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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #020 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 16th day of March, 2010, are as follows:

BY CLARK, J.: 2009-KK-1835 STATE OF LOUISIANA v. GRAYLIN SURTAIN (Parish of Orleans) Kimball, C. J., did not participate in the deliberation of this opinion. For the foregoing reasons, the ruling of the district court granting the defendant's motion to suppress, and the affirmation of that ruling by the court of appeal, is reversed. The motion to suppress is denied and this matter is remanded to the district court for further proceedings consistent with this opinion. REVERSED AND REMANDED. JOHNSON, J., dissents.

3/16/2010 SUPREME COURT OF LOUISIANA
NO. 2009-KK-1835 STATE OF LOUISIANA v. GRAYLIN SURTAIN ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS CLARK, Justice1 The issue is whether the district court erred in suppressing crack cocaine and heroin seized from the back pocket of the defendant, Graylin Surtain.2 Finding that the district court and the court of appeal were improperly constrained in their analysis of the facts by the officers' characterization of the search, we reverse the lower courts' suppression of the evidence and remand for further proceedings. FACTS and PROCEDURAL HISTORY On May 31, 2007, the New Orleans Police Department operated a two-man surveillance team in the 1300 block of Bienville Street in New Orleans. The police

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Kimball, C.J., did not participate in the deliberation of this opinion. The defendant's given name is sometimes referred to in the record as "Grayland." 1

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surveillance of this area was prompted by recent shootings in that location. Officer Davillier, in plain clothes, sat in an unmarked patrol unit, observing the area. Officer Pratt, in a marked police vehicle, was located a block away. From his surveillance position, Officer Davillier observed the defendant, Graylin Surtain, or, "Lavender," as he was known to the officer at that time, standing in front of an abandoned apartment building at 1306 Bienville Street. Officer Davillier saw an individual approach the defendant and give to him an unknown amount of U.S. currency. In response, the defendant opened a clear plastic bag he was holding, reached inside, and extracted a small object that the defendant held between his index finger and his thumb. The defendant then placed the small object into the hand of the person who had given him money. Based on his five and a half years of experience as a police officer, nearly all of which was served as a narcotics officer, Officer Davillier believed he had just observed a hand-to-hand narcotics transaction. Officer Davillier then contacted Officer Pratt, informing his surveillance partner of what he had observed and giving Officer Pratt a physical description of the defendant and the clothing the defendant was wearing. As Officer Pratt approached the area in his marked police unit, Officer Davillier saw the defendant, now sitting on the steps of the abandoned apartment building, become aware of the police unit. The
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officer observed the defendant immediately close the clear plastic bag with a twisting motion and place the bag into his rear right pocket. As Officer Pratt exited his vehicle, Officer Davillier left his surveillance location to help Officer Pratt. Officer Davillier heard his partner instruct the defendant to join him at the front of his police vehicle. After the defendant complied with this request, Officer Davillier saw Officer Pratt reach into the defendant's rear pocket and remove the clear plastic bag. Officer Pratt described the abandoned apartment building, where the defendant was sitting when he drove up, as one of the police department's "hot spots." As he approached the defendant, Officer Pratt could see that the clear plastic bag which the defendant was wrapping contained a white substance. At that point, Officer Pratt believed, without a doubt, that the substance inside the bag was an illegal narcotic. In addition, Officer Pratt saw the defendant wrapping the bag in a way that he knew to be consistent with narcotic sales. Upon his approach, Officer Pratt saw the defendant immediately place the wrapped up bag into his right rear pocket. Officer Pratt advised the defendant that he was under investigation for illegal drug transactions, informed the defendant of his constitutional rights, and conducted a brief pat down search. When Officer Pratt felt the lump in the defendant's right rear pocket, he immediately recognized the lump to be the same bag he had just seen the defendant holding. Officer Pratt removed the bag from the defendant's pocket and
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saw the same white rock-like substance he had seen before the bag was pocketed, as well as shiny aluminum foils which proved to contain a brown powder substance. At that point, Officer Pratt placed the defendant under arrest and again informed him of his constitutional rights. Inside the clear plastic bag removed from the defendant's back pocket were several pieces of what appeared to be crack cocaine and ten foils suspected to contain heroin. Field tests of the substances were positive for crack cocaine and heroin. After he conducted a more extensive search of the defendant, Officer Pratt retrieved $191 cash in small denominations, stacked in a manner the officer found consistent with narcotics dealing. The state charged the defendant in a two-count bill of information with possession with intent to distribute heroin and cocaine. Prior to trial, the defense filed a motion to suppress the drug evidence seized from the defendant.3 A hearing was held on the defendant's suppression motion, at which the testimony of the two officers was adduced. In addition to describing the circumstances of the surveillance and arrest, Officer Davillier testified that the defendant was not under arrest at the time Officer

The defense also filed a motion for a determination of whether there was probable cause for the arrest. 4

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Pratt reached into his pocket and retrieved the bag containing the drugs. According to Officer Davillier, the basis for the stop that Officer Pratt conducted was only to confirm that what the defendant was holding was illegal narcotics. Officer Pratt agreed, and testified that, based on the information conveyed by his partner, and his own observation of the defendant, he initially approached the defendant to conduct an investigatory stop, not an arrest. Officer Pratt testified that the defendant was not under arrest until after he removed the bag from the defendant's pocket and confirmed that the defendant was carrying crack cocaine and heroin. Officer Pratt stated that he Mirandized the defendant prior to his search only in an abundance of caution and not in response to an arrest. Although he later referred to officer safety, Officer Pratt explained his removal of the bag from the defendant's pocket was based on his knowledge that the defendant had narcotics in his pocket. Defense counsel, in support of his motion to suppress the cocaine and heroin seized from the defendant, argued that Officer Pratt crossed the line between conducting a pat down search for weapons of the defendant, consistent with an investigatory stop, and a search incident to arrest, based upon probable cause . The defense contended that, if Officer Pratt had actually seen cocaine in the defendant's bag, and had recognized it as such, the officer would have immediately arrested the
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defendant. Instead, the officer informed the defendant he was conducting an investigation and reached into the defendant's pocket, which the defense contended was without legal justification. Defense counsel pointed out that Officer Pratt had not testified that he was fearful the defendant carried a weapon, nor was the point legitimately offered that officer safety was the basis for the search. The defense asserted that the officer's suspicion that the defendant may have been carrying drugs was not enough to justify removing an object from the defendant's pocket, although conceding that such a search would have been reasonable as a search incident to arrest, had there been probable cause to arrest. Agreeing with the defense's reasoning, the district judge granted the motion to suppress.4 The district judge held that, in the absence of a legitimate fear for officer safety, the police could not conduct a pat down for contraband, even when the officer believed he had seen what he believed to be drugs in the defendant's possession. The district judge specifically stated she found the officers to be credible, but held the police exceeded their authority with the search.5 In a 2-1 decision, the court of appeal denied the state's writ, affirming the

In addition to granting the defendant's suppression motion, the district judge found no probable cause for the arrest.
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The district judge stated: "I believe everything he said. Unfortunately, he jumped the gun." 6

suppression of the evidence.6 The appellate majority determined that a police officer must fear for his safety or believe that a suspect is armed in order to frisk a suspect during an investigatory stop. Because Officer Pratt did not testify that he was afraid or that he thought the defendant was armed, and did not provide testimony that the bulge he detected in the defendant's pocket felt like an object whose contour and mass made its identity immediately apparent, the court of appeal majority found the trial court correctly granted the motion to suppress. The dissenting judge believed that a consideration of the totality of the circumstances provided the officers with reasonable suspicion sufficient to justify an investigatory stop, frisk and search of the defendant. We granted the state's writ application to review the correctness of the suppression of the drug evidence,7 and for the following reasons, reverse the rulings of the lower courts. LAW AND DISCUSSION Both the United States and Louisiana Constitutions prohibit unreasonable searches and seizures, and a warrant based upon probable cause is normally required for such a search to be conducted. State v. Warren, 2005-2248 p. 8 (La. 2/22/07),

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State v. Surtain, 2009-0497 (La. App. 4 Cir. 7/8/09) (unpublished). State v. Surtain, 2009-1835 (La. 11/20/09), __So.3d__. 7

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949 So.2d 1215, 1223. The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. Amend. IV. Similarly, the Louisiana Constitution protects a citizen's right to privacy: Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court. La. Const. Art. 1,

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