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Court decides search illegal - Judge: "Hanging out" isn't sufficient to suspect a crime

Author(s): PENNY BROWN ROBERTS Date: January 27, 2006 Section: Metro

Baton Rouge police officers can't legally search people hanging out in a parking lot - even if they're scrambling to hide or concealing objects, a federal judge has decided. In a ruling made public Thursday, U.S. District Judge James Brady tossed out all the evidence in a 2004 gun and drug arrest, saying officers lacked "reasonable suspicion that a crime was afoot."

That means none of the evidence can be presented to a jury.

The decision came in a federal criminal case against 24-year-old Jeremy Brown, indicted on one count of marijuana possession and one count of possession of a firearm by a convicted felon.

He was arrested in June 2004 by two off-duty Baton Rouge police detectives working an extra-duty assignment at Spanish Arms Apartments, 4343 Denham St.

The officers saw Brown - who lived there - and Tedrick Chavis sitting in a gold Mazda in the parking lot and approached them to enforce the complex's no-loitering policy.

According to a police report, the two men "slumped" in their seats and appeared to be concealing objects inside the car.

The officers ordered both men out and patted them down. Detective Brett Busbin found marijuana in the front right knee pocket of Brown's pants, and in a search of the car found a loaded revolver and three clear plastic bags of marijuana under the driver's seat.

In the police report, officers claim Brown then consented to a search of his Spanish Arms apartment, where they discovered 2 ounces of marijuana in the freezer and a digital scale in his bedroom dresser drawer. Before being booked into list Baton Rouge Parish Prison, Brown admitted he had an additional six grams of marijuana in the same pocket where the officers found the other stash during the pat down.

In motions seeking to suppress that evidence against Brown, federal public defender Jean Faria and Baton Rouge attorney Thomas Damico note that the officers claimed to be initially investigating the two black men for loitering.

Because Louisiana's drug-trafficking loitering statute was struck down as unconstitutional in 1998 and the Baton Rouge city ordinance was repealed, the two attorneys contend there was no reason to suspect those in the parked Mazda of the "criminal activity" necessary to conduct a legal search.

But Assistant U.S. Attorney Jennifer Kleinpeter argues in her own motions that when officers approached the car, Brown and Chavis "immediately slumped down into their seats and began to stash items." That constituted "suspicious behavior which clearly suggested criminal behavior," she contends, making a search legal.

In his seven-page ruling, Brady decided that while it was OK for the detectives to approach the men with the intent of advising them of the Spanish Arms' loitering policy, they crossed the line during the search.

The judge cites five previous rulings by the 5th U.S. Circuit Court of Appeals that found "slumping," "slouching," "ducking," "sitting low" or "scrambling" to avoid detection docs not justify a search.

Brady writes that had federal prosecutors shown that Brown and Chavis were in a high-crime area, were loitering at an unusual time of night or that "other suspicious circumstances existed," then their "evasive behavior" likely would have warranted a legal search.

"The question is a close one, but in the judgment of this court, the slouching and hiding the officers observed by Brown and his companion do not form a sufficient basis for reasonable suspicion," Brady writes. "Under 5th Circuit precedent, it is highly doubtful that the ducking and hiding of objects that the officers observed, with nothing more, supports anything beyond a hunch."

Neither U.S. Attorney David Dugas nor First Assistant U.S. Attorney Lyman Thornton could be reached Thursday for comment.

Daniico said he views the decision as an affirmation of the Fourth Amendment of the Constitution, which protects against unreasonable search and seizure.

"You don't see a lot of suppressions any more," Damico said. "Over the past several years, I've always had a personal concern about whether we even have a Fourth Amendment anymore. Slumping is one thing, but the Fourth Amendment should require more than one factor for a search because what we're doing is violating privacy. It's refreshing that some judges still recognize that."

Copyright (c) 2006 Capital City Press, Baton Rouge, La.

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