Opinion
NO. 2011-KA-0280
09-14-2011
STATE OF LOUISIANA v. TERRONE JENKINS
Leon A. Cannizzaro, Jr. District Attorney Scott G. Vincent Assistant District Attorney COUNSEL FOR STATE OF LOUISIANA Sherry Watters LOUISIANA APPELLATE PROJECT COUNSEL FOR TERRONE JENKINS
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 498-057, SECTION "I"
Honorable Karen K. Herman, Judge
Judge Terri F. Love
(Court composed of Judge James F. McKay, III, Judge Michael E. Kirby, Judge Terri F. Love)
Leon A. Cannizzaro, Jr.
District Attorney
Scott G. Vincent
Assistant District Attorney
COUNSEL FOR STATE OF LOUISIANA
Sherry Watters
LOUISIANA APPELLATE PROJECT
COUNSEL FOR TERRONE JENKINS
AFFIRMED
While being detained for alleged intoxication by New Orleans Police Officers, the defendant dropped oxycodone pills on the ground when he retrieved his identification from his pocket. The defendant could not produce a prescription bottle. The defendant filed a motion to suppress the evidence, which the trial court denied. After pleading guilty to possession of oxycodone and to being a multiple offender, the defendant reserved his right to appeal the trial court's denial of his motion to suppress the evidence. We find that the oxycodone was not seized pursuant to an illegal search because the defendant revealed the oxycodone while retrieving his identification from his pocket and affirm the trial court's denial of the defendant's motion to suppress.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Officer Erica Jones was patrolling with her partner, Officer Edwin Cooper, and at approximately 6 p.m., they were patrolling down St. Ann Street towards N. Broad Street when they viewed Terrone L. Jenkins. They were approaching the 2800 block of St. Ann Street. Mr. Jenkins and two other men were standing in the street in a huddle. When the men saw the police, Mr. Jenkins "looked up and he looked like he was very intoxicated." Mr. Jenkins attempted to walk away in "a slow-paced stagger walk," but he could barely walk. Based upon this information, Officers Cooper and Jones decided to investigate.
The record on appeal comes from testimony at the August 13, 2010 motions hearing because there was no trial. Officer Erica Jones testified at that hearing. Terrone L. Jenkins also entered testimony of his investigator, Emily Zolynsky.
Officer Cooper spoke to Mr. Jenkins while Officer Jones spoke to the other men. From what she could see, Officer Jones opined that Mr. Jenkins was very intoxicated. Officer Cooper told Officer Jones that Mr. Jenkins' eyes were bloodshot and his speech was slow and slurred.
Based on Mr. Jenkins' presumed intoxication and "unstable manner", Officer Cooper decided that Mr. Jenkins was a danger to himself or others and placed him under arrest for public intoxication pursuant to Municipal Code Section 54-405. The police report written by Officer Cooper indicated that Mr. Jenkins lived at 2828 St. Ann Street, which was near the arrest site. Officer Jones did not recall knowing of Mr. Jenkins' nearby residence, but stated that she would have escorted him home if knew.
Officer Cooper arrested Mr. Jenkins and then advised him of his Miranda rights. Mr. Jenkins indicated that he understood his Miranda rights and did not waive them. According to Officer Jones, Mr. Jenkins stated "more or less" that he had been drinking and that "he took a pill." As Mr. Jenkins tried to retrieve his identification pills fell out of his pocket. Mr. Jenkins stated that he had a prescription, but could not produce "the bottle." A criminalist report introduced at the hearing stated that the contraband confiscated from Mr. Jenkins was tested and determined to be oxycodone.
Emily Zolynsky, an intern investigator at the Orleans Public Defenders' office, authenticated photographs demonstrating that Mr. Jenkins' home located at 2828 St. Ann Street was one house from the corner of St. Ann and North Dupre Streets, near the arrest site.
The State charged Mr. Jenkins with possession of oxycodone, a controlled dangerous substance, in violation of La. R.S. 40:967(C). See also La. R.S. 40:964 (listing oxycodone as a Schedule II controlled dangerous substance). After an August 13, 2010 motions hearing, the trial court denied a motion to suppress evidence. Mr. Jenkins filed a Motion to Reconsider the Defendant's Motion to Suppress Evidence and Motion to Reopen the Hearing on Motions. The docket master and minutes reflect that the trial court granted the motion to reopen the hearing on motions, but the hearing was continued several times, and never occurred. Instead, Mr. Jenkins entered a guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), and reserved his rights to challenge the trial court's decision denying the motion to suppress on appeal pursuant to State v. Crosby, 338 So. 2d 584 (La. 1976).
The State also charged Mr. Jenkins with being a two-time felony offender. See La. R.S. 15:529.1. The trial court originally imposed a five-year sentence. However, when Mr. Jenkins pled guilty to the multiple offender bill of information at the same hearing, the trial court vacated the original sentence and resentenced Mr. Jenkins to serve eight years at hard labor with credit for time served. This appeal followed.
The record reveals no errors patent.
MOTION TO SUPPRESS
Mr. Jenkins asserts that the trial court erred in denying his motion to suppress evidence based upon three grounds: 1) there was no probable cause to arrest him for public intoxication because the record does not contain facts or circumstances demonstrating that he was a danger to himself or others, 2) the arresting officers should have issued a summons rather than arrest him pursuant to Section 54-28 of the New Orleans City Code, and 3) there was no concern for officer safety to justify a pat down or frisk. However, the State cites State v. Wells, 08-2262 (La. 7/6/10), 45 So. 3d 577, in support of its contention that the trial court did not err in finding the arresting officers reasonably believed Mr. Jenkins was a danger to himself or others.
Pursuant to La. C.Cr.P. art. 215.1(A), "[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions." See also State v. Robertson, 97-2960 (La. 10/20/98), 721 So. 2d 1268, citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968)(Investigatory stop must be based upon reasonable suspicion that an individual has committed, or is about to commit, an offense). "Reasonable suspicion for an investigatory" stop "is something less than probable cause" for arrest. Robertson, 97-2960, 721 So. 2d at 1270. The detaining officer "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." State v. Kalie, 96-2650, p. 3 (La. 9/19/97), 699 So. 2d 879, 881, quoting United States v. Cortez, 449 U.S. 111, 417, 101 S.Ct. 690, 695 (1981).
The arresting officers initially approached Mr. Jenkins because he appeared "very intoxicated." As they approached, Mr. Jenkins attempted to leave, but could barely walk. Based upon this information, the officers possessed reasonable suspicion that Mr. Jenkins was intoxicated and could be a danger to himself of others, a violation of Section 54-405 of the New Orleans City Code.
Section 54-405 provides:
It is unlawful for any person to appear in a public place manifestly under the influence of alcohol, narcotics or other drugs, not therapeutically administered, to the degree that he may endanger himself or other persons or property.
Officer Jones testified that Mr. Jenkins was subsequently placed under arrest pursuant to Section 54-405. However, the legality of this arrest has no impact on the admissibility of the oxycodone, because it was not seized pursuant to a search. Reasonable suspicion existed to support the detention of Mr. Jenkins because, according to Officer Jones, Mr. Jenkins, despite refusing to waive his rights, admitted to drinking and taking a pill. When Mr. Jenkins attempted to retrieve his identification, pills fell out of his pocket. At that point, the officers had conducted no search, as Mr. Jenkins alleges, but Mr. Jenkins was lawfully detained. The pills entered the public realm as a result of Mr. Jenkins' own action in retrieving his identification. Probable cause for arrest then existed.
"Probable cause to arrest exists when the facts and circumstances within an officer's knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a person of average caution in the belief that the accused has committed an offense." State v. Wells, 08-2262, p. 8 (La. 7/6/10), 45 So. 3d 577, 582-83. In determining the existence of probable cause, "courts must examine the facts and circumstances within the arresting officer's knowledge in light of the experience of reasonable people, not legal technicians. " Wells, 08-2262, p. 8, 45 So. 3d at 583. Mr. Jenkins' physical condition and his admission to drinking and taking a pill gave the arresting officers probable cause to believe the pills were contraband.
Because Mr. Jenkins inadvertently exposed the pills during a lawful detention, the record reflects that the trial court committed no error or abused its discretion in denying the motion to suppress the evidence. Accordingly, we affirm the conviction and sentence.
DECREE
For the above mentioned reasons, we find that the trial court did not err in denying Mr. Jenkins' motion to suppress and affirm.
AFFIRMED