Opinion
NO. 2016-K-1308
03-15-2017
STATE OF LOUISIANA v. WENDELL GARCIA
LEON A. CANNIZZARO, JR. DISTRICT ATTORNEY OF ORLEANS PARISH KYLE DALY ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH 619 South White Street New Orleans, Louisiana 70119 COUNSEL FOR RELATOR/ STATE OF LOUISIANA HANNAH LOMMERS-JOHNSON 2601 Tulane Avenue New Orleans, Louisiana 70119 COUNSEL FOR RESPONDENT/ DEFENDANT
NOT DESIGNATED FOR PUBLICATION
ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 530-439, SECTION "SECTION D"
Honorable Graham L. Bosworth, Judge Pro Tempore JAMES F. MCKAY III CHIEF JUDGE (Court composed of Chief Judge James F. McKay III, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore) LEON A. CANNIZZARO, JR.
DISTRICT ATTORNEY OF ORLEANS PARISH
KYLE DALY
ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH
619 South White Street
New Orleans, Louisiana 70119
COUNSEL FOR RELATOR/ STATE OF LOUISIANA HANNAH LOMMERS-JOHNSON
2601 Tulane Avenue
New Orleans, Louisiana 70119
COUNSEL FOR RESPONDENT/ DEFENDANT
WRIT GRANTED
The state seeks review of the trial court's December 2, 2016 ruling, which granted defendant's motion to suppress evidence. For the reasons that follow, the state's writ application is granted and the ruling of the trial court is reversed.
STATEMENT OF THE CASE
On August 29, 2016, the state filed a bill of information charging defendant with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. On September 1, 2016, defendant appeared for arraignment and entered a plea of not guilty. On the same date, defendant filed an omnibus motion for discovery; a motion to preserve evidence; a motion for suppression of statements, evidence, and identifications; and a motion for a preliminary examination. On November 29, 2016, the state amended the charge against defendant to possession of a stolen firearm, a violation of La. R.S. 14:69.1(B)(1).
A hearing on defendant's motion to suppress was also conducted on November 29, 2016. Agent Stephen Favorite of the Department of Corrections' Office of Probation and Parole was the only witness to testify at the hearing. On December 2, 2016, the trial court granted defendant's motion to suppress the firearm, finding that the state failed to show that the defendant's probation agent and those assisting her acted lawfully when they entered defendant's residence. The state's timely writ application followed.
STATEMENT OF THE FACTS
Agent Favorite testified that on August 23, 2016, he, defendant's probation agent, Dominique Batiste, and other assisting agents and police officers conducted a probation and warrant check at defendant's registered address. Defendant had an outstanding arrest warrant at the time. Agent Favorite explained the address contained two structures: a single family dwelling facing the street and a detached one-room living area in the rear. Upon arrival, Agent Batiste conducted a search of the main residence while Agent Favorite went to the rear structure and knocked on the door. The door was not opened right away. Agent Favorite heard someone "rumbling" inside and saw someone looking out of the window. When defendant opened the door about a minute later, Agent Favorite smelled burning marijuana coming from inside. Agent Favorite informed defendant who the agents were and why they were there. He then searched the one room structure, which contained a single bed and a night stand, atop of which rested defendant's identification card and cell phone. A black female was present with defendant. Agent Favorite saw a hole in the wall. When he looked in the hole, he saw a gun. On cross examination, Agent Favorite stated the gun was in plain sight when he looked into the hole in the wall. Defendant was placed under arrest when the gun was found. Following a review of his report, Agent Favorite confirmed that Agent Batiste had informed him that defendant's brother Damon resided in the back structure where defendant was found.
On re-direct examination, Agent Favorite stated that there was a fugitive attachment out of Jefferson Parish for defendant and the female. In response to questioning by the court, Agent Favorite confirmed that the back structure had the same address as the main house. He also confirmed the agents and police were conducting a compliance check and executing warrants on the day defendant was arrested. At the conclusion of Agent Favorite's testimony, the trial court continued the matter until December 2, 2016, for arguments and ruling..
Following argument by the state and defendant, the trial court issued the following ruling with reasons:
Obviously the Court has some issues with the way Probation and Parole is utilizing Probation Status for what the Court has previously determined in other cases to be ends around the search warrant requirement.
I agree with the State that Probation and Parole has the ability to go to addresses in order to check in and do a compliance check. There is no question.
The first question that needs to be addressed is this a compliance check or is this a search?
The testimony of the officer in this case was that four separate detectives along with multiple probation agents showed up in order to search for any and all evidence that Mr. Garcia was engaged in criminal activity.
I'm not sure if you can really call that a compliance check.
That by definition seems to be a search.
Setting that aside, the next question is does the fact that the agent assigned to the case, the fact that she is there, does that meet the first criteria laid forth in 895A, 13 A, when other agents are assigned to the case?
Again, I agree with the State. I think that the fact that she's there arguably meets that requirement so long as the second set of eight, thirteen A, as it relates to searches is also met.
The problem comes in when we address whether or not there was probable cause to enter the house.
Again, when you show up with multiple detectives and you show up with multiple agents, and you testify that you are there to look for any evidence of criminal activity, that is a search.
So, I think that 813A (sic) applies.
It may be that the detectives and the agents were voluntarily let into the property.
I don't know.
The testimony that was adduced is silent to that fact.
If they were voluntarily let into the property, then they would have every right to go to the back structure and knock on the door. And, the testimony was that the door was voluntarily opened. And, at
that point, when they smelled marijuana, they would have had justification to enter and search.
I think at that point 813A (sic) would be addressed.
The problem for me at this point is how do they get to the back structure in the first place?
I don't know.
There wasn't testimony that was adduced relative to how the police got into the property in the first place. Whether or not there was probable cause to get in based on something that they had witnessed when they arrived, or whether or not somebody voluntarily let them into the property.
But, when specifically asked whether or not they had any reason to believe that Mr. Garcia was engaged in criminal activity prior to arriving at the address, the answer was no.
That's where my concern comes in as it relates to the search.
The only evidence that would lead to either reasonable suspicion or probable cause that Mr. Garcia was engaged in criminal activity based on the testimony that was adduced at the hearing was that the marijuana, but in light of the fact that the back address was not a separate property and in light of the fact that the back apartment was part of the overall structure, I think the State has failed to establish the reasonable suspicion prong of 895A, 13A.
I don't' know how they got on the property.
I don't.
So, in light of the silence in the record on that point, I will grant the motion to suppress.
DISCUSSION
The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. When evidence is seized without a warrant, the burden is on the state to demonstrate that a search is justified by some exception to the warrant requirement. La. C.Cr.P. art. 703(D); State v. Bell, 09-0574, p. 4 (La. App. 4 Cir. 12/9/09), 28 So.3d 502, 506 (citation omitted).
Individuals on probation possess a diminished expectation of privacy. State v. Malone, 403 So.2d 1234, 1238 (La. 1981); see also State v. Marino, 00-1131, p. 4 (La. App. 4 Cir. 6/27/01), 804 So.2d 47, 52. "This reduced expectation of privacy is based on a probationer's conviction and agreement to allow a probation officer to investigate his activities in order to confirm that the probationer is in compliance with the provisions of his probation." State v. Fields, 12-0674, p. 9 (La. App. 4 Cir. 6/19/13), 120 So.3d 309, 317 (citing State v. Thomas, 96-2006, p. 2 (La .App. 4 Cir. 11/06/96), 683 So.2d 885, 886). That reduced expectation of privacy authorizes "reasonable warrantless searches of their persons and residences by their probation or parole officer, even though less than probable cause may be shown." State v. Jones, 12-0438, p. 8 (La. App. 4 Cir. 3/13/13), 119 So.3d 9, 15 (citing Malone, 403 So.2d at 1238). However, this Court has recognized that a person on probation or parole is not subject to the unrestrained power of the authorities, and "a search of the probationer may not be a subterfuge for a police investigation." Fields, 12-0674, p. 9, 120 So.3d at 317 (quoting Thomas, 96-2006, p. 2, 683 So.2d at 886) . "[A] probation officer may conduct a warrantless search of a probationer's property when 'the officer believes such a search is necessary in the performance of his duties, and must be reasonable in light of the total atmosphere in which it takes place.' " Id. "In order to determine reasonableness we must consider '(1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, and (4) the place in which it was conducted.' " Id.
Louisiana Code of Criminal Procedure article 895(A) provides in relative part:
A. When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall:
(1) Make a full and truthful report at the end of each month;
(2) Meet his specified family responsibilities, including any obligations imposed in a court order of child support;
(3) Report to the probation officer as directed;
(4) Permit the probation officer to visit him at his home or elsewhere;
(5) Devote himself to an approved employment or occupation;
(6) Refrain from owning or possessing firearms or other dangerous weapons;
(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court;
(8) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;
(9) Remain within the jurisdiction of the court and get the permission of the probation officer before making any change in his address or his employment; and
(10) Devote himself to an approved reading program at his cost if he is unable to read the English language.
(11) Perform community service work.
(12) Submit himself to available medical, psychiatric, mental health, or substance abuse examination or treatment or both when deemed appropriate and ordered to do so by the probation and parole officer.
(13)(a) Agree to searches of his person, his property, his place of residence, his vehicle, or his personal effects, or any or all of them, at any time, by the probation officer or the parole officer assigned to him, with or without a warrant of arrest or with or without a search warrant, when the probation officer or the parole officer has reasonable suspicion to believe that the person who is on probation is engaged in or has been engaged in criminal activity.
This Court reviews a trial court's findings of fact on a motion to suppress under a clearly erroneous standard, and its ultimate determination of Fourth Amendment reasonableness de novo. On mixed questions of law and fact, this Court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo. Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts. Fields, 12-0674 p. 9, 120 So.3d, at 317.
The trial court found that the probation and parole officer conducted a search when he walked to the rear apartment and knocked on the door. The trial court is correct that there was no testimony as to whether anyone at the main house had given consent to proceed to the separate apartment where defendant was located. There is also a lack of testimony as to whether there was a fence with a gate, which the agents needed to open prior to proceeding to the apartment. Agent Favorite stated that Agent Batiste was located at the main house when he knocked on the door of the rear structure. He further explained that he was aware there was a fugitive attachment for defendant and the female found in the apartment with him.
In the case sub judice, defendant's probation agent went to the defendant's house and brought other agents and police officers to assist her. The defendant listed as his home address a property upon which there are two residential structures. In Fields, this Court stated:
A probationer is, however, nonetheless obliged to permit the probation officer to visit him at his home or elsewhere. Unquestionably, a probationer, ... , has a reduced expectation of privacy which allows a probation officer to conduct unannounced visits to verify that the probationer is in compliance with the provisions of his probation. A "walk-through" inspection of a probationer's residence to verify his current residence does not constitute a search. Probation officers are authorized to conduct a walk through inspection of a probationer's home to verify his residence. On rehearing, we reaffirmed that the probation officers were justified in entering the defendant's bedroom to confirm that the defendant actually resided there.Id., p. 10, 120 So.3d, at 317 (internal citations, quotation marks and footnotes omitted).
Since defendant was on probation at the time Agent Favorite arrived at his residence, the agents were within their rights to conduct a "walk-through" of both structures without any suspicion of criminal activity whatsoever. Agent Favorite knocked on the door of the rear structure and waited until defendant opened the door. Once Agent Favorite smelled marijuana inside the rear structure, he was permitted to conduct a search. See State v. Grace, 11-1128 (La. 6/3/11), 63 So.3d 1025 (finding probation officer lawfully searched parolee's residence after smelling marijuana through opened door).
CONCLUSION
For the above stated reasons, we find that the trial court erred in granting defendant's motion to suppress the evidence. Accordingly, the state's writ application is granted and the trial court's ruling is reversed.
WRIT GRANTED Please Serve:
Office of the Judicial Administrator, c/o Sandy Meadoux, Appellate Clerk, Criminal District Court, Orleans, Parish.