STATE OF LOUISIANA * NO. 2020-K-0039
VERSUS * COURT OF APPEAL CALVIN SMITH * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 546-919, SECTION “K” Honorable Arthur Hunter, Judge ****** Judge Regina Bartholomew-Woods ****** (Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Regina Bartholomew-Woods)
BELSOME, J., DISSENTS
Leon Cannizzaro District Attorney Scott G. Vincent Assistant District Attorney ORLEANS PARISH 619 S. White Street New Orleans, Louisiana 70119
COUNSEL FOR THE STATE/RELATOR
Sarah Mae Jennings 2601 Tulane Avenue, Suite 700 New Orleans, Louisiana 70119
Giacomo Castrogiovanni 935 Gravier Street, Suite 840 New Orleans, Louisiana 70112
COUNSEL FOR DEFENDANT/RESPONDENT
WRIT GRANTED APRIL 8, 2020 RBW
TFL
Relator, the State of Louisiana, seeks supervisory review of the district
court’s January 3, 2020 ruling finding probable cause and granting Defendant’s
motion to suppress evidence. For the foregoing reasons, we grant the writ and
reverse the district court.
PROCEDURAL AND FACTUAL BACKGROUND
On December 9, 2019, the district court conducted a preliminary hearing, as
well as a hearing on Defendant’s motion to suppress evidence. Thereafter, on
January 3, 2020, the district court found no probable cause and granted
Defendant’s motion to suppress evidence.
On August 21, 2019, the Third District of the New Orleans Police
Department (“NOPD”) conducted a traffic enforcement assignment to check for
vehicles with dark-tinted windows, brake tags, and cracked windshields. NOPD
Officer Ramon Negrete (“Officer Negrete”) stopped Defendant’s vehicle due to the
1 dark-tinted windows, and asked Defendant to produce his driver’s license,
registration, and proof of insurance. Initially, Defendant rummaged through his
center console, but then began reaching behind the passenger seat. Officer Negrete
repeatedly instructed Defendant to stop; however, Defendant repeatedly failed to
comply. As a result, Defendant was removed from his vehicle and handcuffed.
After removing Defendant’s vehicle from the travel lane, Officer Negrete opened
the rear passenger door of Defendant’s vehicle and retrieved a firearm from the
pocket on the back of the seat. At the hearing, Officer Negrete testified that he
feared that Defendant was reaching for a weapon, and he only searched exactly
where he believed Defendant had been reaching. After locating the weapon, NOPD
Officers conducted an inventory search of Defendant’s vehicle, because Defendant
was to be arrested and his vehicle towed. During the inventory search, an NOPD
Officer recovered a clear plastic bag containing three (3) Percocet pills. As a result,
Defendant was charged with possession of a firearm or weapon by a felon, in
violation of La. R.S. 14:95.1, and illegal carrying of a weapon with a controlled
dangerous substance, in violation of La. R.S. 14:95(E).
DISCUSSION
Both the United States and Louisiana Constitutions protect individuals from
unreasonable searches and seizures. U.S. Const. Amend. IV; La. Const. art. 1, § 5.
Moreover, “[a] warrantless search is, per se, unreasonable unless it falls within
certain limited, well-delineated exceptions to the warrant requirement.” State v.
Hunt, 2009-1589 (La. 12/1/09, 6); 25 So.3d 746, 752; Schneckloth v.
2 Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State
v. Lee, 2005-2098, p. 14 (La.1/16/08), 976 So.2d 109, 122. The Louisiana Supreme
Court, in State v. Hunt, reasoned that “[f]or a traffic stop to be justified at its
inception, an officer must have an objectively reasonable suspicion that some sort
of illegal activity occurred or is about to occur, before stopping the vehicle. When
an officer observes what he objectively believes is a traffic offense, the decision to
stop the vehicle is reasonable, regardless of the officer’s subjective motivation.”
2009-1589, pp. 8-9 (La. 12/1/09); 25 So.3d 746, 753 (internal citations omitted).
Here, like in Hunt, Officer Negrete stopped Defendant’s vehicle because of the
dark-tinted windows, a traffic offense, thus, the stop itself was reasonable at the
outset.1
The Louisiana Supreme Court, in State v. Cure, looked to the United States
Supreme Court’s reasoning in Pennsylvania v. Mimms, 434 U.S. 106, 110; 98 S.Ct.
330, 333; 54 L.Ed.2d 331 (1977),
1 Vehicle window tint is regulated by La. R.S. 32.361(B)-(C)(1), and provides:
B. Except as provided by R.S. 32:361.1(C), no person may operate a motor vehicle with any object or material placed on or affixed to the front windshield or to front side windows of the vehicle so as to obstruct or reduce the driver's clear view through the front windshield or front side windows, nor place on or affix to the front windshield or the front side windows of a motor vehicle, any transparent material if the material alters the color or reduces the light transmission of the windshield or front side windows.
C. The provisions of this Section do not apply to any of the following:
(1) A sun screening device when used in conjunction with automotive safety glazing materials on the front side window, with a light transmission of at least forty percent, all tolerances included, side window behind the driver with a light transmission of at least twenty-five percent, all tolerances included, and rearmost windows with a light transmission of at least twelve percent, all tolerances included. All sun screening devices shall not have a luminous reflectance of more than twenty percent.
3 [W]e have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.... Against this important interest, we are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis.”
2011-2238, p. 5 (La. 7/2/12); 93 So.3d 1268, 1271. Further, the United States
Supreme Court has recognized that because of the inherent mobility of vehicles
and if probable cause exists, officers are permitted to search vehicles without a
warrant. Maryland v. Dyson, 527 U.S. 465, 467; 119 S.Ct. 2013, 2014; 144
L.Ed.2d 442 (1999). In State v. Dillion, pursuant to traffic violations, police
officers stopped the defendant’s vehicle and noticed that the defendant appeared to
reach and hide something. 1998-0861, p. 12 (La. App. 4 Cir. 6/24/98); 719 So.2d
1064, 1070. Subsequently, the officers removed the defendant from the vehicle,
handcuffed him, and placed him in the patrol car prior to searching the vehicle. Id.
In State v. Lockett, an NOPD officer noticed a vehicle traveling in the far-left lane
at a “very, very slow pace,” which caused other vehicles to have to change lanes to
avoid a collision; upon noticing the cracked windshield, the officer executed a
traffic stop. 2012-1561, p. 2 (La. App. 4 Cir. 7/24/13); 120 So.3d 886, 888. As the
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STATE OF LOUISIANA * NO. 2020-K-0039
VERSUS * COURT OF APPEAL CALVIN SMITH * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 546-919, SECTION “K” Honorable Arthur Hunter, Judge ****** Judge Regina Bartholomew-Woods ****** (Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Regina Bartholomew-Woods)
BELSOME, J., DISSENTS
Leon Cannizzaro District Attorney Scott G. Vincent Assistant District Attorney ORLEANS PARISH 619 S. White Street New Orleans, Louisiana 70119
COUNSEL FOR THE STATE/RELATOR
Sarah Mae Jennings 2601 Tulane Avenue, Suite 700 New Orleans, Louisiana 70119
Giacomo Castrogiovanni 935 Gravier Street, Suite 840 New Orleans, Louisiana 70112
COUNSEL FOR DEFENDANT/RESPONDENT
WRIT GRANTED APRIL 8, 2020 RBW
TFL
Relator, the State of Louisiana, seeks supervisory review of the district
court’s January 3, 2020 ruling finding probable cause and granting Defendant’s
motion to suppress evidence. For the foregoing reasons, we grant the writ and
reverse the district court.
PROCEDURAL AND FACTUAL BACKGROUND
On December 9, 2019, the district court conducted a preliminary hearing, as
well as a hearing on Defendant’s motion to suppress evidence. Thereafter, on
January 3, 2020, the district court found no probable cause and granted
Defendant’s motion to suppress evidence.
On August 21, 2019, the Third District of the New Orleans Police
Department (“NOPD”) conducted a traffic enforcement assignment to check for
vehicles with dark-tinted windows, brake tags, and cracked windshields. NOPD
Officer Ramon Negrete (“Officer Negrete”) stopped Defendant’s vehicle due to the
1 dark-tinted windows, and asked Defendant to produce his driver’s license,
registration, and proof of insurance. Initially, Defendant rummaged through his
center console, but then began reaching behind the passenger seat. Officer Negrete
repeatedly instructed Defendant to stop; however, Defendant repeatedly failed to
comply. As a result, Defendant was removed from his vehicle and handcuffed.
After removing Defendant’s vehicle from the travel lane, Officer Negrete opened
the rear passenger door of Defendant’s vehicle and retrieved a firearm from the
pocket on the back of the seat. At the hearing, Officer Negrete testified that he
feared that Defendant was reaching for a weapon, and he only searched exactly
where he believed Defendant had been reaching. After locating the weapon, NOPD
Officers conducted an inventory search of Defendant’s vehicle, because Defendant
was to be arrested and his vehicle towed. During the inventory search, an NOPD
Officer recovered a clear plastic bag containing three (3) Percocet pills. As a result,
Defendant was charged with possession of a firearm or weapon by a felon, in
violation of La. R.S. 14:95.1, and illegal carrying of a weapon with a controlled
dangerous substance, in violation of La. R.S. 14:95(E).
DISCUSSION
Both the United States and Louisiana Constitutions protect individuals from
unreasonable searches and seizures. U.S. Const. Amend. IV; La. Const. art. 1, § 5.
Moreover, “[a] warrantless search is, per se, unreasonable unless it falls within
certain limited, well-delineated exceptions to the warrant requirement.” State v.
Hunt, 2009-1589 (La. 12/1/09, 6); 25 So.3d 746, 752; Schneckloth v.
2 Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State
v. Lee, 2005-2098, p. 14 (La.1/16/08), 976 So.2d 109, 122. The Louisiana Supreme
Court, in State v. Hunt, reasoned that “[f]or a traffic stop to be justified at its
inception, an officer must have an objectively reasonable suspicion that some sort
of illegal activity occurred or is about to occur, before stopping the vehicle. When
an officer observes what he objectively believes is a traffic offense, the decision to
stop the vehicle is reasonable, regardless of the officer’s subjective motivation.”
2009-1589, pp. 8-9 (La. 12/1/09); 25 So.3d 746, 753 (internal citations omitted).
Here, like in Hunt, Officer Negrete stopped Defendant’s vehicle because of the
dark-tinted windows, a traffic offense, thus, the stop itself was reasonable at the
outset.1
The Louisiana Supreme Court, in State v. Cure, looked to the United States
Supreme Court’s reasoning in Pennsylvania v. Mimms, 434 U.S. 106, 110; 98 S.Ct.
330, 333; 54 L.Ed.2d 331 (1977),
1 Vehicle window tint is regulated by La. R.S. 32.361(B)-(C)(1), and provides:
B. Except as provided by R.S. 32:361.1(C), no person may operate a motor vehicle with any object or material placed on or affixed to the front windshield or to front side windows of the vehicle so as to obstruct or reduce the driver's clear view through the front windshield or front side windows, nor place on or affix to the front windshield or the front side windows of a motor vehicle, any transparent material if the material alters the color or reduces the light transmission of the windshield or front side windows.
C. The provisions of this Section do not apply to any of the following:
(1) A sun screening device when used in conjunction with automotive safety glazing materials on the front side window, with a light transmission of at least forty percent, all tolerances included, side window behind the driver with a light transmission of at least twenty-five percent, all tolerances included, and rearmost windows with a light transmission of at least twelve percent, all tolerances included. All sun screening devices shall not have a luminous reflectance of more than twenty percent.
3 [W]e have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.... Against this important interest, we are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis.”
2011-2238, p. 5 (La. 7/2/12); 93 So.3d 1268, 1271. Further, the United States
Supreme Court has recognized that because of the inherent mobility of vehicles
and if probable cause exists, officers are permitted to search vehicles without a
warrant. Maryland v. Dyson, 527 U.S. 465, 467; 119 S.Ct. 2013, 2014; 144
L.Ed.2d 442 (1999). In State v. Dillion, pursuant to traffic violations, police
officers stopped the defendant’s vehicle and noticed that the defendant appeared to
reach and hide something. 1998-0861, p. 12 (La. App. 4 Cir. 6/24/98); 719 So.2d
1064, 1070. Subsequently, the officers removed the defendant from the vehicle,
handcuffed him, and placed him in the patrol car prior to searching the vehicle. Id.
In State v. Lockett, an NOPD officer noticed a vehicle traveling in the far-left lane
at a “very, very slow pace,” which caused other vehicles to have to change lanes to
avoid a collision; upon noticing the cracked windshield, the officer executed a
traffic stop. 2012-1561, p. 2 (La. App. 4 Cir. 7/24/13); 120 So.3d 886, 888. As the
driver prepared to stop his vehicle, the officer noticed the driver make furtive
movements toward the back seat. Id. at p. 3; 120 So.3d at 888. With concern for
officer safety, assisted by other officers, the driver, as well as the passenger, were
removed from the vehicle; the officer then looked in the backseat where the driver
had been reaching and discovered a firearm. Id. In consideration of the search,
4 “this [C]ourt consistently has held that an officer’s observation of furtive
movements during a traffic stop provides a sufficient basis for a protective Terry
sweep of the vehicle.” Id. at p. 14; 120 So.3d at 895. In the instant matter, Officer
Negrete observed Defendant repeatedly reaching behind his passenger seat; Officer
Negrete ordered Defendant to stop. When Defendant failed to comply with Officer
Negrete’s command, Defendant was removed from his vehicle out of concern for
Officer Negrete’s safety. Here, Defendant’s continual actions of reaching behind
his passenger seat despite Officer Negrete’s commands to cease justified the
protective sweep of Defendant’s vehicle, which yielded the concealed firearm and
pills.2
For the aforementioned reasons, we reverse the district court’s January 3,
2020 ruling finding no probable cause and granting Defendant’s motion to
suppress the evidence. The writ is GRANTED and the motion to suppress the
evidence is hereby reversed.
2 Pursuant to La. R.S. 14:95(1), the illegal carrying of weapons is defined, in pertinent part, as “[t]he intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one's person…”.