State v. Tucker

We granted the State’s writ application in this matter to resolve a split among the circuits regarding the moment when, during a police encounter, a citizen becomes “seized” within the meaning of La. Const. Art. I, Sect. 5. Specifically, we address the impact, if any, of the recent United States Supreme Court decision in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) on an individual’s rights against unreasonable searches and seizures in the State of Louisiana. In the consolidated matter, we granted the defendant’s pro se writ application to assess his claim that the evidence introduced at trial was insufficient to support his conviction.

FACTS AND PROCEDURAL HISTORY

This ease involves charges stemming from two separate, unrelated incidents, occurring some three days apart. The first incident began at approximately 3:30 a.m. on February 28, 1990. On that date and at that time, Shreveport Police received a report of an attempted burglary in progress in the 4500 block of Ledbetter Street in Shreveport. The caller reported that she had scared the burglar, a black male, and that he had run to a motorcycle in the street in front of her residence.

Shreveport Police Officer Richard Kenner responded to the call 'within minutes and saw a black male standing beside a motorcycle at the described location. As Officer Kenner approached he recognized the black male as Clarence Tucker, Officer Kenner having had previous dealings with Tucker. Officer Ken-ner recalled that Tucker was known for carrying one or more concealed handguns and as Officer Kenner approached he could see a bulge in Tucker’s right jacket pocket. Based on these facts, Officer Kenner conducted a brief pat-down search of Tucker. This search revealed a .25 caliber automatic pistol, a plastic bag containing 26 rolled marijuana cigarettes, a single edged razor-blade, a number of small plastic bags, and considerable cash. Tucker was arrested for possession of a firearm by a convicted felon (La.Rev.Stat. 14:95.1) and possession of marijuana with intent to distribute (La.Rev.Stat. 40:966(A)(1)).

Three days later, on March 2, 1990, acting on repeated complaints of drug-related activity in and around Roby’s Arcade, Shreveport and Louisiana State Police conducted a drug sweep of this area. This sweep was part of an ongoing police action, code-named “Operation Thor,” which had as its goal reclaiming certain high-crime areas from drug trafficking and gang-related activities. The sweep began at around 10:30 p.m. when approximately ten to twelve marked police vehicles carrying 20 to 30 officers converged on Roby’s Arcade. Shreveport Police Officer C.W. Wilson and State Police Officer Steven Jackson approached Roby’s in the lead marked police cruiser.

As Officers Wilson and Jackson approached, they observed Tucker and another man standing huddled together by a parked ear outside the Arcade. When the two men noticed the approaching police cars, they quickly broke apart and began to leave the scene. As they did, Officer Wilson stopped his ear and began to get out while simultaneously ordering the two men to “halt” and “prone out.” One of the men lay down immediately. Tucker, however, moved several steps toward the rear of the Arcade and tossed away a plastic bag. He then obeyed the police command and lay down. The police retrieved the bag Tucker had thrown and found it contained 47 rolled marijuana cigarettes. Tucker was then placed under arrest for possession of marijuana with intent to distribute.

As a result of these two incidents, Tucker was charged with and convicted of two counts of possession with intent to distribute a controlled dangerous substance (La.Rev.Stat. 40:966(A)(1)), count one arising from the February 28 incident and count two arising from the March 2 incident. The district court found Tucker a third felony offender on count one and, as such, sentenced him to 25 years at hard labor. The court also sentenced Tucker to 25 years at hard labor on count two with the sentences to run concurrently. Tucker appealed.

Addressing count one, the appellate court found the police detention and pat-down search of Tucker lawful based on the arresting officer’s reasonable, articulable suspicions that Tucker had been involved in a reported crime and that Tucker, who this Officer personally knew frequently carried concealed handguns, appeared to be carrying a handgun at this time. Thus, the court concluded, the marijuana found in Tucker’s possession pursuant to this search had been lawfully seized and was not improperly admitted into evidence against Tucker at his trial. The appellate court further found the evidence presented against Tucker was sufficient to allow a reasonable trier of fact to conclude beyond a reasonable doubt that Tucker was guilty of the offense of which he was convicted. Accordingly, Tucker’s conviction on count one was affirmed.

Addressing count two, the appellate court found Tucker was seized when Officers Wilson and Jackson approached and ordered Tucker to “halt” and “prone out,” commands which, the appellate court surmised, would cause a reasonable person to believe detention was imminent. The appellate court further found the police lacked reasonable, ar-ticulable suspicion that Tucker was engaged in, was about to engage in, or had just completed engaging in criminal conduct at the moment when he was seized and, therefore, this seizure was unconstitutional under La. Const. Art. 1, Sect. 5. Because Tucker discarded the plastic bag containing the marijuana cigarettes after this unlawful seizure, the court of appeal found the marijuana was a fruit of Tucker’s unlawful seizure and, hence, was inadmissible. Accordingly, the appellate court reversed the trial court’s denial of Tucker’s motion to suppress this evidence and reversed Tucker’s conviction on count two.

Tucker’s pro se writ application (92-KO-2093) seeks review of the appellate court’s conclusion that the evidence presented against him was sufficient to support his conviction on count one. The State’s writ application (92-K-2130) seeks review of the appellate court’s conclusion that the bag of marijuana which Tucker threw away as he was being ordered to halt and prone out was inadmissible against him. We first address the State’s writ application.

APPLICABLE LAW

La. Const. Art. 1, Sect. 5 provides in part:

Section 5. Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search.

Implementing the protections provided by this provision, this court has held the police may not make a warrantless arrest of a citizen without probable cause that the citizen has engaged in criminal conduct. State v. Zielman, 384 So.2d 359, 363 (La.1980); State v. Tomasetti, 381 So.2d 420, 423 (La.1980); State v. Mendoza, 376 So.2d 139, 141 (La.1979). We have further held that while the police may briefly detain and interrogate an individual, a less encroaching intrusion on an individual’s right to be free from governmental interference than an arrest, the police may only do so based upon reasonable, articulable suspicion that the individual has engaged in, is engaging in, or is about to engage in criminal conduct. La.Code Crim. Proc. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389, 391 (La.1983); State v. Chopin, 372 So.2d 1222, 1224 (La.1979).

In an effort to discourage police misconduct in violation of these standards, evidence recovered as a result of an unconstitutional search or seizure has been held inadmissible. Thus, evidence abandoned by a citizen and recovered by the police as a direct result of an unconstitutional seizure may not be used in a resulting prosecution against the citizen. Chopin, 372 So.2d at 1224. If, however, a citizen abandons or otherwise disposes of property prior to any unlawful intrusion into the citizen’s right to be free from governmental interference, then such property may be lawfully seized and used against the citizen in a resulting prosecution. In this latter case, there is no expectation of privacy and thus no violation of a person’s custodial rights. Chopin, Id.; State v. Ryan, 358 So.2d 1274, 1275 (La.1978).

The foregoing standards of police conduct and rules of inadmissibility of unlawfully seized evidence are intended to protect individuals from unwarranted, “forcible” governmental interference. State v. Neyrey, 383 So.2d 1222, 1224 (La.1979). These protections are not implicated, therefore, when an individual encountered by a law enforcement officer remains free to disregard the encounter and walk away. State v. Belton, 441 So.2d 1195, 1199 (La.1983); State v. Lanter, 391 So.2d 1152, 1154 (La.1980); Neyrey, supra, 383 So.2d at 1224; State v. Shy 373 So.2d 145, 147-48 (La.1979). Thus, “[i]t is only when the citizen is actually stopped without reasonable cause or when a stop without reasonable cause is imminent that the ‘right to be left alone’ is violated, thereby rendering unlawful any resultant seizure of abandoned property.” Belton, 441 So.2d at 1199 (emphasis added). See also, Andrishok, 434 So.2d at 391; Chopin, 372 So.2d at 1224.

It is against this backdrop that we assess the effect, if any, of the United States Supreme Court’s recent decision in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). In Hodari D. the Court held an individual is not “seized” within the meaning of the Fourth Amendment until that individual either submits to the police show of authority or is physically contacted by the police. Implicit in the Hodari D. Court’s break from its prior jurisprudence in announcing this new standard is the Court’s recognition of the severe problem with drug-related criminal conduct in America today. We too recognize the existence of this problem in our State. It is with this problem in mind that we address the balance of interests embodied in the rights against “unreasonable” searches and seizures protected by our constitution.

When balancing the competing interests in determining the limits of the rights against unreasonable searches and seizures, the court must ensure that the constitutional protections afforded to all do not suffer as a result of the abuse of these rights by the few. The balance must nonetheless consider the very essence of a constitution; that is, its ability to live within the framework of ever-changing societal needs. Like the Hodari D. Court, we do not believe the constitutional protections against unreasonable searches and seizures were intended to shield the criminal activities of those involved with use and distribution of illicit drugs; specifically, the typical situation which we frequently see in which drugs are “thrown down” in an attempt to evade police detection. As this court stated in Ryan, supra, “the defendant could not expect to carry contraband and drop it with impunity when he sees an approaching officer. ” Ryan, 358 So.2d at 1276. Thus, cognizant of the drug-related criminal problem in our State, we must today determine first whether our constitution would allow us to adopt Hodari D. as the sole criterion for determining when a seizure has occurred and, if not, how our state’s constitutional principles should be interpreted in light of current societal conditions.

Like the Fourth Amendment, La. Const. Art. 1, Sect. 5 also protects individuals from unreasonable searches and seizures. While this court has recognized some of the protections provided by our constitution are greater than those provided by the Fourth Amendment, we have nevertheless invariably followed the United States Supreme Court’s precedent regarding the moment when a seizure has occurred for purposes- of La. Const. Art. 1, Sect. 5. Because of the greater protections of La. Const. Art. 1, Sect. 5, however, we are precluded from continuing to look solely to the United States Supreme Court precedent in this area as Hodari D. simply offers less protection to our citizens than our constitution would allow. Thus, while we are able to adopt Hodari D. as one of the determinative standards for when a seizure has occurred in this state, see discussion infra, we must also strike out and determine the limits of the additional protections provided by La. Const. Art. 1, Sect 5.

In Belton we found an individual is “seized” within the meaning of La. Const. Art. 1, Sect. 5 when the individual is either “actually stopped” or when an “actual stop” of the individual is “imminent.” We believe this two-pronged inquiry reflects the aforementioned additional protections of our constitution. That is, while the Fourth Amendment only protects individuals from “actual stops” by law enforcement officers, Hodari D., our constitution also protects individuals from “imminent actual stops.” Therefore, it becomes incumbent upon us to now determine what constitutes an “actual stop” and an “imminent actual stop” as those terms were used in Belton.

After careful consideration of the Ho-dari D. decision, we conclude it correctly identifies when, during a police encounter, an individual has been “actually stopped.” We agree with the United States Supreme Court, an “actual stop” of an individual has not occurred when a police officer yells “Halt!” at a fleeing form which continues to flee. Thus, we hold that an individual has not been “actually stopped” unless he submits to a police show of authority or he is physically contacted by the police. Accordingly, we adopt Hodari D. insofar as it defines when an “actual stop” of a citizen, a seizure under La. Const. Art. 1, Sect. 5, has occurred.

Giving full weight to the additional protections of La. Const. Art. 1, Sect. 5, we must now determine what constitutes an “imminent actual stop.” This inquiry is necessary for those situations wherein the police attempt to seize an individual but the individual neither submits to the police show of authority nor is physically contacted by the police. Under these circumstances, despite the absence of an “actual stop” as defined above, our constitution might still mandate a finding that the individual had been seized if an “actual stop” of the individual was “imminent.”

In determining whether an “actual stop” of an individual is “imminent,” we find that the focus must be on the degree of certainty that the individual will be “actually stopped” as a result of the police encounter. This degree of certainty may be ascertained by examining the extent of police force employed in attempting the stop. It is only when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain, that an “actual stop” of the individual is “imminent.” Although non-exhaustive, the following factors may be useful in assessing the extent of police force employed and determining whether that force was virtually certain to result in an “actual stop” of the individual: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter.

In summary, we have previously held that a seizure violative of La. Const. Art. 1, Sect. 5 occurs when the police, without reasonable suspicion, either actually stop an individual or create a situation wherein an actual stop of the individual is imminent. Today we adopt Hodari D.’s definition for determining when an “actual stop” has occurred. We additionally adopt a standard for determining the “imminency” of an actual stop which focuses on whether an “actual stop” is “virtually certain” to result from the police encounter. To the extent this decision conflicts with our prior decisions, they are hereby overruled.

APPLICATION OF THE LAW TO THE FACTS

In the instant case, the testimony from the motion to suppress hearing and from Tucker’s trial on the merits reveals that two police officers approached Roby’s Arcade in their car, stopping several feet away from where Tucker was standing on a street corner, possibly separated from Tucker by an unrelated parked car. As Tucker saw the police unit approaching, he quickly turned and began to leave the scene. At this point, one of the officers sprang from the ear and ordered Tucker to halt and prone out. Rather than submit to this show of police authority, Tucker continued freely in his movements, discarding a bag containing contraband. Thereafter, Tucker submitted to the police show of authority and lay down. Under these facts, it is clear Tucker had not been “actually stopped” at the time he discarded the evidence. Thus, the determinative question becomes whether an actual stop of Tucker was “imminent” before Tucker abandoned the marijuana cigarettes.

Applying the previously listed factors to the instant case, the testimony reveals that the police were several feet away from Tucker at the outset of the encounter, and were possibly separated from direct access to him by a parked car obstructing their path. Thus, because Tucker had a lead of several feet between himself and the officers and was traveling towards the rear of the arcade, his being “actually stopped” was far from “virtually certain” to occur. Furthermore, the incident took place at night and in a commercial area within the City of Shreveport. Hence, Tucker’s flight was camouflaged by the darkness of the night, and the urban area provided numerous locations where Tucker could conceal himself. There is no testimony that any weapons were drawn at this or any other point during the encounter. Although the testimony indicates there were several other officers in and around Roby’s Arcade, it does not appear Tucker had been surrounded by the police. Moreover, the number of police officers in and around Roby’s did not substantially increase the certainty that Tucker would be actually stopped, as these additional officers were focusing their attention on other individuals in the general area.

Based on these facts, we cannot conclude an actual stop of Tucker was “virtually certain” to occur at the time he abandoned the evidence. Thus, at the time Tucker abandoned the marijuana he had not been unconstitutionally seized. For this reason, the court of appeal erred in reversing the trial court’s denial of Tucker’s motion to suppress the marijuana. Accordingly, the decision of the court of appeal on count two is reversed. The trial court’s conviction of Tucker on this count is reinstated.

We next address the issues presented by Tucker’s pro se application. This application raises only a single assignment of error, namely that the evidence produced at trial did not establish his guilt on count one (possession of marijuana with intent to distribute arising from the February 28 incident) beyond a reasonable doubt. Contrary to Tucker’s assertions, unrebutted testimony established that Tucker was carrying 26 marijuana cigarettes, and competent expert testimony established that this amount of marijuana and the form in which it was being carried were more consistent with distribution than personal use. Viewing the evidence in the light most favorable to the prosecution, the court of appeal found that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Nealy, 450 So.2d 634 (La.1984). We agree with this conclusion of the court of appeal and, for the reasons assigned by it, 604 So.2d at 609-611, this assignment of error lacks merit. Accordingly, we affirm Tucker’s conviction on count one.

JUDGMENT OF THE COURT OF APPEAL AFFIRMED AS TO COUNT ONE; JUDGMENT OF THE COURT OF APPEAL REVERSED AND CONVICTION AND SENTENCE REINSTATED AS TO COUNT TWO.

MARCUS, J., concurs and assigns reasons.

CALOGERO, C.J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

ORTIQUE, J., dissents with reasons.

Pursuant to Rule IV, Part 2, § 3, LEMMON, L, was not on the panel which heard and decided this case. See the footnote in State v. Barras, 615 So.2d 285 (La.1993).

. 609 So,2d 212 (La.1992).

. 609 So.2d 212 (La.1992).

. State v. Tucker, 604 So.2d 600 (La.App. 2nd Cir.1992).

. See also, State v. Sims, 426 So.2d 148, 152 (La.1983) ("A person is 'seized' within the meaning of the Fourth Amendment and La. Const. art. 1, § 5 only when the law enforcement official, by means of physical force or show of authority, has in some way restrained the liberty of the citizen.”)

. The greater protections of the Louisiana Constitution stem from the broader language which it employs. Compare La. Const. Art. 1, Sect. 5:

Section 5. Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

with U.S. Const.Amend. IV:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

. Although State v. Church, 538 So.2d 993 (La.1989) did deviate from the federal Fourth Amendment jurisprudence, that divergence was not based upon the moment of seizure. See Church, 538 So.2d at 995, relying on the Fourth Amendment to determine the moment of seizure in a roadblock case. Rather, Church rested on a requirement of reasonable suspicion at the point of a roadblock seizure, a requirement not necessary under the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

The vast majority of the Louisiana search and seizure cases summarily apply the Fourth Amendment and its jurisprudence to determine when a seizure has occurred under the Louisiana Constitution. This seems to reflect that this court may have felt the provisions of the Louisiana Constitution had not yet been implicated.

Thus, those cases do not necessarily represent the boundaries of Art. 1, Sect. 5, but rather may merely suggest we were constrained by the Federal Constitution. Now that the United States Supreme Court has, in Hodari D., constricted the range of circumstances under which a Fourth Amendment seizure will be found to have occurred, we are no longer restricted by prior Fourth Amendment jurisprudence and now have room to interpret the bounds of our own constitution.

. Compare, State v. Zielman, 384 So.2d 359 (La.1980) (defendants’ vehicle was suddenly surrounded by marked patrol cars with their lights flashing — actual stop imminent and, therefore, defendants had been seized) and Chopin, supra (police swung their car around into defendant’s path and stopped within three or four feet of defendant — actual stop imminent and, therefore, defendants had been seized) with State v. Duplessis, 391 So.2d 1116 (La.1980) (police parked their car ten feet away from where defendant was standing and approached him on foot — actual stop not imminent and, therefore, defendant was not seized) and Ryan, supra (police officer sprang from police car and approached defendant who was suspiciously concealing object in one hand — actual stop not imminent and, therefore, defendant was not seized).

. See, e.g., Duplessis, supra n. 7.

. See, e.g., Zielman, supra n. 7.

.The testimony is conflicting regarding whether this unrelated car was parked between Tucker and the police cruiser or was only alongside the cruiser.