State of Louisiana v. Danny Ray Sherman

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 03-1198

STATE OF LOUISIANA

VERSUS

DANNY RAY SHERMAN

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 267652
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of John D. Saunders, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

Saunders, J., dissents and assigns written reasons.

CONVICTION AND SENTENCE VACATED; REMANDED WITH
INSTRUCTIONS.

Glenn G. Cortello
Attorney at Law
711 Washington St.
Alexandria, LA 71301
(318) 445-0022
Counsel for: Defendant/Appellant
Danny Ray Sherman

James C. Downs
District Attorney - Ninth Judicial District Court
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
Counsel for: Plaintiff/Appellee
State of Louisiana

Noland James Hammond
Attorney at Law
P. O. Box 1841
Alexandria, LA 71309
(318) 443-7191
Counsel for: Defendant/Appellant
Danny Ray Sherman

Loren Marc Lampert
Walker, Passman & Michiels
3800 Parliament Drive
Alexandria, LA 71315
(318) 449-1565
Counsel for: Plaintiff/Appellee
State of Louisiana

Danny Ray Sherman
Rapides Parish Detention Center -3
7400 Academy Dr.
Alexandria, LA 71303

EZELL, JUDGE.

The Defendant, Danny Ray Sherman, was charged by bill of information with

possession of cocaine with intent to distribute, a violation of Louisiana Revised

Statute 40:967. The defense filed a motion to suppress, which, after a hearing, was

denied by the trial court. The Defendant was convicted of the charged offense and

was sentenced to serve twenty years at hard labor. At the sentencing proceeding, the

State filed a habitual offender bill, which, as of this writing, has not been heard by the

lower court. The Defendant appealed his conviction, specifically, the trial court’s

denial of his motion to suppress. This court dismissed the appeal because it was

unable, after repeated attempts, to obtain a copy of the trial transcript which it felt

was necessary to review the assignment of error before it.1 The Defendant filed a writ

application in the supreme court and the case was remanded for this court to

reconsider the Defendant’s assignment of error regarding the denial of his motion to

suppress. State v. Sherman, 04-1019 (La. 10/29/04), 886 So.2d 1116.

FACTS

On November 13, 2002, the Defendant was approached by Alexandria Police

Department Detectives and a U.S. Marshall working street drug interdictions. A

subsequent search of the Defendant’s pocket produced crack cocaine.

ASSIGNMENT OF ERROR

The Defendant contends the trial court erred in denying his motion to suppress.

The Defendant contends he was subjected to a Terry stop and the subsequent search

of his pocket exceeded an authorized search for weapons. The State, on the other

hand, contends the search of the Defendant’s pockets was authorized as a search

1
State v. Sherman, an unpublished appeal bearing docket number 03-1198
(La.App. 3 Cir. 2/4/04). The Defendant filed an application for rehearing which was
denied on March 24, 2004.

1

incident to the Defendant’s warrantless arrest for obstructing public passages, a

violation of Louisiana Revised Statute 14:100.1. For the reasons assigned below, we

disagree with the State.

At the hearing on the motion to suppress, there was undisputed testimony that

on November 13, 2002, Alexandria Police Department Detectives Alton Horn and

Lane Windham, Sergeant Newmon Bobb and a U.S. Marshall were working street

drug interdictions together pursuant to a complaint that had been received from an

unidentified source. The date that the complaint was received is not certain. The

testimony regarding what they observed upon their approach of the Defendant is

conflicting.

The supreme court stated in State v. Martin, 595 So.2d 592, 596 (La.1992),

“when reviewing a trial court’s ruling on a motion to suppress, we will consider the

entire record, including the testimony presented at trial. E.g., State v. Seward, 509

So.2d 413 (La.1987); State v. Phillips, 444 So.2d 1196 (La.1984); State v. Smith,

332 So.2d 773 (La.1976).” See also State v. Sherman, 886 So.2d 1116, in which the

supreme court stated, “[a]s a general rule, an appellate court may review the

testimony at trial in determining the correctness of the trial court’s pre-trial ruling on

a motion to suppress. State v. Green, 94-0887, p. 11 (La.5/22/95), 655 So.2d 272,

280; State v. Brooks, 92-3331, p. 10, (La.1/17/95), 648 So.2d 366, 372; State v.

Martin, 595 So.2d 592, 596 (La.1992).” The Court has had an opportunity to review

the testimony associated with the motion to suppress and the testimony of the trial in

this matter since the remand to this court.

Detective Horn testified that when he and the other officers were on Lincoln

Road, one of the areas from which they had received complaints, they observed the

Defendant standing in the middle of the street on a cellular phone, impeding the

2

normal flow of traffic. Detective Horn explained the Defendant was in the roadway

and if a vehicle had come down the street it would have had to swerve to miss him.

However, at trial, Detective Horn testified the Defendant was not standing in their

travel lane; rather, he was standing in the other lane of travel. He further testified at

trial that there were no people or cars around the Defendant. According to Detective

Horn, the Defendant’s motorcycle was parked on the side of the road in front of a

residence. Specifically, he testified that there is an unimproved shoulder on the road

and the motorcycle was “kind of in between the street and the gravel a little bit.”

Later, Detective Horn was asked if the motorcycle was off the road and he replied,

“Not directly in the roadway, but on the road.” At trial, Detective Horn testified that

the motorcycle was in between the blacktop and the shoulder, but it was not “fully in

the roadway.” When questioned further, Detective Horn testified at trial that “The

bike was kind of sitting at a - - in an angle type way. Not, not straight, but like the

front wheel was like facing outward towards the road. . . . I guess you could say it was

off the road.” Upon reviewing the Defendant’s exhibits, D-1, D-2, and D-3, the court

is made aware of the space available to park a small motorcycle on the shoulder of the

road in question.

As Detectives Horn and Windham exited their vehicle, they approached the

Defendant and asked what he was doing. He told them that he was riding his

motorcycle and it ran out of gas. The officers asked the Defendant if he had a driver’s

license “or something” and he told them he did not; however, they did not run a check

to determine whether the Defendant had a license. After the Defendant denied having

a license, Detective Horn searched him, recovering $10.00 and some crack cocaine.

At trial, Detective Horn testified that Detective Windham asked the Defendant to take

his left hand out of his pocket. Detective Horn’s trial testimony was that he patted

3

the Defendant down for safety and in doing so he reached into his pocket and took

out a ten dollar bill and a bag of crack rocks.

Detective Horn testified that he knew the Defendant prior to the encounter, but

it was a “standard question” to ask for identification. Detective Horn was asked why

he asked the Defendant for his driver’s license and he replied, “[h]e stated he was

driving his motorcycle and ran out of gas. . . [a]nd we check I.D.”

Detective Horn’s testimony regarding the nature of the contact between the

officers and the Defendant was as follows:

Q. . . . so when you approached Mr. Sherman was - - was your actions
towards Mr. Sherman subject to a traffic stop? Were you making a
traffic stop?

....

A. No sir, it was not a traffic stop.

BY MR. HAMMOND:

Q. Had Mr. Sherman violated any laws standing where he was
standing?

A. He was standing in the roadway. Yes sir.

Q. Were there any vehicles around - - - if we allowed what you say to
be so, which we are not, what you are alleging here, were there any
vehicles coming down the road at this particular time that Mr. Sherman
was obstructing?

A. No sir, none I can recall, sir.

Q. So he was not violating the law.

A. The vehicle was on the roadway.

....

Q. Had he violated the law in any way with the motorbike that caused
you to question him?

A. He was driving without a driver’s license.

4

According to Detective Horn, the Defendant was not issued a citation for obstructing

the roadway. He was arrested for possession of cocaine with intent to distribute.

Detective Horn was questioned extensively about the reason for the search of

the Defendant’s pocket. According to Detective Horn, he patted down the Defendant

for safety and did not feel any weapons. When asked why he searched the

Defendant’s pocket if he felt no weapon, Detective Horn testified, “Mr. Sherman had

one of his hands in his pocket. I was just checking, normal routine, to make sure we

would know what was in his pocket at the time.” Later, Detective Horn testified, “I

was just doing my search, sir. I said, I want to check your pockets, sir. And when I

checked his pocket my hand went around it and I pulled out what was in his pockets.”

Not until the cross-examination, did Detective Horn affirm that it was because he

feared for his safety that he placed his hand in the Defendant’s pocket and extracted

the contents. However, he never stated that upon patting down the Defendant he

noticed anything that would indicate the Defendant was carrying a weapon.

Narcotics investigator Lane Windham testified that they observed the

Defendant standing beside a motorcycle parked on the shoulder of the road.

Detective Windham testified he saw the Defendant standing in the roadway and he

affirmed that an automobile traveling southbound would have to either stop or go

around the Defendant in order to proceed in that direction. He did not recall any

vehicles being on the road when they approached the Defendant, but he confirmed

that the Defendant was blocking at least one lane of travel. When asked whether the

Defendant was standing off of the road next to his motorcycle as they approached,

Detective Windham replied, “I don’t remember exactly where he was standing.”

Detective Windham was asked more detailed questions about the Defendant’s and the

motorcycle’s positions:

5

A. The initial line of questioning to start off with was why he was
stopped in the middle of the road, why his motorcycle was in the travel
lane. That’s why we started talking to him.

Q. Why his motorcycle was where?

A. Was in the lane, the road, the roadway. That’s why we stopped.

Q. His motorbike was in the roadway?

A. There in front of the residence.

Q. It wasn’t off the road?

A. The way I understand it - - - the way I can remember, it was parked
there in the roadway, yes, sir.

Q. Okay. You’re talking about the gravel, not the - - - are you talking
about the actual road?

A. It was on the - - - from what I can remember off of Lincoln Road, it’s
not really a shoulder there. It’s just more or less like a gravel way.

Q. So it was off the road on the gravel?

A. Now I don’t remember exactly if it was parked partially on the
gravel or partially in the line of traffic, itself.

Q. Was it Mr. Sherman’s bike or was it Mr. Sherman that was
obstructing the - - - or in the middle of the road?

A. I don’t remember if he was standing there, on what side of the bike.

Q. Okay. Technically, quote/unquote, there was no obstructing of
traffic on this particular day, was there, Officer?

....

BY MR. HAMMOND:

Q. As you approached Mr. Sherman on this day leading up to the
questioning of Mr. Sherman he was not obstructing traffic, was he?

A. We were the only traffic on the road at the time.

Q. Yes, sir, but he was not obstructing traffic, was he?

A. No.

....

6

RE-DIRECT EXAMINATION

BY MR. LAMPERT:

Q. Was he obstructing you? Could you have continued down the
roadway without having to maneuver into other lane of traffic to get
around either him, or his motorcycle or both?

A. Yes, sir, I would have had to maneuver around him.

Q. Any other automobile traveling in that lane of traffic, would they
have had to maneuver into - - - around him into the other lane of traffic?

A. Yes.

Q. All right. Is Lincoln Road a public roadway?

A. Yes, sir.
....

RE-CROSS EXAMINATION
....

Q. So is this like a road only ten inches wide? And I say that as to say
that only one vehicle pass down this road at a time?

A. No, two can pass.

Q. So Mr. Sherman would have had to have been in the middle of the
road with his bike turned across the lines in order to obstruct both lanes.
So you just said that he did - - - he was not obstructing traffic. Then he
answered the counsel’s question that he was obstructing y’all where
y’all had to go around him. You weren’t obstructed by Mr. Sherman by
no means in your path of travel, were you?

A. Well I see what you’re talking about. The way that I can remember
the bike was it’s a small, narrow road and in order to meet another
vehicle you have to kind of be careful how you’re doing it. If I was in
the other lane coming the other way I would have been obstructed.

Q. Yes, sir, and I respect that.

A. Okay.

Q. But counsel asked you, “Did you have to maneuver around Mr.
Sherman?” You didn’t have to (Interrupted)

A. Okay. I’m - - - I’m sorry, I misunderstood the question then.

Q. Yes, sir.

7

A. Okay.

Q. Your lane was not obstructed, was it?

A. That’s right.

Q. Okay.

At trial, Detective Windham testified that the Defendant was standing next to

the shoulder of the road when they approached him. When asked for a more specific

location, Detective Windham said, “I’d probably say he’d be on the blacktop.”

Detective Windham testified he did not run a check to see if the Defendant had a

valid driver’s license, but he does remember it being done.

Detective Newmon Bobb testified that the Defendant was standing in the road

by a motorcycle parked on the street and that a vehicle traveling north would have

had to go in the opposite lane of travel to get around the Defendant. According to

Detective Bobb, to stand beside the motorcycle, a person would have to be in either

the ditch or the lane of travel. Detective Bobb recalled that there was traffic on the

road when they approached the Defendant, but he did not know if the traffic had to

stop for the Defendant.

Detective Bobb was the head detective in the vehicle and he was asked why his

officers approached the Defendant. He replied, “We were conducting what we call

or what is called a street interdiction. Those officers are trained officers and they

know what to look for when we get complaints of an area.” Detective Bobb received

a complaint, at some undetermined time, of drug activity in the area and that is why

they were there. Detective Bobb was questioned in greater detail about the reason for

approaching the Defendant:

Q. Well, what do you recall specifically about this incident, Officer
Bobb?

8

A. I recall we were doing street corner interdiction at the time we made
contact with Mr. Danny Ray Sherman. Officer Horn and Officer
Windham were talking to him at that point. They advised me that they
had found some crack cocaine inside of his pocket. At that time a unit
was called to be transported and they continued their investigation as we
continued on do - - - doing our street corner interdictions.

Q. So the purpose of the stop was street corner interdiction, drug
investigation?

A. Correct.

Q. And Mr. Sherman at that point was the focus of the drug
investigation?

A. At that time, yes, sir.

Q. And that’s why the officers stopped and made a question of Mr.
Sherman?

A. No, they did not. You’re playing on my words, I didn’t say that.

Q. Well, you said, Officer, at the time he was the focus of a drug
investigation.

A. No. He was in that area where we were targeting, working and
answering complaints in that area in (Interrupted)

Q. And he be (Interrupted)

A. . . . drug activity.

Q. Yes, sir.

A. And Danny Ray Sherman was there in the area where we had
received a complaint at. We did not go there looking for Mr. Danny Ray
Sherman.

....

Q. As simple as you working for drug interdiction and you see a man
that you have had some past experience with; correct?

A. Correct.

Q. And because of the past you’re going to investigate?

A. No. I wouldn’t - - - his - - - his past doesn’t have anything to do with
we’re going to continue the investigation. Sure, Mr. Danny Ray
Sherman was there. So, however, I do know him. I don’t know if the

9

other guys recognized him or not. We didn’t talk about that. But Mr.
Danny Ray Sherman was on the street. I did recognize him. I did not
continue the investigation. Officer Horn and Officer Windham was the
one that did the initial investigation. Being their supervisor I let them
handle the field operation as far as going out and conducting their
investigation.

At trial, Detective Bobb was asked if they initially approached the Defendant

for a traffic violation. He responded, “There was a traffic violation” and he explained

the Defendant was in the roadway blocking one lane of travel. Detective Bobb

recalled that a school bus came by and had to veer around him. However, Detective

Bobb is the only person there that recalls seeing any traffic on the road when they

were approaching Mr. Sherman.

Wanda Reed, the resident of the home on Lincoln Road in front of which the

incident occurred, testified that the Defendant knocked on her door and after learning

that her boyfriend Richard was not there, asked if she had a gas can because he had

run out of gas. Ms. Reed told him she did not, so he walked back out and stood by

his motorcycle on the side of the street. Ms. Reed displayed the width of the gravel

on the side of her road and counsel determined that it was “about a foot, foot and a

half.” She testified the traffic was not heavy that day and the Defendant was standing

beside his motorcycle, which was completely off the road. At trial, Ms. Reed testified

that both the motorcycle and the Defendant were on the side of the street in the

gravel. When counsel asked Ms. Reed whether traffic could pass by without having

to “stop around” the Defendant, she replied “yes.” According to Ms. Reed, the

handlebars of the bike were not over the road. Ms. Reed testified she did not hear any

horns honking at the Defendant to get out of the roadway. However, Ms. Reed

testified that she was not watching the Defendant when the police arrived. She was

informed by her nephew that the police were there and when she went to the door,

they had already arrested the Defendant. Ms. Reed’s sister testified at both the

10

suppression hearing and trial and her testimony was essentially the same regarding

the location of the Defendant and his motorcycle.

In denying the motion to suppress, the trial judge made the following

comments:

BY THE COURT:

I don’t think that they had reasonable grounds to believe that. I
do think they had probable cause. I have a question about the
obstruction of a public passage and whether or not it’s an intentional act
or a willful act. That’s why I’m curious as to whether or not he could
have moved the vehicle. But the - - - the last Mrs. Reed, Ms. Price, did
her hands up like this when they asked about how much dirt there was
on the side of the road. It was like twelve to eighteen inches. And if his
motorcycle was parked on the side of the road I think that would cause
problems with a small road anyway, with people being able to pass, two
of them at a time.
....

Well, Mr. Lampert said he had a right to arrest, number one, for
Title 14:100.1, and also for no drivers license, not on person but no
drivers license. And under Title 32 that is, you know, an offense that
you can be arrested for because that is a Chapter 2 violation. Chapter 1
violation says shall issue a citation and Chapter 2, a police officer may
arrest.
....

They said he didn’t have a drivers license. Let’s say you win that.
If he doesn’t have a drivers license, he tells the police, “I’ve been riding
that motorcycle and I ran out of gas” and he doesn’t have a - - - he
doesn’t have a drivers license, they have a right to arrest him for not
having a drivers license.
....

Defense counsel pointed out to the court that Detective Horn testified that they

did not check to see if in fact the Defendant had a valid driver’s license, to which the

judge responded:

I know. I wish he would have done that. I wish he would have
checked to see if - - - I - - - I don’t understand how they stop on the side
of the road and someone says they don’t have any gasoline in their
motorcycle and they don’t check - - - I mean, that would just drive me
crazy. I would want to know. I don’t understand that either. That
would be two of the things that I would have done. But because they
didn’t do what I would have done that doesn’t mean that their stop is not

11

- - - not valid. I’m not real, real happy with the stop. I think that - - -
you know, but it’s not my call as to whether or not they should have
done it, or shouldn’t have done it, or should have done it in a different
way.

....

That all has to do whether or not they believe he was standing on
the street corner selling drugs. And the probable cause for stopping him
was not reasonable grounds to believe he was engaged in drug activity.
Their - - - their stop for him was based upon obstruction under Title 14,
Section 100.1 and Title 32, Section 414 or whatever - - - whatever it is,
no drivers license.

....

That’s not why they stopped him. They were in the neighborhood
for a drug investigation because of phone calls they received. But they -
- - someone didn’t call him and say Danny Ray Sherman is on the street
corner selling drugs. He was in that neighborhood because of the
complaints about drug activity.

So based upon the testimony of the witnesses and the argument
of counsel, I will deny your Motion to Suppress. I believe there was
probable cause to stop, detain and arrest Mr. Sherman on November the
13th of 2002.

In State v. Thomas, 02-471, p. 3 (La.App. 3 Cir. 10/30/02), 829 So.2d 1137,

1139-40, writ denied, 02-2920 (La. 4/21/03), 841 So.2d 789, this court discussed the

standard of review utilized by the appellate court in this situation:

When reviewing a trial court’s denial of a motion to suppress, the
appellate court looks at the totality of the evidence presented at the
suppression hearing. State v. Bargeman, 98-617 (La.App. 3 Cir.
10/28/98); 721 So.2d 964, writ denied, 99-0033 (La.5/28/99); 743
So.2d 658. Unless the trial court’s conclusions are not supported by the
evidence or there exists a clear abuse of discretion, an appellate court
should not overturn the trial court’s ruling. State v. Purvis, 96-787
(La.App. 3 Cir. 12/11/96); 684 So.2d 567 (citing State v. Burkhalter,
428 So.2d 449 (La.1983)). In other words, the appellate court will give
the trial court’s determination great weight and will not set aside the trial
court’s ruling unless clearly mandated by a preponderance of the
evidence. State v. Lewis, 97-1244 (La.App. 3 Cir. 3/6/98); 728 So.2d
1.

12

In State v. Temple, 02-1895, p. 4 (La. 9/9/03), 854 So.2d 856, 859, the supreme

court stated:

Although La.C.Cr.P. art. 215.1 permits an officer to stop a citizen
in a public place and question him, the right to make such an
investigatory stop must be based upon reasonable suspicion that the
individual has committed, or is about to commit, an offense. See Terry
v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 899 (1968); State v.
Andrishok, 434 So.2d 389, 391 (La.1983). If an officer stops a person
pursuant to art. 215.1, the officer may conduct a limited pat down frisk
for weapons if he reasonably believes that he is in danger or that the
suspect is armed. La.C.Cr.P. art. 215.1(B). Determining whether
“reasonable, articulable suspicion” existed requires weighing all of the
circumstances known to the police at the time the stop was made. State
v. Williams, 421 So.2d 874, 875 (La.1982).

It is clear the search in the instant case exceeded a pat down frisk for weapons

as the officer actually entered the Defendant’s pocket and retrieved the contents.

Assuming a pat-down frisk was justified under the circumstances, there was no

evidence that the officers detected what they believed to be contraband in the

Defendant’s pocket.

In Minnesota v. Dickerson, 508 U.S. 366, 375 113 S.Ct. 2130, 2137 (1993), the

Supreme Court stated: “If a police officer lawfully pats down a suspect’s outer

clothing and feels an object whose contour or mass makes its identity immediately

apparent, there has been no invasion of the suspect’s privacy beyond that already

authorized by the officer’s search for weapons. . . .”

The question presented to this court is “was the stop and frisk encounter

warranted?” The question can be answered by reviewing Louisiana Code Criminal

Procedure art. 215.1 and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). Terry

clearly sets out the procedure that is to be followed under the circumstances presented

in this case. If the officer reasonably believes that he is in danger, he may frisk the

outer clothing of the person for a weapon. If the officer reasonably believes that the

person has a weapon, he may search him. This is where the facts of this case are

13

clear. The officer that frisked the Defendant did not at anytime, testify that upon his

frisking of the Defendant he believed that the Defendant had a weapon on his person.

There is no testimony that the Defendant attempted to resist the officer in any fashion.

Just the opposite occurred. The Defendant answered the officers’ questions when he

was addressed about his purpose for being in the area. However, none of the officers

ever checked the motorcycle to see, if in fact, it was out of gas. From the testimony

presented one cannot say that the officers had the right to search the Defendant’s

pocket, after he had frisked the Defendant.

The stop and frisk itself is very questionable in lieu of the totally conflicting

testimony of the police officers. In this case the officers all stated they were there for

the purpose of drug interdiction. Not one of the officers testified as to when they got

the complaint, that would have been the reason for them to be in the area. There was

no testimony that the Defendant was a suspect in the commission of any crime or was

about to or had committed a crime in that area. It is, however, clear that some of the

officers involved had been in contact with the Defendant prior to this incident.

However, this fact is not one that would legalize the stopping of the Defendant and

frisking him.

This court finds that the plain view or feel exception set forth in Terry does not

apply in this case. The State relies on the fact that the Defendant had violated

Louisiana Revised Statute 14:100.1 and that, due to this fact, they would have

discovered the contraband incident to a legal arrest.

In State v. Temple, 854 So. 2d 862, the supreme court stated, “As a general

matter, police officers may make warrantless arrests if probable cause exists, that is,

“when the facts and circumstances known to the arresting officer and of which he has

reasonably trustworthy information are sufficient to justify a man of ordinary caution

14

in believing that the person to be arrested has committed a crime.” We find that there

were neither facts and circumstances known to the arresting officer present, nor

trustworthy information sufficient to justify a man of ordinary caution in believing

that the Defendant who was arrested had committed a crime.

OBSTRUCTION OF PUBLIC PASSAGE

Louisiana Revised Statute 14:100.1 provides in pertinent part:

No person shall willfully obstruct the free, convenient and normal
use of any public sidewalk, street, highway, bridge, alley, road, or other
passageway, or the entrance, corridor or passage of any public building,
structure, water craft or ferry, by impeding, hindering, stifling, retarding
or restraining traffic or passage thereon or therein.

This court has had a fairly recent case concerning this statute. In State v.

Malveaux, 03-276 (La.App. 3 Cir. 6/4/03), 852 So.2d 463, 467, this court found there

was no probable cause to arrest the defendant for obstruction of a public passage

under the following circumstances:

The record indicates that Defendant was walking down the middle
of the street and stopped as the officers slowed their patrol car. Because
there is no testimony regarding the layout of Martha Street, it cannot be
determined from the record whether that street is a one, two, or four lane
roadway, or whether Defendant was walking down the center line of the
street or in the middle of the lane in which the officers were traveling.
Additionally, the officers did not testify that they could not have
continued driving in their lane of travel because of Defendant’s presence
on the street.

The testimony of the officers is unclear as to where the Defendant was standing

when the officers first saw him. However, it is clear that the Defendant was not

obstructing the lane of traffic of the vehicle that the police officers were riding in. It

is also clear that at some later time the officers began to focus on the motorcycle and

where it was parked. It is also clear that none of these officers can say exactly where

the motorcycle was parked in relation to the obstruction allegation, because they

place the motorcycle in different places at the hearing on the motion to suppress and

15

the trial on the merits. It is also clear that the officers could not agree on where the

Defendant was standing when they first saw him. This court in State v. Malveaux,

852 So.2d 463, found there was no probable cause to arrest the defendant for

obstruction of a public passage. The facts of State v. Malveaux are not the same but,

due to the lack of consistent testimony or the lack of testimony as to the charge under

Louisiana Revised Statute 14:100.1, this court finds that there was reasonable

suspicion or probable cause shown to support and arrest under Louisiana Revised

Statute 14:100.1.

The testimony of the police officers in this matter does not meet the burden

required, that being on objectively reasonable basis for stopping the Defendant for the

purpose of obstruction the roadway. The closest case on point is State v. Malveaux;

however, the present case is distinguishable from State v. Malveaux in that there was

testimony that traffic would have had to maneuver around the defendant in Malveaux

to proceed down the two-lane roadway. The court finds that there was no probable

cause to arrest the Defendant for obstructing the roadway.

NO DRIVERS LICENSE IN POSSESSION

The court must now consider the other issue, could the officer arrest the

Defendant for failing to produce a driver’s license?

Louisiana Revised Statutes 32:411.1(C)(1) and (2) state:

C. (1) When an officer or agent of the department or any police
officer of the state, or any parish or municipality has reasonable grounds
to believe a person has committed an offense of driving without a valid
driver’s license in his possession, the police officer shall make every
practical attempt based on identifying information provided by the
person to confirm that the person has been issued a valid driver’s
license. If the police officer determines that the person has been issued
a valid driver’s license which is neither under revocation, suspension,
or cancellation, but that the license is not in his possession, the peace
officer shall issue a written summons to the offender in accordance with
law, commanding him to appear and answer the charge.

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(2) The provisions of this Subsection shall in no way limit the
peace officer from issuing a citation for operating a motor vehicle
without physical possession of a valid driver’s license.

This provision is also contained in Louisiana Code Criminal Procedure art.
211.4:

A. When a peace officer has reasonable grounds to believe a
person has committed an offense of driving without a valid driver’s
license in his possession, the police officer shall make every practical
attempt based on identifying information provided by the person to
confirm that the person has been issued a valid driver’s license. If the
police officer determines that the person has been issued a valid driver’s
license which is neither under revocation, suspension, or cancellation,
but that the license is not in his possession, the peace officer shall issue
a written summons to the offender in accordance with law, commanding
him to appear and answer the charge.

B. The provisions of this Article shall in no way limit the peace
officer from issuing a citation for operating a motor vehicle without
physical possession of a valid driver’s license.

The answer to this issue is found in Garrett v. City of Bossier City, 34,784

(La.App. 2 Cir. 6/20/01), 792 So.2d 24. In Garrett the plaintiff was arrested for not

having a driver’s license in his possession. He filed a civil suit against the city and

the arresting officer. The trial court ruled in favor of the city and the officer and the

plaintiff appealed. On appeal, the second circuit was called upon to determine

whether the officer could arrest the plaintiff for failing to have a driver’s license in

his possession. After first citing Louisiana Revised Statute 32:411.1 and Louisiana

Code Criminal Procedure art. 211.4, the court discussed the appropriate steps to be

taken under the circumstances:

Officer Estess stopped Garrett for a seatbelt violation and
requested his driver’s license. Once he discovered that Garrett did not
have a driver’s license in his possession, the procedure the officer was
directed to follow by La. R.S. 32:411.1(C)(1) and La.C.Cr.P. art.
211.4(A) was to make every practical attempt to confirm that Garrett had
been issued a valid driver’s license that was not under revocation,
suspension or cancellation. Indeed, Officer Estess confirmed by radio
dispatch that a Walter Garrett had been issued a Louisiana Driver’s
License that was not under revocation, suspension or cancellation and

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that there were no outstanding warrants on him.

The issue presented in this case is whether Officer Estess made
“every practical attempt” to determine the identity of the person standing
before him. This question is easily answered. Officer Estess admitted
that he made no effort to confirm through radio dispatch that Garrett was
the person he said he was by matching him to the physical description
contained in the driver’s license. Further, the driver’s license includes
the licensee’s date of birth, home address and social security number,
information that Officer Estess could have first obtained verbally from
Garrett then matched to the driver’s license.

Officer Estess did not articulate a single reason to believe that
Garrett might be giving him a false name. There is nothing in the record
that would indicate that Garrett was abusive or uncooperative. Officer
Estess obviously did not think that Garrett was driving a stolen vehicle
because he did not check (although he could have done so) the vehicle
registration to verify ownership, nor did he question Mrs. Garrett when
he gave her the car keys. He made no effort to confirm that she was in
fact Garrett’s wife.

Bossier City submits that the officer’s actions were justified
because of a “directive” from Judge Mike Daniel. The memorandum
contains a recommendation to Deputy Chief Teutsch to “always” jail
all persons who are unable to produce a driver’s license. By placing this
memorandum in the officers’ boxes, the ranking department heads were
de facto initiating a policy, one clearly prohibited by statutory law.
There was no evidence that the city checked the law to determine if
Judge Daniel’s recommendation was valid before distributing it to its
officers.

The trial court correctly concluded that Officer Estess could not
be held accountable for following a departmental “directive” and
therefore, could not be held at “fault.” The same cannot be said of the
city. Bossier City was obligated to check out the recommendation
before accepting it as departmental procedure. The city made no such
check but simply distributed the directive to its officers.

Officer Estess carried out a de facto departmental policy that
included the custodial arrest of a citizen whose “crime” was that he left
his wallet containing his driver’s license at home and who had no other
photographic identification in his possession. The de facto policy did
not allow the officer to make every “practicable attempt” to identify that
the person had been issued a valid driver’s license or to exercise his
discretion to issue only a summons even if all such practical efforts were
in vain.

We hold, therefore, that the custodial arrest of Garrett was, under
La. R.S. 32:411.1(C) and La.C.Cr.P. art. 211.4(A), statutorily prohibited.

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Id. at 27-28, (footnote omitted)(emphasis in original).

In the present case, none of the officers testified they made an attempt to

determine whether the Defendant had a valid driver’s license. Although Detective

Windham testified at trial that he remembered this being checked, he did not know

who did it and there was no testimony as to whether the Defendant had been issued

a valid license which was not under revocation, suspension or cancellation. Pursuant

to the requirements of Louisiana Revised Statute 32:411.1(C) and Louisiana Code

Criminal Procedure Article 211.4(A) and under the circumstances of this case, the

officers could not have effected a valid arrest of the Defendant for driving without a

valid driver’s license in his possession, but failed to follow the proper procedure to

affect a valid arrest under Louisiana Revised Statute 32:411.1(C) and Louisiana Code

Criminal Procedure Article 211.4(A).

The court finds there was no probable cause to arrest the Defendant for this

offense, and any evidence found subject to a search based on the fact that the

Defendant did not possess a valid drivers license should have been suppressed by the

trial court. We find that any custodial arrest of Sherman under Louisiana Revised

Statute 32:411.1(C) and Louisiana Code Criminal Procedure Article 211.4(A) is

statutorily prohibited.

RECOMMENDATION

The court finds the trial court erred in denying the motion to suppress, the

Defendant’s conviction and sentence are vacated, and the matter remanded for further

proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED WITH
INSTRUCTIONS.

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KA 03-1198
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

VERSUS

DANNY RAY SHERMAN

SAUNDERS, J. dissenting.

I respectfully dissent. The majority reverses the trial court’s denial of

defendant’s motion to suppress, vacates the conviction, and remands. While the

testimony regarding defendant’s obstruction of the roadway was conflicting, I do not

feel that the trial court abused its discretion in finding probable cause for the arrest.

Because I believe the trial court was within its discretion on this point, I feel that the

cocaine would have been discovered in a search incident to that arrest. As such, I feel

that the trial court properly denied the motion to suppress and would affirm that

ruling.