Opinion
2012 KA 1846
2013-09-13
STATE OF LOUISIANA v. DARRYL PAUL SYLVESTER
Joseph Waitz, District Attorney Ellen Daigle Doskey, Asst. D.A. J. Christopher Erny, Asst. D.A. Houma, LA Attorneys for Appellee State of Louisiana Bertha M. Hillman Louisiana Appellate Project Thibodaux, LA Attorney for Appellant Defendant - Darryl Paul Sylvester
NOT DESIGNATED FOR PUBLICATION
Appealed from the
32nd Judicial District Court
In and for the Parish of Terrebonne, Louisiana
Trial Court Number 601,199
Honorable Randall L. Bethancourt, Judge
Joseph Waitz, District Attorney
Ellen Daigle Doskey, Asst. D.A.
J. Christopher Erny, Asst. D.A.
Houma, LA
Attorneys for Appellee
State of Louisiana
Bertha M. Hillman
Louisiana Appellate Project
Thibodaux, LA
Attorney for Appellant
Defendant - Darryl Paul Sylvester
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WELCH, J.
The defendant, Darryl Paul Sylvester, was charged by bill of information with possession with intent to distribute marijuana, a violation of La. R.S. 40:966(A)(1). The defendant entered a plea of not guilty. The trial court denied the defendant's motion to suppress evidence, and after a trial by jury, he was found guilty as charged. The trial court adjudicated the defendant a third-felony habitual offender and sentenced him to twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence. The trial court denied the defendant's motion to reconsider sentence. The defendant now appeals, raising one assignment of error challenging the trial court's denial of his motion to suppress. For the following reasons, we affirm the conviction, habitual offender adjudication, and sentence.
The defendant was charged and tried along with Murlin Anthony James, herein referred to as codefendant. While the defendant herein was found guilty as charged, the codefendant was found guilty of the responsive offense of attempted possession with intent to distribute marijuana. The codefendant also filed an appeal with this court in State v. James, 2012-1845 (La. App. 1st Cir. ___), ___ So.3d ___, challenging the admissibility of lay and expert testimony and the trial court's ruling on his motion to sever.
The defendant's habitual offender adjudication is based on 2007 guilty pleas to possession with intent to distribute marijuana and possession with intent to distribute ecstasy, and a 2004 guilty plea to possession of cocaine.
STATEMENT OF FACTS
In early 2010, the Terrebonne Parish Sheriff's Office started an operation called "Nickel and Dime," targeting street-level drug dealers in the parish. As a part of the operation, police officers conducted controlled buys involving the purchase of marijuana from the defendant. As a result of an alleged controlled buy of marijuana from the defendant on January 21, 2011, a warrant was issued for the defendant's arrest for distribution of marijuana.
On the night of the instant offense, March 4, 2011, Agents Russell Madere and Dallas Bookenberger of the narcotics division of the Terrebonne Parish Sheriff's Office were conducting street-level drug enforcement and criminal activity patrol at the perimeter of a parade route in Houma. As they approached the 500 block of Eliza Street between 8:00 and 9:00 p.m. in an unmarked police car, they observed two black male subjects, whom they recognized as the defendant and the codefendant, standing in the street next to a vehicle, which was parked to the right of the officers with the passenger side against the curb. The officers, who were travelling with their windows down, smelled marijuana in the area.
The officers observed the defendant and the codefendant as they stood in the street by the driver's door of the sedan. As the officers approached and activated the unit's blue lights, the subjects disbursed. Specifically, the defendant walked over to the passenger side of the vehicle while the codefendant went to the driver's side. Agent Madere exited his unit and made contact with the codefendant. He noted that the codefendant was nervous, tense, broke eye contact, and turned towards the rear of the unit and began to slowly walk away. Agent Bookenberger addressed the defendant by use of his street name "Dee" and the defendant placed his hands in his pockets and began to run away. Agent Bookenberger pursued the defendant in a foot chase and summoned Agent Madere's assistance as the defendant jumped over two fences, falling after each jump. When the defendant fell as he flipped over the second fence, he stood up in an aggressive manner, and Agent Madere was ultimately able to use his taser to subdue him. As the defendant continued to struggle and resist, Agent Bookenberger used his taser and was then able to handcuff the defendant. At that point, Agents Joseph Renfro and Jeff Lirette of the Houma Police Department, members of the Terrebonne Parish Narcotics Task Force, arrived at the scene. Agent Madere pointed out the codefendant and instructed the officers to detain him. As Agent Lirette grabbed the codefendant, he observed a suspected marijuana blunt behind the codefendant's right ear. During a pat-down search, fifteen baggies of marijuana from the defendant's lower right leg pants pocket were recovered.
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant contends that the trial court erred in denying his motion to suppress. He claims that at a hearing on March 5, 2011, the district judge found that there was no probable cause for his arrest. The defendant further notes that the police did not arrest him based on his outstanding arrest warrants because they did not want to compromise their ongoing operation targeting drug dealers. The defendant argues that there is no evidence that he was doing anything more than exiting a vehicle before the police executed a custodial arrest by chasing, tasering, and handcuffing him. The defendant further argues that the fact that the codefendant had a suspected marijuana blunt behind his ear has no bearing on whether there was probable cause to arrest the defendant. The defendant notes that it is not unusual to smell marijuana in a high crime area and that there was no evidence to indicate that he had smoked marijuana. The defendant argues that the police officers' conduct in this case was based on the fact that they were familiar with the defendant because of the "Nickel and Dime" operation and merely had a hunch that he might be in possession of marijuana. The defendant concludes that his arrest was illegal and that the marijuana seized as a result of the arrest should have been suppressed.
The record reflects that on March 5, 2011, a district judge found that there was no probable cause to support the defendant's arrest for obstruction of public passage; however, the district judge found that there was probable cause to support the defendant's arrest for possession with intent to distribute marijuana.
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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). 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. C.Cr.P. art. 703(D); State v. Warren, 2005-2248 (La. 2/22/07), 949 So.2d 1215, 1226. La. C.Cr.P. art. 215.1 permits a law enforcement officer to stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense. If the officer reasonably suspects that he is in danger, he may frisk the outer clothing of the person for a dangerous weapon. If the officer reasonably suspects the person possesses a dangerous weapon, he may search the person. Article 215.1 is in accordance with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
In State v. Fisher, 97-1133 (La. 9/9/98), 720 So.2d 1179, 1182-83, the Louisiana 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. 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.
The second tier consists of brief seizures of a person, under Terry v. Ohio, 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). In making a brief investigatory stop on less than probable cause to arrest, the police must have a particularized and objective basis for suspecting the person stopped of criminal activity. The police must therefore articulate something more than an inchoate and unparticularized suspicion or hunch. State v. Huntley, 97-0965 (La. 3/13/98), 708 So.2d 1048, 1049 (per curiam). Because the police conducting an investigatory stop may not seek to verify their suspicions by means that approach the conditions of arrest, the use of handcuffs must appear objectively reasonable in light of the facts and circumstances confronting the police. Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983); State v. Porche, 2006-0312 (La. 11/29/06), 943 So.2d 335, 339 (per curiam). Police officers may seize contraband detected through "plain feel" during a Terry stop when the object's "contour or mass makes its identity immediately apparent." Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993).
The third tier is custodial arrest where an officer needs probable cause to believe that the person has committed a crime. State v. Hamilton, 36 So.3d at 212. 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. State v. Caples, 2005-2517 (La. App. 1st Cir. 6/9/06), 938 So.2d 147, 154, writ denied, 2006-2466 (La. 4/27/07), 955 So.2d 684. Probable cause exists when the facts and circumstances known to the arresting officer, and of which he has reasonable and trustworthy information, are sufficient to justify a man of ordinary caution in the belief that the accused has committed an offense. State v. Parker, 2006-0053 (La. 6/16/06), 931 So.2d 353, 355 (per curiam); State v. Ceaser, 2002-3021 (La. 10/21/03), 859 So.2d 639, 644. After making an arrest, an officer has the right to much more thoroughly search a defendant and his wing span, or lunge space, for weapons or evidence incident to a valid arrest. State v. Warren, 949 So.2d at 1226. Searches incident to arrest conducted immediately before formal arrest are valid if probable cause to arrest existed prior to the search. State v. Surtain, 2009-1835 (La. 3/16/10), 31 So.3d 1037, 1046.
A trial court's ruling on a motion to suppress the evidence is entitled to great weight because the court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jones, 2001-0908 (La. App. 1st Cir. 11/8/02), 835 So.2d 703, 706, writ denied, 2002-2989 (La. 4/21/03), 841 So.2d 791. Correspondingly, 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,t 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. When reviewing a trial court's ruling on a motion to suppress, the entire record may be considered. State v. Martin, 595 So.2d 592, 596 (La. 1992).
In evaluating alleged violations of the Fourth Amendment, reviewing courts must undertake an objective assessment of an officer's action in light of the facts and circumstances then known to the officer. State v. Cooper, 2005-2070 (La. App. 1st Cir. 5/5/06), 935 So.2d 194, 198, writ denied, 2006-1314 (La. 11/22/06), 942 So.2d 554. "[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). While flight, nervousness, or a startled response to the sight of a police officer is, of itself, insufficient to justify an investigatory stop, it nevertheless may be highly suspicious and may be considered along with other facts and circumstances in the reasonable suspicion inquiry. State v. Belton, 441 So.2d at 1198.
Agent Madere testified that the area where the instant detention took place was considered to be a high drug-crime area and that since he had been assigned to the narcotics division, the majority of the cases were concentrated in that area. After Agent Bookenberger addressed the defendant by his street name, the defendant placed his hands in his pockets and began to run away. The defendant ignored verbal commands to stop running. Agent Madere testified that after the defendant flipped over the second fence, the defendant stood up and faced him in an aggressive manner, and Agent Madere deployed his taser. The taser made contact, but quickly became detached, and Agent Bookenberger "dry stunned" the defendant from behind. The officers brought the defendant to the ground, at which point the defendant continued to resist by flailing his arms. The officers eventually maintained control of the defendant's hands and secured him in handcuffs.
When Agents Lirette and Renfroe arrived at the scene, they saw Agent Madere's vehicle parked in the middle of the street, unoccupied, with the passenger door ajar. Agent Lirette observed Agents Madere and Bookenberger with a suspect to the left-hand side of the street. Agents Lirette and Renfroe were instructed by Agent Madere to detain another male subject who was walking up the street. Agent Lirette detained the codefendant and observed a marijuana blunt in his right ear. Agent Lirette handcuffed the codefendant and walked him over to Agents Madere and Bookenberger.
After securing the defendant in handcuffs, Agent Madere conducted a pat-down search for weapons. During the weapons search, Agent Madere felt a large bulge or lump as he patted the defendant's pants pocket. Agent Madere noted his history of recovering multiple bags of drugs during past narcotics investigations and indicated that the lump in the defendant's pocket felt consistent with such a recovery. He stated that he believed it was marijuana because of the defendant's history, but was unsure. Agent Madere removed the suspected marijuana from the defendant's pants pocket leg and effected an arrest.
Along with the suspected marijuana blunt, over three hundred dollars was recovered during the pat-down search of the codefendant. Subsequently, suspected marijuana residue embedded in the carpet in plain view on the floorboard of the vehicle the defendant and the codefendant had been standing next to was observed and photographed.
During cross-examination, Agent Madere initially indicated that he approached the defendant to execute the outstanding, active warrant for his arrest, but stated that he did not execute the warrant that night. Agent Bookenberger stated that all of the warrants obtained for several subjects during the "Nickel and Dime" operation were held until they were executed that summer during a roundup. The execution of the arrest warrants was delayed because the officers did not want to compromise their ongoing investigation.
Naomi James, the codefendant's mother, also testified at the motion to suppress hearing. James, who lived on Eliza Street and was home on the day in question, observed the police as they approached. She testified that her son had just stepped out of the house and had not been with the defendant near a vehicle before being approached by the officers. According to James, the codefendant was walking in the middle of the street when the officers spoke to him. The defense also admitted into evidence the district judge's March 5 determination of a lack of probable cause for the defendant's arrest. The record reflects that the district judge found that there was no probable cause to support the defendant's arrest for obstruction of public passage, but that there was probable cause to support the defendant's arrest for possession with intent to distribute marijuana. Additionally, the defense stipulated that the defendant had been arrested in jail on July 27th and was booked on the charges set forth in the prior warrant that had been issued for his arrest, just as the other individuals involved in the July 27th roundup had been.
We note that pertinent trial testimony regarding the issues raised by the defendant in challenging the rulings on the motions to suppress was wholly consistent with the testimony presented during the hearing on the motion to suppress. We agree with the trial court's conclusion that the officers' detention of the defendant was justified by their observations. The agents were fully aware of the fact that the defendant had an outstanding distribution of marijuana arrest warrant, whether they intended to execute the warrant at that point or not. The agents smelled marijuana in the area and they were familiar with the area as a high drug-trafficking location. The codefendant began acting suspiciously and appeared to be nervous as soon as he became aware of the agents' presence. The agents had every right to approach the defendant, to which he responded by placing his hands in his pockets as he immediately took flight. The factors clearly indicate reasonable suspicion for an investigatory stop and a Terry pat down. Accordingly, the seizure of the marijuana was warranted under the plain feel exception to the warrant requirement. Moreover, even considering the moment the defendant was handcuffed as the moment the arrest was effected, the above noted circumstances were sufficient to establish probable cause for the defendant's arrest by that point. Thus, the officers had the right to search the defendant's person incident to his arrest. Considering the above, we find that the trial court did not err or abuse its discretion in denying the motion to suppress.
For the foregoing reasons, the defendant's conviction, sentence, and habitual offender adjudication are affirmed.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.