
    STATE of Louisiana in the Interest of Kenyatta T. WINSTON.
    No. 89-CA-2381.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 28, 1990.
    Harry F. Connick, Dist.Atty., David L. Arena, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before SCHOTT, C.J., and BARRY and BYRNES, JJ.
   SCHOTT, Chief Judge.

This juvenile defendant was found guilty of possession of cocaine, adjudicated a delinquent, and committed to the Department of Safety and Corrections for one year. The one-year sentence was suspended and he was placed on probation. He has appealed.

Officers Marquez and Perkins responded to information that drug trafficking and possible weapon activity were in progress at the 7700 block of Coronet Court. Officer Slack was assigned to come through the back way to cut off any possible escape route. As the squad car approached, the officers noticed that Winston was fiddling with his belt in a manner consistent with a drug transaction or possession of a weapon. When the car arrived at the scene, several subjects began to walk or run away in a nervous and suspicious manner. Winston ran into the breezeway where he was cut off by Officer Slack. In the meantime he discarded a bag of cocaine. Upon arrest, $170 in cash was confiscated from Winston.

The testimony is conflicting as to when Winston threw down the bag of cocaine. Perkins testified that Winston discarded the bag as the officers approached and then he fled. Marquez testified that Winston discarded the bag after the chase had begun.

Appellant’s sole assignment of error is that the trial judge erred in denying his motion to suppress the evidence, a bag of cocaine. Appellant argues that the officers did not have reasonable cause to justify an investigatory stop and, therefore, any evidence seized subsequent to the stop is inadmissible since it was obtained pursuant to an illegal stop.

The questions are at what point did the police activity constitute an investigatory stop, and, did reasonable cause exist to justify the stop? A “seizure” of an individual occurs only if a reasonable person would believe that he is not free to leave in view of all the circumstances surrounding the incident. The issue is whether the conduct involved would have communicated to a reasonable person an attempt to capture him or otherwise intrude on his freedom of movement. State v. Edwards, 530 So.2d 97, 98 (La.App. 4th Cir.) writ denied, 533 So.2d 19 (La.1988). A reasonable person could not conclude that the officers communicated to Winston an attempt to capture him or intrude on his freedom of movement by merely approaching the location in a semi-marked police unit. Thus, if Officer Perkins’ testimony is accepted, the cocaine was discarded before an investigatory stop occurred.

If Officer Marquez’s version is accepted, the point at which the investigatory stop took place is not so clear. One such point would be when the police parked the unit and gave chase to the fleeing defendant. The question then is whether the officers had reasonable cause to justify the investigatory stop. The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by C.Cr.P. Art. 215.1. If there is reasonable cause to believe that an individual has been or is engaging in or about to engage in criminal conduct, an officer has the right to make an investigatory stop and question the individual. State v. August, 503 So.2d 547, 548-549 (La.App. 4th Cir.1987).

The cases cited by appellant illustrate that mere nervousness or flight at the sight of a police officer does not constitute sufficient cause for an investigatory stop. But while flight, nervousness, or a startled look at the sight of a police officer, would alone be insufficient to justify an investigatory stop, this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause. State v. Belton, 441 So.2d 1195 (La.1984), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The behavior of this defendant goes beyond mere nervousness and flight. He had his hands in his belt as if a drug transaction were about to take place or a weapon were concealed in his pants. Additionally, the officers were responding to a report that extensive drug trafficking and weapon activity were in progress in this very area. A consideration of a totality of the circumstances supports the finding that reasonable cause existed for an investigatory stop. Therefore, the trial court did not err in denying the motion to suppress the evidence.

Accordingly the judgment of the juvenile court is affirmed.

AFFIRMED.

BARRY, J., concurs with reasons.

BARRY, Judge,

concurs with reasons.

Citizens are protected against unreasonable searches and seizures. U.S. Const. Amend. IV; La. Const. Art. I, § 5. However, La.C.Cr.P. Art. 215.1 authorizes police officers to stop a person reasonably suspected of criminal conduct. See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A citizen must be stopped without reasonable cause or a stop must be imminent in order for his “right to be left alone” to be violated, thereby rendering unlawful any resultant seizure of abandoned property. State v. Andrishok, 434 So.2d 389 (La.1983); State v. Chopin, 372 So.2d 1222 (La.1979).

As long as a person remains free to disregard the police and walk away, there is no intrusion upon that person’s liberty which requires justification. State v. Belton, 441 So.2d 1195 (La.1983), cert. denied 466 U.S. 953,104 S.Ct. 2158, 80 L.Ed.2d 543 (1984), citing United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The police officers arrived in marked cars, officers gave chase from the front as the defendant and others fled, and other officers blocked the suspect’s route of escape. The defendant’s right to be left alone was clearly violated, but with ample justification. The “chase” of a suspect does not necessarily constitute a seizure, see Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).

Officers Marquez and Perkins testified that the defendant discarded a plastic bag as he fled and other officers blocked the other side of the courtyard. Officer Marquez stated that five subjects were fleeing as the officers exited their car in response to a report of drug trafficking and possible weapons. He stated that he and Officer Perkins exited the vehicle and “ran the subject through the alleyway and Officer Slack had come through the back way to cut off any possible route of escape.” When asked whether the defendant dropped the bag before he started to run, Officer Perkins answered negatively. He said that the defendant turned to run and took a number of steps before dropping the bag.

When questioned as to the defendant’s suspicious activity, Officer Perkins testified that the defendant was reaching into his belt and the officer suspected either a drug transaction or possession of a weapon because of a complaint of gunshots. Officer Perkins testified that he chased the defendant in order to investigate what he was “digging into his belt for” or to see if some type of drug transaction was taking place. They were in an active area for drug activity. Officer Perkins said another subject was standing directly in front of the defendant facing him. The officer further stated:

I saw something in his hand. He kept digging into his waistband. At that time, he came up with what appeared to be a bag or weapon. I wasn’t sure from the point we were at, but as we got closer and he observed us, he fled, dropping the bag; discarding the bag, and ran into the breezeway and we gave chase.

In other testimony Officer Perkins stated that the defendant and another subject were facing each other as if they were “trading” something.

Under these circumstances the police officers’ actions were justified by the defendant’s most suspicious conduct. The officers had reasonable cause to believe that the defendant was engaged in criminal conduct.  