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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA                                                          *   NO. 2009-K-0804
VERSUS                                                                      *   COURT OF APPEAL
RICHARD HAMILTON                                                            *   FOURTH CIRCUIT
                                                                            *   STATE OF LOUISIANA
*
APPEAL ON APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 476-877, SECTION “K”
Honorable Arthur Hunter, Judge
Charles R. Jones
Judge
(Court composed of Judge Charles R. Jones, Judge James F. McKay, III, and
Judge Dennis R. Bagneris, Sr.)
Leon A. Cannizzaro, Jr., District Attorney
Nisha Sandhu, Assistant District Attorney
1340 Poydras Street, Ste. 700
New Orleans, LA 70112
COUNSEL FOR STATE OF LOUISIANA
WRIT DENIED




The State of Louisiana seeks our supervisory jurisdiction to review the order
of the District Court granting the defendant’s motion to suppress evidence and
statement.  We deny the State’s writ application.
The State filed a bill of information on March 19, 2008, charging Richard
Hamilton with one count of possession of heroin with the intent to distribute.  On
July 2, 2008, the District Court found no probable cause to hold Hamilton because
the State produced no witnesses at the preliminary hearing.  Although a trial date
was set for August 7, 2008, the trial never occurred.   After several status hearings,
a motion to suppress hearing occurred on May 21, 2009.  After hearing testimony
from one witness, the District Court granted Hamilton’s motion to suppress the
evidence and a statement.  The State objected and gave notice of its intent to seek
writs.  The District Court granted the State fifteen days within which to seek its
writ, and set the matter for a pretrial conference.  The State timely moved for an
extension of time in which to file its writ, which was granted by the District Court.
This timely writ application followed.
1




The only witness to testify at the May 21, 2009 hearing was Officer Thomas
Clark, who testified that he was assigned to the Sixth District at all times pertinent
herein.  He testified that he and his partner, Officer Alex Brady, arrested Hamilton
at 2013 South Claiborne Avenue in front of the Discount City convenience store.
According to Officer Clark, they were patrolling the area due to a spike in crimes
against persons, particularly batteries and robberies perpetrated against Hispanic
male immigrants.  The officers were in their vehicle and stopped at the corner of
Josephine and Martin Luther King Blvd., when they saw Hamilton walking back
and forth in front of the store.  At one point, Hamilton peered through the store’s
window, but he did not enter the store.  The officers decided to stop Hamilton due
to this conduct, and so they approached him “to find out what his intentions were.”
Officer Clark related that they called Hamilton over to their vehicle.  At first
Hamilton walked away, but as the officers exited their vehicle, he turned around,
and placed his hands in his pockets.   Officer Brady immediately instructed
Hamilton to remove his hands from his pockets, and when he did so, Officer Brady
told Officer Clark to handcuff Hamilton.   Officer Clark placed Hamilton in
handcuffs while Officer Brady retrieved a piece of foil from the ground, and the
officers placed Hamilton under arrest for possession of heroin.  Officer Clark
indicated that he assumed that Hamilton dropped the foil when he removed his
hands from his pocket, but he did not personally observe this.
In a subsequent search incidental to arrest, no additional drugs were found,
but approximately $1,600 in cash was found in two bundles in Hamilton’s socks.
Officer Clark testified that he read Hamilton his rights from a card, but he
did not have the card with him in court.   He stated that he did not take a statement
from Hamilton, but according to the police report, Officer Brady took a statement.
2




Officer Clark was not aware of what Hamilton said in the statement.  Also, Officer
Clark stated that his partner field tested the drugs.
On cross-examination, Officer Clark stated that Hamilton was not observed
breaking any laws or engaging in any hand-to-hand transactions prior to the stop,
and was not seen with anyone else.
At the conclusion of Officer Clark’s testimony, the prosecutor asked to
“keep the motion open for Officer Alex Brady.”  The District Court denied the
request, stating that it was “not necessary.”  The District Court then again found no
probable cause and granted the motion to suppress the evidence and the statement.
The first issue raised by the State in its writ application is whether the
District Court correctly suppressed the evidence which Hamilton apparently
dropped from his hand when directed by the police officers to remove his hands
from his pockets.  The State argues first that the police officers were free to
approach Hamilton as he was pacing in front of the store, and then the officers had
reasonable suspicion to conduct an investigatory stop because Hamilton first
turned and walked away when they spoke to him from their vehicle, and then,
when he turned back toward them as they exited the police vehicle, he placed his
hands in his pockets.  Thereafter, according to the State, Officer Brady saw
Hamilton throw contraband to the ground, giving the officers probable cause to
arrest the defendant.
The Louisiana Supreme Court has divided encounters between police and
citizens into three “tiers.”  State v. Fisher, 97-1133 (La. 9/9/98), 720 So. 2d 1179.
In Fisher, pp. 4-5, 720 So. 2d at 1182-1183, the Court described the lowest tier of
interaction:
3




In 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), the court articulated a
useful  three-tiered  analysis  of  interactions  between
citizens and police under the Fourth Amendment. At the
first  tier,  mere  communications  between  officers  and
citizens implicate no Fourth Amendment concerns where
there is no coercion or detention.  Id.; State v. Britton, 93-
1990  (La.1/27/97);                                                                      633 So.2d  1208,  1209  (noting that
police have the same right as any citizen to approach an
individual in public and to engage him in conversation
under circumstances that do not signal official detention).
See also State v. Handy, 2002-1025 (La. App. 4 Cir. 9/25/02), 828 So. 2d 1207.
To the extent that the police officers sought to speak to Hamilton while they
were still seated in the police car, this arguably was the lowest tier of interaction.
If Hamilton had dropped the contraband from his hand at that point, the evidence
could lawfully have been seized.  See State v. Sykes, 2004-1199, pp. 3-4 (La. App.
4 Cir. 3/9/05), 900 So. 2d 156, 159-60, in which this Court discussed the relevant
law:
The  Fourth  Amendment  of  the  U.S.  Constitution  and
Article 1, Section 5 of the Louisiana Constitution protect
persons  from  unreasonable  searches  and  seizures.    In
order   to   discourage   police   misconduct,   evidence
recovered  as  a  result  of  an  unconstitutional  search  or
seizure  is  inadmissible.                                                               If,  however,  property  is
abandoned prior to any unlawful intrusion into a citizen's
right to be free from governmental interference, then the
property may be lawfully seized and used in the resulting
prosecution.     State  v.  Tucker,                                                      626  So.2d                             707,   710
(La.1993).   "[T]he police do not need probable cause to
arrest or reasonable suspicion for an investigatory stop
every time they approach a citizen in a public place."
State v. Britton,  93-1990, p.  2  (La.1/27/94)  633 So.2d
1208, 1209 (mere communications between officers and
citizens implicate no Fourth Amendment concerns where
there is no coercion or detention;   police have the same
right as any citizen to approach an individual in public
and to engage him in conversation under circumstances
that do not signal official detention).
4




See also State v. Wilson, 2002-0776, (La. App. 4 Cir. 1/22/03), 839 So. 2d 206, in
which this Court stated:
An individual is not "seized" within the meaning of the
Fourth Amendment until that individual either submits to
a police showing of authority or is physically contacted
by the police.   California v. Hodari D., 499 U.S. 621, 111
S.Ct.                                                                                1547,  113  L.Ed.2d  690  (1991).    The  Louisiana
Supreme Court adopted the Hodari D. definition of an
actual  stop  in  State  v.  Tucker,                                                 626  So.2d                                            707,   712
(La.1993), opinion reinstated on reh'g,  626 So.2d  720
(La.1993).    An imminent actual stop occurs when the
police  come  upon  an  individual  with  such  force  that,
regardless of the individual's attempts to flee or elude the
encounter, an actual stop of the individual is virtually
certain.  Tucker, 626 So.2d 707, 712.
The Supreme Court in Tucker listed the following
factors to be considered in assessing the extent of police
force employed in determining whether that force was
"virtually  certain"  to  result  in  an  actual  stop  of  the
individual:                                                                          (1) the proximity of the police in relation to
the defendant at the outset of the encounter;                                        (2) whether
the individual has been surrounded by the police;                                    (3)
whether the police approached the individual with their
weapons  drawn;                                                                      (4)  whether  the  police  and/or  the
individual are on foot or in motorized vehicles during the
encounter;                                                                           (5) the location and characteristics of the area
where the encounter takes place;   and (6) the number of
police officers involved in the encounter.  Id., at 712.
Wilson, p. 7, 839 So. 2d at 211.
The important distinction in this case, however, is that Hamilton did not
drop the contraband until he had yielded to the police officer’s command to stop
and to remove his hands from his pockets.   This additional action by the officers
and submission to that show of authority by Hamilton brought the level of
interaction up to at least the second tier of interaction described in Fisher:
At   the   second   tier,   the   investigatory   stop
recognized by the United States Supreme Court in Terry
v.  Ohio,                                                                            392  U.S.  1,  88  S.Ct.  1868,  20  L.Ed.2d  889
(1968), the police officer may briefly seize a person if the
officer has an objectively reasonable suspicion, supported
5




by specific and articulable facts, that the person is, or is
about to be, engaged in criminal conduct or is wanted for
past criminal acts. Watson, 953 F.2d at 897 n. 1; United
States v. Sokolow,  490 U.S.  1,  7,  109 S.Ct.  1581,  104
L.Ed.2d 1 (1989)(citing Terry, 392 U.S. at 27, 88 S.Ct.
1868); State v. Moreno, 619 So.2d 62, 65 (La.1993). See
also La.Code Crim. Proc. art. 215.1(A), which provides
that an officer's reasonable suspicion of crime allows a
limited investigation of a person. However, reasonable
suspicion is “insufficient to justify custodial interrogation
even though the interrogation is investigative.” Florida v.
Royer,  460 U.S. 491, 499, 103 S.Ct. 1319, 75 L.Ed.2d
229 (1983).
Fisher, 97-1133, p. 6, 720 So. 2d at 1183.
In State v. Thompson, 2002-0333, pp. 5-6 (La. 4/9/03), 842 So. 2d 330, 335,
the Supreme Court addressed the standard for determining whether an officer has
reasonable suspicion to conduct an investigatory stop:
Reasonable suspicion for an investigatory stop is
something  less  than  probable  cause  and  must  be
determined  under  the  specific  facts  of  each  case  by
whether the officer had sufficient knowledge of particular
facts and circumstances to justify the infringement on
individual's   right   to   be   free   from   governmental
interference.   State v. Varnell,  410 So.2d  1108  (1982);
State v. Bickham,  404 So.2d  929  (La.1981);    State v.
Blanton,  400 So.2d  661  (La.1981);    State v. Ault,  394
So.2d 1192 (La.1981). . .                                                         .   In determining whether or not
reasonable cause exists to temporarily detain a person,
the  totality  of  the  circumstances,  "the  whole  picture,"
must be considered.    State v. Belton,  441 So.2d  1195,
1198 (La.1983) (citing   United States v. Cortez, 449 U.S.
411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).)
In State v. Temple, 2002-1895, p. 5 (La. 9/9/03), 854 So. 2d 856, 860, the
court expounded on the analysis of the totality of the circumstances:
In  reviewing  the  totality  of  circumstances,  the
reputation of an area is an articulable fact upon which a
police  officer  may  legitimately  rely  and  is  therefore
relevant  in  the  determination  of  reasonable  suspicion.
State v. Buckley,  426 So.2d  103,  108  (La.1983)  (citing
United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct.
2574,  45  L.Ed.2d  607  (1975)).  The  assessment  by  a
6




reviewing court of the cumulative information known to
the officers avoids a "divide-and-conquer analysis" by
which the whole becomes less than the sum of its parts
because each circumstance examined individually may
appear "readily susceptible to an innocent explanation."
Arvizu, 534 U.S. at 274, 122 S.Ct. at 751.
Further, in State v. Benjamin, 97-3065 (La. 12/1/98), 722 So. 2d 988, the court
found there was reasonable suspicion for stopping the defendant because he had
fled at the sight of the officers.   The court stated:
This Court has previously ruled that flight from police
officers, alone, will not provide justification for a stop.
State  v.  Belton,                                                                       441  So.2d   1195   (La.   1983).   This
activity,  however,  is  highly  suspicious  and,  therefore,
may  be  one  of  the  factors  leading  to  a  finding  of
reasonable cause.   Belton, 441 So.2d at 1198.   Given the
highly suspicious nature of flight from a police officer,
the amount of additional information required in order to
provide officers a reasonable suspicion that an individual
is engaged in criminal behavior is greatly lessened.
Benjamin, 97-3065, p. 3, 722 So. 2d at 989.
Deference should be given to the experience of the police officers who were
present during the incident.  State v. Craft, 2003-1852, p. 7 (La. App. 4 Cir.
3/10/04), 870 So. 2d 359, 364.
In State v. Lewis, 99-2730 (La. App. 4 Cir. 10/18/00), 772 So. 2d 231, this
Court held that the District Court should have granted a motion to suppress
evidence.  In Lewis police officers were conducting a foot patrol in the Iberville
housing development in response to complaints that non-residents were coming
into the area and selling drugs.  The officers observed the defendant and another
man walking in the targeted area; the officers were familiar with the residents in
the area and knew that neither man lived there.  The officers stepped in front of the
two men, inquiring as to their need for any assistance and a possible explanation
for their presence in the area.  At that point, the defendant ran away, and during the
7




ensuing foot chase, the defendant discarded drugs.  On appeal, this Court found
that the police officers had failed to articulate a sufficient basis for conducting an
investigatory stop of the defendant, and therefore the seizure of the drugs he
discarded as a result of the illegal stop was improper.    The Supreme Court
reversed, finding that the trial court had correctly determined no investigatory stop
had occurred prior to the defendant’s decision to take flight.  The court stated that
the officers had the right to approach the men and ask them a few questions.  The
court further stated that the officer’s request that the defendant provide
identification “without any greater show of authority did not transform the
encounter into a forcible detention and did not `provoke’ respondent to flight.”
Lewis, 2000-3136, p. 5 (La. 4/26/02), 815 So. 2d 818, 821.  Notably, the court
specifically did not resolve whether there was reasonable suspicion to justify a stop
prior to the defendant’s unprovoked flight.  However, the court held that, the
totality of the circumstances known at the time to the officers, including the
complaints of drug activity, the nature of the area, the defendant’s nervousness
when the officers initially approached, when coupled with the defendant’s
“unprovoked headlong flight from the officer, gave rise to reasonable suspicion for
an investigatory detention.”  Id.
Furthermore, an officer’s knowledge of crime patterns in a given area can be
one factor forming a basis to conduct an investigatory stop.  For example, in State
v. Frosch, 2001-1033 (La. 3/22/02), 816 So. 2d 269, the Supreme Court held that
the police had reasonable suspicion for an investigatory stop of the defendant,
where police observed defendant looking into a truck and jiggling the door handle,
at 11:50 p.m., in a neighborhood in which many cars had been stolen, and
defendant attempted to flee upon noticing police.
8




In State v. Handy, 2005-0811 (La. App. 4 Cir. 1/18/06), 925 So. 2d 577, a
police officer observed the defendant standing in front of a yard, bending over and
looking at a lawn mower.  The officer also noticed a bicycle next to which a hand
truck had been tied.  The area surrounding the yard had, to the officer’s knowledge,
been experiencing a problem with persons stealing lawn equipment and related
burglaries of sheds.  Therefore, the officer decided to stop, exit her vehicle, and
speak with the defendant.  The officer and the defendant spoke for a few minutes
during which the defendant provided an explanation for his presence which did not
appear logical; he also was unable to provide any identification.  Because the
defendant also appeared nervous, the officer decided to pat the outside of his
backpack for her own safety, and in doing so, she felt an object which she
immediately realized was a handgun.  She arrested the defendant.  On appeal the
defendant raised no issue regarding the officer’s decision to check his backpack.
Instead he argued that she had no basis to approach him and engage him in
conversation.  This Court first determined that the defendant had been free to walk
away when the officer approached him and began their conversation; he had not
been subjected to an investigatory stop until such time as the officer decided to
check his bag.  The Court then stated:
The record supports the District Court’s finding
that Officer McCaskill’s eventual detention and pat down
search  of  Handy  was  proper.     Specifically,  Officer
McCaskill’s pat down search of Handy and the back pack
he was wearing was based on:   1) her knowledge of shed
burglaries in the area;  2) Handy’s presence next to the
lawnmower  with  a  bicycle  and  attached  dolly;                                     3)
Handy’s   inability   to   identify   the   owner   of   the
lawnmower; 3) Handy’s explanation that the lawnmower
was left for trash when there was no other trash around;
4) Handy’s inability to provide identification or readily
provide a name; and,  5) Handy’s nervous and fidgety
behavior.
9




This Court has held that flight, nervousness or a
startled look at the sight of a police officer may be one of
the factors leading to a finding of reasonable cause to
stop under statute governing temporary questioning of
persons in public places.   State v. Vingle, 2001-0840 (La.
App. 4 Cir. 11/21/01), 802 So.2d 887.
Handy, pp. 8-9, 925 So. 2d at 582.
In State v. Scott, 98-2642 (La. App. 4 Cir. 2/16/00), 754 So. 2d 1108, a case
markedly similar to the instant one, however, this Court found that the police
officers did not have a sufficient basis to conduct an investigatory stop and frisk of
the defendant.  The defendant in Scott was observed walking back and forth and
looking into the rear door of a hotel, which was open for business, at
approximately 10:00 p.m.  The area was known for drug activity and prostitution.
The police officers decided to investigate the defendant’s actions; in a frisk one of
the officers felt an object which he believed was either a crack pipe or a knife.
Upon retrieving the object, the officer saw that it was a crack pipe.  The trial court
denied the defendant’s subsequent motion to suppress the evidence, and on appeal
this Court reversed.  The Court focused on the facts articulated by the officers as
compared against the other circumstances present:
In the instant case, the only facts articulated by the
officers were (1) that the area they were patrolling was
known for narcotics and prostitution activity and (2) that
defendant was standing or hovering near and looking into
the “open” back door of an open business establishment.1
On  the  other  hand,  at  the  suppression  hearing,  Det.
Adams admitted that the parking lot near which he saw
defendant was a public place, presumably meaning that
anyone could access  the area without difficulty.    The
detective also testified that defendant never attempted to
open or enter the hotel door, nor did he notice defendant
speaking  or  gesturing  to  anyone.    Defendant  did  not
1 It is unclear from the record whether the “open” door was actually standing open in addition to
being unlocked.   However, because defendant was looking or “peeping” into the door, it must be
assumed that the door, if not a glass door, was at least partially standing open.
10




attempt to discard or hide the pipe or to flee when he
noticed  the  officers,  although  Det.  Adams  stated  that
defendant  had  no  opportunity  to  do  so  because  the
officers were very close to him before he first noticed
them.   In fact, the detective testified that defendant did
not notice the officers until they were “getting out of the
car right on him.”2   The record contains no statement by
the officers as to what crime they believed defendant was
about  to  commit,  nor  is  there  any  indication  that  the
particular hotel was known for drug trafficking.   Finally,
the State elicited no testimony indicating how long the
officers   observed   defendant’s   conduct   before   they
decided to conduct an investigatory stop.
Scott, pp. 3-4, 754 So. 2d 1110.  The Court also considered two other cases in
which the Court had determined there was an insufficient basis for a stop and frisk
and found that they were persuasive:
In  State  v.  Ellington,                                                                             96-0766  (La.  App.  4  Cir.
9/4/96), 680 So.2d 174, the defendant was standing in an
area known for drug trafficking and prostitution.   Upon
seeing a marked police car, he briskly placed something
in his pants pocket.    Having observed the defendant’s
motion, the police officer driving the car stopped and
frisked  him,  finding  cocaine.    The  defendant  filed  a
motion to suppress this evidence, which the trial court
granted.   This court later affirmed, finding that the officer
lacked reasonable suspicion to conduct the investigatory
stop.
In the recent case of State v. Ratliff, 98-0094 (La.
App.  4  Cir.  5/19/99),  737 So.2d  252, writ denied,  99-
1523 (La. 10/29/99), 1999 WL 1028862, the defendant
was observed standing with two or three other subjects in
front of a residence late in the evening.   Officers on pro-
active patrol made an investigatory stop, having received
general complaints in the neighborhood.    The officers
observed  defendant  with  his  arms  folded  and  holding
something in his hand, but they saw no exchange and, in
fact, admitted that none of the subjects appeared to be
doing anything wrong.   This court there considered the
reasonableness of the stop as follows:
2 The inability of defendant to hear or otherwise notice the approaching police car before it came
very near to him would further indicate that the area in which he was standing was quite accessible
from the public street.
11




We recognize that the reputation of an area is an
articulable  fact  upon  which  an  officer  may  rely  and
which  is  relevant  in  the  determination  of  reasonable
suspicion.   State v. Richardson, 575 So.2d 421 (La. App.
4 Cir.), writ denied, 578 So.2d 131 (1991).   We also note
that deference should be given to the experience of the
officers who were present at the time of the incident.
State v. Taylor, 96-1843, p. 4 (La. App. 4 Cir. 10/29/97),
701 So.2d  766,  770, writ denied,  98-2233  (La.1/8/99),
1999 WL 39785, 734 So.2d 1224.
However,   considering   the   totality   of   the
circumstances, we must conclude that the officers lacked
reasonable suspicion to stop Mr. Ratliff.   Arguably, the
fact that Mr. Ratliff kept his hand clenched the entire
time the officers questioned him and his group and while
he  walked  to  the  police  car  reasonably  could  have
aroused the officers' suspicion.   However, Mr. Ratliff and
his friends were subjected to an investigatory stop before
this happened.   Officer Burns testified that he decided to
conduct an investigatory stop simply because Mr. Ratliff
was standing, with his arms folded and his fist closed, on
the sidewalk in front of a house at 11:00 in the evening in
an area known for drug trafficking.   Officer Burns could
point  to  no  other  factors  in  support  of  the  stop.    He
observed no transactions between the members of the
group or passing vehicles; none of the group attempted to
flee when the officers' approached; no one was doing
anything wrong.
Although  this  Court  is  cognizant  of  the  drug
related criminal problem in this state and City, we cannot
agree that the officers' stop of Mr. Ratliff was based on
reasonable suspicion.   For this reason, the conviction is
reversed.
Id. at pp. 3-4, 737 So.2d at 254-255 (emphasis added).
Scott, 98-2642, pp. 4-5, 754 So. 2d at 1110-11.
In State v. Sylvester, 2001-0607 (La. 9/20/02), 826 So. 2d 1106, officers
were patrolling an area where there had been complaints of drug activity.  They
saw two men sitting in a car, looking down toward the floorboard.  The men
appeared startled and began fumbling with something as the officers drove up to
them.  The defendant jumped out of the car with his hand clenched as the officers
12




exited theirs, and the officers told the defendant to get against their car.  He
complied, and one of the officers ordered him to open his hand.  When he did so, a
syringe fell out of his hand.  The trial court denied his motion to suppress the
evidence, but on review this Court reversed, finding the officers did not have
reasonable suspicion to order the defendant to get against the car and open his
clenched hand.  State v. Sylvester, 2000-1522 (La. App. 4 Cir. 2/7/01), 781 So. 2d
616.   The State took writs, and the court reversed, finding that the defendant’s
nervousness, his fumbling in the car, and his exit from the car with a clenched fist
gave the officers reasonable suspicion to order him to stand against the car and
open his clenched fist.
By contrast, in State v. Phillips, 2000-0279 (La. App. 4 Cir. 10/4/00), 774
So. 2d 989, police officers on patrol in an area known for drug activity saw a large
group of people standing on the sidewalk.  As the officers approached, the group
dispersed.  The officers followed the defendant, who had been one of the group.
The defendant appeared nervous and continually looked at the officers over his
shoulder as he walked away.  The officers drove up to the defendant and ordered
him over to their car.  As he complied, he threw down a rock of cocaine.  On
appeal, this Court reversed his conviction, finding that the officers did not have
reasonable suspicion to stop him.
The State has the burden of proving the admissibility of all evidence seized
without a warrant because the trial court has the opportunity to observe the
witnesses and to weigh the credibility of their testimony.  La. C.Cr.P. art. 703(D).
A trial court's ruling on a motion to suppress is entitled to great weight.  State v.
Craft, 2003-1852, p. 5 (La. App. 4 Cir. 3/10/04), 870 So. 2d 359, 363; State v.
Banks, 2000-0525, pp. 6-7 (La. App. 4 Cir.10/17/01), 800 So. 2d 28, 33.  The
13




ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse
of discretion.  State v. Leger, 2005-0011, p. 10 (La. 7/10/06), 936 So. 2d 108, 122;
State v. Kelly, 2006-0475, p. 2 (La. App. 4 Cir. 11/21/06), 946 So. 2d 222, 224.
We do not find that District Court abused its discretion in finding an
insufficient basis for the seizure of the evidence in this case.  Officer Clark did not
testify that the incident occurred late at night.  The officers observed Hamilton
walking in front of the store while they were stopped in traffic, indicating that it
was not for an extended period of time.   While Hamilton first attempted to walk
away from the officers, under the first tier of Fisher, that level of interaction is the
point at which a person is free to walk away and not speak to the police officers,
who are free to approach the person.  Once the officers made their intent to
conduct an investigatory stop plain, Hamilton immediately complied with the
demand to stop and come back to them; he did not attempt to flee.  Thus, and in
light of State v. Scott, 98-2642 (La. App. 4 Cir. 2/16/00), 754 So. 2d 1108,
discussed above, the District Court did not err in granting the motion to suppress
evidence.
Also in its application, the State argues that the District Court erred when it
refused to hold the motion hearing open so that Officer Brady could testify
regarding the statement made by Hamilton.  The State appears to concede that,
upon determining that the seizure of the evidence was illegal and thus that
Hamilton’s arrest was improper, the District Court concluded that Hamilton’s
statement must also be suppressed, and that the court may have felt it was
unnecessary to hold the matter open for additional testimony.  The State, without
citing any law or discussing the issue, avers that the District Court’s refusal to hold
the matter open should be reversed.
14




The “fruit of the poisonous tree ” doctrine was explained at length in Wong
Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 (1963).  Essentially the doctrine
serves to exclude from evidence the direct and indirect products of illegal
violations of the Fourth Amendment.  The Court in Wong Sun, recognized,
however, that not all evidence which arguably is fruit of the poisonous tree
requires exclusion.  Rather the United States Supreme Court has specifically
rejected a per se “but for” causation test as a basis for a decision to suppress
evidence.   Id.; See also Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261
(1975); United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 1060 (1978);
State v. Hill, 97-2551, (La. 11/6/98), 725 So. 2d 1282; and State v.
Broussard 1999-1054, (La. App. 4 Cir. 5/22/02), 819 So. 2d 1141.
Although the State fails to make any argument that Hamilton’s statement
might fall outside the scope of the doctrine recognized in Wong Sun, it is at least
conceivable that Officer Brady might have testimony to offer which would provide
a basis not to suppress the statement.  However, in order to obtain a recess, or
continuance, to allow Officer Brady to testify at a later proceeding, the State was
required to make a certain showing as provided in La.C.Cr.P. art. 709:
A motion for a continuance based upon the absence of a witness
must state:
(1) Facts to which the absent witness is expected to
testify, showing the materiality of the testimony and the
necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability
that the witness will be available at the time to which the
trial is deferred; and
(3) Facts showing due diligence used in an effort
to procure attendance of the witness.
15




The District Court has great discretion in granting a recess, and the denial of
a motion for a recess is not grounds for reversal absent an abuse of that discretion
and the showing of specific prejudice.  La. C.Cr.P.  art. 712.
The transcript in the instant case shows that the prosecutor merely stated that
he “would like to keep the motion open for Officer Alex Brady.”   This occurred at
the conclusion of the hearing; there is nothing to indicate that the State brought up
the absence of the witness before the proceeding started.  The State also made no
attempt on the record to show that it had subpoenaed the witness, nor was a proffer
of his expected testimony made.  Furthermore, the docket master attached to the
writ application shows that neither police officer appeared at the preliminary and
motions hearing scheduled on July 2, 2008.  Finally, in its writ application the
State fails to allege any reason for the witness’s absence, to make any showing that
it had attempted to procure his presence at the hearing, and to provide any factual
support for a belief that the witness will be available in the future.
Thus, on the showing made by the State, we do not find that the District
Court’s decision not to hold the motion hearing open was manifestly erroneous,
and considering the foregoing reasons herein, the writ application of the State of
Louisiana is denied.
WRIT DENIED
16

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