Judgment rendered August 28, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,742-KW
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Respondent
versus
CLAIBORNE S. GIPSON Applicant
On Application for Writs from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 396,796
Honorable John D. Mosley, Jr., Judge
MADISON E. CRUSAN Counsel for Applicant Caddo Parish Public Defender
JAMES E. STEWART, SR. Counsel for Respondent District Attorney
JASMINE C. COOPER Assistant District Attorney
Before PITMAN, STONE, and MARCOTTE, JJ. PITMAN, C. J.
Defendant Claiborne S. Gipson sought a writ on the district court’s
denial of his motion to suppress. This court granted the writ to docket. For
the following reasons, we affirm.
FACTS
A preliminary examination was conducted on September 5, 2023.
Cpl. Stephanie Jones of the Shreveport Police Department testified that on
August 3, 2023, she was working at the SporTran bus terminal when
DeAndre Thomas rushed up to her, stated that someone “pulled a gun” on
him and pointed to Defendant. She approached Defendant and asked if he
had a gun, he replied that he had a tattoo gun, and she searched the backpack
sitting next to him and found a firearm inside. She discovered that he had a
prior felony charge that prohibited him from owning or possessing a firearm.
She then handcuffed Defendant and read him his Miranda rights. The
district court found probable cause. The state then filed a bill of information
charging Defendant with aggravated assault with a firearm in violation of
La. R.S. 14:37.4 and possession of a firearm or carrying of a concealed
weapon by a convicted felon in violation of La. R.S. 14:95.1.
On November 9, 2023, Defendant filed a motion to suppress. He
argued that Cpl. Jones unreasonably invaded his privacy and searched his
backpack in violation of La. Const. art. I, § 5, and La. C. Cr. P. art. 215.1.
A hearing on the motion to suppress was held on December 7, 2023.
Defense counsel questioned Cpl. Jones about her testimony at the
preliminary hearing, including that when asked if the firearm was in plain
view in the backpack, she responded that she had to unzip it. The parties
then presented arguments. Defense counsel contended that the search of the backpack was not for the officer’s protection but was a search for evidence
with which to make an arrest and was beyond the limited scope of a Terry
stop because she did not frisk Defendant. Counsel stated that Cpl. Jones
should have spoken to other witnesses and viewed surveillance video.
Therefore, defense counsel argued that the evidence found in Defendant’s
backpack should be suppressed. The state argued that Cpl. Jones retrieved
the weapon to make it safe, which is protocol when a defendant states that he
has a weapon. The state also noted that Thomas was not acting as an
informant but as a victim. Considering that the bus terminal was particularly
busy that day, the state argued that the incident could fall under the exigent-
circumstances exception to the warrant requirement. Defense counsel
responded that if Cpl. Jones believed she was in danger, she should have
seized the backpack and obtained a warrant before searching it. The district
court denied the motion to suppress. It noted that Cpl. Jones searched for
the weapon for safety purposes and that the search was reasonable
considering the crowded setting and the fact that an alleged crime had taken
place. Defendant objected to the ruling.
On December 7, 2023, Defendant filed a notice of intent to apply for a
writ of review regarding the district court’s denial of his motion to suppress.
This court granted the writ to docket.
DISCUSSION
Defendant argues that the district court erred in denying his motion to
suppress and that he is entitled to suppression of evidence found as a result
of the illegal search. He contends that Cpl. Jones’s search of his backpack
violated his right against unwarranted searches and seizures and his right to
privacy under U.S. Const. art. IV and La. Const. art. I, § 5. He contends that 2 Cpl. Jones should have seized his backpack and then obtained a search
warrant.
The state argues that the district court did not abuse its discretion
when it properly denied the motion to suppress. It contends that it proved
there was justification for the search of Defendant’s backpack. It argues that
Thomas was acting as a victim of an aggravated assault, and not as an
informant, when he reported to Cpl. Jones that he and Defendant engaged in
a verbal altercation and Defendant pulled a gun on him. It states that this
information combined with Cpl. Jones’s professional experience, training,
common sense and the facts made available to her at the time of the seizure
gave her reasonable suspicion that criminal activity may have occurred. The
state contends that Cpl. Jones had probable cause to arrest, so the search
incident to the arrest was valid and justified any search of his person and
belongings in his immediate control.
The United States and Louisiana constitutions prohibit unreasonable
searches and seizures. U.S. Const. art. IV; La. Const. art. I, § 5. A
defendant may move to suppress any evidence from use at the trial on the
merits on the ground that it was unconstitutionally obtained. La. C. Cr. P.
art. 703(A). The burden of proof is on the defendant to prove the ground of
his motion, except that the state shall have the burden of proving the
admissibility of any evidence seized without a warrant. La. C. Cr. P.
art. 703(D). A search and seizure conducted without a warrant issued on
probable cause is per se unreasonable unless the state can affirmatively show
that the warrantless search and seizure was justified by one of the narrowly
drawn exceptions to the warrant requirement. State v. Surtain, 09-1835 (La.
3 3/16/10), 31 So. 3d 1037, citing Minnesota v. Dickerson, 508 U.S. 366,
113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993).
A traditional exception to the warrant requirement is a search incident
to a lawful arrest based upon probable cause. State v. Surtain, supra, citing
United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427
(1973). Probable cause to arrest exists when the facts and circumstances
known to the arresting officer, and of which he has reasonable and
trustworthy information, are sufficient to justify a person of ordinary caution
in the belief that the accused has committed an offense. State v. Surtain,
supra. The reasonableness of the arrest based upon probable cause under the
Fourth Amendment extends to the search incidentally conducted. Id., citing
United States v. Robinson, supra. In order to determine whether a police
Free access — add to your briefcase to read the full text and ask questions with AI
Judgment rendered August 28, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,742-KW
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Respondent
versus
CLAIBORNE S. GIPSON Applicant
On Application for Writs from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 396,796
Honorable John D. Mosley, Jr., Judge
MADISON E. CRUSAN Counsel for Applicant Caddo Parish Public Defender
JAMES E. STEWART, SR. Counsel for Respondent District Attorney
JASMINE C. COOPER Assistant District Attorney
Before PITMAN, STONE, and MARCOTTE, JJ. PITMAN, C. J.
Defendant Claiborne S. Gipson sought a writ on the district court’s
denial of his motion to suppress. This court granted the writ to docket. For
the following reasons, we affirm.
FACTS
A preliminary examination was conducted on September 5, 2023.
Cpl. Stephanie Jones of the Shreveport Police Department testified that on
August 3, 2023, she was working at the SporTran bus terminal when
DeAndre Thomas rushed up to her, stated that someone “pulled a gun” on
him and pointed to Defendant. She approached Defendant and asked if he
had a gun, he replied that he had a tattoo gun, and she searched the backpack
sitting next to him and found a firearm inside. She discovered that he had a
prior felony charge that prohibited him from owning or possessing a firearm.
She then handcuffed Defendant and read him his Miranda rights. The
district court found probable cause. The state then filed a bill of information
charging Defendant with aggravated assault with a firearm in violation of
La. R.S. 14:37.4 and possession of a firearm or carrying of a concealed
weapon by a convicted felon in violation of La. R.S. 14:95.1.
On November 9, 2023, Defendant filed a motion to suppress. He
argued that Cpl. Jones unreasonably invaded his privacy and searched his
backpack in violation of La. Const. art. I, § 5, and La. C. Cr. P. art. 215.1.
A hearing on the motion to suppress was held on December 7, 2023.
Defense counsel questioned Cpl. Jones about her testimony at the
preliminary hearing, including that when asked if the firearm was in plain
view in the backpack, she responded that she had to unzip it. The parties
then presented arguments. Defense counsel contended that the search of the backpack was not for the officer’s protection but was a search for evidence
with which to make an arrest and was beyond the limited scope of a Terry
stop because she did not frisk Defendant. Counsel stated that Cpl. Jones
should have spoken to other witnesses and viewed surveillance video.
Therefore, defense counsel argued that the evidence found in Defendant’s
backpack should be suppressed. The state argued that Cpl. Jones retrieved
the weapon to make it safe, which is protocol when a defendant states that he
has a weapon. The state also noted that Thomas was not acting as an
informant but as a victim. Considering that the bus terminal was particularly
busy that day, the state argued that the incident could fall under the exigent-
circumstances exception to the warrant requirement. Defense counsel
responded that if Cpl. Jones believed she was in danger, she should have
seized the backpack and obtained a warrant before searching it. The district
court denied the motion to suppress. It noted that Cpl. Jones searched for
the weapon for safety purposes and that the search was reasonable
considering the crowded setting and the fact that an alleged crime had taken
place. Defendant objected to the ruling.
On December 7, 2023, Defendant filed a notice of intent to apply for a
writ of review regarding the district court’s denial of his motion to suppress.
This court granted the writ to docket.
DISCUSSION
Defendant argues that the district court erred in denying his motion to
suppress and that he is entitled to suppression of evidence found as a result
of the illegal search. He contends that Cpl. Jones’s search of his backpack
violated his right against unwarranted searches and seizures and his right to
privacy under U.S. Const. art. IV and La. Const. art. I, § 5. He contends that 2 Cpl. Jones should have seized his backpack and then obtained a search
warrant.
The state argues that the district court did not abuse its discretion
when it properly denied the motion to suppress. It contends that it proved
there was justification for the search of Defendant’s backpack. It argues that
Thomas was acting as a victim of an aggravated assault, and not as an
informant, when he reported to Cpl. Jones that he and Defendant engaged in
a verbal altercation and Defendant pulled a gun on him. It states that this
information combined with Cpl. Jones’s professional experience, training,
common sense and the facts made available to her at the time of the seizure
gave her reasonable suspicion that criminal activity may have occurred. The
state contends that Cpl. Jones had probable cause to arrest, so the search
incident to the arrest was valid and justified any search of his person and
belongings in his immediate control.
The United States and Louisiana constitutions prohibit unreasonable
searches and seizures. U.S. Const. art. IV; La. Const. art. I, § 5. A
defendant may move to suppress any evidence from use at the trial on the
merits on the ground that it was unconstitutionally obtained. La. C. Cr. P.
art. 703(A). The burden of proof is on the defendant to prove the ground of
his motion, except that the state shall have the burden of proving the
admissibility of any evidence seized without a warrant. La. C. Cr. P.
art. 703(D). A search and seizure conducted without a warrant issued on
probable cause is per se unreasonable unless the state can affirmatively show
that the warrantless search and seizure was justified by one of the narrowly
drawn exceptions to the warrant requirement. State v. Surtain, 09-1835 (La.
3 3/16/10), 31 So. 3d 1037, citing Minnesota v. Dickerson, 508 U.S. 366,
113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993).
A traditional exception to the warrant requirement is a search incident
to a lawful arrest based upon probable cause. State v. Surtain, supra, citing
United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427
(1973). Probable cause to arrest exists when the facts and circumstances
known to the arresting officer, and of which he has reasonable and
trustworthy information, are sufficient to justify a person of ordinary caution
in the belief that the accused has committed an offense. State v. Surtain,
supra. The reasonableness of the arrest based upon probable cause under the
Fourth Amendment extends to the search incidentally conducted. Id., citing
United States v. Robinson, supra. In order to determine whether a police
officer had probable cause to arrest the defendant, a court must examine the
events leading up to the arrest and then decide whether those facts, viewed
from the standpoint of an objectively reasonable police officer, amount to
probable cause. State v. Surtain, supra, citing Maryland v. Pringle, 540 U.S.
366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003).
Warrantless searches incidental to arrest are reasonable because when
an arrest is made, it is reasonable for a police officer to expect the arrestee to
use any weapons he may have and to attempt to destroy any incriminating
evidence then in his possession. State v. Sherman, 05-0779 (La. 4/4/06),
931 So. 2d 286, citing Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L.
Ed. 2d 900 (1973); and Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034,
23 L. Ed. 2d 685 (1969). The potential dangers lurking in all custodial
arrests make warrantless searches of items within the immediate control area
reasonable without requiring the arresting officer to calculate the probability 4 that weapons or destructible evidence may be involved. State v. Warren,
05-2248 (La. 2/22/07), 949 So. 2d 1215, citing United States v. Chadwick,
433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). If an officer makes a
lawful arrest of an individual, that officer is authorized, without more, to
search the arrestee and his wingspan or lunge space for weapons and
evidence. State v. McGraw, 43,778 (La. App. 2 Cir. 12/10/08), 1 So. 3d
645, writ denied, 09-0317 (La. 11/6/09), 21 So. 3d 297, citing Chimel v.
California, supra.
An incident search may not precede an arrest and serve as part of its
justification; however, searches incident to arrest conducted immediately
before formal arrest are valid if probable cause to arrest existed prior to the
search. State v. Surtain, supra; State v. Sherman, supra. Where formal
arrest followed quickly on the heels of the challenged search, it is not
particularly important that the search preceded the arrest rather than vice
versa. Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633
(1980).
The trial court’s ruling on a motion to suppress must be afforded great
weight and will not be set aside unless there is an abuse of discretion. State
v. Carter, 20-01193 (La. 1/26/21), 309 So. 3d 333.
In this case, the district court did not abuse its discretion in denying
the motion to suppress—the search of Defendant’s backpack was incident to
a lawful arrest based upon probable cause. At the probable cause and
motion to suppress hearings, Cpl. Jones testified about the circumstances
leading up to the arrest. She noted that Thomas approached her and told her
that Defendant “pulled a gun” on him. When she asked Defendant if he had
a gun, he stated that he had a tattoo gun. She then searched the backpack 5 placed next to him and found a firearm inside. The facts presented through
Cpl. Jones’s testimony establish that she had probable cause to arrest
Defendant due to his aggravated assault of Thomas. Therefore, she had the
authority to search Defendant’s person and the items within his immediate
control, including his backpack. Although the search incident to the arrest
was conducted immediately before the formal arrest, the search was valid
because probable cause to arrest existed prior to the search.
Accordingly, this assignment of error lacks merit.
CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of
Defendant Claiborne S. Gipson’s motion to suppress.
AFFIRMED.