State v. Tucker
1993 WL 500208, 626 So. 2d 707 (1993)
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Rule of Law:
Under Article I, Section 5 of the Louisiana Constitution, a person is "seized" when they are either "actually stopped" by submitting to a police show of authority or by physical force, or when an "imminent actual stop" is virtually certain to occur based on the extent of police force employed. Property abandoned before such a seizure occurs is not subject to suppression.
Facts:
- Shreveport and Louisiana State Police conducted a large-scale drug sweep, code-named "Operation Thor," in a high-crime area known as Roby's Arcade.
- Approximately 10-12 marked police vehicles carrying 20-30 officers converged on the location at night.
- Officers Wilson and Jackson observed Clarence Tucker and another man huddled together by a parked car.
- When Tucker and the other man noticed the approaching police cars, they quickly broke apart and began to leave the scene.
- An officer exited his patrol car and ordered Tucker to "halt" and "prone out."
- Tucker took several more steps toward the rear of the arcade and tossed away a plastic bag.
- After discarding the bag, Tucker obeyed the police command and lay down on the ground.
- Police retrieved the discarded bag, which contained 47 rolled marijuana cigarettes.
Procedural Posture:
- Clarence Tucker was convicted in a Louisiana district court (trial court) on two counts of possession of marijuana with intent to distribute.
- Tucker appealed his convictions to the Louisiana Court of Appeal, Second Circuit, an intermediate appellate court.
- The Court of Appeal affirmed the conviction on the first count but reversed the conviction on the second count.
- The appellate court ruled that the evidence for the second count should have been suppressed because Tucker, the defendant-appellant at that stage, was unlawfully seized before he abandoned the contraband.
- The State of Louisiana, as appellant, sought review of the reversal from the Supreme Court of Louisiana, the state's highest court.
- Clarence Tucker, as appellant, also sought review of the affirmance of his first conviction from the Supreme Court of Louisiana.
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Issue:
Under Article I, Section 5 of the Louisiana Constitution, is a person seized at the moment police order them to halt if the person does not submit and instead discards property before being physically restrained or complying with the order?
Opinions:
Majority - Kimball, Justice
No. A seizure under the Louisiana Constitution does not occur at the moment police issue a command to halt if the individual does not submit to that show of authority. The court establishes a two-part test for determining when a seizure has occurred. First, it adopts the U.S. Supreme Court's standard from California v. Hodari D. for an "actual stop," which requires either physical contact by police or submission to a show of authority. Since Tucker continued to move and discarded the drugs before lying down, he had not yet submitted and was not "actually stopped." Second, to provide the greater protection afforded by the Louisiana Constitution, the court recognizes a seizure may also occur when an "imminent actual stop" is "virtually certain." This is a high standard, assessed by factors including police proximity, whether the suspect is surrounded, if weapons are drawn, the location, and the number of officers. In this case, Tucker's stop was not "virtually certain" because he had a head start, it was dark, and the numerous officers were dispersed throughout the area, not focused solely on him. Therefore, because Tucker abandoned the property before he was seized, the evidence was not the fruit of an unlawful seizure and was admissible.
Dissenting - Calogero, Chief Justice
Yes. A seizure occurred because a reasonable person in Tucker's position would not have felt free to leave, which is the proper standard under Louisiana's more protective constitution. The majority wrongly adopts the restrictive federal standard from Hodari D., which diminishes the protections previously afforded to Louisiana citizens. The established state test was whether a reasonable person would feel free to disregard the police encounter. Under that test, being descended upon by 20-30 officers during a major drug sweep and being ordered to "halt" and "prone out" is clearly a seizure. Furthermore, even under the majority's new and flawed "virtually certain" test, the massive, targeted police presence of "Operation Thor" made Tucker's capture imminent and certain.
Dissenting - Dennis, Justice
Yes. The officers' show of authority—issuing commands to "halt" and "prone out"—restrained Tucker's freedom to walk away and constituted a seizure under decades of settled Louisiana constitutional and statutory law. The majority abandons this court's own well-established precedent, which interpreted "seizure" more broadly in line with Terry v. Ohio. The new, convoluted "virtual certainty" test is impractical for officers in the field and effectively collapses into the narrow Hodari D. rule, undermining the will of the people who adopted a state constitution with stronger privacy protections than its federal counterpart.
Analysis:
This decision significantly altered Louisiana's search and seizure jurisprudence by largely replacing the "reasonable person would not feel free to leave" standard with a new, two-part test for determining when a seizure occurs. By adopting the core of California v. Hodari D., the court narrowed the definition of a seizure, giving law enforcement more latitude in pursuing fleeing suspects and using evidence they discard. The new "imminent actual stop" prong, intended to preserve greater state constitutional protections, establishes a very high "virtually certain" standard that is difficult for defendants to meet, thereby shifting the legal balance in favor of the admissibility of evidence abandoned during police pursuits.
