
    STATE of Louisiana v. Corey D. SPELLS.
    No. 2010-KA-1024.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 2011.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    
      Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

[ ]After the trial court denied his motion to suppress evidence, Corey Spells, the defendant, entered a guilty plea to the offense of possession with intent to distribute marijuana under State v. Crosby and appeals the ruling. The trial court found that Mr. Spell’s initial interaction with the police was consensual such that suppression of the evidence was unwarranted. Because we conclude that the trial judge did not abuse her discretion in that finding, we affirm Mr. Spells’ conviction and sentence.

I

The prosecution by bill of information charged Mr. Spells with possession with intent to distribute marijuana. See La. R.S. 40:966 A(2). As noted above, the trial court denied Mr. Spells’ motion to suppress the evidence. After the trial court’s evidentiary ruling, Mr. Spells entered a plea of guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976), thereby reserving his right to challenge on appeal the denial of his motion to suppress the evidence. Mr. Spells was then sentenced to five years in the custody of the Department of Corrections. Pursuant to La. C.Cr.P. art. 893, the sentence was suspended and Mr. Spells was placed on three years active probation and fined seven hundred dollars.

_kll

Mr. Spells did not testify at the suppression hearing. See La.C.Cr.P. art. 703 E(l). Thus, following testimony by the police is uncontroverted.

Narcotics detective Harry Stovall of the New Orleans Police Department was working at that city’s Union Passenger Terminal with Detective Raymond Delvalle of the Amtrak Police Department, checking passengers who were arriving in New Orleans by bus or train in order to determine whether they were in possession of illegal or dangerous substances. Det. Sto-vall explained that they approached individuals, explained what they were doing, and asked for their identification and ticket, as well as asking whether they would voluntarily consent to having their luggage searched.

Det. Stovall noticed Mr. Spells as he disembarked from a train, because he stopped his approach to the terminal and watched while they conducted a check of another individual; Mr. Spells appeared to be concerned over the officers’ presence. Det. Stovall found the defendant’s behavior suspicious because the majority of people exiting the train continued their approach to the terminal without stopping. Because he was in plainclothes, Det. Sto-vall identified himself to Mr. Spells as Mr. Spells approached, and the detective presented his badge, which was around his neck.

Det. Stovall asked Mr. Spells for his identification and his ticket stub because he wanted to ascertain whether the identification and the name on the ticket were in the same name. As Mr. Spells handed over his information, Det. Stovall saw that his hand was shaking. Det. Stovall explained to Mr. Spells that they were checking passengers as they entered the city to ensure that people were | snot bringing illegal or dangerous items with them. Det. Stovall explained that they were conducting “voluntary, consensual” searches, and that Mr. Spells had the right to refuse. Det. Stovall then asked him whether he was in possession of anything he should not have.

Mr. Spells verbally admitted that he had a small amount of marijuana in his pocket. Det. Stovall then reached into Mr. Spells’ right front pants pocket and retrieved a small amount of marijuana. Det. Stovall then informed the defendant that he was under arrest, placed him in handcuffs, and Mirandized him. Det. Stovall brought Mr. Spells to an office in the terminal, where he asked Mr. Spells whether he had anything else other than what had been seized from his pocket, and Mr. Spells informed him that he had some more marijuana in his bag. Det. Delvalle opened the defendant’s bag and retrieved two extra-large plastic bags of marijuana.

At that time, Det. Stovall informed Mr. Spells of the additional charges. Mr. Spells then explained that he had come upon hard times and was trying to make some money. Det. Stovall then asked Mr. Spells if he would record his statement on a Rights of Arrestee form. Mr. Spells signed the form and wrote in the remarks section, “I was in possession of marijuana.”

Ill

Mr. Spells argues in his sole assignment of error that he was subjected to an investigatory stop by police without reasonable suspicion and that the evidence against him must be suppressed. We disagree, however, because Mr. Spells was not “seized” sufficient to implicate the Fourth Amendment.

14At the outset, we note that a trial court’s ruling on a motion to suppress is entitled to great weight and will not be set aside unless there is an abuse of that discretion. State v. Wells, 08-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581. The prosecution bears the burden of proving the admissibility of evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. La.C.Cr.P art. 703 D; State v. Hunt, 09-1589, pp. 6-7 (La.12/1/09), 25 So.3d 746, 752; see also State v. Jason, 10-0658, pp. 2-3 (La.App. 4 Cir. 12/1/10), 53 So.3d 508, 509 (for an extended discussion of the Fourth Amendment’s warrant requirement and the recognition of consent as an exception thereto).

The issue in this case is whether the encounter between Mr. Spells and police may be characterized as an “investigatory stop.” The United States Supreme Court has recognized that encounters between citizens and police come in a wide variety:

Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually helpful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. All confrontations are not of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation. Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime.

Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Police officers “have the right to engage anyone in conversation, even without reasonable grounds to believe that they have committed a crime.” State v. Johnson, 01-2436, p. 3 (La.1/25/02), 806 So.2d 647, 648 (quoting State v. Duplessis, 391 So.2d 1116, 1117 (La.1980)). As long as the person approached by |sa law enforcement officer remains free to disregard the encounter and walk away, the foregoing constitutional provisions are not implicated. State v. Tucker, 626 So.2d 707, 710 (La.1993); State v. Belton, 441 So.2d 1195, 1199 (La.1983).

In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), in discussing how all interactions between the police and citizens will not necessarily implicate the Fourth Amendment, the United States Supreme Court explained:

Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free “to disregard the police and go about his business,” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991), the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968): “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”

Bostick, 501 U.S. at 434-35, 111 S.Ct. 2382.

It is settled that the police do not need probable cause to arrest or reasonable suspicion for an investigatory stop every time they approach a citizen in a public place. State v. Britton, 93-1990, p. 2 (La.1/27/94), 633 So.2d 1208, 1209 (citing State v. Belton, 441 So.2d 1195 (La.1983); State v. Williams, 421 So.2d 874 (La.1982); State v. Neyrey, 383 So.2d 1222 (La.1980); State v. Shy, 373 So.2d 145 (La.1979)). In other words, “it is clear that the mere approaching of a citizen by a law enforcement officer and posing questions to that person is not a seizure.” Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation, pp. 154-155 (2008) (citations omitted). Police have a right to address a person in | fipublic and ask questions, although police have no corresponding right to compel answers. See Davis v. Mississippi, 394 U.S. 721, 727 n. 6, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). “As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

In Mendenhall, two DEA agents stopped the defendant after concluding that her behavior fit the profile of a drug courier in several respects. The agents approached Mendenhall, identified themselves as federal agents, and asked to see her identification and airline ticket. This revealed that she was traveling under an alias. The officers returned her ticket and identification and asked her if she would accompany them to their office for further questioning. Mendenhall complied, and once in the office she agreed to a search of her baggage and of her clothing. A small package of heroin was found in the search.

The Court stated that a person is “ ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554-555, 100 S.Ct. 1870. The Court noted the following examples of circumstances that might indicate a seizure:

[T]he threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. The Court then concluded that Mendenhall had not been seized even though she was not expressly told that she was free to move on her way, stating:

|7On the facts of this case, no “seizure” of the respondent occurred. The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the respondent’s identification and ticket. Such conduct without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official.

Mendenhall, 446 U.S. at 555, 100 S.Ct. 1870. Because she had not been illegally detained, the evidence seized was admissible against her.

In this appeal, Mr. Spells characterizes his encounter with the detectives as an illegal detention for which there was no reasonable suspicion. He further contends that the lack of reasonable suspicion for the stop tainted any consent he may have later given.

As in Mendenhall, the events took place in public; the agents were in plainclothes; Mr. Spells was not summoned to the detectives’ presence; and Det. Stovall requested to see the defendant’s identification and ticket stub. The detectives were not in uniform and they did not show their weapons. Det. Stovall made sure that Mr. Spells was aware that his interaction with him was voluntary and that he had the right to move on. These circumstances are somewhat less intrusive than those in Mendenhall — where the passenger was never informed of her right to conclude the inquiry and where the passenger was relocated to an office prior to consenting to a search of her luggage. Mr. Spells was informed in a non-threatening manner that he was free to refuse, and he could have reasonably believed that he was free to leave.

IsAccordingly, we find no error in the trial court’s determination that the initial encounter between Mr. Spells and the police did not constitute an investigatory stop. The trial court did not abuse its discretion in denying the motion to suppress, and the physical evidence of the marijuana would have been properly admitted at trial had Mr. Spells elected to proceed to trial by jury or judge.

DECREE

We affirm Mr. Spells’ conviction and sentence.

AFFIRMED

BELSOME, J., Concurs With Reasons.

BELSOME, J.,

Concurs With Reasons.

lil concur in the result reached by the majority but write separately to acknowledge the factual similarities to Florida v. Royer. In Royer, the Supreme Court considered whether Defendant Mark Royer had been illegally detained. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Mr. Royer was observed by two plain-clothes detectives while on his way to a concourse at Miami International Airport. Royer, 460 U.S. at 493, 103 S.Ct. at 1321-22. Detectives Johnson and Magdalena believed that Mr. Royer’s “appearance, mannerisms, luggage and actions fit the so-called ‘drug courier profile.’ ” Id. at 1322. Mr. Royer had purchased a one-way ticket to New York City and attached an identification tag bearing the name “Holt” to each of his two checked bags. Id.

As Mr. Royer was walking towards the concourse, he was approached by the detectives, who identified themselves and asked if Royer had a moment to speak with them. Id. at 494, 103 S.Ct. 1319. After the detectives requested his airline ticket and driver’s license, Mr. Royer produced both. The airline ticket was under the name “Holt,” while his driver’s license bore the name “Royer.” As Mr. Royer was questioned about the discrepancy, he “became noticeably more nervous.” At that time, the |2detectives advised Mr. Royer that they were narcotics investigators and had reason to suspect him of transporting narcotics. Id.

While still holding Mr. Royer’s airline ticket and identification, the detectives asked Mr. Royer to accompany them to a room adjacent to the concourse that was approximately forty feet away. Mr. Royer accompanied the officers, but said nothing in response. The room was described by one of the detectives as a large storage closet in the flight attendants’ lounge which contained a small desk and two chairs.

Without requesting Mr. Royer’s consent, Detective Johnson retrieved the “Holt” luggage from the airline and brought it to the room where Mr. Royer was sitting

with Detective Magdalena. The detectives asked Royer if he would consent to a search of the suitcases. In response, Roy-er said nothing, but unlocked one of the suitcases with a key, which the detective then opened. Drugs were discovered in that suitcase. Royer advised that he did not know the combination to the other suitcase, and when asked if he objected to the detective opening the second suitcase, he stated “no, go ahead,” and the second suitcase was pried open without objection from Mr. Royer. The second suitcase also contained drugs. Mr. Royer was subsequently placed under arrest.

Mr. Royer filed a motion to suppress the evidence in the suitcases, which the trial court denied, and Mr. Royer was convicted. The court of appeal reversed his conviction, finding that Mr. Royer was held involuntarily in the room at the airport without probable cause and that Mr. Roy-er’s detention had exceeded the scope of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) by the time Mr. Roy-er’s consent to search the suit cases was obtained. The appellate court further held that Mr. Royer’s consent to search was void because it was the result of an unlawful confinement.

|sIn affirming the appellate court, the Supreme Court acknowledged some of the factors that the appellate court to into consideration when reversing Mr. Royer’s conviction, including the fact that Mr. Roy-er was in a “small enclosed area being confronted by two police officers — a situation which presents an almost classic definition of imprisonment.” Royer, supra, 460 U.S. at 496, 103 S.Ct. at 1323. The Court also noted the appellate court’s finding that when the detectives informed Royer that he was suspected of transporting narcotics, this “bolstered the finding that Royer was ‘in custody’ at the time the consent to search was given.” Id.

The Court recognized that the Fourth Amendment is not implicated when a detective simply approaches an individual in a public place and puts questions to him; “[n]or would the fact that the officer identified himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.” Royer, 460 U.S. at 497, 103 S.Ct. at 1324 (citing United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)).

In Royer, as in the instant case, the State insisted that “the entire encounter was consensual and hence Royer was not being held against his will at all.” Royer, supra, 460 U.S. at 501, 103 S.Ct. at 1326. The Supreme Court “f[ound] this submission untenable.” Id. The Court acknowledged that the detectives’ request for Mr. Royer’s ticket and license was permissible; however, “when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment.” Id. at 502, 103 S.Ct. 1319. The Court found that “[tjhese circumstances surely 14amount to a show of official authority such that ‘a reasonable person would have believed he was not free to leave.’ ” Id. (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877).

In this case, Detective Stovall testified that he and his partner were positioned in such a way that all persons exiting the train had to walk by them in order to exit the terminal. The only suspicious behavior that Detective Stovall testified that he noticed was Defendant’s stopping and observing the detectives as they questioned certain individuals exiting the terminal. Furthermore, the detective could not unequivocally testify that he was not still holding Defendant’s ticket and license at the time he questioned Defendant with regard to whether he was in possession of anything illegal.

jñAs the Supreme Court acknowledged, however, there is no “litmus-paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bounds of an investigative stop.” Royer, supra, 460 U.S. at 506, 103 S.Ct. 1819. Considering that a trial court’s ruling with respect to a motion to suppress is entitled to great weight, together with the detective’s testimony that he believed he was returning Defendant’s ticket and license at the time he questioned Defendant whether he was in possession of illegal materials, this writer cannot say that the trial court’s denial of Defendant’s motion to suppress was an abuse of discretion. Therefore, I concur in the affirmation of Defendant’s conviction and sentence. 
      
      . We have, as we always do, reviewed the record for errors patent, and we have found none. See La.C.Cr.P. art. 920.
     
      
      . Internal citations omitted.
     
      
      . The Court further found that although Mr. Royer consented to the detectives’ search of his luggage "while he was justifiably being detained on reasonable suspicion,” that nevertheless, "at the time Royer produced the key to his suitcase, the detention to which he was then subjected was a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal activity.” Roy-er, supra, 460 U.S. at 502, 103 S.Ct. at 1326-27.
     
      
      . The Detective testified as follows:
      Q. Okay. And when he approaches you and you pull out your badge, are you armed at this time?
      A. I am.
      Q. And when you informed him that you were a police officer, you tell him you’re looking for people who are coming into the city with weapons or guns?
      A. No. I explained to him that this is all voluntary. This is a voluntary, consensual stop. I explained to him that what we’re doing is checking to make sure that people are not traveling into or out of the city with illegal substance or anything that may be dangerous to the general public.
      Q. Now at that point, he still had not committed any kind of crime, right?
      A. No.
      Q. He did hand you his I.D.?
      A. He did.
      Q. And he handed you his ticket for the bus or train?
      A. That’s correct.
      Q. And while you were holding on to his ticket and his I.D., you asked him if there’s a reason he was nervous; something along those lines?
      A. The reason why I took the I.D. and the ticket stub is actually to match — to make sure the name on the ticket stub matched the name on the identification, and it was like simultaneously. I just asked him, you know, was he in possession of anything that, you know, he should not have; anything that may be dangerous to the general public.
      
        Q. Again, just for the record, to be clear, at that time you had not done the Miranda rights that you would later do because of what he answered?
      A. That's correct.
      Q. At that time you had not?
      A. That’s correct.
      Q. And at the time that you asked that question, you were in possession of his identification and his ticket stub, correct?
      A. I may have been in the process of handing it back over to him.
      Q. May have?
      A. I don't remember exactly how it went. But generally, I look at the—
      Q. Because of his answer, he didn’t get his I.D. back, because you were going to arrest him?
      ⅝ ⅝ ⅜ ⅜
      A. Like I say, you know, I looked at the ticket and his identification. And normally, I’m in the process of handing it back to him while I’m asking him that question. And then that's when he told me that he was in possession of a small amount of marijuana in his pocket.
     