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STATE OF LOUISIANA VERSUS ARLENE L. MASSEY

NO. 03-KA-1166 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 02-6546, DIVISION "C" HONORABLE ALAN J. GREEN, JUDGE PRESIDING

JANUARY 27, 2004

THOMAS F. DALEY JUDGE
Panel composed of Judges Thomas F. Daley, Susan M. Chehardy, Clarence E. McManus

PAUL D. CONNICK, JR., DISTRICT ATTORNEY ANDREA F. LONG, TERRY M. BOUDREAUX, GEVIN P. GRISBAUM, ASSISTANT DISTRICT ATTORNEYS 24 Judicial District
Parish of Jefferson 100 Derbigny Street Gretna, Louisiana 70053

COUNSEL FOR PLAINTIFF/APPELLEE JAMES A. WILLIAMS BUTCH WILSON 835 Derbigny Street Gretna, Louisiana 70053 COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED

The Jefferson Parish District Attorney filed a Bill of Information against the defendant, Arlene L. Massey, charging her with possession of cocaine in violation

of LSA-R.S. 40:967(C), to which she pled not guilty at arraignment. After a hearing on July 30, 2003, the trial court denied Arlene Massey's Motion to Suppress Evidence. Arlene Massey subsequently withdrew her former plea of not guilty and pled guilty as charged, reserving her right to appeal the trial court's ruling on the Motion to Suppress pursuant to State v. Crosby, 338 So.2d 584 (La.

1976).
That same day, the trial judge sentenced Arlene Massey to two years of

imprisonment at hard labor.

However, the judge suspended the sentence and

placed Arlene Massey on active probation. The judge also imposed a fine and ordered Arlene Massey to pay a commissioner's fee of $100.00 plus court costs. This timely appeal follows.

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At approximately 6:30 p.m. on November 4, 2002, Sergeant Joe Williams of
the Jefferson Parish Sheriff's Office, along with other officers, responded to the

6000 and 6100 block of Field Street in Marrero.' Sergeant Williams testified that the officers were responding to complaints from residents regarding individuals
selling drugs in that area. When the officers arrived, Sergeant Williams observed three black males and one black female, later identified as the defendant, Arlene Massey. Sergeant Williams testified one of the black men, whom the officer knew

from the area, spoke to the black female, who in turn put something in her mouth. Sergeant Williams testified that he "stopped for further investigation," because in
his 21 years experience in narcotics, he believed Arlene Massey may have concealed contraband in her mouth. He approached Arlene Massey and "requested

her to extract it from her mouth." Arlene Massey removed three off-white rocks from her mouth and dropped them to the ground. The rocks field-tested positive
for crack-cocaine, whereupon Arlene Massey was arrested.

In denying Arlene Massey's Motion to Suppress, the trial judge rendered the
following oral reasons:

THE COURT: All right. The area around the 6000, 6100 block of Field Street in Marrero, is notorious for drug activity and other
crimes. The residents who live in that area, which is basically behind the McDonald's and across the street from Teenie's Bar, which is known, I think, by law enforcement, as well as the rest of the community, as a bar and an area and a corner where extensive drug activities and other crimes have taken place, historically. There have been attempts to shut the bar down. There have been attempts by McDonald's to somehow prevent people from congregating in the area, because it's commonly known what activity is going on in that area. There have been numerous complaints that have been lodged by the residents, because these are law abiding citizens The record does not clearly reflect the number of police officers who responded. Sergeant Williams refers to the officers as "we," and referred to other officers on the scene, but he only names one of the officers, Agent Blanche. Accordingly, it is unclear whether there were more than two officers involved.

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- . . . there for generations and generations, about the concerns for the activity that takes place in that area. And there have been numerous arrests by narcotics officers in those areas. So, therefore, when an officer approaches that area, especially acting upon information that they have been supplied at that time, as well as in the past, then they have a reasonable suspicion that the crowds that are hanging out in those areas, outside of the bar, and outside of McDonald's, or outside of the McDonald's parking lot, may be engaged in some questionable activity.

I do not find that the defendant was in any way being detained when she was observed to put something in her mouth, and it was requested that she remove the item from her mouth. She was not under arrest. She could have simply walked away. She could have simply walked away, upon being notified by one of the people who recognized Sergeant Williams, that the cops were approaching.
Therefore, I find that there was probable cause, and the motion to suppress is denied.

ASSIGNMENT OF ERROR
The defendant contends that the cocaine should have been suppressed because Sergeant Williams lacked reasonable suspicion of criminal activity when he told Arlene Massey to remove the cocaine from her mouth. According to

Arlene Massey, she did not voluntarily expel the cocaine, but did so in response to

Sergeant Williams' "police command." The State responds that the trial judge
properly denied the Motion to Suppress because the cocaine was abandoned when

Arlene Massey voluntarily took it out of her mouth and discarded it on the ground. The Fourth Amendment to the United States Constitution and Article I,

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