes the expectation of privacy for what is inside. See State v. Washington, 2012-2203 (La. 11/16/12), 104 So. 3d 401, 404 (per curiam). Additionally, Agent Sanford had probable cause to arrest the defendant for resisting an officer. See La. R.S. 14:108(A) ("[r]esisting an officer is the intentional ... opposition or resistance to, ... an individual acting in his official capacity and authorized by law to make a ... lawful detention, ... when the offender knows or has reason to know that the person ... detaining, ... is acting in his official capacity). Officer Sanford entered the trailer in hot pursuit of the defendant, and subsequently saw the drugs contained in the shoe box after the defendant threw the box, causing its contents to spill out in plain view. See State v. White, 399 So. 2d 172, 175 (La. 1981) ("[t]he police may seize any evidence that is in plain view during the course of their legitimate emergency activities.").
This assignment of error is without merit.
CONVICTION AND SENTENCE ON COUNT I AFFIRMED.