GUIDRY, J.
The defendant, Cody Minor, was charged by bill of information with possession of a Schedule I controlled dangerous substance (marijuana), a violation of La. R.S. 40:966(A), and illegal possession of a firearm while in possession of a controlled dangerous substance, a violation of La. R.S. 14:95(E). He pled not guilty and moved to suppress the evidence. Following a hearing, the trial court denied the motion to suppress. Prior to trial, the state dismissed the possession of marijuana charge. The defendant was tried by a jury on the illegal possession of a firearm charge. He was found guilty as charged. The defendant was sentenced to imprisonment at hard labor for ten years. The defendant moved for reconsideration of the sentence. The trial court denied the motion. The defendant now appeals. In two assignments of error, the defendant asserts the trial court erred in denying his motion to suppress and in imposing an excessive sentence. For the following reasons, we affirm the defendant's conviction and sentence.
On June 30, 2009, Baton Rouge City Police Officer Jason Dohm was on proactive patrol in North Baton Rouge seeking leads on a murder that occurred on Kaufman Street. As Officer Dohm turned onto Kaufman Street, an area known as a "very high-crime area," where narcotics activity is common, he observed the defendant standing near the street in front of a residence. The defendant appeared to be talking with two other individuals standing on the porch of the residence. According to Officer Dohm, once the defendant saw the police vehicle, he immediately ran away. Officer Dohm and Corporal Andy Kuber (also of the Baton Rouge City Police) pursued the defendant. The defendant ran inside the residence. Officer Dohm and Corporal Kuber ran down opposite sides of the residence towards the rear. Shortly thereafter, Officer Dohm observed an air-conditioning unit being pushed out of a window of the residence from inside. The defendant attempted to exit through the window and fell out onto the ground. Office Dohm observed a Rohm revolver in the defendant's left hand and a bag in his right hand. Officer Dohm ordered the defendant to stop, but the defendant did not comply. The defendant ran northbound through the backyard of the residence. Eventually, the defendant stopped and dropped the gun and bag on the ground. The defendant was apprehended, advised of his
In his first assignment of error, the defendant contends the trial court erred in denying his motion to suppress the evidence. Specifically, he argues that the police officers lacked reasonable suspicion of criminal activity to justify an investigatory stop. The defendant argues that reasonable, articulable suspicion did not exist simply because he became nervous and ran away at the sight of the police. He asserts that since sufficient justification for the stop was lacking when the officers initiated the chase, the stop was unlawful, and, thus, the evidence found as a result of that stop should have been suppressed.
When the constitutionality of a warrantless search and seizure is placed at issue by a motion to suppress, the state bears the burden of proving the admissibility of evidence seized without a warrant. La. C. Cr. P. art. 703(D);
The Fourth Amendment of the United States Constitution and the Louisiana Constitution, Article I, § 5 protect against unreasonable searches and seizures. Subject only to a few well-established exceptions, a search or seizure conducted without a warrant issued upon probable cause is constitutionally prohibited.
Louisiana Code of Criminal Procedure article 215.1 allows an officer to conduct an investigatory stop of a citizen in a public place when there is reasonable suspicion that the individual is committing, has committed, or is about to commit a criminal offense.
While flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable suspicion for an investigatory stop.
At the hearing on the motion to suppress, Officer Seth Sinclair of the Baton Rouge City Police, Narcotics Division, testified that the Kaufman Street area was known for a high rate of drug activity. He explained that he was involved in controlled drug purchases at two separate residences on Kaufman Street, including the residence the defendant was observed standing in front of on the date of his arrest for the instant offense. Officer Sinclair further testified that there had been a recent homicide that remained unsolved on Kaufman Street.
Officer Dohm testified that immediately upon observing the marked police vehicle on the street, the defendant ran away. The defendant ran inside the residence and then attempted to escape through a window by pushing out an air conditioning unit. He fell to the ground holding a gun and a bag.
The defendant's flight alone is not sufficient to justify an investigatory stop. However, considering the defendant's unprovoked flight at the sight of the police, coupled with the high-crime nature of the area, and the recent unsolved homicide that occurred on the same street, Officer Dohm had sufficient information to form a reasonable suspicion, based on specific, articulable facts, that the defendant had committed or was about to commit a criminal offense.
This assignment of error lacks merit.
In his second assignment of error, the defendant argues the trial court erred in imposing an unconstitutionally excessive sentence. Specifically, he argues that the maximum sentence was not warranted in this case, because there was no showing that he is the worst type of offender or that he committed the most serious violation of the offense. He notes that the instant conviction was his first felony conviction, and the trial court erred in considering the fact that he had other criminal charges pending.
Article I, § 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Generally, a sentence is unconstitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering.
The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence.
The illegal carrying of a firearm while in possession of a controlled dangerous substance is punishable by imprisonment at hard labor for not less than five nor more than ten years without benefit of probation, parole, or suspension of sentence. La. R.S. 14:95(E). As previously noted, the defendant received a sentence of imprisonment for ten years, the maximum sentence. This court has stated that maximum sentences permitted under statute may be imposed only for the most serious offenses and the worst offenders,
At the sentencing hearing, the court was advised that the defendant had other criminal charges pending and was out on bail when he was arrested for the instant offense. The court was also made aware of the fact that the defendant failed a pretrial drug screening while out on bail. In imposing the maximum sentence, the court reasoned:
We cannot say the trial court abused its discretion in imposing the maximum sentence in this case. Prior criminal activity is one of the factors to be considered by the trial court in sentencing a defendant. La. C. Cr. P. art. 894.1 (B)( 12). Prior criminal activity is not limited to convictions.
This assignment of error lacks merit.
Therefore, having thoroughly reviewed the record and considered the applicable law, we find no error in the trial court's ruling denying the defendant's motion to suppress or in the sentencing decree rendered herein. Accordingly, we affirm the defendant's conviction for illegal possession of a firearm while in possession of a controlled dangerous substance, a violation of La. R.S. 14:95(E), and his consequent sentence for the maximum term of incarceration of ten years.