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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 18 FROM: CLERK OF THE SUPREME COURT OF LOUISIANA

The Opinions handed down on the 4th day of April, 2006 , are as follows:

BY KNOLL, J. :

2005-K -0779

STATE OF LOUISIANA v. DANNY RAY SHERMAN (Parish of Rapides) (Possession of a Schedule II Controlled Dangerous Substance With Intent to Distribute) The judgment of the court of appeal is reversed and the judgment of thetrial court is reinstated. This case is remanded to the trial court for further proceedings consistent with the views expressed in this opinion. REVERSED. JOHNSON, J., dissent.

04/04/2006 SUPREME COURT OF LOUISIANA NO. 05-K-0779 STATE OF LOUISIANA VERSUS DANNY RAY SHERMAN ON WRIT OF CERTIORARI TO THE COURT OF APPEAL THIRD CIRCUIT, PARISH OF RAPIDES

KNOLL, Justice This criminal case concerns the reasonableness, vel non, of a warrantless search where probable cause to arrest existed, but the officers had no intent to arrest for the offense for which probable cause existed. After a hearing on defendant's motion to suppress, the trial court denied the motion, finding there was probable cause to arrest the defendant for obstructing a public passage and for operating a motor vehicle without a driver's license, and the search was valid as one incidental to arrest. The court of appeal reversed his conviction, holding, inter alia, that there was no probable cause to arrest the defendant for either of these violations and any evidence found subject to a search based on the fact that the defendant did not possess a valid driver's license should have been suppressed. For the following reasons we reverse the court of appeal, finding that when defendant stated he did not have a driver's license the officers acquired probable cause to make a custodial arrest for that traffic violation. We hold the warrantless search of the defendant fell within the well established exception for a search incidental to arrest even though the defendant was not arrested for the offense for which probable cause existed.

FACTS AND PROCEDURAL HISTORY On November 13, 2002, Alexandria Police Department Detective Alton Horn, Officer Lane Windham, Sergeant Newmon Bobb and a U.S. Marshall, pursuant to complaints about drug dealing in the area, launched a narcotics interdiction patrol on Lincoln Road in Alexandria. As the officers turned onto Lincoln Road, they observed the defendant standing in the opposite lane of travel adjacent to his motorcycle which was parked, at least partially, on the unimproved gravel shoulder no more than 18 inches wide. The defendant was talking on his cell phone. Whether the defendant and/or his motorcycle was obstructing the lane of travel was disputed at the hearing on defendant's motion to suppress. Detectives Horn and Windham exited their vehicle, approached the defendant and asked what he was doing. Defendant told them his motorcycle had run out of gas. Detective Horn asked defendant if he had a driver's license and defendant said he did not. Detective Horn then searched the defendant. Detective Horn reached inside the defendant's pocket and removed a ten dollar bill and a bag containing several rocks of crack cocaine. The officers immediately arrested the defendant for possession of a Schedule II controlled dangerous substance with intent to distribute. The State charged the defendant with possession of a Schedule II controlled dangerous substance with intent to distribute in violation of La. Rev. Stat. 40:967. The defendant moved to suppress the evidence, contending he was subjected to a Terry stop and the subsequent search of his pocket exceeded an authorized search for weapons. The State countered the search of the defendant's pocket was authorized as a search incident to warrantless arrest, because there was probable cause to arrest the defendant for his failure to have a valid driver's license and for obstructing the roadway in violation of La. Rev. Stat. 14:100.1.

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At the hearing on the motion to suppress, Detective Horn testified that he observed the defendant standing in the middle of the street impeding the normal flow of traffic. He further testified the defendant's motorcycle was not parked directly in the roadway but on the road, in between the street and the unimproved gravel shoulder. In response to questioning by Detective Horn, the defendant explained that he had been riding his motorcycle and it had run out of gas. When Detective Horn asked the defendant if he had a driver's license, the defendant answered no. When asked on cross-examination whether the defendant said he did not have a driver's license or rather that he did not have his driver's license on his person, Detective Horn testified the defendant stated he did not have one. The police officers made no attempt to determine whether the defendant had been issued a valid driver's license. Narcotics investigator Officer Lane Windham testified he saw the defendant standing in the roadway and that an automobile traveling in the normal lane of traffic would have to either stop or go around him in order to proceed in that direction. He did not recall any vehicles being on the road as the officers approached the defendant in their vehicle. Officer Windham stated that although the defendant was not obstructing his lane of travel, the defendant was obstructing the other lane of travel. Detective Newmon Bobb was the head detective in the vehicle. At the hearing he testified that the defendant was standing in the road by a motorcycle parked on the street and that a vehicle traveling north would have had to go in the opposite lane of travel to get around the defendant. He further testified that the gravel shoulder was a very narrow one and in order to stand beside the motorcycle one would have to be either in the road or in the ditch. Ms. Wanda Reed and Ms. Frances Price also testified at the hearing. The incident and arrest occurred in front of Ms. Reed's home at 5009 Lincoln Road. The

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defendant had initially knocked on Ms. Reed's door, inquiring if Richard was there. When told Richard was not there, the defendant asked if Ms. Reed had a gas can. She told him she did not and the defendant then walked away. Ms. Reed testified the motorcycle was completely off the road and that the defendant was not standing in the street. However, Ms. Reed observed the motorcycle from her doorway; she did not go out to the street. After her short conversation with the defendant she turned around and went back inside. She did not go back to her doorway until her nephew told her the police were outside; she did not know where the defendant was standing after she returned inside. Ms. Price was visiting her sister, Wanda Reed, at Ms. Reed's home that day. Ms. Price went with her sister to the door when the defendant knocked. Ms. Price lingered at the door for a few seconds after her sister went back inside. She testified that neither the defendant nor his motorcycle was obstructing the roadway. However, she also could not say where the defendant was standing after she returned inside. The trial court denied the motion to suppress, finding that there was probable cause to arrest the defendant for obstructing a public street and for operating a motor vehicle without a driver's license. The trial court did express that it wished the officers had checked to see if defendant had a driver's license, just not on his person at the time, and checked to see if there was gasoline in the motorcycle. However, the district court judge acknowledged that although the officers did not do what he would have done, that does not mean the stop was invalid. Subsequently a jury trial was held and the defendant was convicted of possession of a Schedule II controlled dangerous substance with intent to distribute. The defendant appealed his conviction, contending the trial court erred in denying his motion to suppress. The court of appeal panel, in a split decision, found the trial

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court erred in denying the motion to suppress and vacated the defendant's conviction and sentence. The court of appeal, reviewing the trial court's ruling on the motion to suppress, reviewed the testimony associated with the motion to suppress and the trial testimony. The panel first considered whether the contraband was discovered pursuant to a permissible frisk of the outer clothing, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), or the plain feel exception, Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130 (1993), and held these exceptions did not apply. The panel then considered the State's argument the search was incident to arrest and that there was probable cause to arrest for obstruction of public passage and driving without a license. The majority held there was no probable cause to arrest the defendant for violation of La. Rev. Stat. 14:100.1, obstruction of public passage. The majority noted the testimony of the officers was unclear as to where the defendant was standing when they first saw him. The majority further found it clear the defendant was not obstructing the traffic lane the officers were in; that at some later time the officers began to focus on where the motorcycle was parked; that none of the officers could say exactly where the motorcycle was parked in relation to the obstruction allegation, because they placed the motorcycle in different places at the hearing and the trial; and the officers could not agree on where the defendant was standing when they first saw him. According to the panel majority, the testimony of the police officers did not meet the burden required of an objectively reasonable basis for stopping the defendant for obstructing the roadway. Lastly, the panel considered the issue of whether the officer could arrest the defendant for failing to produce a driver's license. The majority reviewed the facts

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in light of La. Rev. Stat. 32:411.1 C(1) and (2) and La. Code Crim. Pro. art. 211.4, and held the officers failed to follow the proper procedure to affect a valid arrest under these statutes, because they made no attempt to determine whether the defendant had been issued a valid license which was not under revocation, suspension or cancellation. It held a custodial arrest under La. Rev. Stat. 32:411.1C1 and La. Code Crim. Pro. art. 211.4A2 is statutorily prohibited if the officer fails to make every practical attempt based on identifying information provided by the person to confirm that the person has been issued a valid driver's license which is neither under revocation, suspension or cancellation. We granted the State's writ application, State v. Sherman, 05-0779 (La. 11/29/05), 916 So.2d 151, and for the following reasons, reverse the court of appeal. DISCUSSION The first issue before us is whether probable cause to arrest the defendant existed. We find the court of appeal erred by its determination that probable cause to arrest for operating a motor vehicle without a driver's license was governed by La.

La. Rev. Stat. 32:411.1C provides: (1) When an officer or agent of the department or any police officer of the state, or any parish or municipality has reasonable grounds to believe a person has committed an offense of driving without a valid driver's license in his possession, the police officer shall make every practical attempt based on identifying information provided by the person to confirm that the person has been issued a valid driver's license. If the police officer determines that the person has been issued a valid driver's license which is neither under revocation, suspension, or cancellation, but that the license is not in his possession, the peace officer shall issue a written summons to the offender in accordance with law, commanding him to appear and answer the charge. (2) The provisions of this Subsection shall in no way limit the peace officer from issuing a citation for operating a motor vehicle without physical possession of a valid driver's license. La. Code Crim. Pro. art. 211.4A provides: When a peace officer has reasonable grounds to believe a person has committed an offense of driving without a valid driver's license in his possession, the police officer shall make every practical attempt based on identifying information provided by the person to confirm that the person has been issued a valid driver's license. If the police officer determines that the person has been issued a valid driver's license which is neither under revocation, suspension, or cancellation, but that the license is not in his possession, the peace officer shall issue a written summons to the offender in accordance with law, commanding him to appear and answer the charge.
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Rev. Stat. 32:411.1C and La. Code Crim. Pro. art. 211.4. The issue was not whether the defendant could be arrested for driving without a valid driver's license on his person. Rather, the issue was whether the officers had probable cause to arrest the defendant for driving without having been issued a license, in violation of La. Rev. Stat. 32:402. The officers did not need either reasonable suspicion for an investigatory stop or probable cause for an arrest to approach the defendant, inquire why he was parked at the side of the road, and ask for some identification. Mere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention. State v. Fisher, 97-1133, pp. 4-5 (La. 9/9/98), 720 So.2d 1179, 1183, (citing United States v. Watson, 953 F.2d 895, 897 n.1 (5th Cir. 1992), cert. denied, 504 U.S. 928, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992)). An officer's request for identification does not turn the encounter into a forcible detention unless the request is accompanied by an unmistakable show of official authority indicating to the person that he or she is not free to leave. I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); State v. Lewis, 2000-3136, p. 3 (La. 4/26/02), 815 So.2d 818, 820, cert. denied, 537 U.S. 922, 123 S.Ct. 312, 154 L.Ed.2d 211 (2002). In response to Officer Horn's question, the defendant stated he did not have a driver's license. He did not declare that he had a license but not on his person at the time. When the defendant stated he did not have a driver's license, the officers acquired probable cause to make a custodial arrest for that traffic violation. Louisiana law declares it unlawful for any person to drive a motor vehicle on any public street unless he has a driver's license. See La. Rev. Stat. 32:402B(1). Our law requires that an operator of a motorcycle possess a valid driver's license with a special motorcycle endorsement. See La. Rev. Stat. 32:408C. The court of appeal's reliance on La. Rev.

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Stat. 32:411.1C and La. Code Crim. Pro. art. 211.4 is misplaced, because those statutes clearly address situations in which the officer has "reasonable grounds to believe a person has committed an offense of driving without a valid driver's license in his possession." The officers had no duty to determine whether the defendant had a valid driver's license when he told them he did not have one. Therefore the officers had probable cause to arrest the defendant for the offense of driving without a license.3 The more pertinent issue before us is whether the warrantless search of the defendant fell within the exception for a search incident to arrest, where the defendant was not arrested for the offense for which probable cause existed. It is well established that a search incident to a lawful custodial arrest is a limited exception to the constitutional prohibition of warrantless searches. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed. 2d 427 (1973); State v. Breaux, 329 So.2d 696, 699 (La. 1976). It is axiomatic that an incident search may not precede an arrest and serve as part of its justification. Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed. 2d 917 (1968). Where probable cause does not exist until after the search, the search cannot be justified as incident to a lawful arrest. Id. at 62-63, 88 S.Ct. at 1902-1903. However, when probable cause to arrest does exist and "the formal arrest followed quickly on the heels of the challenged search of petitioner's person," the United States Supreme Court has not found it "particularly important that the search preceded the arrest rather than vice versa." Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980). Naturally, the fruits of the search

Having determined there was probable cause to arrest the defendant for the offense of driving without a license, we pretermit review of whether or not the trial court erred in finding there was probable cause to arrest the defendant for obstructing a public passage. 8

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cannot be necessary to support the probable cause to arrest. Id. at 111 n.6. If an arrest is justified before the search, it is not unreasonable for the search to be made before instead of after the arrest. State v. Melton, 412 So.2d 1065, 1068 (La. 1982). It is well established searches incident to arrest conducted immediately before formal arrest are valid if probable cause to arrest existed prior to the search.4 The search-before-arrest cases generally assume that a "substantially contemporaneous" arrest is essential, and thus cannot be readily extended to encompass the situation in which no arrest occurs. 3 Wayne R. LaFave, Search and Seizure

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