Opinion
No. 92-KA-2179.
February 11, 1994.
APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE LEON A. CANNIZZARO, JR., J.
Harry F. Connick, Dist. Atty., Mark D. Pethke, Asst. Dist. Atty., New Orleans, for appellee.
Sherry Watters, Orleans Indigent Defender Program, New Orleans, for defendant.
Before PLOTKIN, WALTZER and LANDRIEU, JJ.
Lionel J. Alexander was charged by bill of information with possession of cocaine in violation of La.Rev.Stat.Ann. § 40:967(F) (West 1993). After defendant's motion to suppress evidence was denied, the defendant was tried by the judge and found guilty of the lesser charge of simple possession of cocaine. Alexander was sentenced to serve three years at hard labor. Contending that the evidence was seized as a result of an unlawful stop, a warrantless search, and a warrantless arrest all without reasonable or probable cause, Alexander appeals the denial of his motion to suppress.
The evidence was seized without a warrant as required by the Fourth Amendment of the U.S. constitution and the Louisiana Constitution, Art. 1 § 5 (West 1993). In such a case, the burden is on the state to show that a search is justified by some exception to the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Tatum, 466 So.2d 29 (La. 1985); State v. Pomes, 376 So.2d 133 (La. 1979).
At the hearing on Alexander's motion to suppress, the only evidence offered by the state was the testimony of Detective Eddie Selby of the New Orleans Police Department, Narcotic Division. He testified that on February 11, 1992 Detectives Chuck Little and Keith Boudoin advised him that they had received information from a reliable informant that Lionel Alexander, described as a heavy set tall black male, was selling both crack cocaine and powder cocaine from a green Plymouth with the license plate number 15X162 which was parked in front of 2838 South Saratoga Street. Based on this information, Selby and Detective Jay Snap took a surveillance vehicle into the area and Detectives Chuck Little, Keith Boudoin, and others acted as a "perimeter team" to converge in the event an actual drug transaction was observed. Detective Selby observed the Plymouth Fury parked in front of 2838 South Saratoga Street and observed a man fitting Alexander's description walk up to the vehicle and stand by the trunk. An unidentified man walking down the street shouted "police, police." After looking up and down the street, Alexander opened the trunk of the Plymouth Fury, placed some objects in a brown paper bag, closed the trunk, and again looked up and down the street. At this juncture, Detective Selby requested the perimeter team to move in. As the police moved in, they observed Alexander walk into the front yard of 2838 South Saratoga Street and placed a brown paper bag on the right-hand side of the porch. Detectives Little and Boudoin immediately took custody of Alexander, placed him under arrest, and advised him of his constitutional rights. The police then seized the brown paper bag which contained powder and crack cocaine, $260 on Alexander's person, and an automatic weapon concealed in the trunk of the Plymouth Fury.
The State argues that given the defendant's behavior under the totality of the circumstances, the police officers possessed sufficient facts to justify an investigatory stop, and the bag was legitimately seized as abandoned property. Alternatively, the State argues that Alexander had no expectation of privacy in placing an open bag in a public area.
The state's argument, however, is contrary to the evidence. Detective Selby's testimony is explicit; Alexander was arrested immediately after he walked into his yard and placed the paper bag on the front porch of his house; the brown paper bag was then seized by the police. Thus, the evidence was seized incident to Alexander's arrest. At issue is whether the seizure was pursuant to a lawful arrest and within a recognized exception to the warrant requirement. See 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).
A police officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person to be arrested has committed an offense. La. Code Crim.Pro.Ann. art. 213 (West 1993). Probable cause to arrest exists when the detaining officer has articulable knowledge of particular facts sufficient to reasonably suspect the detained person of criminal activity Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Buckley, 426 So.2d 103, 107 (La. 1983). Whether probable cause existed at the time of the arrest must be determined without regard to the result of the subsequent search. Id.; State v. Finklea, 313 So.2d 224 (La. 1975). "The totality of the circumstances, `the whole picture,' must be considered in determining whether reasonable cause exists." State v. Belton, 441 So.2d 1195, 1198 (La. 1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984) (quoting United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). A confidential informant may provide adequate information to establish probable cause for a warrantless arrest, so long as the basis for the information and the informant's reliability, when examined under the totality of the circumstances, are established. Illinois v. Gates, 462 U.S. 213, 229-30, 103 S.Ct. 2317, 2327-28, 76 L.Ed.2d 527 (1983); State v. Ruffin, 448 So.2d 1274, 1278 (La. 1984). At the hearing on the motion to suppress, the State bears the burden of showing that the confidential informant was credible and the information reliable. State v. Rudolph, 369 So.2d 1320, 1325 (La. 1979), cert. denied, 454 U.S. 1142, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982).
Louisiana jurisprudence treats "reasonable cause" as consonant with the probable cause concept and does not create a different standard. State v. Marks, 337 So.2d 1177, 1182 (La. 1976).
Detective Selby testified only that Detectives Little and Boudoin told him the information came from a reliable informant; no other evidence was introduced pertaining to the informant's reliability. A mere assertion by police that an informant is reliable is insufficient to establish an informant's credibility. State v. Rudolph, 369 So.2d at 1325. The police apparently had no knowledge or past experience with Alexander; nor does the evidence indicate that the police considered South Saratoga Street an area of high crime. See United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); State v. Buckley, 426 So.2d at 107. Further, even assuming arguendo that Alexander's actions after being alerted to police in the neighborhood were evasive, such actions alone do not always indicate guilt. State v. Hathaway, 411 So.2d 1074, 1079 (La. 1982); see also State v. Chopin, 372 So.2d 1222, 1225 (La. 1979). "[R]easonable cause will not arise unless flight combined with other information upon which officers are entitled to rely, would indicate to a reasonable mind that the combination of circumstances is inconsistent with any innocent pursuit." State v. Hathaway, 411 So.2d at 1079; State v. Franklin, 353 So.2d 1315 (La. 1977). Equivocal conduct does not afford probable cause to arrest if the possibility of criminal conduct is no greater than the possibility of innocent behavior. See State v. Talbert, 449 So.2d 446 (La. 1984) (defendant's surprised look and retreat into apartment is not probable cause for arrest).
Defense counsel stated that he was marking Alexander's `rap sheet' which was supplied by the state as D 1. It does not appear in the record, but apparently only a drunken driving violation appeared it; Alexander had absolutely no prior drug history.
The informant's tip consisted of Alexander's description, name, address, make of car, and an allegation that he was dealing drugs. Nothing in the record supports the informant's credibility and the police saw no drug transactions. The only information substantiated by the police prior to the arrest of Alexander was that he lived on South Saratoga Street and possessed a green Plymouth Fury. Police officers are not entitled to arrest a person merely because an informant accurately supplies them with a description, address, and make of car of a person. See State v. Mendoza, 376 So.2d 139, 142 (La. 1979) (Conduct not inconsistent with innocent pursuit, even when viewed together with verified portions of informant's allegations, i.e., defendant drove brown pick-up truck with tool-box on back, does not constitute probable cause for arrest). As such, the arrest was unlawful and the evidence illegally seized. Accordingly, the trial judge erred in denying Alexander's motion to suppress.
For the foregoing reasons, the defendant's conviction and sentence are reversed.
REVERSED.
WALTZER, J., concurs with reasons.
I respectfully concur in the result reached by my colleagues and would reverse additionally for the reason that the defendant's waiver of his trial by jury is inadequate.
PROCEDURAL BACKGROUND
The defendant appeared in court on March 3, 1992, and plead not guilty. Counsel was appointed. The minute entry for this day shows that the defendant was advised of his constitutional rights. The minute entry is silent on the defendant's choice of trial, i.e. whether by jury or by the court. On April 1, 1992, the court heard testimony in a combined preliminary hearing and motion to suppress the evidence. The matter was then set for trial April 16, 1992. The minute entry for that day shows that the defendant elected to be tried by the court. The minute entry and the transcript for that day reveal that defense counsel stipulated:
a) that if officers Selby, Schnapp, Little, Boudoin, Watkins and Joseph were called to testify, they would testify in accordance with the narrative sections in the police report;
b) that if criminalist [Paul Wertz] from the crime lab were to testify, he would indicate that the substances tested in the laboratory tested positive for cocaine;
c) that the evidence card should be admitted without objection.
Clearly, the evidence adduced at the combined preliminary hearing/motion to suppress was likewise incorporated into the trial. No opening statements, live testimony or closing arguments were presented on the day of trial, and the defendant was found guilty of the lesser included offense of simple possession of cocaine, waived all legal delays and was sentenced to three (3) years at hard labor, with credit for time served. The record is silent why the court found the defendant guilty of a lesser included offense.
Considering the testimony at the combined hearing on probable cause and the motion to suppress the evidence, several questions are raised which make this reversal proper. At a preliminary hearing hearsay is permissible and the burden of proof is whether it is more likely than not that a crime has been committed. At a motion to suppress the evidence the State has the burden to prove beyond a reasonable doubt that the evidence was seized in a constitutional manner. Since both hearings were combined, we are presented with a transcript filled with hearsay regardless of whether to show the requisite elements of the crime alleged or the constitutional propriety of the search and seizure of the defendant and the contraband. It is this hearsay evidence which provides the stipulated evidence for trial. We have no way of knowing whether the defendant was ever told by his counsel or the court that the many procedural short cuts that were employed in his case would insure a strategic advantage. Nor do we know whether the defendant understood that a jury trial is constitutionally guaranteed to any defendant, that ten (10) of twelve (12) jurors would be needed for any valid verdict and, most importantly, that the hearsay evidence which was admitted at the combined hearings would not pass constitutional muster in a trial where only legal evidence would be permitted to prove his guilt beyond a reasonable doubt. (The testimony of Officer Selby alone would not have sufficed at trial because he did not personally see some of the most important events during the search and seizure).
THE JURY TRIAL WAIVER
The following colloquy regarding the right to trial by jury took place on the day of trial:
BY THE COURT: Do you wish to have a trial by Judge or jury.
BY MR. MEYER: Judge Trial
BY THE COURT: Mr. Alexander, do you understand, sir, you have a right to be tried by a jury and be tried by the Court. What is your desire, sir?
(AT THIS TIME DEFENDANT ALEXANDER DISCUSSED THE MATTER WITH HIS ATTORNEY, JOSEPH MEYER).
BY MR. ALEXANDER: I would like a Judge Trial.
Defense counsel admits in brief that it "appears that the decision to proceed with a judge trial was a carefully considered defense strategy since the focus of the defense was the illegal search". The implication seems to be that the jury trial waiver would then make sense only if the defendant knew in advance that his verdict would be substantially reduced. Because the right to trial by jury is a fundamental right, the presumption is against waiver of this right, and on review of such waiver, the record must show that an effective waiver has been made. U.S. Const. Am. 6; La. Const. Art. I, Sec. 17 (1974). It is true that the defendant was told that he had the right to be tried by jury or the court, but the defendant was not apprised that he was entitled to be tried by a jury of twelve (12) citizens and that the decision of guilt had to be made by the consensus of ten (10). The record does not reflect that the defendant waived his right to trial by jury "knowingly and voluntarily". We simply do not know what the defendant "knew" about trial by jury. I find the court's advice inadequate and because of the importance attached to the right to a jury trial, a trial judge must exercise great care in allowing a criminal defendant to waive the right.
For instance, when a defendant elects to enter a plea of guilty thereby waiving his right to trial by jury and other important constitutional rights, the trial judge must advise the defendant personally of his right to a jury trial, his right to confront his accusers, and his privilege against self-incrimination and make inquiry of the defendant as to his understanding of these rights and that by pleading guilty he waives them. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Godejohn, 425 So.2d 750 (La. 1983); State v. Kahey, 436 So.2d 475, 486 (La. 1983).
When a defendant chooses to be tried by a judge the concern for the defendant's understanding of and voluntariness of his waiver of the right to a jury trial are still present. In this situation, only a waiver which is "knowingly and intelligently" made is acceptable. La.C.Cr.P. art. 780. The trial court's inquiry in this case did not endeavor to determine the defendant's understanding and intention pertaining to the right to trial by jury.