
    STATE of Louisiana v. Kevin JOYNER.
    No. 89-KA-0346.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1989.
    Writ Granted Jan. 19, 1990.
    
      Harry F. Connick, Dist. Atty., Brian T. Treacy, Asst. Dist. Atty., New Orleans, for appellee.
    Bernard E. Burk, New Orleans, for appellant.
    Before BYRNES, ARMSTRONG and PLOTKIN, JJ.
   BYRNES, Judge.

Defendant Kevin Joyner was charged with possession of cocaine. La.R.S. 40:967. Following an unsuccessful attempt to suppress the evidence against him, the defendant withdrew his guilty plea and entered a plea of guilty, reserving his right to attack the court’s ruling on the motion to suppress the evidence. State v. Crosby, 338 So.2d 584 (La.1976). The defendant was given a suspended eighteen month sentence at hard labor. He was placed on eighteen month’s active probation, with special conditions. Joyner appeals his conviction and sentence based upon this one assignment of error. We affirm defendant’s conviction and sentence.

A hearing on the motion to suppress the evidence was conducted at which time New Orleans Police Officer Danny Kramer testified.

On September 13, 1988 at approximately 1:45 p.m., Officer Kramer and his partner, Officer Steven Hardy were on routine patrol in an unmarked police car. The pair were traveling riverbound on Monroe Street when they obsreved a 1978 Cadillac, with an expired license plate, travelling in front of them. The vehicle was occupied by two persons. The identity of the occupants were later discovered to be Margaret Willis, the driver, and her grandchild, the defendant passenger. As the policemen followed the vehicle it turned off of Monroe Street and unto Monroe Court. The officers were intent upon stopping the vehicle and issuing a citation to the driver for the expired license plate. However, as they turned the corner unto Monroe Court in pursuit of the vehicle, the policemen observed that the vehicle had already stopped and was parked on the street. Before the officers could get out of their police car, they observed the defendant exit his vehicle, leaving the driver seated in the car. The defendant began to walk away from the vehicle in a riverbound direction.

Officer Hardy approached the driver’s side of the subject vehicle, while Officer Kramer walked towards the passenger side. Officer Kramer ordered the defendant to stop. Joyner turned around and began to return to the vehicle. The defendant’s hands were clinched. As he reached the front of the vehicle he opened his right hand and a clear plastic, containing five plastic packets of a white powder, fell to the ground. The white powder later tested positive for cocaine. Joyner was arrested and charged with possession of cocaine. Willis was given a traffic citation.

Officer Hardy’s testimony was refuted by the defendant and his grandmother. According to their testimony, the pair were driving to the house of the defendant’s uncle’s girlfriend, on Monroe Court. At the time, they had parked outside the girlfriend’s house and were waiting for the defendant’s uncle. The pair had been parked approximately 10 minutes when the police arrived and blocked their vehicle with the police car. According to Ms. Willis and her grandson, the police exited their car with their guns drawn and ordered them out of their vehicle. One officer walked with the defendant to the front of the car and told the defendant to place his hands on the car’s hood. The officer ordered the defendant to open his fists and as he did the cocaine was discovered.

In his sole assignment of error the defendant contends the trial judge erred in refusing to suppress the evidence against him. He reasons that the arresting officer did not possess reasonable cause to stop him and as such, the abandoned contraband was illegally seized.

The United States Supreme Court, in U.S. v. Cortez, 449 U.S. 411 at 415, 101 S.Ct. 690, 695-696, 66 L.Ed.2d 621 (1981), reh. den., 455 U.S. 1008, 102 S.Ct. 1648, 71 L.Ed.2d 877 discussed the issue of an investigatory stop:

The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here. Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980); United States v. Brignoni-Ponce, 422 U.S. [873] supra at 878, 95 S.Ct. [2574] at 2578 [45 L.Ed.2d 607 (1975); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-1879, 20 L.Ed.2d 889 (1968). An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 541 (1979); Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, supra, 422 U.S., at 884 95 S.Ct., at 2581; Adams v. Williams, 407 U.S. 143, 146-149, 92 S.Ct. 1921, 1923-1924, 32 L.Ed.2d 612 (1972); Terry v. Ohio, supra 392 U.S., at 16-19, 88 S.Ct., at 1877-1879.
Courts have used a variety of terms to capture the elusive concept of what cause is sufficent to authorize police to stop a person.
... But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for supecting the particular person stopped of criminal activity. See, e.g., Brown v. Texas, supra, 443 U.S., at 51, 99 S.Ct., at 2640; United States v. Brignoni-Ponce, supra, 422 U.S., at 884, 95 S.Ct., at 2581. The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person. The process does not deal with hard certainties, but with probabilities ...
The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.

The authorization for an investigatory stop has been statutorily adopted by Louisiana. La.C.Cr.P. Art. 215.1.

In assessing the reasonableness of such a stop, one must engage in a balancing test which weighs the need to search and seize against the invasion the search and seizure entails. State v. Flowers, 441 So.2d 707 (La.1983), cert. den. 466 U.S. 945, 104 S.Ct.1931, 80 L.Ed.2d 476 (1984). In the case of a vehicular stop, a passenger generally has a higher expectation of privacy than the driver because the passenger plays no part in the routine traffic infraction. State v. Williams, 366 So.2d 1369 (La.1978), overruled on other grounds, by State v. Mack, 403 So.2d 8 (La.1981). In those instances in which the officers do not have the right to make an investigatory stop, property abandoned or otherwise disposed of as a result thereof cannot be legally seized by the police officer. State v. Brown, 530 So.2d 650 (La.App. 4th Cir., 1988) citing State v. Andrishok, 434 So.2d 389 (La.1983).

In the instant case the record reflects that the subject vehicle was not stopped by the policemen on the scene. Rather it had come to a stop prior to any police action and thereafter the defendant left the car and began to walk away from it. At this point, Officer Kramer “not sure of the ownership of the vehicle” and “curious why he was walking away, ... became suspicious that he possibly committed [a crime] or was in possession”, thus the officer ordered the defendant to stop. The defendant turned around and began to walk back to his vehicle. As he did so he opened his right hand and dropped the package of contraband.

Under the totality of the circumstances because the arresting officer was unsure of the ownership of the vehicle and because the defendant was leaving the scene as the law enforcement officers approached, this gave rise to a reasonable suspicion that the defendant had been or was engaged in criminal activity. As such, the officer was legally justified in conducting the stop of the defendant and the abandonment of the contraband during this time gave rise to its legal seizure. We find no error in the trial judge’s ruling on the motion to suppress the evidence. This assignment lacks merit.

For these reasons the defendant’s conviction and sentence are affirmed.

AFFIRMED.

PLOTKIN, J., dissents with reasons.

PLOTKIN, Judge,

dissents with reasons.

I respectfully dissent from the majority’s finding that the motion to suppress the evidence was properly denied. The majority correctly states that when an officer does not have the right to make an investigatory stop, property abandoned or otherwise disposed of cannot be legally seized. State v. Brown, 530 So.2d 650 (La.App. 4th Cir.1988). However, the majority finds that under the totality of the circumstances, the officer was legally justified in making the stop and, as a result, the property abandoned could be legally seized. After reviewing the facts, I disagree with that conclusion.

The issue is whether the arresting officers had reasonable suspicion to make an investigatory stop. In order to stop a person temporarily to facilitate an investigation, the officer must have a reasonable suspicion that the suspect has committed, is committing, or is about to commit a crime. La.C.Cr.P. art. 215.1.

The standard of reasonable suspicion has been delineated by Louisiana courts. “Reasonable suspicion” is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect’s rights. State v. Belton, 441 So.2d 1195 (La.1983), cert. den., Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The Supreme Court found that flight, nervousness, or the startled look of an individual at the sight of a police officer is by itself insufficient to justify a investigatory stop. However, the court stated that such conduct may be highly suspicious and may be one of the factors leading to a finding of reasonable cause to believe the individual has been, is, or is about to be engaged in criminal conduct. Id. at 1196.

In the instant case, we do not find evidence of highly suspicious conduct. The testimony of Officer Kramer indicates that the only reason for stopping the defendant’s grandmother’s car was to issue a traffic violation for an expired license plate. The car in which the defendant was a passenger was already stopped when the plain-clothes police pulled up in an unmarked car. Kramer testified that the defendant was walking away from the car before he or his partner alighted from the ' police vehicle. The officer’s justification of the stop of the defendant was that he was “curious as to why he was walking away.” To affectuate an investigatory stop on these grounds is deficient and does not meet the standard of reasonable suspicion set forth under Louisiana law.

The officer’s comments that he “was not sure of the ownership of the vehicle” also do not give rise to justify an infringement of the defendant’s rights. As the majority points out, in the case of a vehicular stop, a passenger generally has a higher expectation of privacy than the driver because the passenger plays no part in the routine traffic stop. State v. Williams, 366 So.2d 1369 (La.1978). Following Williams, the defendant passenger was entitled to remain in the car and the police would have been without authority to order him out of the car in conducting a routine traffic stop.

As the court noted, by stopping the automobile the police have decided that the driver will be detained. Such is not the case for the passenger, who has broken no law and may walk away from the scene unless the police have some other legitimate reason to detain him. Id. at 1374.

In my view, the officer’s bases for the investigative stop are insufficient to justify a reasonable suspicion that the defendant had committed or was about to commit a crime. The officer stated no facts which would justify a contrary conclusion. The defendant was the passenger in the car, he walked rather than ran away from the car, and up until the time of the stop had not exhibited any behavior indicating criminal activity.

In the the instant case, the abandoned property could have been seized if it was abandoned without any prior unlawful intrusion into a person’s right to be free from governmental interference. State v. Belton, supra. A person’s liberty and privacy is not violated simply because a police officer attempts to converse with him, as long as he is free to walk away. State v. Lanter, 391 So.2d 1152 (La.1980). However, on cross-examination Officer Kramer indicated that the defendant was not free to walk away. He testified that if the defendant had not stopped he would have pursued him. He also stated that it was his intent to control the defendant’s movements.

These statements clearly indicate a stop. Since, in my opinion, the “reasonable suspicion” was not present, the property was unlawfully seized as it was abandoned after the stop. Therefore, the motion to suppress was improperly denied by the trial court.

For the above and foregoing reasons, I respectfully dissent. I would reverse the defendant’s conviction and remand to the trial court for further proceedings. 
      
      . The conditions of probation consist of substance abuse evaluation, payment of court costs of $159 and fine of $200 by February 16, 1989.
     