APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT
ORLEANS PARISH NO. 546-378, SECTION "E" Honorable
Keva M. Landrum-Johnson, Judge.
Cannizzaro DISTRICT ATTORNEY Scott G. Vincent Assistant
District Attorney COUNSEL FOR THE STATE OF
Shur Orleans Public Defender COUNSEL FOR DEFENDANT/APPELLANT.
composed of Judge Regina Bartholomew-Woods, Judge Paula A.
Brown, Judge Tiffany G. Chase.
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.
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.
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.
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.
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.
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.
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.
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. It was at that time that Relator
made some movement with his hands near his waist leading