Opinion
NO. 2023-K-0195.
04-10-2023
STATE of Louisiana v. Tremaine MOSES.
Mark Balfe , ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, Seventh Floor, New Orleans, LA 70119, COUNSEL FOR RELATOR. Jason R. Williams , Brad Scott , Mithun B. Kamath , ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR RESPONDENT. (Court composed of Chief Judge Terri F. Love, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins).
Mark Balfe , ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, Seventh Floor, New Orleans, LA 70119, COUNSEL FOR RELATOR.
Jason R. Williams , Brad Scott , Mithun B. Kamath , ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR RESPONDENT.
(Court composed of Chief Judge Terri F. Love, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins).
Judge Rosemary Ledet.
In this application for supervisory writ, the Relator, Tremaine Moses, seeks review of the district court's February 16, 2023 ruling denying his motion to suppress evidence. For the following reasons, we grant Mr. Moses' writ application, reverse the district court's ruling denying his motion to suppress evidence, and grant Mr. Moses' motion to suppress.
FACTUAL AND PROCEDURAL BACKGROUND
Due to the pretrial posture of this case, the factual recitation is taken from Officer Zachary Stevenson's testimony at the hearing on Mr. Moses' motion to suppress.
On March 4, 2022, the New Orleans Police Department received reports of aggravated assault and homicide at two nearby locations. The aggravated assault was reported at 7252 Bunker Hill Road. Several minutes later, the homicide was reported at 8811 Bunker Hill Road. The two locations are within a few hundred feet of each other, and 8811 Bunker Hill Road is visible from 7252 Bunker Hill Road.
Officer Zachary Stevenson responded to the homicide call. When he arrived at the scene, his supervisor informed him that the homicide suspect had been described as wearing a dark hoodie and dark jeans, but he was given no further information, such as the direction of the suspect's flight after the homicide. While surveying the homicide scene, Officer Stevenson recalled the aggravated assault reported nearby and noticed that the clothing worn by the homicide victim matched the description of the aggravated assault suspect. Given this coincidence coupled with the proximity of the two locations, Officer Stevenson decided to investigate whether anyone at 7252 Bunker Hill Road had information about the homicide. Upon his arrival, several people standing in the driveway approached Officer Stevenson to inform him that they were relatives of the homicide victim. While in the driveway, Officer Stevenson noticed Mr. Moses standing in the rear of the carport attached to the residence. Mr. Moses' clothing—a black hoodie and dark jeans—matched the description of the homicide suspect given by Officer Stevenson's supervisor. Officer Stevenson approached Mr. Moses underneath the carport and asked for his name. Mr. Moses refused to provide his name and walked into the doorway of the residence. As Mr. Moses entered the residence, Officer Stevenson followed him, grabbed him by his arms to restrain him, and pulled him out of the house. During this struggle, Mr. Moses' arms were raised, revealing a handgun tucked into his waistband. After other police officers removed the handgun from Mr. Moses' waistband, Officer Stevenson handcuffed him and searched his person incident to his arrest. During the search he discovered amphetamine. After running a background search, Officer Stevenson discovered that Mr. Moses had a previous felony conviction that prevented him from possessing a firearm.
During the motion to suppress hearing, Officer Stevenson was questioned about a Premier One report—a report that includes all information relayed to various 911 dispatchers about a reported incident. The description offered by Officer Steven's supervisor did not appear in the Premier One report; rather, the report states that one witness described the suspect as wearing a blue hoodie and jeans and another reported that the victim was shot by his ex-girlfriend.
Mr. Moses first responded to Officer Stevenson that he did not have a name. When Officer Stevenson again asked his name, Mr. Moses did not answer and walked into the doorway of the residence.
The record is ambiguous as to whether Officer Stevenson entered the residence. Defense counsel asked, "at the time that you are following [Mr. Moses] into the house and—and grabbing him to detain him, you have witnessed him commit no crimes, correct?" Officer Stevenson responded that Mr. Moses had not committed any crimes at that time and offered no dispute that he entered the residence. However, Officer Stevenson later testified that "[he] had to grab [Mr. Moses'] arms to keep him from going inside the residence[,]" suggesting that Officer Stevenson never entered the residence. Regardless, it is undisputed that Mr. Moses had entered the doorway of the residence at the time he was arrested; Officer Stevenson admitted on cross-examination that "[he] grabbed [Mr. Moses] from the doorway."
Mr. Moses was charged with possession of a firearm by a felon and possession of a firearm while in possession of methamphetamine, in violation of La. R.S. 14:95.1 and 14:95(E), respectively. Mr. Moses filed a motion to suppress evidence, arguing that Officer Stevenson violated his Fourth Amendment rights under the United States Constitution and requesting that all evidence seized pursuant to the arrest be excluded from trial. The district court denied the motion. Mr. Moses' writ application followed.
DISCUSSION
Mr. Moses argues that Officer Stevens' warrantless entry into the residence and subsequent arrest were illegal and that all evidence seized during the arrest and the search incident to arrest—including the handgun and narcotics—must be suppressed. Although the record is unclear whether Officer Stevens entered the residence, we agree that his detention and arrest of Mr. Moses from a private residence was unreasonable. The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. "`If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial.'" State in Interest of T.H., 12-0223, p. 4 (La. App. 4 Cir. 12/12/12), 106 So.3d 703, 706 (quoting State v. Benjamin, 97-3065, p. 3 (La. 12/1/98), 722 So.2d 988, 989). Warrantless searches and seizures are presumed unreasonable unless justified by one of the few well-delineated exceptions to the warrant requirement. State v. Lala, 08-0484, p. 5 (La. App. 4 Cir. 12/3/08), 1 So.3d 606, 609. When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving that the search and seizure was justified pursuant to one of the exceptions to the warrant requirement. State v. Warren, 05-2248, p. 13 (La. 2/22/07), 949 So.2d 1215, 1226.
Mr. Moses also argues that Officer Stevenson lacked the requisite reasonable suspicion to detain and question him. Because we find that Officer Stevenson's arrest of Mr. Moses from within the private residence was illegal, we pretermit any discussion of whether Officer Stevenson possessed the requisite reasonable suspicion to detain and question him.
In Lala, this court addressed a very similar set of facts and synthesized the law pertinent to warrantless entry, as follows:
In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the United States Supreme Court recognized that a physical entry into a home is the chief evil against which the Fourth Amendment is directed and held that the Fourth Amendment prohibits police from making a nonconsensual entry into a suspect's home to make a warrantless arrest. Under Payton, it is well established that nonconsensual, warrantless searches and seizures in a home are presumptively unreasonable absent a government showing of probable cause and exigent circumstances. See Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990); Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).
However, the United States Supreme Court has also recognized that a person may not thwart an otherwise lawful arrest based on probable cause which the police are entitled to make in a public place without a warrant simply by stepping across the threshold of his home. United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300 (1976).
Id., 08-0481, p. 5, 1 So.3d at 609.
In Lala, the court found that an officer who entered a residence while in hot pursuit of a defendant possessed the requisite level of reasonable suspicion to detain and question the defendant in public under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), but lacked probable cause to justify a warrantless entry into the residence under Santana, 427 U.S. 38, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300. Lala, 08-0481, p. 1 So.3d at 615. The court in Lala turned to the same question presented here: whether reasonable suspicion, permitting an officer to stop and detain a suspect in public, likewise permitted an officer to detain a suspect in a private residence while in pursuit of a suspect. Id.
The Lala court answered this question in the negative, reasoning that "given the special protections of the home, the State must present a strong interest in conducting a warrantless entry into the home." Id. The Lala court found that once the defendant retreated into the home, the State's interest in public safety was alleviated. Id. Moreover, in discussing the absence of other potential justifications for an officer's warrantless entry into the home, the Lala court quoted the Utah Court of Appeals' sound reasoning in State v. Beavers, 859 P.2d 9 (Utah App., 1993), as follows:
The court in Lala left open the possibility that different circumstances might permit an officer's warrantless entry into a private residence without probable cause. Id., 08-048, p. 1, 1 So.3d at 615.
Warrantless entries are justified with probable cause and exigent circumstances because in such circumstances, the delay to obtain a search warrant would risk physical harm to the officers or other persons, the destruction of relevant evidence, [or] the escape of the suspect. In contrast, a Terry stop is justified on the basis that police should be able to briefly stop citizens to investigate circumstances which lead an officer reasonably to conclude in light of his experience that criminal activity may be afoot. Thus, the only risk that exists if an investigatory stop is not effected is the risk that investigation of potential criminal activity might be delayed or, at worst, thwarted altogether. That risk is diminished in the residential setting because the person police wish to question is located in a dwelling that can generally be staked out until the person emerges, if a polite knock at the door fails to produce a suspect willing to voluntarily answer police inquiries.
Lala, 08-0484, p. 1 So.3d at 612 (quoting State v. Beavers, 859 P.2d 9, 17 (Utah App., 1993) (internal quotations and citations omitted)).
We find the reasoning underlying Lala and Beavers equally applicable here. Whether Officer Stevenson entered the residence to detain Mr. Moses or merely pulled him from the residence presents a distinction without a difference. Once Mr. Moses retreated to the private residence, the State must present a strong interest in forcibly removing Mr. Moses from the residence. Here, the State did not meet this burden.
Officer Stevenson conceded that he did not have probable cause to believe Mr. Moses committed a crime when he entered the residence. Nor did Officer Stevenson's testimony demonstrate a valid exception to the warrant requirement justifying his warrantless intrusion into the residence. There was no threat to public safety or officer safety in permitting Mr. Moses to remain in the residence. The only risk of not continuing the investigatory stop of Mr. Moses was the risk that investigation of potential criminal activity might be delayed or thwarted. But, inconvenience is not a recognized exception to the warrant requirement. Further, as the court in Beavers reasoned, any risk that the investigation might be thwarted was diminished because Mr. Moses was located in a residence that could generally be staked out until he emerged or until sufficient evidence was gathered to support issuance of a warrant.
We conclude that the State failed to rebut the presumption that Officer Stevenson's warrantless intrusion into the residence and arrest of Mr. Moses was unreasonable. Accordingly, we find the district court erred in denying the motion to suppress evidence.
DECREE
For the foregoing reasons, we grant Mr. Moses' writ, reverse the district court's February 16, 2023 ruling denying his motion to suppress evidence, and grant Mr. Moses' motion to suppress evidence.
WRIT GRANTED; JUDGMENT REVERSED.
LOVE, C.J., DISSENTS AND ASSIGNS REASONS LOVE, C.J., DISSENTS AND ASSIGNS REASONS.
I respectfully dissent.
In granting Relator's motion to suppress, the majority primarily relies on State v. Lala, 08-0484 (La. App. 4 Cir. 12/3/08), 1 So.3d 606, to find that Officer Stevenson's and the other officers' entry into Relator's private residence without a warrant, resulting in the seizure of the evidence that led to his arrest, amounted to an illegal search and seizure. As noted by the majority, Lala, recognizes that the "chief evil" which the Fourth Amendment is intended to protect against is government intrusion into the home; and as such, the Fourth Amendment prohibits police from making a nonconsensual entry into the home to effectuate a warrantless arrest. See Lala, 08-0481, p. 5, 1 So.3d at 609, citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Accordingly, the Lala Court found that the police failed to demonstrate a sufficient State interest to pursue the defendant into her home for suspected public intoxication and thereafter, recover cocaine, to justify the warrantless entry. Id., p. 1 So.3d at 615. However, I find that the facts of Lala and its holding are not squarely on all fours with the evidence and facts developed at the hearing on Relator's motion to suppress.
In contrast to Lala, it appears that the discovery of evidence that led to Relator's arrest occurred as Relator attempted to enter the residence. Officer Stevenson indicates that his initial encounter with Relator began in the carport area outside the residence and that other officers observed the concealed weapon as Relator raised his arm to pull away from Officer Stevenson as Relator attempted to enter the residence.
In describing the circumstances leading up to his contact with Relator, Officer Stevenson testified that he responded to a call of a homicide with the shooter, described as a "tall black male wearing a back [sic] hoodie with jeans ..." Thinking the murder could be related to a call concerning an aggravated assault "a few houses down," Officer Stevenson relocated to the address associated with the assault call, where he encountered Relator who "matched the description given" to him by his supervisor. Officer Stevenson delineated his encounter with Relator as follows:
When I arrived at the address I started to ask—[t]here were some people in the driveway—what they had seen or of anything had occurred there. A few individuals came up to me. They were talking about the deceased person in the street. While I was talking to them. I saw an individual that we later identified as Tremaine Moses. He was standing in the back of the carport of 2052 [SIC], standing away from me. I saw he was wearing a black hoodie and dark-colored jeans. And he matched the description given to me by my supervisor and the initial responding officers on the scene.
***
I approached him and I asked ___ I was ___ I asked the individual for his name. He refused to give it. He said: "I don't have a name." And he started to walk away from me. I called out again, said: "Sir, what is your name?" And he continued to walk and tried to enter the house at 7052. (emphasis added).
And due to him matching the description given to me, I was going to detain him to make sure he may or may not be involved in the homicide and to see if I can get some identification.
When I went to reach for him, he started to pull away into the house. During that [time,] I was able to get control of his arms. And during that, his arms were lifted which raised up his waistband
— his shirt above his waistband. And that was when the other officers with me saw that he had a concealed firearm in the front of his waistband.
The Supreme Court in State v. Palmer, 09-0044 (La 7/1/09), 14 So.3d 304, 308, n. 2, explained the difference between public and private property and an individual's private residence for purposes of applying the Fourth Amendment as follows:
[F]or purposes of the Fourth Amendment, the distinction is not between public and private property but between public and private places, and when an individual steps across the threshold of a home he enters a public place and subject to seizure by the police acting upon probable cause for an arrest or reasonable suspicion for an investigatory stop. Thus, in United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 2409, 49 L.Ed.2d 300 (1976), the Supreme Court held that the defendant could not forestall her arrest, which began when she was standing in the doorway of her home, simply by stepping back across the threshold into the vestibule of the home. The Court observed:
While it may be true that under the common law of property the threshold of one's dwelling is `private,' as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment Santana was in a `public' place. She was not in an area where she had any expectation of privacy. "What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). She was not merely visible to the public but was a[lso] exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house. Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924). Thus, when the police, who concededly had probable cause to do so, sought to arrest her, they merely intended to perform a function which we have approved in [U.S. v.] Watson[, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)].
Santana, 427 U.S. at 42, 96 S.Ct. at 2409.
Hence, in the case sub judice, because Relator was not yet inside his residence and was still in a "public place" at the time the officers viewed the concealed weapon, Relator was therefore subject to seizure by the police acting upon a reasonable suspicion for an investigatory stop. Id.
In further distinguishing this matter from Lala, here, the police's underlying investigation involved a homicide, as opposed to the relatively minor offense of public intoxication in Lala. Thus, even if the police's pursuit of Relator breached the threshold of the entry to the home, the State's interest in public safety, i.e., protecting the community from a potential murder, presented a strong interest for the State to conduct a warrantless entry. Had Relator been the suspected murderer, his attempted retreat into his residence could have resulted in the destruction of evidence or delay in the officer's investigation.
The police had reasonable suspicion to conduct a Terry investigatory stop. The revelation that Relator possessed a hidden firearm authorized the lengthier detention to determine whether Relator could legally possess the firearm, and thereafter, his arrest upon learning of Relator's status as a convicted felon. Based on the foregoing reasons, I respectfully dissent and would deny Relator's writ application.