Before Shortess, Lanier, and Crain, JJ.
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
On Appeal from the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge, State of Louisiana, Hon. L. J. Hymel, Judge Presiding.
Rehearing Denied August 24, 1984; Writ Granted November 9, 1984. 1984.LA.631
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CRAIN
Defendants, Jameelah Raheem and Tahir Raheem, were charged with Possession with the Intent to Distribute Pentazocine (Count I) and Possession with the Intent to Distribute Phenmetrazine (Count II) on September 8, 1982, in violation of La. R.S. 40:967. *fn1 Each defendant pled not guilty. After a trial by jury, responsive verdicts of guilty of Possession of Pentazocine (Count I) and guilty of Possession of Phenmetrazine (Count II) were returned as to each defendant. The trial court sentenced each defendant to three years in the custody of the Department of Corrections on each count, the sentences to run concurrently.
On September 8, 1982, Detective William Denicola of the Baton Rouge City Police was involved in a metro squad patrol with State Trooper Jay Thompson and Detective Bobby Calendar of the Baton Rouge Sheriff's office. While patrolling, Detective Denicola received a message that one of his contacts, a confidential informant, was trying to reach him. Denicola immediately called this informant who advised him that two black females and one black male were selling drugs "in the hole", a well known heavy drug dealing area in Baton Rouge. The informant also stated that the suspects were riding in a late model beige Cadillac with Michigan plates and were selling sets of T's and Blues, the street name for Talwin (Pentazocine) and Pryribenzamine. He said that if the detective immediately went to Tyler Street the suspects could be found. Having received reliable information in the past from this particular confidential informant which was the basis for arrests and convictions in other drug cases, Detective Denicola decided to follow up on this tip.
He informed the other detectives, and they immediately proceeded to the area. Once there, the police saw the Cadillac and stopped it. The officers drew their weapons, ordered the occupants out of the vehicle, and had them place their hands on the trunk of the vehicle. When defendant, Jameelah Raheem, got out of the car, Detective Calendar grabbed a purse that Ms. Raheem was holding close to her body. When he did this, she pulled back but then released the purse. She then went to the rear of the car where the other suspects were standing. Officers Thompson and Denicola conducted a frisk of all three suspects for weapons but none were found. Some bullets and a large wad of cash, approximately twenty-four hundred dollars, were found on Tahir Raheem. Detective Calendar, who remained on the passenger side of the car, searched the purse and found a vanilla wafer box approximately twelve inches in height. He opened this box, lifted out the bag containing cookies, and found underneath a large quantity of pills which he recognized as sets of T's and Blues and preludin tablets. Lab tests later confirmed the pills were sets of Talwin and Pryribenzamine and Preludin (Phenmetrazine) tablets. He informed the other detectives and the three occupants were then formally arrested and advised of their Miranda rights. The detectives briefly opened to trunk but did not search it or the contents and suitcases inside. Defendants and the other occupant, Anna Smith, were then transported to the East Baton Rouge Narcotics Office. Detective Denicola drove the Cadillac down to the office.
Once in the station, the officers spoke with defendants. When asked to sign a waiver to search form, Jameelah Raheem consented saying the detectives had caught her and were going to get a warrant anyway. The trunk and bags inside were searched; approximately six hundred sets of T's and Blues, preludin tablets and a pistol were found. Ms. Raheem's purse was searched again at the office, and the detectives found a weapon inside.
Defendants filed a motion to suppress physical evidence and statements. After a hearing, the trial court denied the motion, stating that there was probable cause, a valid search, no force or coercion used to obtain the statements and that defendants had been advised of their rights. After trial by jury, defendants were convicted and sentenced.
On appeal, defendants brief the following three assignments of error:
1. The trial court erred in denying defendants' motion to suppress physical evidence.
2.The trial court erred in denying defendants' motion for directed verdict of acquittal and motion for new trial based on the lack of sufficient evidence.
3. The trial court failed to comply with statutory sentencing guidelines and imposed unconstitutionally excessive sentences.
The remaining assignments of error were not briefed and therefore are considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir. 1983), writ denied, 437 So.2d 1141 (La. 1983).
ASSIGNMENT OF ERROR NUMBER 1
In this assignment of error defendants contend the trial court erred when it denied the motion to suppress physical evidence. Defendants argue that the search of Jameelah Raheem's purse went beyond the scope of the limited Terry *fn2 search. In addition, they maintain that since there was no probable cause to justify an arrest, this was not a search incident to arrest. Finally, they argue that the drugs found in the trunk are fruits of an illegal search and should be suppressed.
SEARCH INCIDENT TO LAWFUL ARREST
It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. State v. Singletary, 442 So.2d 707 (La.App. 1st Cir. 1983). A search incident to an arrest is a recognized exception to the rule that a warrantless search is unreasonable. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Buckley, 426 So.2d 103 (La. 1983). The police must affirmatively show that probable cause existed for the arrests or the subsequent search does not fall within the exception. Buckley, 426 So.2d at 107.
When the officers in this case stopped the defendants' vehicle, drew their weapons and ordered the defendants to place their hands on the rear of the vehicle, an arrest occurred. La. C.Cr.P. art. 201; State v. Commodore, 418 So.2d 1330 (La. 1982). The validity of the search which took place after this arrest depends upon the validity of the arrest.
Probable cause to arrest without a warrant exists when the facts and circumstances within the officer's knowledge, or of which he had reasonably trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. La. C.Cr.P. art. 213; State v. Edwards, 406 So.2d 1331 (La. 1981). Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Ruffin, 448 So.2d 1274 (La. 1984); Commodore, 418 So.2d at 1332; State v. Marks, 337 So.2d 1177 (La. 1976).
The information that a police officer obtains from a confidential informant may contribute to the articulable knowledge necessary to establish probable cause; however, the basis for the information and the informant's reliability, when examined under the totality of the circumstances must be established. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L. Ed. 2d 527 (1983); State v. Brooks, 452 So.2d ...