State of Louisiana v. Jaleel Green

STATE OF LOUISIANA * NO. 2024-K-0169

VERSUS * COURT OF APPEAL

JALEEL GREEN * FOURTH CIRCUIT

* STATE OF LOUISIANA

*

*
*******

JCL LOBRANO, J., DISSENTS AND ASSIGNS REASONS

I respectfully dissent. I would grant the State’s writ and reverse the district

court’s ruling suppressing the evidence. I find that the evidence seized during the

search of Jaleel Green (“Defendant”) was constitutionally obtained. The State’s

writ application reflects that police officers seized Defendant’s concealed weapon

based on reasonable suspicion and the derivative evidence recovered was incident

to a lawful arrest. Accordingly, the district court erred when it suppressed the

evidence and found no probable cause.

STATEMENT OF THE CASE

On October 17, 2023, the State filed a bill of information charging

Defendant with possession of a firearm by a convicted felon; illegal carrying of a

weapon while in possession of a controlled dangerous substance; and possession of

a weapon with an obliterated serial number. On October 26, 2023, Defendant filed

an omnibus motion for discovery; motion to preserve evidence; motion for

suppression of statements, evidence and identification; and motion for a

preliminary examination. On November 28, 2023, Defendant filed a motion to

suppress statement and evidence. The district court conducted a hearing on the

motion on January 17, 2024. Following the hearing, Defendant filed a

supplemental motion to suppress and incorporated memorandum, and the State

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filed a brief in opposition. On February 23, 2024, the court issued a written ruling

granting the motion to suppress and finding no probable cause. The State notified

the court of its intent to seek writs and the court set a return date of March 23,

2024. On March 22, 2024, the State timely filed its application, requesting

expedited consideration given the pretrial conference set April 12, 2024 and trial

scheduled April 19, 2024. On March 25, 2024, the State supplemented the

application with bodycam video introduced at the hearing.

STATEMENT OF THE FACTS

At the hearing on the motion, the State called Officer Patrick McFarlane,

who testified that on August 15, 2023, he responded to a call for service at 837

Gravier Street. Upon arrival, McFarlane reviewed his notes from dispatch, which

reflected that a possibly-armed subject had been seen inside the common areas of

the apartment complex selling narcotics. Upon entering the complex, the officer

encountered an individual matching the subject -- who had been described as a

“black male with medium dreds with a mask on his head, also having a black t-

shirt and blue swim trunks . . . and a strapped style bag.” McFarlane also observed

a distinctive bulge in the subject’s waistband, which he “believed to be a firearm.”

The officer stopped the individual; introduced himself; and advised the subject of

the reason for his presence. The State then introduced a clip of the bodycam video.

McFarlane testified the video accurately depicted the encounter and the officer

identified Defendant in the courtroom as the individual whom he stopped.

McFarlane continued:

Once he’s placed handcuffs, at that point my move
is to remove the firearm that I believe to be in his
possession. Obviously, he already stated after asking
him if he had a firearm on, that he had it on his person. I
asked him where it was but I knew, based on my
observation, where it was. I lifted up his shirt after a
quick pat-down with my hand, felt the grip portion of the
firearm, moved up his t-shirt and pulled out the firearm in
a gingerly and safe way because of where it was pointed.

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At that point, I racked the slide and removed the
magazine and rendered the firearm safe.

The officer clarified that he had initially arrested Defendant for illegal

concealment of a firearm and that the subsequent search of his bag (which yielded

bags of suspected marijuana, a pill suspected to be Xanax, and a digital scale with

marijuana residue) was conducted incident to that arrest.

The State then introduced exhibits reflecting that field tests of the suspected

contraband yielded positive results for THC, and in the case of the pill, opioids.

Based on the test results and McFarlane’s ensuing finding that Defendant was on

parole, Defendant was booked with illegal carrying of a concealed firearm,

possession of a firearm by a convicted felon, and illegal possession of a firearm

while in the possession of narcotics.

A review of the bodycam video introduced at the hearing and provided to

this Court reveals that it largely corroborates McFarlane’s testimony. It depicts the

officer’s encounter with Defendant outside the building on Gravier Street. After

Defendant was advised that he had been stopped because he matched the

description given of an individual selling drugs in the complex, Defendant was

asked if he was armed, and he responded, “I got my gun on me.” When asked if he

possessed a concealed carry permit, Defendant answered, “No, not on me.” The

officers then handcuffed Defendant; removed the gun from his waistband;

Defendant stated that he carried the gun with him for protection; and another

officer at the scene issued Miranda warnings. Defendant then requested multiple

times that he be placed in the police unit. On the way to the car, McFarlane

advised Defendant that when he encountered him, he “could see the bulge in

[Defendant’s] waistband” which was why he inquired if Defendant was armed.

DISTRICT COURT RULING

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The district court granted Defendant’s motion to suppress, ruling as

follows:

This matter comes before the court on Defense
Motion to Suppress Statements and Evidence. On
January 17, 2024, the court heard testimony in the matter
and argument from the Defense and State. The court then
requested the parties to provide briefs in the matter by
February 2, 2024. On February 2, 2024, both the State
and Defense filed their memoranda. The court has
reviewed the parties’ respective memoranda, the
transcript of the January 17, 2024 motions hearing, body
camera footage, the facts, and the law, and accordingly
renders the following findings and ruling:

This court finds that Mr. Green’s
statements were obtained in violation of his
constitutional rights, such that the statements and
evidence must be suppressed. Furthermore, this
court makes a finding of no probable cause.

In accordance with Louisiana Code of
Civil Procedure [sic], “the burden of proof is on
the defendant to prove the ground of his motion,
except that the state shall have the burden of
providing [sic] the admissibility of a purported
confession or statement by the defendant or of
any evidence seized without a warrant.” During a
Terry stop, an “[o]fficer 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.”
However, when the questioning rises to the level
of a “custodial interrogation,” Miranda protects
any statements the suspect makes. A custodial
interrogation is “questioning initiated by law
enforcement officers after a person has been
taken into custody or otherwise deprived of his
freedom of action in any significant way.”

First, Mr. Green was detained when
officers stopped him outside of the apartment
building, informed him that he matched the
description of a person reported to be selling
drugs, and asked him incriminating questions
about whether he was armed. Therefore, a
reasonable person “would have understood the
situation to constitute a restraint of freedom of
movement of the degree associated with formal
arrest.” Because these custodial questions

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occurred before Mr. Green was Mirandized, the
statements are inadmissible. Furthermore, the
evidence is inadmissible as fruit of the poisonous
tree.

Second, without the statements and
evidence unconstitutionally obtained from Mr.
Green, this court makes a finding of no
probable cause. (Emphasis added).

Accordingly, this court finds no probable cause
and that the Defense Motion to Suppress is GRANTED.

(Footnotes omitted).

DISCUSSION

As an initial matter, the State maintains only that the court erred by

excluding the evidence seized1 and in finding no probable cause and does not

contest the portion of the court’s ruling excluding Defendant’s statements.

However, the majority opinion makes an issue of the State’s acquiescence in the

suppression of the statements; thus, a review of the constitutionally of the

statements will be discussed below.

When reviewing trial court decisions on motions to suppress, the trial court’s

determinations of fact are reviewed for abuse of great discretion, and legal

decisions are reviewed de novo. State v. Candebat, 13-0780, pp. 6-7 (La. App. 4

1 In its application, the State described the evidence as follows:

1. a black taurus 740 slim, 40 caliber semi-automatic pistol/magazine
containing 5 live rounds and possessing an obliterated serial number on both
slide and frame of the pistol found in defendant’s waistband, unsecured and
wholly concealed;
2. a black fanny pack found on defendant’s person that was searched after
defendant was arrested for a firearm violation, which contained items 3-6
below;
3. marijuana weighing in at approximately 82.50 grams total packaged in:
a. a clear plastic bag containing 4 smaller clear bags containing loose
marijuana packaged for retail distribution;
b. 2 large baseball sized bags of loose marijuana;
c. another smaller clear bag containing additional loose marijuana;
4. a blue pressed pill with markings indicating it was a Xanax pill;
5. a plastic digital scale with marijuana residue; and
6. $168.25 in cash made up of:
a. six twenty-dollar bills;
b. one ten-dollar bill;
c. three five-dollar bills; and
d. twenty-two one-dollar bills.
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Cir. (1/30/14), 133 So.3d 304, 308 (citing State v. Wells, 08-2262, p. 4 (La.

7/6/10), 45 So.3d 577, 580). At a hearing on a motion to suppress, the burden is on

the State to prove the admissibility of evidence seized without a warrant. La.

C.Cr.P. art. 703(D); State v. Ulmer, 12-0949, p. 5 (La. App. 4 Cir. 5/29/13), 116

So.3d 1004, 1007.

The United States and Louisiana Constitutions recognize the rights of

persons to be secure in their person, property, and effects, and to be free from

unreasonable searches and seizures. U.S. Const. amend. IV; La. Const. art. 1, §5.

Reasonableness dictates the balance between legitimate law enforcement concerns

and an individual’s protected privacy interests. State v. McClendon, 13-1454, p. 4

(La. App. 4 Cir. 1/30/14), 133 So.3d 239, 244. A search or seizure conducted

without a warrant is per se unreasonable unless it can be justified by one of the

narrowly drawn exceptions to the warrant requirement. State v. Surtain, 09-1835,

p. 7 (La. 3/16/10), 31 So.3d 1037, 1043. A “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. Guillot, 12-0726, p. 4 (La. App. 4 Cir. 4/17/13), 115 So.3d 624,

628.

La. C.Cr.P. art. 215.1 provides, in pertinent part, as follows:

A. 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.

See also Surtain, 09-1835, p. 8, 31 So.3d at 1044 (citing Terry v. Ohio, 392 U.S. 1,

30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968)) (“a law enforcement officer, who

reasonably concludes in light of his experience that criminal activity may be

occurring, or may have occurred, may briefly stop a suspicious person and make

reasonable inquiries for the purpose of confirming or dispelling his suspicions.”).

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The reasonable suspicion standard required for an investigatory stop “is

considerably less than proof of wrongdoing by a preponderance of the evidence.”

United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1

(1989). See also United States v. Montoya de Hernandez, 473 U.S. 531, 541, 544,

105 S.Ct. 3304, 3310, 3312, 87 L.Ed.2d 381 (1985) (the reasonable suspicion

standard required for an investigatory stop is less demanding than probable cause

required to justify an arrest).

In assessing the reasonableness of an investigatory
stop, the court must balance the need for the stop against
the invasion of privacy it entails and consider the totality
of the circumstances in determining whether reasonable
suspicion exists. The detaining officers must have
knowledge of specific articulable facts, which, if taken
together with rational inferences from those facts,
warrant the stop.

State v. Marzett, 09-1080, pp. 5-6 (La. App. 4 Cir. 6/9/10), 40 So.3d 1204, 1208

(quotation omitted).

In Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000),

the United States Supreme Court held that an anonymous tip, which included only

a description of someone who would be at a certain place and had a gun, did not

provide reasonable suspicion to detain the defendant because it provided no

predictive information. The J.L. Court stated: “Knowledge about a person’s future

movements indicates some familiarity with that person’s affairs. . .” 529 U.S. at

271, 120 S.Ct. at 1379. Because there was no predictive information as to the

suspect’s movements, the anonymous tip alone, without any observation of any

criminal activity by the officers themselves, did not give them reasonable suspicion

to stop the defendant. Id.

However, in State v. Boyles, 14-1126 (La. App. 4 Cir. 2/4/15), 157 So.3d

1170, this Court was presented with a case somewhat similar to the instant one. In

Boyles, the evidence precipitating the stop was described as follows:

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Officer Kelli Dunaway testified that she arrested
the appellant on September 3, 2013 at the main branch of
the public library. She had received a dispatch concerning
a suspect who had argued with a woman and pulled a gun
at a nearby Walgreens, and the suspect was described as
wearing a pink shirt and black pants and carrying a gun.
Officer Dunaway spotted the appellant, who was wearing a
pink shirt and dark pants, which she indicated fit the
description given by dispatch. She called for backup, and
when another officer arrived, the other officer frisked the
appellant and found a gun. She denied that the appellant
made any statements.

On cross-examination, Officer Dunaway testified
that although the altercation with the woman occurred
sometime in the morning, she did not encounter the
appellant until approximately 1:30 p.m. She did not know
who reported the altercation; she merely heard the
description given by dispatch and then spotted the
appellant. She stated that she saw him walk into the public
library, which she estimated was six to seven blocks from
the Walgreens where the altercation occurred. The officers
stopped and frisked the appellant inside the library.

Id., 14-1126, p. 2, 157 So.3d at 1172.

In Boyles, this Court distinguished the cases requiring predictive information

and corroboration of criminal behavior by the police stating:

The cases cited by the appellant are distinguishable
from the instant case in that those cases involved
“anonymous” tips that led the police to stop the
defendants. Here, although the appellant tries to equate
the dispatch with an anonymous tip, Officer Dunaway
testified that the description was broadcast over dispatch
based upon the earlier assault at the drugstore hours
earlier and several blocks away from the library where
she observed the appellant. While Officer Dunaway
could not say who actually gave the description to
dispatch, it appears that the description was the result of
the investigation of the incident, not part of an
anonymous tip. Thus, the description was much more
reliable than that of an anonymous tip, requiring less
corroboration than an anonymous tip required.

Officer Dunaway observed a person matching the
description of a man who waved a gun at a woman hours
earlier and six to seven blocks away from where she saw
the appellant. The court noted that these circumstances
gave Officer Dunaway, and by extension the backup
officer, reasonable suspicion to stop him, and in fact
mandated that they investigate the appellant for the

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public’s safety to determine if he was carrying a
dangerous weapon. Given the relative nearness of the
time and vicinity of the crime to where the officers
detained him, we conclude that the trial court did not err
in its finding of reasonable suspicion to detain the
appellant.

Id., 14-1126, pp. 8-9, 157 So.3d at 1175-76.

1. Legality of the Stop and Detainment of Defendant

I find that the stop of Defendant was justified under the Terry v. Ohio

standard and La. C.Cr.P. art. 215.1(A), which allow police to stop and briefly

detain a person based on reasonable suspicion of criminal activity.

When McFarlane stopped Defendant, as corroborated by the video, he

immediately admitted being armed. The bodycam video further reflects McFarlane

informing Defendant that when he “walked out [McFarlane] could see the bulge in

[Defendant’s] waistband.” Upon the officer’s recovery of the weapon and

Defendant’s admission that he did not possess a concealed carry permit, the police

possessed probable cause to arrest Defendant and the ensuing evidence seized was

legally obtained as incident to an arrest based on probable cause. Contrary to the

district court’s suggestion, nothing about the encounter suggests that Defendant

was subject to a custodial interrogation when he admitted possession of the

(concealed) firearm such that Miranda warnings were required.2

The police had a description of a suspect allegedly selling narcotics and

possibly armed. Upon arrival, Defendant matched this description, which provided

sufficient reasonable suspicion to justify the initial stop. Further, the police

observed “a distinct L-shaped bulge” in Defendant’s front waistband area, which

they believed to be a firearm. This provided police with reasonable suspicion to

conduct a protective search for weapons. Terry, 392 U.S. at 24, 88 S.Ct. at 1881

(“When an officer is justified in believing that the individual whose suspicious

2 See discussion under “Obligation to Issue Miranda Warnings” below, pages 11-12, infra.

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behavior he is investigating at close range is armed and presently dangerous to the

officer or to others,” the officer may conduct a pat-down search “to determine

whether the person is in fact carrying a weapon.”); La. C.Cr.P. art. 215.1(B)

(“When 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. If the law enforcement officer

reasonably suspects the person possesses a dangerous weapon, he may search the

person.). See also State v. Jackson, 452 So.2d 776, 778 (La. App. 4th Cir.

1984)(holding that the defendant was subject to legal stop and frisk when officers

believed they saw the imprint of a gun in the defendant’s right rear pocket).

At the time of the investigatory stop, the State demonstrated that McFarlane

possessed knowledge of specific articulable facts reflecting Defendant possessed a

concealed weapon. Specifically, the officer testified that he had responded to a

dispatch reflecting that a possibly-armed individual was conducting illegal

narcotics sales in the apartment complex. When the officer entered the complex,

he immediately encountered Defendant who matched the description provided.

Most importantly, the officer testified that he personally observed “a distinct L-

shaped bulge in [Defendant’s] front waistband area,” which he “believed to be a

firearm.” A review of bodycam video corroborates McFarlane’s testimony

inasmuch as it depicts Defendant, who matched the description provided by the

dispatch. In this scenario, McFarlane certainly possessed reasonable suspicion to

conduct the stop if not probable cause to arrest Defendant for illegal possession of

a concealed weapon.

2. Arrest and Search of Defendant

Illegal carrying of a weapon is defined, in part, as “[t]he intentional

concealment of any firearm, or other instrumentality customarily used or intended

for probable use as a dangerous weapon, on one’s person.” La. R.S. 14:95(A)(1).

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The “elements of illegal carrying of a weapon are: (1) intentional concealment; (2)

of a firearm; (3) on one’s person.” State v. Powe, 14-0137, p. 4 (La. App. 4 Cir.

7/16/14), 145 So.3d 583, 586 (citing State v. Maxwell, 11-0564, p. 27 (La. App. 4

Cir. 12/21/11), 83 So.3d 113, 130). Defendant’s admission that he had a gun on his

person and did not have a concealed carry permit with him provided probable

cause for arrest for illegal carrying of a weapon. See State v. Woods, 406 So.2d

158, 159 (La. 1981) (holding that the discovery of a concealed handgun during a

valid investigative stop established sufficient probable cause to arrest the defendant

for illegally carrying a concealed weapon, and justified the “ensuing search

incident to the lawful full custody arrest” which “produced the illegal drugs.”).

Following the arrest, the search of Defendant which led to the discovery of

the weapon and illegal narcotics was justified as a search incident to arrest. Police

are allowed to search an arrested person and the area within his immediate control

to prevent the concealment or destruction of evidence and to ensure officer safety.

Riley v. California, 573 U.S. 373, 382-83, 134 S.Ct. 2473, 2483, 189 L.Ed.2d 430

(2014)(citing Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23

L.Ed.2d 685 (1969)). Since the arrest was based on probable cause and the search

that uncovered the weapon and drugs was incident to that lawful arrest, the

evidence should not be suppressed. The search was justified independently of any

need to issue Miranda warnings because it occurred immediately following a

lawful arrest.

3. Obligation to Issue Miranda Warnings

The obligation to provide Miranda warnings attaches only when a person is

questioned by law enforcement after he has been taken “into custody or otherwise

deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384

U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); State v. Payne, 01-

3196, p. 7 (La. 12/4/02), 833 So.2d 927, 934. Custody is decided by two distinct

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inquiries: an objective assessment of the circumstances surrounding the

interrogation to determine whether there is a formal arrest or restraint on freedom

of the degree associated with formal arrest; and, second, an evaluation of how a

reasonable person in the position of the interviewee would gauge the breadth of his

freedom of action. Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526,

1529, 128 L.Ed.2d 293 (1994). As such, Miranda warnings are not required when

officers conduct preliminary, non-custodial, on-the-scene questioning to determine

whether a crime has been committed, unless the accused is subjected to arrest or a

significant restraint short of formal arrest. State v. Davis, 448 So.2d 645, 651-52

(La. 1984). “Thus[,] an individual’s responses to on-the-scene and non-custodial

questioning, particularly when carried out in public, are admissible without

Miranda warnings.” State v. Manning, 03-1982, p. 24 (La. 10/19/04), 885 So.2d

1044, 1073.

In the case sub judice, the police did not subject Defendant to custodial

interrogation or its equivalent when they briefly questioned him on the scene about

having a gun and a concealed carry permit. The police did not place Defendant

under formal arrest, nor did they subject him to the restraint associated with a

formal arrest, before asking him these questions. Because Defendant was not in

custody during this questioning, the police were not obliged to provide Miranda

warnings. See State v. Goddard, 501 P.3d 1188, 1202-04 (Utah Ct. App. 2021)

(holding that the defendant was not in custody when asked whether he was armed

and whether he had concealed weapon permit during a Terry stop, and thus was not

entitled to Miranda warnings); United States v. Denson, No. 06-75, 2006 WL

3144857, at *5 (W.D. Pa. Oct. 31, 2006) (holding that the defendant was not in

custody when asked whether he a license to carry a firearm during a Terry stop,

and thus was not entitled to Miranda warnings); United States v. Hogan, 684 F.

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App’x 904, 908 (11th Cir. 2017) (defendant not in custody when officer asked

whether he had a weapon during a traffic stop).

4. Suppression of the Physical Evidence and Statement

Since the arrest was based on probable cause and the search that uncovered

the weapon and drugs was incident to that lawful arrest, the evidence should not be

suppressed. The search was justified independently of any need to Mirandize

because it occurred immediately following a lawful arrest. In any event, the failure

to give a suspect the warnings prescribed by Miranda does not warrant suppression

of the physical fruits of a suspect’s unwarned but voluntary (uncoerced) statement.

United States v. Patane, 542 U.S. 630, 642, 124 S.Ct. 2620, 2629, 159 L.Ed.2d 667

(2004); State v. John, 13-195, p. 6 (La. App. 5 Cir. 7/9/13), 123 So.3d 196, 202.

Accordingly, if even if the police questioning of Defendant as to his possession of

a gun and carry permit violated Miranda, thereby requiring the suppression of his

statement, suppression of the physical fruits of his statement would not be

required.

The statement that he was armed and did not have a permit was made in

response to a query about whether Defendant was armed, which is a question of

immediate concern for officer safety during a Terry stop. Given that this statement

was made before Defendant was formally in custody and Mirandized, and in

response to a situation where the officers had a legitimate reason to ask for safety

purposes, a suppression of the statement is not warranted.

I opine that both the statement and physical evidence were legally obtained.

The statement was made in direct response to a question during a lawful Terry

stop, and the evidence was found during a lawful search incident to arrest. The

subsequent Mirandization primarily impacts any statements or admissions made

after Defendant was in custody and had been read his rights. Thus, the initial

statement and the evidence found should not be suppressed.

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The majority seems to argue that because the State did not object to the

suppression of the statements then that makes the suppression of the physical

evidence proper:

The State seeks to have the trial court’s ruling
partially reversed. Specifically, the State contends the
trial court erred by suppressing the evidence seized and
finding no probable cause. The State does not seek
review of the trial court’s suppression of Mr. Green’s
statements, as “the State believes the trial court reached
the correct result and sees no reason to seek review of
that portion of the ruling.”

* * * *

Upon review, we find no merit to the State’s
contention that even though the statements were correctly
suppressed, the evidence was legally seized. The trial
court held that once NOPD officers stopped Mr. Green
and informed him that he matched the description of a
subject suspected of dealing drugs and being armed, Mr.
Green should have been Mirandized. The State seems to
concede this point, as it did not seek review of the
suppression of Mr. Green’s statements. Everything
occurring after this moment was tainted.

Besides the fact that the statement is not subject suppression in my view, the

State “has great prosecutorial discretion in forming trial strategies” and may

acquiesce in the suppression the statement made by Defendant while not agreeing

to suppress the weapon and drugs found during the search. State v. Mitchell, 24-

0159 (La. App. 4 Cir. 3/22/24), --- So.3d ----, ----, 2024 WL 1229830, *3

(Lobrano, J., concurring), writ denied, 24-00378 (La. 3/28/24). If there is any

question or ambiguity about the timing and adequacy of the Miranda warnings, the

prosecution might agree to suppress statements made by Defendant to avoid

complicating the case. By conceding on the suppression of the statements, the State

maintains the integrity of the remaining evidence and avoids potential issues of

appeal.

The weapon and drugs found during the search, obtained through a lawful

Terry stop and search incident to arrest, provide concrete, physical evidence of

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criminal activity. Physical evidence is most compelling. The State can decide to

focus on this stronger, more objective evidence in building their case, especially

since the legality of the search and seizure can be clearly justified independently of

Defendant’s statements. Because the present record does not reflect that any

evidence seized was derivative of an illegal stop or a custodial interrogation

conducted in the absence of Miranda warnings, the State’s application, in which it

alleges that the court erred when it suppressed the evidence, has merit. I would

grant the State’s writ and reverse the district court’s ruling suppressing the

evidence.

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