JAMES F. McKAY III, Chief Judge.
The defendant appeals the judgment of the trial court denying his motion to suppress the evidence. After a review of the record before us, we find that the trial court erred in denying Brad Candebat's motion to suppress the evidence. Therefore, we reverse the trial court's judgment, grant the defendant's motion to suppress the evidence, and vacate his guilty plea and sentence.
The State filed a bill of information charging the defendant, Brad Candebat, with possession of a controlled dangerous substance, amphetamine, a violation of La. R.S. 40:967. On June 15, 2011, the defendant was arraigned and pleaded not guilty. On August 4, 2011, the defendant filed a motion for discovery, as well as a motion to suppress the evidence and motion for a preliminary hearing. On October 10, 2011, the defendant waived his right to a jury trial and elected a bench trial. On December 12, 2011, a motions hearing was continued to the trial date, April 18, 2012. On that date the motions hearing and the trial were continued to August 27, 2012. On August 23, 2012, the defendant filed a memorandum in support of the motion to suppress the evidence. On August 27, 2012, a hearing on the motions was held; the trial court denied the motion to suppress the evidence and set trial on February 19, 2013. The defendant sought supervisory review, and this Court denied the writ. State v. Candebat, 2012-K-1542, unpub. (La.App. 4 Cir. 2/7/13). On February 19, 2013, the defendant withdrew his not guilty plea and pleaded guilty under State v. Crosby, 338 So.2d 584 (La. 1976). The defendant waived delays, and the trial court sentenced him to two years in the Department of Corrections, suspended, and two years of probation with the special condition that after the completion of one year of active probation, the second year of probation would be converted to inactive probation.
At the August 27, 2012 motion to suppress hearing, Agent Christopher Encardes testified that on February 20, 2012, he resigned for personal reasons from being a St. Bernard Sheriff's Office Narcotics Agent after six and one-half years. He was working for the City Park Police Department at the time of the hearing. However, on March 16, 2011, he was a narcotics agent; he had been part of the narcotics street crimes unit for two years. He stated that in 2011 he participated in roughly 200 narcotics arrests; in 2010 he was involved in about 180 narcotics arrests. He was in a one-man car when he made a traffic stop, but his partner, Agent Scott Maitrejean, showed up toward the end. The agent testified: "I observed a red vehicle that Mr. Candebat was driving. Mr. Candebat wasn't wearing a seatbelt, had a cracked windshield. Conducted [sic] a traffic stop on Mr. Candebat, in a high crime and drug activity area." The agent explained that the number of narcotics arrests made in that area was the basis for describing it as a high drug activity area; he had been personally involved in a number of those arrests.
Agent Encardes stated:
The agent said that the defendant was "just completely, overly nervous from [sic] someone on a regular traffic stop." The agent said that overly nervous subjects were usually involved in narcotics arrests.
Agent Encardes testified that it was about 7:00 p.m., and he asked the defendant to put his hands on the car for officer safety because he was alone, and it was a high crime/high drug trafficking area. Agent Encardes testified that he began to conduct a pat-down of the defendant; he was looking for weapons. He said: "During the pat-down in Mr. Candebat's coin pocket I felt what was a small hard rocklike substance." He was "unsure" of which pocket, but thought it was the left pocket. The agent said that he was looking for weapons; he patted the defendant down for safety reasons. He explained that he felt a "small hard rocklike substance consistent with the possibility of crack cocaine." The agent noted that he had felt such things during pat-downs, and the substance was usually crack cocaine. Noting the agent's experience, the ADA asked: "You thought it might be contraband?" Agent Encardes replied: "Correct." Agent Encardes said that when he removed the object, "[i]t was a small pill." While he was attempting to identify the pill using drugs.com, the defendant stated that he did not have a prescription for the medication. Agent Encardes testified that he then advised the defendant of his Miranda rights and placed him in handcuffs. According to the Louisiana State Police Crime Lab, the pill was twenty milligrams of amphetamine, a controlled dangerous substance. The agent said that the defendant was charged with the illegal possession of a controlled dangerous substance, as well as the traffic violations for the cracked windshield and the failure to use the seatbelt.
On cross-examination Agent Encardes stated that he was not familiar with the defendant before the traffic stop that night. The agent said that seconds elapsed between the actual stop and the pat-down. When defense counsel asked what facts formed the basis for the agent to decide to pat-down the defendant, he replied: "From Mr. Candebat's actions." He conceded that he had no specific information that the defendant was armed or dangerous. The agent admitted that he observed no bulges in the defendant's jeans. Defense counsel reiterated that the agent had testified that he felt a hard rocklike substance in the defendant's top coin pocket. Counsel then asked the agent to read his report in which he had stated: "During the pat-down Agent Encardes immediately felt a capsule shaped pill in Candebat's top coin pocket." When he was asked if he felt a pill, the agent replied: "It was hard." Counsel asked: "Capsule pill?" The agent answered: "A hard substance." Counsel then asked: "A hard substance which could be a number of things, not necessarily a pill?" Agent Encardes replied: "Correct." Counsel then asked: "But in your report you indicate that you immediately felt a capsule pill; is that correct?" The agent responded: "Yes, ma'am." When counsel asked why the agent's testimony was not the same as what he wrote in his report, Agent Encardes replied: "It was a hard substance."
On further cross-examination Agent Encardes testified that he decided to remove the object from the defendant's coin pocket based on the defendant's actions, the high crime and drug trafficking area, and his past experience making narcotics arrests. When counsel asked him to explain what actions by the defendant prompted that action, the agent stated: "The several times I've asked him not to place his hands in his pockets, which he continuously to do [sic]. His [sic] overly nervous, not making eye contact, being jittery when he spoke." When questioned as to why he waited until after that last time he put his hands back into his pockets, the agent answered: "Because the very last time he made me fear for my safety. That's why I did it the very last time." He said he removed the object for his safety. When he was asked if it was not until he removed the pill that he determined what substance was in the defendant's pocket, he replied: "Correct." Counsel asked: "The hard substance, were you certain that it was narcotics?" The agent responded: "No, ma'am." Counsel then asked: "During the pat-down, were you certain that it was narcotics?" Agent Encardes replied: "No, ma'am, I wasn't." Defense counsel asked: "Could it have been something else?" The agent answered: "Yes, ma'am."
On redirect examination Agent Encardes stated that he patted down the defendant for officer safety. He agreed that he had done so many times before, and he had felt hard objects during patdowns.
The record has been reviewed, and there are no errors patent.
The defendant argues that the evidence was seized pursuant to an illegal frisk and subsequent illegal search. He claims that the agent had no reason to believe that he was armed or dangerous. He contends that a lawful detention does not automatically allow an officer to pat down a subject being detained. The defendant argues that the agent had no basis to reasonably believe that his safety or that of others was in danger in order to justify the frisk, and the agent based his decision to conduct a pat-down on the defendant's nervous behavior. He asserts that nervousness alone cannot justify a frisk, and there was no reason to believe that he was armed and dangerous. The defendant argues that the "plain feel" exception of Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), is applicable because it was not immediately apparent to the agent that the pill was contraband.
In brief, the State argues that the traffic stop was a legal stop. While the agent was issuing the traffic citation, Agent Encardes observed the defendant's nervous behavior; he put his hands into his pockets three or four times after he had been asked not to do so, and he made no eye contact with the agent. The State contends that the defendant's very nervous behavior coupled with the fact that he continued to put his hands into his pockets justified the frisk after the agent had ordered the defendant to place his hands on the car. The State argues that the narcotics agent felt a small hard substance,
In State v. Wells, 2008-2262, pp. 4-5 (La.7/6/10), 45 So.3d 577, 580-81, the Supreme Court set out the standard of review relating to a trial court's ruling on a motion to suppress:
In State v. Anderson, 2006-1031, p. 2 (La.App. 4 Cir. 1/17/07), 949 So.2d 544, 546, this Court stated:
In State v. Norals, 2010-0293, pp. 4-5 (La.App. 4 Cir. 7/30/10), 44 So.3d 907, 910, this Court set out the pertinent law:
After a legal stop, a frisk must also be justified. In State v. Marzett, 2009-1080, p. 6 (La.App. 4 Cir.6/9/10), 40 So.3d 1204, 1208, this Court stated:
See also State v. Dumas, 2000-0862, pp. 2-3 (La.5/4/01), 786 So.2d 80, 81-82.
In State v. Simpson, 2011-0370, p. 17 (La.App. 4 Cir. 10/26/11), 77 So.3d 445, 454, writ denied, 2011-2568 (La.12/14/11), 76 So.3d 1185, quoting State v. Boyer, 2007-0476, p. 22 (La.10/16/07), 967 So.2d 458, 472, this Court set out the requirements of the "plain feel" exception:
In Simpson the police officer testified that he observed a square-shaped bulge at the waistband of Simpson's pants. When the officer frisked Simpson, he felt a "hardened object" in Simpson's waistband. The officer admitted that the object did not have the shape of a firearm. It was a Crown Royal bag of marijuana packed tightly into a square shape. This Court concluded that the officer's decision to remove and open the bag under the "plain feel" exception was unjustified; this Court also held that there was no justification for the investigatory stop and the frisk. Simpson, 2011-0370, pp. 17-18, 77 So.3d at 454. See also State v. Banks, 2011-0903, pp. 5-7 (La.App. 4 Cir. 3/21/12), 95 So.3d 1081, 1084-85 (where the officer testified that she did not know what made the bulge in Banks' pants, and the "plain feel" exception did not apply; however, Banks could have been legally searched incident to arrest for driving without a license; and the court properly denied the motion to suppress the evidence).
In State v. Bell, 2010-1708, (La.App. 4 Cir. 7/20/11), 70 So.3d 1052, writ denied, 2011-1798 (La.1/20/12), 78 So.3d 141, the officer conducted a pat-down or frisk and felt a plastic bag containing a hard object in Bell's front left pocket. In the police
Bell, 2010-1708, pp. 10-12, 70 So.3d at 1060-61.
In the present case, in denying the motion to suppress the evidence in this case, the trial court stated:
The trial court correctly found that the traffic stop was legal. Agent Encardes legally stopped the defendant's vehicle for traffic violations (a cracked windshield and failure to wear a seatbelt). However, the agent's pat-down must be justified by the agent's fear for his safety or a fear that the subject is armed. Agent Encardes clearly testified that he did not know the defendant and no criminal activity was involved. The agent stated that he did not have reason to believe that the defendant was armed or dangerous. However, the agent testified that he was alone when he made the traffic stop in a high drug trafficking area at 7:00 p.m., and the defendant, who did not make eye contact, was overly nervous and continually putting his hands into his pockets although the agent had asked him repeatedly not to do so. Therefore, Agent Encardes had a reasonable basis for frisking the defendant for weapons under those circumstances. The trial court properly found that the patdown
The application of the "plain feel" exception is more problematic. According to the agent's testimony at the hearing, during the frisk he felt "a small hard rocklike substance." The agent stated that a small rocklike substance can be crack cocaine; he removed the object, which turned out to be a small pill. When confronted with his police report in which he indicated that the object felt like a capsule pill, Agent Encardes responded that the object was a hard substance. Agent Encardes testified that a pill in a pocket felt like a hard substance. He admitted that he did not think that it was a weapon; the agent said that he was not certain that the object was narcotics; it could have been something else. The agent admitted that he did not know that the capsule was contraband. The agent did not testify that he felt an object whose contour or mass made its identity apparent to him. The "plain feel" exception is analogized to the plain view exception, which does not require an officer to actually know that the object is contraband, but rather only requires that the officer have probable cause to believe that the item in question is contraband. See State v. Norals, 2010-0293, p. 5, 44 So.3d at 910. From the agent's testimony, it is not clear that the agent had probable cause to believe the object in the defendant's pocket was contraband. In other cases where the "plain feel" exception has been utilized, police officers have testified that they felt the plastic packaging of marijuana or the hard rocks of crack cocaine in a defendant's pocket; the contour and mass of the object made its identity immediately apparent.
Here the trial court focused on the ability of Agent Encardes, who had over six years of narcotics experience. The court noted that during the pat-down, the agent touched something in the defendant's coin pocket in his pants that "he [the agent] felt could be contraband." The court discounted the difference between the object being a hard rock substance or a capsule pill. The court stated that a pill that is not contraband would not be in someone's pants pocket. The trial court abused its discretion by finding that the "plain feel" exception applied under the facts of this case and by denying the defendant's motion to suppress the one amphetamine pill.
Therefore, we reverse the trial court's decision denying the defendant's motion to suppress evidence, grant the motion to suppress that evidence, and vacate the defendant's guilty plea and his sentence.
