Opinion
No. 2020-KK-0145
05-01-2020
STATE OF LOUISIANA v. KARI SHISLER AND JOSEPH DYCZEWSKI
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS CRAIN, J., dissents and assigns reasons.
I find the stop, arrest, and ultimate search of the house lawful, and the evidence seized should not be suppressed based on an unsupported credibility determination. The unanimous appeal court panel accurately summarized the facts:
. . . Det. Cheramie, an experienced narcotics investigator, who is part of a multi-jurisdiction task force, testified that he received information relative to Dyczewski's drug-related activities from a confidential informant. He was able to corroborate the information received regarding the activities Dyczewski engaged in during the three-month surveillance time-frame. An objective evaluation of all circumstances known to Det. Cheramie and his agents at the time of the investigatory stop pointed to the fact that Dyczewski was involved in drug activity, including, but not limited to, drug sales. His training and experience as part of the drug task force corroborated the information received from the confidential informant. As such, Det. Cheramie had reasonable suspicion needed to conduct an investigatory stop. The subsequent admission by Dyczewski that he had a mason jar of marijuana in his pocket, after agents with the task force smelled the odor of marijuana emanating from his person, justified the task force to place Dyczewski under arrest. The observation of the digital cameras on the exterior of the home, gave the task force members the justification needed to conduct a protective sweep of the home, and ultimately the basis for obtaining a search warrant.State v. Shisler & Dyczewski, 2019-1096 (La. App. 4 Cir. 12/23/19), 286 So. 3d 1226, 1229.
The trial court reasoned that her decision was "about the credibility of the officers and their testimony as to whether or not there was exigent circumstances and really as to how the entire investigation bore out." The majority anchors its decision to this "credibility" determination and the absence of exigent circumstances.
When a court rules on a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81. Applying this standard of review, the trial court's order does not survive scrutiny, as the suppression hearing transcript does not support a finding that the officers' testimony is unreliable. I will address each finding.
In oral reasons, the trial court said the officers were "tracking Mr. Dyczewski for thirty days and nothing had elapsed in that 30-day time period." However, the investigation, as all officers testified, lasted three months, and produced numerous observations consistent with drug trafficking. The uncontradicted officers' testimony established they observed Mr. Dyczewski making long trips with quick stops, driving at a slow rate of speed, and making "heat runs," which was explained as an effort on the part of a suspected drug dealer to lose the police by making erratic driving motions.
Next, the trial court emphasized the testimony that no "crime" was committed during the period of surveillance. But, that observation is immaterial. Had the officers witnessed a crime, there would have been "probable cause" for an arrest. Instead, the officers' uncontradicted testimony is their observations gave rise to "reasonable suspicion" supporting an investigatory stop.
The trial court further reasoned that due to a stop for a "traffic violation," the officers claimed "exigent circumstances as he was going into his house to then go in, secure the residence, after they did a protective sweep without securing any warrant." Again, the suppression hearing transcript does not support that finding. No one testified to a traffic stop, only that several traffic violations were observed over three months of surveillance. Further, the protective sweep followed the defendant's arrest for possession of marijuana and identification of cameras outside the house, not a "traffic violation."
The trial judge then rejected the testimony that cardboard boxes can be "tools of the drug trade," reasoning she never encountered that practice in her years as a prosecutor or judge. Respectfully, personal inexperience with drug packaging does not discredit the testimony of two trained officers' that cardboard boxes, which they testified are both nontransparent and hide smells, are used to transport marijuana.
To support the trial court's credibility determination, the defense has argued the five officers' testimony was inconsistent with Detective Cheramie's testimony. Detective Cheramie and his five partners from the Major Crimes Task Force were the only witnesses to testify at the suppression hearing. While Detective Cheramie was called by the state and his five partners were called by the defense, their testimony was consistent and, more importantly, unrebutted. The officers' cumulative testimony offered a single narrative—this was a collective effort to conduct surveillance on the defendant to corroborate a tip that he was dealing "large quantities of marijuana" in Jefferson and Orleans Parishes.
The defense attempted to create conflicts between what each officer saw; however, those differences were clearly explained by the fact that each officer worked separately, but as part of a team. What one saw was not necessarily what others saw because each were often stationed at different places at different times. Whether the officers' actions were reasonable entails a purely objective inquiry considering "all of the information known collectively to the law enforcement personnel involved in the investigation." State v. Weber, 2013-1851 (La. 5/30/14), 139 So. 3d 519, 521; State v. Landry, 98-0188, p. 5 (La.1/20/00), 729 So.2d 1019, 1022 (citing and quoting United States. v. Klein, 93 F.3d 698, 701 (10th Cir.1996). The "credibility" determinations rooted in perceived differences in the testimony from these officers, which were reasonably explained by the roles each played in the collective effort, are manifestly erroneous and not entitled to deference.
Against this backdrop of testimony, we must determine whether the trial court abused her discretion when concluding reasonable suspicion did not exist to justify the investigatory stop. An investigatory stop may be conducted when a police officer has a reasonable articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The Terry standard, as codified in La. C.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense, and demand that the person identify himself and explain his actions. State v. Dickerson, 10-672 (La. App. 5 Cir. 4/26/11), 65 So.3d 172, 176). A reviewing court must take into account the totality of circumstances, giving deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Huntley, 97-965 (La.3/13/98), 708 So.2d 1048.
The uncontradicted testimony also established the encounter with the defendant occurred near the street, between the defendant's car and the sidewalk, all part of the "city servitude", and not in the defendant's yard. Thus, any heightened privacy interests that attach to the curtilage of the defendant's home are not implicated.
Here, a "reliable and accurate" confidential informant offered a tip, which was corroborated during a three-month investigation when behavior consistent with drug trafficking was observed. An anonymous tip alone can suffice to establish reasonable suspicion. See e.g., Alabama v. White, 496 U.S. 325, 11 S.CT. 2412, 110 L.Ed.2d 303 (1990). See also State v. Jernigan, 377 So.2d 1222 (La., 1979). In this case, the added trustworthiness of the informant and lengthy surveillance revealing suspicious activity satisfy the initial inquiry of "reasonable suspicion". Thus, the officers were constitutionally supported in the decision to stop and question the defendant.
When the defendant was approached on the day of his arrest, he was immediately read his rights. Detective Cheramie told the defendant he smelled marijuana, at which point the defendant admitted having a mason jar of marijuana in his pocket. This confession, even if it resulted from an interrogation, was made subsequent to Miranda warnings and is, therefore, admissible. It, along with the possession of the marijuana, also established probable cause for Mr. Dyczewski's arrest.
Officers then performed a protective sweep. The majority correctly recognizes that exigent circumstances justify "a quick search of the premises to determine the presence of another perpetrator constitutes an exception to the warrant requirement." However, the focus is solely on the security cameras, concluding that the cameras alone are inadequate evidence of exigent circumstances. The totality of the circumstances are: the officers just arrested a suspected drug dealer who admitted possessing an illegal drug; they knew the suspected drug dealer's wife was in the house; they did not know who, if anyone, was watching them through the cameras; they knew the cameras could prompt a person inside to escape, attempt violence against the officers, or trigger the destruction of evidence. According to the uncontradicted testimony, a protective sweep was executed to prevent offender escape, ensure officer safety, and preclude evidence destruction. That resulted in officers observing suspected drugs in plain view.
There are no facts in the record before us supporting the conclusion the sweep was unreasonable or did not satisfy the exigent circumstances exception. As observed by the majority, each justification for the warrantless entry need only be a "possibility," not a certainty. State v. Hathaway, 411 So. 2d 1074, 1079 (La. 1982). (Exigent circumstances have been found to exist for the possibility another perpetrator may exist, the avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the possible destruction of evidence.) The reasonable possibility for each of these concerns existed.
Violent behavior is endemic to the drug trade industry. State v. Webb, 2013-1681 (La. 5/7/14), 144 So. 3d 971. --------
Last, the Fourth Amendment is founded on reasonableness. The Fourth Amendment to the U.S. Constitution, protects the right of the people "against unreasonable searches and seizures." U.S. Const. Amend. IV. Similarly, the Louisiana Constitution protects "persons, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy." La. Const. Art. 1, § 5. "Reasonableness is always the touchstone in striking the balance between legitimate law enforcement concerns, such as officer safety, and protected individual privacy interests." State v. Bell, 09-574, p. 14 (La.App. 4 Cir. 12/9/09), 28 So.3d 502, 512. The officers effected a reasonable and lawful search. Reasonable suspicion existed to support the initial stop. The defendant admitted possession of illegal drugs, establishing probable cause for his arrest. A protective sweep followed pursuant to the exigent circumstances exception and a search warrant was then obtained. The substantial drug evidence was legally seized pursuant to a lawful search. It should not be suppressed. Therefore, I dissent.