Preview:

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE FROM: CLERK OF SUPREME COURT OF LOUISIANA NEWS RELEASE #039

The Opinions handed down on the 2nd day of July, 2012, are as follows:

PER CURIAM: 2011-K -2238 STATE OF LOUISIANA v. RICKY CURE (Parish of Orleans) (Possession of Heroin) Accordingly, the decision below is reversed, defendant's conviction and sentence are reinstated, and this case is remanded to the district court for purposes of execution of sentence.

07/02/12

SUPREME COURT OF LOUISIANA NO. 11-K-2238

STATE OF LOUISIANA VERSUS RICKY CURE On Writ of Certiorari to the Court of Appeal Fourth Circuit, Parish of Orleans PER CURIAM: The state charged defendant by bill of information with possession of heroin in violation of La.R.S. 40:966. After the trial court denied his motion to suppress the evidence, defendant entered a plea of guilty as charged, reserving his right to seek review of the trial court's adverse ruling on the suppression issue. State v. Crosby, 338 So.2d 584 (La. 1976). The trial court sentenced him to four years imprisonment at hard labor, suspended, with four years of active probation. On appeal, the Fourth Circuit reversed defendant's conviction and sentence on grounds that the trial court erred in denying the motion to suppress. State v. Cure, 11-0109 (La. App. 4th Cir. 10/05/11), ___ So.3d ___ (McKay, J., dissenting without reasons). We granted the state's application to review the decision below and reverse for reasons that follow. The testimony of Detective Andrew Roccaforte, an experienced narcotics officer in the New Orleans Police Department and the only witness to appear at the hearing on the motion to suppress, established the following. On March 5, 2011, Roccaforte conducted an undercover surveillance in the parking lot of a gas station and fried chicken restaurant on Crowder Boulevard in New Orleans. He was in

plain clothes and driving an unmarked car. The officer had become familiar with the area from numerous prior narcotics investigations in which he had observed "a lot of drug meets between drug dealers and drug users that take place in the parking lot, drug usage that takes place, as well, in the parking lot. . . ." At approximately 3:30 p.m., a gray Toyota Camry, driven by Christopher Dauth, pulled into the spot next to Roccaforte in the parking lot. Defendant sat next to Dauth in the front passenger seat. The two men did not immediately exit the vehicle but seemed preoccupied with something in their laps, as they were looking downward. Shortly thereafter, defendant exited the car carrying in his hand an empty transparent plastic cup and went into the restaurant. He emerged moments later still carrying the cup, now filled with steaming water, and walked back to the Camry parked next to the officer. Roccaforte testified defendant's conduct immediately raised his suspicion because he knew that heroin users need water to help liquefy the heroin. His

suspicions intensified after defendant got back in the car and noticed the officer looking at him. At that point, defendant "got a little nervous" and the driver of the Camry relocated the car to a parking spot on the opposite side of the lot. Roccaforte concluded the men were there to use narcotics and contacted Detective Christy Bagneris, who was in the area driving an unmarked vehicle. When

Bagneris arrived on the scene she parked next to the Camry on the driver's side. Bagneris also observed the driver and defendant looking down at something in their laps, but she could not see what held their attention. Bagneris walked over to the driver's side of the Camry, instructed Dauth to exit the Camry and for both men to place their hands up on the vehicle. She then opened the driver's door of the car and observed that Dauth had on his lap a blue notebook with a tan powder scattered on top. Bagneris ordered Dauth to put the notebook down and then to 2

step out of the vehicle. At the same time, Detective Roccaforte, who had driven across the lot and parked on the other side of the Camry, approached the vehicle on the passenger side. He observed that defendant had complied with Bagneris's order by placing his hands on the dashboard of the car. However, defendant had his right hand clenched. Roccaforte ordered him to open his hand and when defendant complied, he placed two clear plastic bags containing tan powder on the dashboard. Roccaforte removed defendant from the car, secured him in handcuffs, and placed both men under arrest. In the car, the detectives found a partially cut can with burn marks on it, which Roccaforte explained was commonly used to "cook up" heroin. They also found a liquid filled syringe and a needle. The field test on the tan power was positive for heroin. At the close of the hearing, the trial court denied defendant's motion to suppress. The court observed that "[i]f the officer is walking up to the car and they're in the vehicle, he can certainly ask them to put their hands out where they can see them. . . . so when the defendant opened his hand it revealed the drugs that the officer suspected may have been going on in the vehicle from the beginning." Although it disagreed with the lower court's analysis, the Fourth Circuit panel acknowledged Det. Roccaforte had reasonable suspicion to conduct an investigatory stop of the vehicle and its occupants. Cure, 11-0109 at 6 ("Not surprisingly, an individual's presence in a high crime area, coupled with nervousness, startled behavior, flight, or suspicious actions upon the approach of officers is sufficient to justify an investigatory stop.") (citations omitted). The

majority further acknowledged the officers "had the right to order the defendants out of the vehicle." Id., 11-0109 at 8 (citing State v. Kelley, 05-1905, p. 6 (La. 7/10/06), 934 So.2d 51, 55) ("Given an objective basis for detaining the defendant briefly to determine why he was `just there,' the officers acted reasonably by 3

requesting that he step from the car, even in the absence of any particularized suspicion that he was armed and dangerous.") (citing Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977)). However, the majority concluded that "Detective Bagneris did not have the right to open the vehicle's door," Cure, 11-0109 at 8, and thereby ruled out the plain view and inevitable discovery doctrines as rationale for justifying seizure of the evidence, the former because the notebook holding the heroin came into view only after the officer opened the door, and the latter because the state had failed to prove by a preponderance of the evidence that the detectives would have inevitably discovered the heroin had Bagneris not opened the door on her own. Cure, 110109 at 10-12. The majority further concluded that Detective Roccaforte did not have a reasonable basis for ordering defendant to open his hand because the officer had failed to articulate any concern for his safety or that of Detective Bagneris. Id., 11-0109 at 13. The majority thus determined that all of the evidence seized by the officers on the scene was inadmissible at trial. We agree with the court of appeal that Detective Roccaforte had reasonable suspicion to initiate an investigatory stop of the vehicle and its occupants. State v. Sylvester, 01-0607, p. 5 (La. 9/20/02), 826 So.2d 1106, 1109 ("In determining whether police officers have a `particularized and objective basis' for conducting an investigatory stop, reviewing courts `must look at the totality of the circumstances of each case,' a process which `allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person.'") (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 75051, 151 L.Ed.2d 740 (2002) (other internal quotation marks and citation omitted). We further agree that as part of the stop, Detectives Bagneris and Roccaforte had 4

the authority to order both the driver and the passenger to step out of the car, even assuming that they lacked any particularized and articulable basis for believing that the occupants posed a risk to their safety. See Mimms, 434 U.S. at 110-11, 98 S.Ct. at 333 ("[W]e have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. . . . Against this important interest, we are asked to weigh the intrusion into the driver's personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis."); Maryland v. Wilson, 519 U.S. 408, 41415, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997) ("While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out [during a routine traffic stop], the additional intrusion on the passenger [by extending the rule of Mimms to passengers as well as drivers] is minimal."); see also 4 Warren R. LaFave, Search and Seizure,

Download 11K2238.pc.pdf

Louisiana Law