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State v. Tate

Court of Appeals of Louisiana, Fourth Circuit

October 11, 2019



          Leon Cannizzaro DISTRICT ATTORNEY Scott G. Vincent Assistant District Attorney COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE.

          Rachel Shur Orleans Public Defender COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Judge Regina Bartholomew-Woods, Judge Paula A. Brown, Judge Tiffany G. Chase.

          Regina Bartholomew-Woods, Judge.

         Relator, Michael Tate, Defendant in the above-captioned matter, seeks review of the trial court's September 5, 2019 ruling denying his motion to suppress physical evidence. For the reasons that follow, we reverse the ruling of the trial court, and remand this matter for further proceedings.

         New Orleans Police Department detectives arrested Relator on June 29, 2019, on Bourbon Street in New Orleans while on proactive patrol. The detectives observed Relator speaking to another individual, Dwayne Boutain, who was hand-rolling cigar paper, which they suspected contained marijuana. Relator walked away from the detectives as they approached with his hands near his waistband. Detectives stopped Relator and conducted a pat-down search, revealing a handgun and pills they believed to be ecstasy. Relator moved to suppress the evidence on the basis that the search was illegal.

         The State presented Detective Jordan Sherr to testify at the suppression hearing. Detective Sherr testified to the facts as described above. He also testified that he observed Mr. Boutain preparing the cigar with "vegetable matter" and that "[h]and rolled cigars [are] typically used to ingest marijuana." On cross-examination, he conceded that his report of the incident did not note that he observed such preparation. He further testified that the cigar was not lit, so he did not observe any odor of marijuana.

         The trial court denied Relator's motion to suppress. The trial court reasoned that the totality of the circumstances - detectives observing "the marijuana," the Relator's action of walking away upon seeing the detectives, placing his hands by his waist, and refusing to stop at the detectives' commands - justified the detention and search. We review the trial court's ruling for abuse of discretion. State v. Norals, 2010-0293, p. 3 (La.App. 4 Cir. 7/30/10), 44 So.3d 907, 909.

         While the detectives had probable cause to arrest Relator based upon the results of the search, the issue presented here is whether the detectives possessed reasonable suspicion justifying Relator's detention and frisk. "'Reasonable suspicion' to stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual's right to be free from governmental interference." Id., 2010-0293, p.4, 44 So.3d at 910. Reasonable suspicion to stop an individual is not the same as reasonable suspicion to search the individual's person. State v. Francis, 2010-1149, p. 7 (La.App. 4 Cir. 2/16/11), 60 So.3d 703, 710. "As the United States Supreme Court articulated in Terry, 'Even after a lawful investigatory stop, a police officer is justified in frisking the subject only under circumstances where a reasonably prudent man . . . would be warranted in the belief that his safety or that of others was in danger.' Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)." Id., 2010-1149, p. 9, 60 So.3d at 710.

         Here, reasonable suspicion was predicated on the following: the detectives observing Mr. Boutain rolling a substance in a cigar while Relator spoke to him, Relator's act of walking away from detectives, and Relator placing his hands near his waistband.

         One's act of rolling a cigar is susceptible to both innocent and nefarious explanations. Relator, in his writ application to this court, cited State v. Davis, 359 So.2d 986, 989 (La.1978), which addressed this very point:

The officers testified that [defendant's] physical movements in smoking and discarding the cigarette were not furtive or suspicious. The cigarette was rolled in white cigarette paper in the same manner as a hand-rolled tobacco cigarette. Defense counsel demonstrated on cross-examination of the officers that they could not, at a distance, readily distinguish between tobacco and marijuana hand-rolled cigarettes. The officers testified that as [defendant] passed in front of the patrol car he held the cigarette between his thumb and index finger in his slightly cupped hand, a style of smoking they had observed among some users of marijuana. However, common knowledge and the evidence in this case do not indicate that the mere holding of a hand-rolled cigarette in this manner is a characteristic so restricted to marijuana smokers as to arouse reasonable suspicions. This is particularly so in the instant case in which the defendant, who was riding his bicycle on a public street at 10:00 a. m., reasonably could have cupped his hand to shield his cigarette from the wind.

         Similarly, here, there is nothing in Detective Sherr's testimony suggesting that he or the other detectives could distinguish the substance in Mr. Boutain's cigar as either tobacco or marijuana such "to arouse reasonable suspicions." The detectives were within their rights to approach Mr. Boutain in an effort to develop reasonable suspicion, but prior to such additional investigation, reasonable suspicion did not yet exist. Importantly, it is prior to that additional investigation that Relator elected to walk away from the scene and detectives.[1] It was at that time that Relator made some movement with his hands near his waist leading ...

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