State Of Louisiana VS Clayton Wilson
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 KA 0603 STATE OF LOUISIANA VERSUS CLAYTON WILSON Judgment Rendered 1 2013 1 On Appeal from the 19 Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No OS Section 2 Division G 0499 11 The Honorable Richard D Anderson Judge Presiding Frederick Kroenke Attorney for Defendant Appellant Louisiana Appellate Project Baton Rouge Louisiana Clayton Wilson Dylan C Alge Assistant District Attorney Attorney for Appellee Jolul State of Louisiana Russell Assistant District Attorney Hillar C Moore III District Attorney Baton Rouge Louisiana BEFORE PARRO GUIDRY AND DRAKE JJ DRAKE J The defendant Clayton Wilson was charged by bill of information with possession of cocaine a violation of Louisiana Revised Statutes 40 The C 967 defendant pled not guilty and following a jury trial was found guilty as charged The defendant filed motions for new trial and post judgment of acquittal verdict which were denied The defendant was sentenced to five years imprisonment at hard labor The defendant now appeals designating one assignment of error We affirm the conviction and sentence FACTS On 7anuary 29 2011 at about 530 p Sergeant 7oe1 Pattison and Captain m Noel Joseph Salomoni both with the Baton Rouge Police Department were running radar on Perkins Road In the 45 miles zone a truck sped past hour per the officers at 61 miles followed by a car speeding past at 55 miles hour per per hour Captain Salomoni pursued the truck while Sergeant Pattison pursued the car Captain Salomoni turned on the lights and siren on his marked unit and followed the truck but the driver of the truck refused to stop Finally to effect a stop Captain Salomoni cut across the front of the truck and blocked the road He motioned for the driver of the truck a female to pull the truck over into a parking lot The defendant who was the passenger jumped from the truck and ran Captain Salomoni told the defendant to stop but he kept running Captain Salomoni handcuffed the female driver placed her in the front seat of his unit and drove after the defendant Following fifteen feet behind the running defendant and waiting for him to become tired Captain Salomoni observed the defendant retrieve something from the side of his body then toss it away behind him Captain Salomoni saw that the defendant had thrown a small red and white pill bottle Captain Salomoni continued to follow the defendant and as the defendant began to 1 Sergeant Pattison testified that the incident took place around 6 or 6 p 00 30 m 2 slow down Captain Salomoni sped up then stopped jumped from his unit and apprehended the defendant Shortly thereafter Sergeant Pattison arrived and handcuffed the defendant Captain Salomoni went back to the spot where he saw the pill bottle thrown and retrieved it He opened the bottle which contained 82 grams of crack cocaine ASSIGNMENT OF ERROR In his sole assignment of error the defendant argues the trial court erred in denying his motions for new trial and post judgment of acquittal verdict Specifically the defendant contends that he was arrested without probable cause As such the drugs were illegally seized At the motion to suppress hearing defense counsel failed to inform the State and the trial court about what specific items of evidence he was seeking to suppress and the grounds for such suppression Accordingly the trial court denied the motion to suppress for lack of specificity The trial court further noted that the motion was untimely Therefore there is no ruling on the motion to suppress When tangible objects are sought to be excluded from evidence on the basis of an unconstitutional search or seizure a defendant must timely file a motion to suppress such evidence Otherwise he is deemed to have waived any objection to its admission based on an infirmity in the search and seizure Since no motion to suppress was timely filed in the instant case the defendant cannot now complain on appeal that the object was seized pursuant to an unconstitutional search See La C art 703 State v Quimby 419 So 2d 951 959 La 1982 State v P Cr Iohnson 333 So 2d 286 289 La App lst Cir 1976 In any case we briefly address the merits of the defendant argument The s Fourth Amendment of the United States Constitution and Article I Section 5 of the z In a writ application the defendant sought review of the trial court ruling In an s unpublished action the writ was denied State v Wilson 2012 La App 1 Cir 4 0607 12 27 3 Louisiana Constitution protect persons from unreasonable searches and seizures The police may not make a warrantless arrest of a citizen without probable cause that the citizen has engaged in criminal conduct In order to discourage police misconduct evidence recovered as a result of an unconstitutional search or seizure is inadmissible Consequently properiy abandoned by an individual and recovered by the police as a direct result of an unconstitutional seizure may not be used in a subsequent prosecution If however property is abandoned prior to any unlawful intrusion into a citizen right to be free from governmental interference then the s property may be lawfully seized and used in a resulting prosecution In this latter situation the citizen has no reasonable expectation of privacy and there is no violation of his custodial rights State v Dobard 2001 La 6 824 So 2629 02 21 2d 1127 1129 30 In State v Fisher 97 La 9 720 So 2d 1179 1182 our 1133 98 83 supreme court recognized a useful three analysis of interactions between tiered citizens and the police from United States v Watson 953 F 895 897 n Sth 2d l Cir ce denied 504 U 928 112 S 1989 118 L 586 1992 In the t S Ct 2d Ed first tier there is no seizure or Fourth Amendment concern during mere communication between police officers and citizens where there is no coercion or detention The second tier consists of brief seizures of a person under Terry v Ohio 392 U l 88 S 1868 20 L 889 1968 if the officer has an S Ct 2d Ed objectively reasonable suspicion supported by specific and articulable facts that the person is or is about to be engaged in criminal activity See State v Belton 441 So 1195 1198 La 1983 ceYt denied 466 U 953 104 S 2158 80 2d S Ct 2d Ed L 543 1984 The third rier is custodial arrest where an officer needs probable cause to believe that the person has committed a crime Hamilton 2009 La 536 So 3d 209 212 2205 10 11 4 See State v I Within the first tier officers have the right to engage anyone in conversation even without reasonable grounds to believe that they have committed a crime Further the police do not need probable cause to arrest or reasonable suspicion to detain an individual each time they approach a citizen Hamilton 36 So 3d at 212 see also Dobard 824 So 2d at 1130 The protections from unwarranted forcible governmental interference therefore are not implicated when an individual encountered by a law enforcement officer remains free to disregard the encounter and walk away It is only when the citizen is actually stopped without reasonable cause or when a stop without reasonable cause is imminent that the right to be left alone is violated thereby rendering unlawful any resultant seizure of abandoned property State v Tucker 626 So 2d 70 710 7 11 opinion reinstated on reh g626 So 2d 720 La 1993 see also Belton 441 So 2d at 1199 The Tucker court in adopting the U Supreme Court pronouncement in S s California u Hodari D 499 U 621 111 S 1547 113 L 690 1991 S Ct 2d Ed held that an individual has been actually stopped iseized for purposes of e Louisiana Constitution Article I Section 5 when he submits to a police show of authority or when he is physically contacted by the police Additionally the Tucker court determined that even when an actual stop has not been effectuated our constitution still mandates a finding that an individual has been seized if an actual stop is imminent An actual stop is imminent only when the police come upon an individual with such force that regardless of the individual attempts to s flee or elude the encounter an actual stop of the individual is virtually certain Dobard 824 So 2d at 1130 ciring Tucker 626 So 2d at 712 emphasis in original In determining whether an actual stop of an individual is imminent the focus must be on the degree of certainty that the individual will be actually 5 stopped as a result of the police encounter This degree of certainty may be ascertained by examining the extent of police force employed in attempting the stop It is only when the police come upon an individual with such force that regardless of the individual attempts to flee ar elude the encounter an actual stop s of the individual is virtually c that an actual stop of the individual is rtain imminent TuckeN 626 So 2d at 712 The Tucker court listed the following factors for use in assessing the extent of police force employed and determining whether or not that force was virtually certain to result in an stop of the actual individual 1 the pro of the police in relation to the defendant at the outset mity of the encounter 2 whether the individual has been surrounded by the police 3 whether the police approached the individual with their weapons drawn 4 whether the police and the individual are on foot or in motorized vehicles during ar the encounter 5 the location and characteristics of the area where the encounter takes place and 6 the number of police officers involved in the encounter Tucker 626 So 2d at 712 State v Collins 93 La App lst Cir 5 13 1198 94 20 637 So 2d 741 744 In the instant matter despite the defendanYs assertion Captain Salomoni had probable cause to arrest the defendant The driver of the truck refused to stop engaging Captain Salomoni in a chase with his lights and siren on He was only able to effect a stop because he pulled in front of the truck in the middle of the road The defendant then exited the passenger side of the truck and took off running Despite Captain Salomoni order to stop the defendant continued to run s While Captain Salomoni followed the defendant in his police unit he observed the defendant toss a pill bottle Captain Salomoni testified that he had experienced similar situations like this when a person being pursued discarded a pill bottle that contained narcotics When Captain Salomoni finally caught up to the defendant he apprehended and arrested him Thus having witnessed the defendant flee from 6 a traffic stop and throw a pill bottle while he was being chased Captain Salomoni had probable cause to believe a crime had occurred or at least was reasonably probable under the totality of the known circumstances See La C art 213 P Cr State u Simms 571 So 2d 145 149 La 1990 The foregoing discussion of probable cause to arrest notwithstanding the defendant discarded the drugs prior to being seized by Captain Salomoni Accordingly even if Captain Salomoni did not have probable cause to arrest the defendant the seizure of the pill bottle was still lawful because as noted property abandoned prior to even an unlawful intrusion may be lawfully seized and used in a resulting prosecution See Dobard 824 So 2d at 1129 A review of the 30 Tucker factors to determine whether or not force was virtually certain to result in an actual stop clearly indicates that when the defendant threw the pill bottle on the ground while being chased he was not actually stopped nor was an actual stop imminent Captain Salomoni was not so near the defendant when he fled from the truck that he could have simply seized the defendant instead he had to chase the defendant in his police unit The defendant was clearly not surrounded by any police as he was attempting to make his escape as only one officer was in pursuit of the defendant and it does not appear from the record that Captain Salomoni drew his weapon See Tucker 626 So 2d at 712 13 Thus while the defendant was clearly seized and subsequently arrested after throwing the drugs on the ground at the moment the defendant tossed the drugs on the ground as he was fleeing from Captain Salomoni no Fourth Amendment stop or seizure had occurred Under the circumstances of this case it is clear Captain Salomoni did not come upon the defendant with such force that regardless of the s defendant attempts to flee or elude the encounter an actual stop of him was virtually certain at the time he discarded the pill bottle See Tucker 626 So 2d at 712 see also State v 2000 La 3 824 So 2d 1124 1125 7ackson 3083 02 15 27 7 I I per curiam Collins 637 So 2d at 744 Based on the foregoing we find the defendant abandoned the cocaine before any actual or imminent actual stop occurred Captain Salomoni thus lawfully seized the drugs Accordingly the trial court did not err or abuse its discretion in denying the motion to suppress See State u Hunt 2009 La 12 25 So 1589 09 1 3d 746 751 see also State v Green 94 La 5 655 So 2d 272 52 0887 95 22 81 280 Further the trial court did not err in denying the motion for new trial and motion for post judgment of acquittal The assignment of error is without verdict merit CONVICTION AND SENTENCE AFFIRMED 8
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