Ordering defendant to ground at gunpoint is an arrest requiring probable cause

The officer here observed an apparent hand-to-hand drug transaction in a high crime area, and he came up behind the defendant and ordered him to the ground at gunpoint. An investigatory stop was justified, but the officer’s actions were an arrest that required probable cause which was furnished by observing the hand-to-hand drug transaction. State v. Smith, 947 So. 2d 95 (La. App. 5th Cir. November 28, 2006, released for publication February 12, 2007).

Officer had justification for initiating an encounter with the defendant who was a convicted child molester when it was reported that he was hanging around children in a park as reported by a citizen informant that the whole situation seemed unusual and strained. His digital camera was seized. United States v. Paton, 2007 U.S. Dist. LEXIS 12457 (D. Minn. January 4, 2007):

The Court finds that Officer Lesedi’s initial conversation with Defendant in the woods was a consensual encounter. Officer Lesedi approached Defendant from behind, asked questions in a friendly, conversational tone and did not take any action which would signal to Defendant that he was not free to continue on his way. Defendant freely interacted with Officer Lesedi.

The parties do not contest that the SPPD subjected Defendant to an investigative stop after he emerged from the woods and the only issue facing the court is whether the investigative stop was supported by reasonable suspicion that criminal activity may have been afoot. The Court finds that the totality of the circumstances supported the formation of a reasonable suspicion that a crime, namely the production of child pornography or another crime involving the sexual exploitation of children, may have been afoot. As Defendant recognizes, by the time he emerged from the woods, Officer Lesedi had already identified him as a registered sex offender who had prior convictions involving child pornography and criminal sexual conduct in the third degree with a non-familial black juvenile. He was in a secluded park with a camera and therefore had the opportunity and means to create child pornography. Moreover, he was in the company of juveniles who shared similar characteristics with the juvenile whom he had previously molested.

In addition, Officer Lesedi could point to several facts gleaned that day that would support the conclusion that the reasons stated by the juveniles for being in the park, namely the collection of fossils, was pretextual. Officer Lesedi noticed that Defendant was not dressed appropriately to walk along the unpaved paths in Lilydale Park, as he was wearing clothes that were ill suited for the hot weather and old dress shoes, rather than tennis shoes or hiking boots. The concerned citizen who had initially called the SPPD described the children’s body language as sober, and Officer Lesedi characterized the juveniles as evasive when questioned. Defendant himself did not provide verbal answers to Defendant’s questions, but merely moved his head in response to a few questions.

Officer followed defendant for a mile and decided to stop him for a seat belt violation. The record supporting the finding defendant consented to a search of his car. State v. Gomez, 947 So. 2d 81 (La. App. 5th Cir. November 28, 2006, released for publication February 12, 2007).*