Opinion
21-K-714
01-21-2022
STATE OF LOUISIANA v. JOSHUA SULLIVAN IN RE JOSHUA SULLIVAN
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B. DARENSBURG, DIVISION "C", NUMBERS 18-3556 & 18-5904
Panel composed of Judges Susan M. Chehardy, Fredericks Homberg Wicker, and Hans J. Liljeberg
Relator, Joshua Sullivan, seeks review of the district court's October 2021 judgment denying his motion to suppress evidence. Finding no error in the lower court's judgment, we deny the writ application.
Procedural History
On July 20, 2018, the Jefferson Parish District Attorney filed a bill of information charging relator with two counts of possession of pornography involving juveniles under the age of 13, a violation of La. R.S. 14:81.1(E)(5)(a), and one count of production of pornography involving juveniles under the age of 13, a violation of La. R.S. 14:81.1(E)(5)(b). On July 23, 2018, relator filed omnibus motions, including a motion to suppress the evidence seized without a warrant. Relator was arraigned on July 25, 2018, and pled not guilty.
On November 16, 2018, the Jefferson Parish District Attorney filed a second bill of information charging relator with one count of sexual battery of a child under the age of 13, a violation of La. R.S. 14:43.1. As to this charge, relator was arraigned on November 30, 2018, and pled not guilty.
Relator's motion to suppress the evidence came for hearing on October 24, 2019. The judge left the hearing open to allow counsel for relator and the State to file post-hearing memoranda. On October 20, 2021, the district court denied relator's motion to suppress the evidence. Relator timely filed the instant writ application.
Relator made a request to file a portion of this writ application under seal, which was granted.
Motion to Suppress Evidence Hearing
In his motion to suppress, relator argued the evidence should be suppressed because the warrant was without probable cause, was based upon stale information and upon either intentional or inadvertent misrepresentations, and was otherwise in violation of his rights under the United States and Louisiana Constitutions. The affidavit in support of the search warrant of relator's residence provided, in pertinent part:
On 10-22-12, at 2010 hours, Deputy Doug Graffeo of the Jefferson Parish Sheriffs Office Second District Patrol Division was dispatched to Ochsner Hospital at 2500 Bellechasse [sic] Highway Gretna, La. to investigate a sexual abuse complaint involving an eight-year old white female. Deputy Graffeo learned the victim's father, Paul A., brought his daughter to Ochsner Hospital for medical treatment after she disclosed to her grandmother that her friend, O.'s father, Joshua Sullivan, had digitally penetrated her vagina with his finger this past Friday night (10-19-12) during a sleep over at O.'s home. The victim indicated the perpetrator has been touching her inappropriately and taking nude photographs of her since she was six years old. The victim said all of the incidents occurred while she was visiting O. at her residence. The victim stated O. and her younger sister L. were present during the incidents and Joshua Sullivan took nude photographs of all of them together.
Detective Jean Lincoln of the Jefferson Parish Sheriffs Office Personal Violence Division responded to Ochsner Hospital and met with the victim. The victim provided Detective Lincoln with a detailed disclosure regarding her allegation against Joshua Sullivan.
Dr. Rice of the Ochsner Hospital Staff conducted an examination on the victim. Dr. Rice found that the victim's hymen was in tact [sic], but showed signs of irritation. The irritation led Dr. Rice to conclude that the victim had been touched on the vagina.
The victim's father was instructed to transport the child to Children's Hospital in New Orleans in order that a more detailed examination be conducted by medical staff that are specifically trained for that purpose.
It is for the above listed reasons that Detective Lincoln prays that this search warrant be issued. If physical evidence is located in the residence of 637 East Niagra [sic] Circle it would further link Joshua Sullivan to the crime.
In the interest of protecting minor victims and victims of sexual offenses as set forth in La. R.S. 46:1844(W)(3), the judges of this Court have adopted a policy that this Court's published work will use only initials to identify the victim and any defendant or witness whose name can lead to the victim's identity (i.e., parent, sibling, or relative with the same last name as the victim). State v. E.J.M., III, 12-774, 12-732 (La.App. 5 Cir. 5/23/13), 119 So.3d 648
After the search warrant was obtained, further investigation revealed that the victim had also told her cousin about the alleged abuse.
The affidavit for search warrant, portions of which were redacted, was prepared by then Detective Jean Lincoln and signed by the criminal commissioner, Carol Kiff, on October 23, 2012.
At the October 24, 2019 hearing on relator's motion to suppress evidence, testimony was elicited from Agent Jean Lincoln and Sergeant Nick Vega of the Jefferson Parish Sheriffs Office ("JPSO").
Agent Jean Lincoln
Agent Lincoln testified that on October 22, 2012, then a JPSO detective, she was assigned to investigate the sexual battery of the juvenile victim in the instant case. Lincoln stated that in response to a complaint of sexual abuse, she responded to Ochsner Hospital and spoke to the eight-year-old victim concerning the allegations. Lincoln explained that the victim confirmed the abuse and further alleged that relator had taken nude photographs of her at his home. According to Lincoln, Sergeant Ralph Sacks, also of the JPSO and part of the investigation, spoke to the emergency room physician, Dr. Rice, who examined the victim and concluded that it was possible, but not definitive, that the victim had been touched by relator on her vagina.
Agent Lincoln explained that the victim was later interviewed by the Children's Advocacy Center ("CAC") and by Dr. Jamie Jackson. The victim was consistent in the three interviews that relator photographed and digitally penetrated her. Lincoln maintained that the victim told her that relator took photographs and did "nasty things" to "all" of his daughter's friends. According to Lincoln, the Department of Children and Family Services ("DCFS") was notified of the victim's allegations, but the department closed the case after relator's children denied being abused by him.
Agent Lincoln explained that based on the information she had obtained in her investigation, which included the information Sergeant Sacks obtained from Dr. Rice, she prepared an application for a search warrant for relator's residence at 637 Niagara Circle. Lincoln testified that everything contained within the search warrant she prepared was true and correct to the best of her knowledge and that there was nothing that she would add or delete.
Agent Lincoln acknowledged that Sergeant Sacks personally spoke with Dr. Rice; she did not.
Specifically, Agent Lincoln maintained that in preparation of her affidavit for the search warrant, she did not "shade" Dr. Rice's conclusions. Her affidavit includes the following: "Dr. Rice of the Ochsner Hospital staff conducted an examination on the victim. Dr. Rice found that the victim's hymen was intact but showed signs of irritation. The irritation led Dr. Rice to conclude that the victim had been touched on the vagina." Her police report provides: "Sergeant Ralph Sacks spoke to Dr. Rice, the emergency room physician, who examined B. Dr. Rice found the hymen intact, but the vagina showed signs of irritation. This irritation led Dr. Rice to believe it possible, but not definitive, that B. was touched on the vagina." According to Lincoln, in her mind, both of the statements were the same. She stated that the warrant to search relator's residence was dated October 23, 2012; her police report was dated January 3, 2014.
Thereafter, in the early morning hours of October 23, 2012, Lincoln, and other members of the JPSO's Personal Violence Unit, executed the search warrant at relator's residence and seized multiple devices, including computers, cameras, and cell phones. Once the devices were seized, fourteen in total, Lincoln prepared additional search warrants, using the same reasoning in each, to search the contents of each device, which were signed by the commissioner on November 16, 2012. She explained that the devices and search warrants, which were individually packaged in brown paper and had not been opened or tampered with, were thereafter relinquished to the digital forensic unit ("DFU"). After submitting the evidence to DFU in 2012, Lincoln did not receive results of the computer extraction within ten days; the actual examination of the devices did not take place until January 2-16, 2014.
Agent Lincoln testified that once she submitted the evidence to DFU, a Detective Villere would have had access to it.
Agent Lincoln testified that during her investigation, she took a statement from relator after reading him his rights and reviewing the rights form with him. During his statement, she obtained relator's consent to search his photography business. Lincoln stated that the reason she initially decided not to arrest relator was because she was waiting for additional evidence from the seized electronic devices, i.e., photographs that the victim said relator took of her.
Agent Lincoln testified that she left the JPSO's personal violence section in June 2013, but held on to the instant case. She stated that on several occasions she communicated with the DFU (specifically, Detective Villere) inquiring about the results of the forensic examination of relator's seized devices, but was advised that due to the backlog in DFU, the examination had not been completed. Lincoln testified that, consequently, she suspended the instant case in January 2014. She stated that the matter was reassigned to Detective Radcliffe in May or June of 2014, and that she met with him and explained why the case had been suspended, and told him what he needed to do in order to move the case forward.
Sergeant Nick Vega
Sergeant Vega, a nineteen-year veteran of the JPSO, testified that in April 2018, while he was a detective in the personal violence section, he was assigned to conduct a follow-up investigation and to review the evidence in this case. Vega explained that he had previously been assigned to the Internet Crimes Against Children ("ICAC") task force for twelve years, had participated in hundreds of child pornography investigations, and that he helped create the DFU. He also explained that, during that time, he was involved with cell phone forensics, computer previews, and forensic previews on the scene. According to Vega, between 2012 and 2014, there were only two to three people to conduct forensic examinations, and that the DFU handled not only examinations for the JPSO, but for other agencies as well.
Sergeant Vega explained that when something contains digital evidence, it is seized and then taken from the scene to the forensic unit. Once at the DFU, it is secured within the lab or "property and evidence," and thereafter, there is no way to manipulate the data contained on the physical devices. He stated that, to his knowledge, he had never received the results of a forensic analysis within ten days of a search warrant being submitted, signed, and turned over to the DFU, and that no evidence in the cases he has worked has ever been suppressed because the analysis was not completed during the ten-day timeframe.
According to Sergeant Vega, when he was assigned in 2018 to conduct follow-up in this case, the extraction examination of the devices seized had already been completed in January 2014, and a digital analysis report had been generated.Vega explained that the extraction examination, which took place between January 2 and January 16, 2014, may have taken that long given the amount of work and the limited number of examiners. He also explained that, in this case, the images the DFU were examining were images that had been deleted from the devices seized and placed into "unallocated space," which he maintained involve images that take a very long time to retrieve. Vega stated that, despite the passage of time, while he could have obtained another search warrant, it was unnecessary in this case because the only thing that would have changed in the affidavit would have been the date. He testified that, based on the evidence seized, he obtained an arrest warrant in this case for eight counts of possession of child pornography.
The digital analysis report was admitted into evidence at the hearing.
Sergeant Vega stated that he arrested relator, advised him of his rights, and took his recorded statement. After the interview, he continued his investigation and later sought a warrant to arrest relator on two counts of production of child pornography under the age of thirteen. Vega explained that he waited a month after the first arrest warrant because there were 870, 000 images he had to go through and that once he "got to the point of production of child pornography" by relator, he obtained the second arrest warrant. He indicated that in the instant case, the production of child pornography involved pictures relator took of his own children. Vega asserted that he later sought a warrant to arrest relator for sexual battery and indecent behavior with juveniles. He explained that of the 870, 000 images he reviewed, there were approximately 5, 000 images of child pornography.
Sergeant Vega testified that he was assigned to this case in April of 2018, after Detective Radcliffe quit the JPSO. He acknowledged that the victim's allegations were not substantiated with physical findings and that relator's children said they often took photographs of each other using their father's device. Vega maintained, however, that certain images were clearly not taken by children, because the way the children were displayed and "posed" was not common for children of that age. Vega noted that relator frequented Thailand and other Asian countries, which he explained was significant since those are known to be child trafficking areas. He also noted that when he interviewed relator's daughter, she advised that relator routinely took pictures of her and her siblings while naked and "doing things," but that relator stopped when she reach a "certain age." According to Vega, the images of relator's daughter were taken when she was under the age of thirteen.
Sergeant Vega could not speak to what Detective Radcliffe accomplished during the time he was assigned to the case.
After holding the matter open to allow counsel for relator and the State the opportunity to file post-hearing memoranda, the district court denied relator's motion to suppress evidence on October 20, 2021. The district court determined that (1) the search warrant was based on "adequate probable cause," (2) a Leon exception did not apply because relator failed to show that the officers knowingly acted in bad faith, and (3) under La. C.Cr.P. art. 163(E), which constituted a procedural change in the law and, thus, was retroactive, the warrants were not "stale" and the extraction was proper.
Relator's Writ Application
In his writ application, relator argues the district court erred in finding that probable cause existed to issue the initial search warrant, and in finding that the amendment to La. C.Cr.P. art. 163(E) applies. According to relator, Section E creates an entirely new scheme or purpose in the law and, thus, the changes are substantive and prospective only.
Probable Cause - Search Warrant
Relator argues that the initial search warrant for his home presented to the commissioner was based not on probable cause, but rather, on a falsehood by the investigating officer, who knowingly lied in her affidavit, and thus, Agent Lincoln was not in good faith when she executed the warrant. Relator argues Lincoln was also not in good faith when she executed the secondary search warrants for the devices seized because she knew the information on which the warrants were based was unsubstantiated and false. Consequently, relator contends the evidence should be suppressed in accordance with State v. Leon, 468 U.S 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We disagree.
When evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a hearing on his motion to suppress that evidence. La. C.Cr.P. art. 703(D); State v. Falcon, 13-849 (La.App. 5 Cir. 3/12/14), 138 So.3d 79, 88, writ denied, 14-769 (La. 11/14/14), 152 So.3d 877. A search warrant may be issued only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. La. C.Cr.P. art. 162; State v. Aston, 12-955 (La.App. 5 Cir. 9/4/13), 125 So.3d 1148, 1156, writ denied, 13-2374 (La. 3/21/14), 135 So.3d 618. Probable cause for the issuance of a search warrant exists when the facts and circumstances, within the affiant's knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place that is to be searched. Id. The facts establishing probable cause for the warrant must be contained within the four corners of the affidavit. State v. Green, 02-1022 (La. 12/4/02), 831 So.2d 962, 969. An affidavit supporting a search warrant is presumed to be valid, and the defendant has the burden of proving that the representations made in the affidavit are false. State v. Shiell, 16-447 (La.App. 5 Cir. 12/7/16), 204 So.3d 1213, 1217, writ denied, 17-41 (La. 9/15/17), 225 So.3d 477.
A magistrate must be given enough information to make an independent judgment that probable cause exists to issue a warrant. Green, 831 So.2d at 968. "The process [of determining probable cause] simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system." State v. Rodrigue, 437 So.2d 830, 833 (La. 1983) (citing Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965)). For an affiant to make a material and intentional misrepresentation to a magistrate constitutes a fraud upon the court and will result in the invalidation of the warrant and suppression of the items seized. State v. Byrd, 568 So.2d 554, 559 (La. 1990); State v. Williams, 448 So.2d 659, 663 (La. 1984). However, if the misrepresentations or omissions are inadvertent, negligent, or are included without an intent to deceive, the correct procedure is for the warrant to be retested for probable cause after striking the misrepresentation or supplying the omitted information. State v. Casey, 99-23 (La. 1/26/00), 775 So.2d 1022, 1029, cert, denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).
The task for a reviewing court is simply to ensure that under the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed. State v. Payne, 10-46 (La.App. 5 Cir. 1/25/11), 59 So.3d 1287, 1296, writ denied, 11-387 (La. 9/16/11), 69 So.3d 1141. The magistrate's determination of probable cause to issue a warrant is entitled to significant deference on review and because of'"the preference to be accorded to warrants, ' marginal cases should be resolved in favor of a finding that the issuing magistrate's judgment was reasonable." Rodrigue, supra (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965)).
Further, the United States Supreme Court has also held that evidence seized pursuant to a warrant based on less than probable cause need not be suppressed if the officers who executed the warrant believed it to be validly issued. State v. Davis, 17-642 (La.App. 5 Cir. 12/11/17), 2017 WL 10118514, at *2 (citing United States v. Leon, supra.). In formulating this judicially created good faith rule, the Supreme Court reasoned that the good faith of an officer in the execution of a warrant signed by a neutral magistrate should be enough for the evidence obtained as a result of the search to be admissible. Id. Thus, the Court expressed a strong preference for warrants over warrantless searches by finding admissible evidence seized in constitutionally questionable searches if the officers were relying on a validly issued warrant. Id.
The Leon Court, however, listed four scenarios where suppression is the appropriate remedy for a search conducted pursuant to a warrant: (1) the affiant misled the magistrate by including in the affidavit misleading statements, which the affiant knew were false or would have known were false, except for reckless disregard for the truth; (2) the magistrate abandoned his neutral and detached role; (3) the affiant was so lacking of indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) the warrant was deficient and could not be presumed valid. Davis, supra (citing Leon, supra, 468 U.S. at 914-15, 104 S.Ct. at 3416).
Here, Agent Lincoln's affidavit for the search warrant of relator's home provides that on October 22, 2012, JPSO Deputy Graffeo went to Ochsner Hospital where he learned that the eight-year-old victim's father had brought his daughter for medical treatment after she disclosed to her grandmother that relator had digitally penetrated her with his finger and had taken nude photographs of her since she was a six-year-old child. The affidavit indicated that relator was her friend's father, that all of the incidents occurred while she was visiting her friend at her friend's residence, that her friend's younger sister was present during the incidents, and that relator took nude photographs of all of them together. Lincoln included in the affidavit that Dr. Rice had examined the victim and found the victim's hymen showed signs of irritation, which led her to conclude the victim had been touched on the vagina. Lincoln asked for a search warrant stating that if physical evidence was located in relator's residence, it would further link him to the crime.
At the hearing, Agent Lincoln testified that the police report she prepared stated that Sergeant Sacks spoke to Dr. Rice, who said that the hymen was intact but that the vagina showed signs of irritation. She further read from her report that this irritation led Dr. Rice to believe it possible, but not definitive, that the victim was touched on the vagina. Lincoln indicated that she did not attempt to mislead the judge by including in her affidavit that Dr. Rice "concluded" that the victim had been touched on the vagina as she believed both statements were the same.
Although Agent Lincoln's affidavit contained a statement by Dr. Rice that appears not to have been true-as it arguably suggests there was definite proof the victim had been touched on the vagina-there is no evidence that Agent Lincoln intended to mislead the judge by including this statement in her affidavit. If the misrepresentations or omissions are inadvertent, negligent, or are included without an intent to deceive, the correct procedure is for the warrant to be retested for probable cause after striking the misrepresentation or supplying the omitted information. See Casey, supra. After striking the misrepresentation from the warrant at issue, we find that the victim's allegation that relator digitally penetrated and took nude photographs of her is sufficient for probable cause.
"In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion." See State v. Robinson, 02-1869 (La. 4/14/04), 874 So.2d 66, 79, cert, denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004). Moreover, "[a] victim's or witness's testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency." State v. Davis, 02-1043 (La. 6/27/03), 848 So.2d 557, 559.
We find the facts and circumstances reflected in the affidavit were sufficient to support a reasonable belief that relator possessed child pornography and that evidence of the offenses may be contained in his cell phone. See Aston, supra. Relator argues that once the misrepresentation was struck from the warrant, the victim's allegations against him contained therein were not substantiated. However, there is no requirement that the allegations be corroborated. (See State v. Everett, 11-1311 (La.App. 3 Cir. 5/9/12), 89 So.3d 463, 466-68), where the appellate court indicated that the search warrant was valid even though it failed to show that the officer independently corroborated the witness' information). Further, the statements regarding Dr. Rice's findings were not included in the affidavits for the search warrants for the contents of the electronic devices.
In light of the foregoing, we find that after the purported misrepresentation is stricken from the search warrant for relator's residence, and considering that the misrepresentation was not included in the later search warrants, the affidavits stated sufficient probable cause. Because we find the search warrants were based on probable cause, it is unnecessary for this Court to address whether the evidence was admissible under Leon, supra.
Stateness - Search Warrant
Relator next argues that the search warrants were stale and thus, any evidence seized pursuant to them, should be suppressed. Specifically, relator contends the warrants for the devices seized from his home were stale because they were over one-year old before they were executed, and were based solely on the alleged inadequate investigation conducted by the three detectives, who he claimed shared no knowledge of the case with each other outside of what was incorrectly supplied or omitted in their reports. The trial court determined that the changes in Subsection E of La. C.Cr.P. art. 163 were procedural in nature and, thus, the amendment was retroactive and applicable to the warrants at issue in this case. To the contrary, relator argues that the amendment to La. C.Cr.P. art. 163 applies prospectively only as the changes were substantive in nature, and consequently, the warrants should not be subject to the new law. We disagree.
A warrant may become stale if facts and circumstances at the time of its execution show that probable cause no longer exists. Casey, 775 So.2d at 1028. Thus, "staleness is only an issue when the passage of time makes it doubtful that the object sought in the warrant will be at the place where it was observed." State v. Tate, 407 So.2d 1133, 1137 (La. 1981). La. C.Cr.P. art. 163 sets forth the proper procedure for executing search warrants. From August 1, 2012, to July 31, 2019, La. C.Cr.P. art. 163 provided, in pertinent part:
A. A search warrant shall be directed to any peace officer, who shall execute it and bring any property seized into the court issuing the warrant.
B. A search or seizure shall not be made during the nighttime or on Sunday, unless the warrant expressly so directs.
C. Except as authorized by Article 163.1, a search warrant cannot be lawfully executed after the expiration of the tenth day after its issuance.
D. (1) Any examination or testing of any property seized pursuant to the provisions of this Article shall be at the direction of the attorney general, the district attorney, or the investigating agency.
(2) Notwithstanding any other provision of law to the contrary, any examination or testing of the seized property may be conducted at any time before or during the pendency of any criminal proceeding in which the property may be used as evidence, [internal footnote added].
Effective August 1, 2012 until the present time, La. C.Cr.P. art. 163.1 provides the law regarding searches of a person for bodily samples, warrants, and execution.
Effective August 1, 2019, through the present time, La. C.Cr.P. art. 163 provides, in pertinent part:
C. Except as authorized by Article 163.1 or as otherwise provided in this Article, or as otherwise provided by law, a search warrant cannot be lawfully executed after the expiration of the tenth day after its issuance.
D. (1) Any examination or testing of any property seized pursuant to the provisions of this Article shall be at the direction of the attorney general, the district attorney, or the investigating agency.
(2) Notwithstanding any other provision of law to the contrary, any examination or testing of the seized property may be conducted at any time before or during the pendency of any criminal proceeding in which the property may be used as evidence.
E. (1) Notwithstanding any other provision of law to the contrary, if a warrant is issued to search for and seize data or information contained in or on a computer, disk drive, flash drive, cellular telephone, or other electronic communication, or data storage device, the warrant is considered to have been executed within the time allowed in Paragraph C of this Article if the device was seized before the expiration of the time allowed, or if the device was in law enforcement custody at the time of the issuance of the warrant.
(2) Notwithstanding any other provision of law to the contrary, if a device described in Subparagraph (1) of this Paragraph was seized before the expiration of the time allowed in Paragraph C of this Article, or if the device was in law enforcement custody at the time of the issuance of the warrant, any data or information contained in or on the device may be recovered or extracted pursuant to the warrant at any time, and such recovery or extraction shall not be subject to the time limitation in Paragraph C of this Article.
In state v. Griffin, 14-1214 (La. 10/14/15), 180 So.3d 1262, 1267, the Louisiana Supreme Court discussed statutory interpretation stating:
Legislation is the solemn expression of legislative will; thus, the interpretation of legislation is primarily the search for the legislative intent. Cat's Meow, Inc. v. City of New Orleans, 98-601, p. 15 (La. 10/20/98), 720 So.2d 1186, 1198; La. Safety Ass 'n of Timbermen Self-Insurers Fundv. La. Ins. Guar. Ass 'n, 09-23, p. 8 (La. 6/26/09), 17 So.3d 350, 355-56. When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. See La. C.C. art. 9. The starting point for interpretation of any statute is the language of the statute itself. See, e.g., Cat's Meow, 98-601, p. 15, 720 So.2d at 1198; Timbermen, 09-23, p. 8, 17 So.3d at 356.
In the instant case, the initial search warrant for relator's residence was signed by the commissioner on October 23, 2012. The warrant was executed that same day and several electronic devices were seized. On November 16, 2012, the commissioner signed additional search warrants authorizing a search of the contents of each device that was seized. Agent Lincoln testified that she subsequently brought the evidence to the DFU. Although she did not specify the date that was done, the DFU reports attached to the writ application reflect that on December 28, 2012, the evidence custodian received the evidence from Agent Lincoln. The examination of the devices was conducted from January 2-16, 2014.
The 2012 version of Article 163(D)(2) in effect when the search warrants were signed provided, "Notwithstanding any other provision of law to the contrary, any examination or testing of the seized property may be conducted at any time before or during the pendency of any criminal proceeding in which the property may be used as evidence." In the instant case, because the examination of the seized devices was conducted "before or during the pendency of this criminal proceeding," pursuant to the plain wording of the article, we find the contents of those devices can be admitted into evidence at trial. We also find that, based on the language of the Article and the testimony presented at the hearing, the search warrants for relator's cell phone and other electronic devices were not stale, and the content from the devices should not be suppressed. (See Griffin, supra, regarding statutory interpretation.)
We also find that, contrary to relator's contention, the amendment to La. C.Cr.P. art. 163 was interpretive, rather than substantive, and that the interpretative legislation of La. C.Cr.P. art. 163(E) is therefore to be applied retroactively. See State v. Folse, 20-18 (La.App. 5 Cir. 4/7/20), -So.3d ~, 2020 WL 8770900 *2 fn 6 ("[I]n our reading of the preexisting law of La. C.Cr.P. art. 163(D), we review the amendment of Subsection E as interpretive, not changing the statute but redefining the statute to its original meaning"); see also La. C.C. art. 6; Krebs, Lasalle, Lemieux Consultants, Inc. v. G.E.C., Inc., 16-24 (La.App. 5 Cir. 7/27/16), 197 So.3d 829, 831. In St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 817-18 (La. 1992), the Supreme Court found, "[w]hen an existing law is not clear, a subsequent statute clarifying or explaining the law may be regarded as interpretive, and the interpretative statute may be given retrospective effect because it does not change, but merely clarifies, preexisting law."
Here, relator's cell phone and other devices were seized on October 23, 2012, before the expiration of the time allowed in Paragraph C. Also, the devices were in the custody of law enforcement at the time of the issuance of the search warrants on November 16, 2012. Therefore, pursuant to La. C.Cr.P. art. 163(E)(2), we find that any information contained on the devices could be extracted and that such extraction is not subject to the time limitation in Paragraph C.
For the foregoing reasons, even omitting the alleged misrepresentation, we find that the search warrants were based on probable cause and that they were not stale. Accordingly, this writ application is denied.
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