
    STATE of Louisiana v. Matthew KELLEY.
    No. 2005-KA-0332.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 29, 2005.
    
      Eddie J. Jordan, Jr., District Attorney, Meri M. Hartley, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge LEON A. CANNIZZARO JR.).
   JACHARLES R. JONES, Judge.

This appeal concerns a seizure of evidence. The defendant in this case, Matthew Kelley, filed this appeal as a result of the district court’s decision denying his motion to suppress. For the following reasons we REVERSE.

STATEMENT OF FACTS

On June 7, 2004, Officer Randy Garrison received a complaint that there was a man slumped over the steering wheel of a car in the 3300 block of Upperline Street. When he and his partner arrived at the location they observed Kelley sitting in the driver’s seat leaning over the steering wheel. The officers tapped on the window, and Kelley opened the door of the vehicle. The officers inquired whether Kelley was in need of medical assistance. He declined the medical assistance and informed the officers that he was okay.

The officers asked Kelley for his driver’s license and vehicle registration. A computer check revealed that he had a suspended driver’s license, and the vehicle was not registered to him. At that point the officers advised him that he was under arrest for operating a vehicle with a suspended license. They asked Kelley to step |2out of the vehicle so that he could be handcuffed. However, the officers never asked Kelley if he had been driving the car, nor did they check the hood of the car to determine if the engine had been running.

When Kelley exited the vehicle the officers observed a clear plastic bag containing a white substance that they believed to be cocaine, as well as another bag containing pills that the officers believed to be hydrocodone on the driver’s seat of the car. Subsequently, it was determined that the white substance was actually methamphetamine.

PROCEDURAL HISTORY

Kelley was charged with one count of possession of cocaine that was later amended to possession of methamphetamine. Also, he was charged with one count of possession of hydrocodone. On September 21, 2004, following a hearing on motions to suppress evidence, and other motions, the trial court found that the evidence was legally seized, and found probable cause as to the possession of methamphetamine and probable cause as to the possession of hydrocodone. On October 27, 2004, Kelley entered a plea of guilty under State v. Crosby, 338 So.2d 584 (La.1976) reserving his right to review the trial court’s ruling on the admissibility of the evidence. Kelley was sentenced to three years concurrently in the custody of the Department of Correction, suspended, and placed him on three years probation. He subsequently filed this appeal.

ERRORS PATENT

A review of the record reveals that there are no errors patent.

|..¡DISCUSSION

By his lone assignment of error, Kelley contends that the trial court erred in its determination that the evidence in this case was legally seized. We find that the trial court did in fact err in its conclusion. The evidence seized in this case was done so illegally. Therefore, the motion to suppress should have been granted.

When officer Garrison approached the window of the car that Kelley was sitting in, he tapped on the window, he then asked Kelley if he was in need of medical attention, and Kelley opened the door and responded to the officer’s question. The record reflects that the officers believed there was a continued concern for Kelley’s safety after the initial conversation.

Officer Garrison did not testify that he or his partner had any reason to suspect that Kelley was armed, nor that he presented a danger to himself, the officers, or others. Accordingly, a search under these circumstances cannot be justified. See State v. Lightfoot, 580 So.2d 702, 705 (La.App. 4 Cir. 5/16/91), citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We find from the record that the officers had no other reason to ask Kelley to step out of the vehicle, except to arrest him for driving while his license was suspended. In order to arrest, the officers needed probable cause to ask him to step out of the vehicle. The trial court determined that there was probable cause, but we disagree.

The officers in this case did not have probable cause to arrest Kelley, which means that they did not have the right to ask him to step out of the vehicle. In order for there to be probable cause for an arrest of this nature, Kelley must have been found to be legally “operating” or have “operated” the vehicle.

La. R.S. 32:415 defines, in pertinent part, the crime of operating a motor vehicle while a license is suspended as follows:

“A. It shall be unlawful for any person to operate a motor vehicle upon any public highway of this state during the period of suspension, revocation or cancellation of any | license which may have been issued to him by the state or by any other state.”

Also, in State v. Brister, 514 So.2d 205, 207-208 (La.App. 3 Cir. 10/07/87), The Third Circuit reversed a conviction for driving while intoxicated. Brister was found sitting in the driver’s seat, slumped against the door in Natchitoches Parish. The lights of the vehicle were on, and the motor was not running. After seven or eight requests by police for the defendant to exit the vehicle, the defendant turned, apparently causing the vehicle to roll forward ten or fifteen feet. The Third Circuit reversed the defendant’s conviction stating:

“The mere presence of defendant in the car while it was in motion does not make him the operator of the vehicle. The defendant must have been exercising some control or manipulation over the vehicle, such as steering or braking. No evidence was introduced that the defendant released the brake, causing the car to roll forward, or that he was steering the car.” Id.

Applying the Brister standard of the term “operating,” to this case, we find that Kelley was not operating the vehicle. Kelley was merely sitting in a ear with the headlights and the motor turned off. Additionally, the car had two flat tires, which suggests that the ear had been parked there for some time. The fact that two of the four tires were flat on the car would also suggest that Kelley had not been operating the car, because it would have been impossible for the car to be driven from the place that it was parked. Lastly, the officers failed to ask Kelley if he had been operating the car, and they failed to check to see if the hood was warm which would have suggested that the motor had been running. For these reasons, we find that Kelley was not operating the vehicle.

The only reason the officers asked Kelley to step out of the vehicle was to arrest him for driving with a suspended license. The evidence that was seized in this case became visible to the officers only because Kelley stepped out of the vehicle. It has already been determined that Kelley must have been operating the |svehicle in order to be arrested for driving with a suspended license. Since he had not been operating the vehicle, the arrest was made without probable cause. Therefore, we find that the evidence that was seized as a result of the arrest is fruit of the poisonous tree and is suppressed.

Decree

The district court erred in its denying the motion to suppress evidence seized in this case. Therefore, the district court’s judgment is vacated and the case is remanded for further proceedings.

REVERSED.

CANNIZZARO, J., dissents with reasons.

| t CANNIZZARO, J.,

dissents with

reasons.

I respectfully dissent from the majority opinion. I would affirm the trial court judgment.

La.C.Cr.P. art. 215.1(A) provides that “[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.” La.C.Cr.P. art. 215.1(B) further states that “[wjhen a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon.” The officer may also search the person, if the officer reasonably suspects that the person has possession of a dangerous weapon. Id.

In the instant case the police were responding to a report that a male was slumped over the steering wheel of an automobile. When the officers arrived at the location of the vehicle, the officers approached the vehicle, tapped on the window, and asked the occupant whether he needed medical services. The occupant, Mr. Kelly, the defendant in this case, told the officers that he did not need medical attention and explained that he was “just there.” The officers then asked to see his driver’s license and the registration form for the vehicle. When a search was performed on the officers’ computer, they learned that Mr. Kelly had a suspended 1 ^driver’s license and that the vehicle was not registered to him. At that point the officers asked Mr. Kelly to exit the vehicle and advised him that he was under arrest for driving with a suspended license. When Mr. Kelly exited the vehicle, the officers saw in plain view next to the driver’s seat a clear bag containing a white substance that they believed to be cocaine and a second bag containing pills that the officers believed to be Vicodin. Mr. Kelly was then arrested for drug violations. The substance in the plastic bag was ultimately tested and determined to be methamphetamine.

The majority opinion is based on the premise that there was no probable cause to arrest Mr. Kelly for driving with a suspended license. Therefore, the majority concludes that the police officers had no right to ask Mr. Kelly to exit the vehicle. The majority then reasons that because the drugs that were found would not have been in plain view if Mr. Kelly had remained seated in the vehicle, the evidence seized was obtained illegally.

I strongly disagree. Even if probable cause for the arrest on the charge of driving with a suspended license did not exist, the police officers clearly had a right to ask Mr. Kelly to exit the vehicle. La. C.Cr.P. art. 251.1(B). The fact that the officers had been called to the scene to investigate a man slumped over the steering wheel of a vehicle with out-of-state license plates that was not registered to him certainly was sufficient to raise reasonable suspicion on the part of the officers. Additionally, when the man was unable to explain why he was in the vehicle or even how he got there, there was further cause for reasonable suspicion. The lack of an explanation regarding Mr. Kelly’s presence in a vehicle that was not his could clearly give rise to a reasonable suspicion that Mr. Kelly was in possession of a vehicle without the proper authority, particularly when he had a key in the ignition.

| oOnce the officers had reasonable suspicion that Mr. Kelly might have been committing a crime and that they might be in danger, they had the right to at least frisk Mr. Kelly’s outer clothing under La. C.Cr.P. art. 215.1(B). Thus, they had the right to ask him to exit the vehicle. The police officer who testified in this case was never asked whether he was concerned for his safety. Nevertheless, I believe that we can infer that a police officer would reasonably believe he might be in potential danger in a situation where a person is not acting as one would customarily expect a person to act, where the person is in a vehicle that is not his, and where the person has no reasonable explanation for how he got into the vehicle or why he was there other than he was “just there.” Police officers are trained to recognize suspicious activity for the purpose of protecting the citizenry. I believe that the police officers here recognized that Mr. Kelly’s activity was very suspicious, and I believe that we can conclude that they should have realized, and did realize, that they were in a potentially dangerous situation.

It is possible that the officers’ investigation could have revealed that Mr. Kelly was simply asleep in the vehicle, but the police officers still had the right, and the duty, to investigate the call they received. Although Mr. Kelly stated that he did not need medical attention, the circumstances in this case were sufficiently suspicious to give the officers the right, and impose upon them the duty, to investigate the situation further. Police officers are neither lawyers nor judges, and they must make instantaneous decisions without the benefit of the cool, deliberate judgments that lawyers and judges have time to make. Courts should apply reasonable common sense standards to street encounters between suspicious citizens and police officers.

I would find that the issue in this case is not whether the vehicle in which Mr. Kelly was sitting slumped over the steering wheel was, in fact, being operated by him. The issue is whether the police officers had sufficient reasonable | ¿suspicion to ask Mr. Kelly to step out of the vehicle based on the suspicious facts and Mr. Kelly’s failure to explain his actions with more than the comment that he was “just there.” I believe that the evidence clearly shows that the police officers did have such reasonable suspicion and that once Mr. Kelly exited the vehicle, the police officers had the right to seize any evidence that was in plain sight without the necessity of a search warrant. See, e.g., Horton v. Cali fornia, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990).  