SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF
granted. Two officers approached defendant, who stood on the
sidewalk among a group of seven persons at night in a high
crime area, because the group strongly smelled of burning
marijuana, which gave the officers reasonable suspicion to
conduct a brief investigatory stop pursuant to Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Under the totality of the circumstances presented here, the
officers also had a reasonable, objective and particularized
basis for conducting a pat-down frisk of defendant. See
State v. Sellers, 34, 968 (La.App. 2 Cir. 9/26/01), 796
So.2d 158 (finding a frisk for weapons justified for officer
safety in high crime area at night when officers were
outnumbered following stop based on reasonable suspicion of
criminal activity), writ denied, 01-2931 (La.
10/14/02), 827 So.2d 412. Before the pat-down was completed,
defendant stated that he had a bag of marijuana and produced
it for the officers. Defendant was then arrested, and a
search incident to arrest revealed individually packaged
heroin and a digital scale.
district court granted defendant's motion to suppress the
evidence because, inter alia, the possession of marijuana,
while criminal, may result in the issuance of a summons
rather than an arrest. The district court erred. An officer
may arrest a person who commits a misdemeanor in the
officer's presence. See La.C.Cr.P. art. 213;
see also Atwater v. City of Lago Vista, 532 U.S.
318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001)
("If an officer has probable cause to believe an
individual has committed even a very minor criminal offense
in his presence, he may, without violating the Fourth
Amendment, arrest the offender."). Defendant here,
during a Terry stop based on reasonable suspicion,
was found to be in possession of marijuana. Therefore, he was
subject to arrest. Accordingly, we grant the state's
application to reverse the district court's ruling that
granted defendant's motion to suppress, and remand for
further proceedings. In addition, the district court is
directed to reconsider its ruling with regard to probable
cause in light of the views expressed here.
GENOVESE, Justice, would deny.
JOHNSON, C.J., would deny the writ application and assigns
respectfully dissent, finding the district court did not err
in granting defendant's motion to suppress evidence.
case, two officers were on patrol and came across a group of
approximately seven individuals, including the defendant.
Officers claimed that as they were driving by with their
windows down, they detected an odor consistent with
marijuana. As officers approached the group, one individual
allegedly responded "We had smoked earlier." One of
the officers claimed defendant made the statement, however
defendant asserted the officer's body camera footage
clearly indicated a woman made the statement. The officers
then conducted a pat down and search of three members of the
group, including the defendant. The officers recovered a bag
of marijuana from the defendant after the pat down and placed
him under arrest for possession of marijuana. A subsequent
search incident to the arrest recovered individually wrapped
bags of heroin and a digital scale. Defendant was also
charged with one count of possession of heroin with intent to
distribute. Defendant filed a motion to suppress the evidence
on the basis the investigatory stop was not permissible, and
the pat down was not justified.
the Fourth Amendment, a police officer may briefly detain an
individual for investigative purposes ("Terry
stop") if the officer has a reasonable and articulable
suspicion that the individual has committed or about to
commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 88
S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); State v.
Boyer, 07-0476 (La. 10/16/07), 967 So.2d 458, 469;
State v. Temple, 02-1895 (La. 9/9/03), 854 So.2d
856, 859; State v. Sims, 02-2208 (La. 6/27/03), 851
So.2d 1039, 1043; see also La. C.Cr.P. art. 215.1.
In making a brief investigatory stop on less than probable
cause to arrest, the police "'must have a
particularized and objective basis for suspecting the
particular person stopped of criminal activity.'"
State v. Kalie, 96-2650 (La. 9/19/97), 699 So.2d
879, 881 (quoting United States v. Cortez, 449 U.S.
411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). Even
after a lawful investigatory stop, an officer is justified in
patting down a suspect only where "he has reason to
believe that he is dealing with an armed and dangerous
individual, regardless of whether he has probable cause to
arrest the individual for a crime. The officer need not be
absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man in the circumstances would
be warranted in the belief that his safety or that of others
was in danger." Terry, 392 U.S. at 27. The
officer's belief is not reasonable unless he is
"able to point to particular facts from which he
reasonably inferred that the individual was armed and
dangerous." Sibron v. New York, 392 U.S. 40, 88
S.Ct. 1889, 20 L.Ed.2d 917 (1968); see also State v.
Bolden, 380 So.2d 40 (La. 1980), cert. denied,
449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980).
case, the district court conducted an evidentiary hearing on
defendant's motion to suppress the evidence, wherein the
district court heard testimony from the officers and listened
to the recording from the officer's body camera. In
granting the motion to suppress, the court explained:
The telling thing for the court is that no one in the group
makes a motion to leave, no furtive movements, nothing else,
it's a very calm situation. The officer is very polite,
inquisitive, but polite. There's no issue that the
officer either testified to…or…evidence on the
body camera that the officer had any indication that he
should be on alert, that perhaps someone had committed-expect
for the smoking of the marijuana-had committed a crime, was
committing a crime, was about to commit a crime.
The court notes that the new marijuana laws…marijuana
is now a summonsable offense. In fact, the issue is to issue
a summons and not arrest.
It seems as though the officers in this case went directly
from approaching and making inquisitions or asking questions
into a straight pat-down, full pat-down, and search of all
the individuals that were there for no real clear indication
in this court's opinion and therefore the court finds
that there was ...