Consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. State v. Brumfield, 2005-2500 (La. App. 1st Cir. 9/20/06), 944 So.2d 588, 593, writ denied, 2007-0213 (La. 9/28/07), 964 So.2d 353. When the state seeks to rely upon consent to justify a warrantless search, it has the burden of proving that the consent was freely and voluntarily given. Whether consent was voluntarily given is an issue of fact to be determined by the fact finder in light of the totality of the circumstances.
Thus, if it is determined that the accused had no reasonable expectation of privacy in the area invaded, neither a warrant nor an exception to the warrant requirement is needed for the seized evidence to be admissible. State v. Brumfield, 2005-2500 (La. App. 1st Cir. 9/20/06), 944 So.2d 588, 592, writ denied, 2007-0213 (La. 9/28/07), 964 So.2d 353. The test by which a person's "expectation of privacy" is measured is twofold: first, the person must exhibit an actual subjective expectation of privacy and, second, the expectation must be one that society is prepared to recognize as reasonable.
Accordingly, based on the information provided by Jones, particularly his eyewitness account of the defendant as the shooter and the evidence that the barbershop had, in fact, been hit with gunfire, Detective Anders had probable cause to arrest the defendant. SeeBrown, 395 So.2d at 1309-10 (police had probable cause to arrest the defendant based on information from the victim that the defendant had shot her and on the existence of a bullet wound to her head); State v. Brumfield, 05-2500 (La. App. 1st Cir. 9/20/06), 944 So.2d 588, 594 n.3, writ denied, 07-0213 (La. 9/28/07), 964 So.2d 353. The "reasonable cause" standard of LSA-C.Cr.P. art. 213(3) is equivalent to "probable cause" under the general federal constitutional standard.
The officers also had sufficiently exigent circumstances to search the remainder of the home for weapons and/or drugs, considering there were children in the home and some unsecured weapons had already been located. See State v. Brumfield, 05-2500, p. 9 (La. App. 1 Cir. 9/20/06), 944 So.2d 588, 576 (relying upon United States v. Antwine, 873 F.2d 1144, 1145-47 (8th Cir.1989) and similar cases). An assault rifle, a shotgun, $20,000 in cash, over a pound of marijuana, and a sales ledger were located elsewhere in the home.
The officers also had sufficiently exigent circumstances to search the remainder of the home for weapons and/or drugs, considering there were children in the home and some unsecured weapons had already been located. SeeState v. Brumfield, 05-2500, p. 9 (La. App. 1 Cir. 9/20/06), 944 So.2d 588, 576 (relying upon United States v. Antwine , 873 F.2d 1144, 1145–47 (8th Cir.1989) and similar cases). An assault rifle, a shotgun, $20,000 in cash, over a pound of marijuana, and a sales ledger were located elsewhere in the home.
September 28, 2007. Prior report: La.App., 944 So.2d 588. In re Brumfield, Stanley J.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. B, No. 414845; to the Court of Appeal, First Circuit, No. 2005 KA 2500.
The defendant had no reasonable expectation of privacy in the abandoned house that did not belong to him; thus, neither a warrant nor an exception to the warrant requirement is needed for the seized evidence to be admissible. State v. Brumfield, 2005-2500 (La.App. 1st Cir. 9/20/06), 944 So.2d 588, 592, writ denied, 2007-0213 (La. 9/28/07), 964 So.2d 353; State v. Fielding, 37, 943 (La.App. 2d Cir. 12/10/03), 862 So.2d 420, 430, writ denied, 2004-0249 (La. 1/14/05), 889 So.2d 256. PMc
Moreover, when Agent Everly learned that there was a gun in the vehicle, exigent circumstances gave him the right to search without a warrant or consent. SeeState v. Brumfield, 2005-2500 (La. App. 1st Cir. 9/20/06), 944 So.2d 588, 595-98, writ denied, 2007-0213 (La. 9/28/07), 964 So.2d 353. Additionally, the defendant's argument that Agent Everly could not search the vehicle (without consent) because it was not owned by the defendant is baseless.
Here, the deputies had a lawful right to approach defendant's vehicle parked in a parking lot, and when they did so one deputy saw in plain view what reasonably appeared to be the handle of a firearm. Additionally, Detective Crabtree had a duty to the public to remove the suspected firearm from a place where it would be accessible to any passer-by. SeeState v. Brisban, 2000-3437 (La. 2/26/02), 809 So.2d 923, 927-28; State v. Brumfield, 2005-2500 (La. App. 1st Cir. 9/20/06), 944 So.2d 588, 597, writ denied, 2007-0213 (La. 9/28/07), 964 So.2d 353. Though there was some conflicting testimony at the suppression hearing regarding what was on the passenger seat at the time Det. Crabtree took the photographs entered into evidence, the trial court was best placed to make the credibility determination between Det. Crabtree and defendant.
This list is only illustrative and not exclusive. State v. Brumfield, 2005-2500 (La. App. 1st Cir. 9/20/06), 944 So.2d 588, 595, writ denied, 2007-0213 (La. 9/28/07), 964 So.2d 353. The United States Supreme Court in Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 950, 148 L.Ed.2d 838 (2001) has defined exigent circumstances as "a plausible claim of specially pressing or urgent law enforcement need."