Opinion
No. 2021-KK-00153
04-20-2021
STATE of Louisiana v. Steven Ray MCCARTHY
PER CURIAM
The defendant, while on probation and parole, was arrested after a firearm and drugs were discovered during a search of his residence. The defendant filed a motion to suppress, arguing no reasonable suspicion existed to justify the search. At the suppression hearing, Detective Gray testified he was contacted by the defendant's supervising probation and parole officer, Agent Mire, who said she received a tip that the defendant possibly had weapons. Defense counsel objected to this testimony as hearsay, which the trial court overruled. Detective Gray further testified he accompanied Agent Mire to conduct the search.
The trial court denied the motion to suppress. It found the information received by Agent Mire provided reasonable suspicion, which justified the search pursuant to Louisiana Code of Criminal Procedure article 895(13)(a). The court of appeal reversed, finding the State failed to present articulable facts to establish Agent Mire had reasonable suspicion of criminal activity. State v. McCarthy , 2020-1206 (La. App. 1 Cir. 12/30/20), 2020 WL 7869453.
Probationers and parolees have a reduced expectation of privacy, which allows 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. Malone , 403 So.2d 1234, 1238 (La. 1981). The State must establish reasonable suspicion that criminal activity was occurring. La. Code Crim. P. art. 895(13)(a). In State v. Hamilton , 02-1344 (La. App. 1 Cir. 2/14/03), 845 So.2d 383 the court found an anonymous tip concerning drug activity by the parolee amounted to reasonable suspicion to justify a warrantless search. See also State v. Vailes , 564 So.2d 778, 780-781 (La. App. 2 Cir. 1990), where the court denied a motion to suppress a search of a probationer's home following a tip from a confidential informant that the probationer was possibly selling drugs and keeping weapons at his home.
In Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the United States Supreme Court, in interpreting Wisconsin's law that required " reasonable grounds" to search a probationer's home, held an unauthenticated tip, with no indication whether its basis was firsthand knowledge, reliable, or corroborated, can still justify the legality of the search under the Fourth Amendment.
Det. Grey testified that Agent Mire contacted him and asked him to accompany her to the defendant's residence because she received a tip that defendant was engaged in suspicious behavior and was alleged to have been in possession of a firearm. While Agent Mire did not testify to these events, hearsay is admissible at suppression hearings. State v. Shirley , 2008-2106 (La. 5/5/09), 10 So. 3d 224, 228–29.
The trial court is vested with great discretion when ruling on a motion to suppress. State v. Long , 2003-2592 (La. 9/9/04), 884 So. 2d 1176. The trial court's findings of fact on a motion to suppress are reviewed under a clearly erroneous standard. Here, the trial court heard the testimony and observed Detective Gray's demeanor. Finding Detective Gray's testimony credible, the trial court found reasonable suspicion for the search. A reviewing court should not substitute its judgment absent manifest error. Id. Based on the foregoing, the trial court was not manifestly erroneous in its determination that reasonable suspicion existed to justify the search. The ruling of the court of appeal is reversed and the trial court's denial of the defendant's motion to suppress is reinstated.
Hughes, J. concurring.
While the motion to suppress was properly denied, the probation officer will have to testify at trial.
Genovese, J., dissents for the following reasons. This matter involves a motion to suppress a firearm discovered during a search of defendant's home by his probation/parole officer. Specifically, Agent Samantha Mire—defendant's probation/parole officer—received information that defendant illegally possessed a firearm. Agent Mire and Detective Clint Grey thereafter conducted a "compliance check" in defendant's home, wherein they discovered the firearm and large quantities of marijuana.
Louisiana Code of Criminal Procedure Article 895(13)(a) requires a probation or parole officer to have reasonable suspicion in order to conduct a search of a defendant's home without a warrant. Agent Mire was conspicuously absent from the hearing. The sole witness called by the state was Detective Grey, and the state declined to introduce any evidence or exhibits in furtherance of its burden of proof. Therefore, the only facts in the record came from Detective Grey's testimony. Detective Grey testified that Agent Mire thought defendant "possibly had some weapons." That vague and uncorroborated testimony does not equate to reasonable suspicion.
It is my view that the state failed to meet its burden of proof at the suppression hearing. While hearsay may be admissible at a suppression hearing, see State v. Shirley , 08-2106, p. 4 (La. 5/5/09), 10 So.3d 224, 227, this hearsay testimony,
without more, failed to establish that the reasonable suspicion threshold was met to conduct the warrantless search of defendant's home. Therefore, I would deny the state's writ application.