State of Louisiana v. Damon Z. McFarland Jr.
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Opinion
STATE OF LOUISIANA * NO. 2025-KA-0654
VERSUS * COURT OF APPEAL DAMON Z. MCFARLAND JR. * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 555-538, SECTION “E” Rhonda Goode-Douglas, Judge ****** Judge Dale N. Atkins ****** (Court composed of Judge Rosemary Ledet, Judge Dale N. Atkins, Judge Nakisha Ervin-Knott)
Jason R. Williams, District Attorney Brad Scott, Chief of Appeals Peter J. Vesich, Assistant District Attorney PARISH OF ORLEANS 619 S. White Street New Orleans, LA 70119
COUNSEL FOR APPELLEE, State of Louisiana
Rudy W. Gorrell, Jr. 1215 Prytania Street, Suite 223 New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLANT, Damon Z. McFarland Jr.
AFFIRMED APRIL 6, 2026 DNA
RML
NEK
This is a criminal case. Appellant is Damon Z. McFarland Jr. (“Mr.
McFarland”), and Appellee is the State of Louisiana (“State”). On July 20, 2023,
the district court denied Mr. McFarland’s “Motion to Suppress . . . Physical
Evidence Seized” (“Motion to Suppress”). Subsequently, Mr. McFarland and the
State reached a plea agreement. Mr. McFarland now appeals the district court’s
denial of his Motion to Suppress and asks this Court to remand the matter to the
district court under State v. Crosby, 338 So.2d 584 (La. 1976). For the following
reasons, we find the district court did not abuse its discretion in denying Mr.
McFarland’s Motion to Suppress, and we affirm his convictions and sentences.
RELEVANT PROCEDURAL HISTORY
On September 21, 2022, the State charged Mr. McFarland by bill of
information with one count of “us[ing], possess[ing], or hav[ing] under his
immediate control, any firearm . . . while unlawfully in the possession of a
controlled dangerous substance” in violation of La. R.S. 14:95(E); one count of
“knowingly and intentionally possess[ing] with the intent to distribute marijuana,
less than 2.5 pounds” in violation of La. R.S. 40:966(B)(2)(a); and one count of
“knowingly and intentionally possess[ing] with the intent to distribute a Schedule
1 II Controlled Dangerous Substance, to wit: methamphetamine, less than 28 grams”
in violation of La. R.S. 40:967(B)(1)(a). Mr. McFarland pled not guilty to all
charges. Subsequently, on December 6, 2022, Mr. McFarland filed his Motion to
Suppress, wherein he moved the district court to suppress:
1) All physical evidence seized in connection with this case;
2) All oral or written inculpatory statements made by the defendant;
3) All out-of-court and/or pre-trial identification of the defendant made by State witnesses.
On May 31, 2023, the district court held a hearing on Mr. McFarland’s Motion to
Suppress.
Motion to Suppress Hearing
At the hearing on Mr. McFarland’s Motion to Suppress, the State called
Detective Timothy Jones (“Detective Jones”) of the New Orleans Police
Department (“NOPD”). Detective Jones identified himself as an officer on the
NOPD’s “ATF Task Force” and stated he also served on the task force in May
2022. Detective Jones testified that in May 2022, he worked on a case connected
with “a homicide shooting outside of Xavier” University of Louisiana (“Xavier”)
in New Orleans following a graduation ceremony. Clarifying, Detective Jones
explained that he did not investigate the homicide itself but became involved in the
case when the officers searching for the person(s) responsible for the homicide
discovered certain evidence in the course of their investigation.
Detective Jones described the shooting as follows: “there were two groups of
kind of feuding people, [who] got into a verbal altercation. It turned violent.
Weapons were discharged, and, subsequently, there was a bystander that was
struck and killed.” Detective Jones answered affirmatively when counsel for the
2 State asked whether Mr. McFarland was part of the incident. Elaborating,
Detective Jones stated:
So I learned about Mr. McFarland [when] the homicide detective [Miles Guerreri (“Detective Guerreri”)] who was investigating the incident, seized Mr. McFarland’s car from the crime scene, and I had the opportunity to attempt to interview Mr. McFarland. [Detective Guerreri] ended up electing to write a search warrant for Mr. McFarland’s car [a 2014 red Infinity four-door sedan] and, subsequently, he found some weapons and contraband in the vehicle.
As explained by Detective Jones, when the officers investigating the homicide
discovered a “privately manufactured firearm and narcotics” in Mr. McFarland’s
vehicle, they “relayed” that information to him.1 The State then offered the search
warrant into evidence, and the district court admitted it.
The affidavit for the search warrant for Mr. McFarland’s vehicle stated:
On Tuesday, May 31, 2022[,] at approximately 11:45 a.m., while working a graduation ceremony detail at Xavier . . . , a[n] [NOPD] detail officer overheard shots fired outside of the graduation ceremony. The officer exited the building and observed several bystanders shot. . . . A . . . female victim was located on scene suffering from an apparent gunshot wound to the head. . . . and was [subsequently] pronounced deceased.
Video surveillance obtained from the area of the crime scene revealed a black male subject standing in the threshold of a red sedan vehicle, later recovered by police. On the footage[,] the subject’s hands can not [sic] be seen, however, multiple subjects who were involved in the altercation can be seen running and getting into the 2014 Red Infiniti four door sedan, . . . , registered to Damon McFarland, which is driven [away] by the black male.
The driver of the vehicle, later identified as [Mr.] McFarland is detained by police pending the homicide investigation. Throughout the course of the investigation, detectives learned that a firearm was inside of the red sedan driven by Mr. McFarland.
1 Detective Jones specified that “the scope of [his] investigation [was] only into the
possession of the firearm and the narcotics that were located in [Mr. McFarland’s] vehicle.”
3 The video surveillance, as described in the above affidavit, also shows Mr.
McFarland drive his vehicle away from the scene after the shooting with some of
the individuals involved in the altercation inside of the vehicle.
Counsel for the State then asked Detective Jones about the specifics of what
the officers located in the vehicle, and he responded that the officers located a
firearm, some marijuana, and some pills later identified as methamphetamine.
Regarding the gun, Detective Jones identified it as “a privately manufactured
firearm,” which is “commonly referred to as a ‘ghost gun’ on the street.”2
According to Detective Jones, after officers took Mr. McFarland into custody,
Detective Guirreri also seized his cell phone. Detective Jones testified that he
subsequently authored a search warrant for Mr. McFarland’s phone. The State also
offered that search warrant into evidence. The affidavit for the search warrant for
Mr. McFarland’s phone detailed the items seized during the search of Mr.
McFarland’s car, namely the “[g]host gun”; “a digital scale (commonly used to
weigh narcotics)”; “one and a half pounds of marijuana in . . . vacuum seal bags”;
“clear plastic bags (commonly used to package narcotics)”; “sixty dollars of United
States currency in various denominations”; “a clear plastic bag containing an
unknown quantity of pills (believed to be pharmaceutical grade narcotic)”; and “[a]
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA * NO. 2025-KA-0654
VERSUS * COURT OF APPEAL DAMON Z. MCFARLAND JR. * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 555-538, SECTION “E” Rhonda Goode-Douglas, Judge ****** Judge Dale N. Atkins ****** (Court composed of Judge Rosemary Ledet, Judge Dale N. Atkins, Judge Nakisha Ervin-Knott)
Jason R. Williams, District Attorney Brad Scott, Chief of Appeals Peter J. Vesich, Assistant District Attorney PARISH OF ORLEANS 619 S. White Street New Orleans, LA 70119
COUNSEL FOR APPELLEE, State of Louisiana
Rudy W. Gorrell, Jr. 1215 Prytania Street, Suite 223 New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLANT, Damon Z. McFarland Jr.
AFFIRMED APRIL 6, 2026 DNA
RML
NEK
This is a criminal case. Appellant is Damon Z. McFarland Jr. (“Mr.
McFarland”), and Appellee is the State of Louisiana (“State”). On July 20, 2023,
the district court denied Mr. McFarland’s “Motion to Suppress . . . Physical
Evidence Seized” (“Motion to Suppress”). Subsequently, Mr. McFarland and the
State reached a plea agreement. Mr. McFarland now appeals the district court’s
denial of his Motion to Suppress and asks this Court to remand the matter to the
district court under State v. Crosby, 338 So.2d 584 (La. 1976). For the following
reasons, we find the district court did not abuse its discretion in denying Mr.
McFarland’s Motion to Suppress, and we affirm his convictions and sentences.
RELEVANT PROCEDURAL HISTORY
On September 21, 2022, the State charged Mr. McFarland by bill of
information with one count of “us[ing], possess[ing], or hav[ing] under his
immediate control, any firearm . . . while unlawfully in the possession of a
controlled dangerous substance” in violation of La. R.S. 14:95(E); one count of
“knowingly and intentionally possess[ing] with the intent to distribute marijuana,
less than 2.5 pounds” in violation of La. R.S. 40:966(B)(2)(a); and one count of
“knowingly and intentionally possess[ing] with the intent to distribute a Schedule
1 II Controlled Dangerous Substance, to wit: methamphetamine, less than 28 grams”
in violation of La. R.S. 40:967(B)(1)(a). Mr. McFarland pled not guilty to all
charges. Subsequently, on December 6, 2022, Mr. McFarland filed his Motion to
Suppress, wherein he moved the district court to suppress:
1) All physical evidence seized in connection with this case;
2) All oral or written inculpatory statements made by the defendant;
3) All out-of-court and/or pre-trial identification of the defendant made by State witnesses.
On May 31, 2023, the district court held a hearing on Mr. McFarland’s Motion to
Suppress.
Motion to Suppress Hearing
At the hearing on Mr. McFarland’s Motion to Suppress, the State called
Detective Timothy Jones (“Detective Jones”) of the New Orleans Police
Department (“NOPD”). Detective Jones identified himself as an officer on the
NOPD’s “ATF Task Force” and stated he also served on the task force in May
2022. Detective Jones testified that in May 2022, he worked on a case connected
with “a homicide shooting outside of Xavier” University of Louisiana (“Xavier”)
in New Orleans following a graduation ceremony. Clarifying, Detective Jones
explained that he did not investigate the homicide itself but became involved in the
case when the officers searching for the person(s) responsible for the homicide
discovered certain evidence in the course of their investigation.
Detective Jones described the shooting as follows: “there were two groups of
kind of feuding people, [who] got into a verbal altercation. It turned violent.
Weapons were discharged, and, subsequently, there was a bystander that was
struck and killed.” Detective Jones answered affirmatively when counsel for the
2 State asked whether Mr. McFarland was part of the incident. Elaborating,
Detective Jones stated:
So I learned about Mr. McFarland [when] the homicide detective [Miles Guerreri (“Detective Guerreri”)] who was investigating the incident, seized Mr. McFarland’s car from the crime scene, and I had the opportunity to attempt to interview Mr. McFarland. [Detective Guerreri] ended up electing to write a search warrant for Mr. McFarland’s car [a 2014 red Infinity four-door sedan] and, subsequently, he found some weapons and contraband in the vehicle.
As explained by Detective Jones, when the officers investigating the homicide
discovered a “privately manufactured firearm and narcotics” in Mr. McFarland’s
vehicle, they “relayed” that information to him.1 The State then offered the search
warrant into evidence, and the district court admitted it.
The affidavit for the search warrant for Mr. McFarland’s vehicle stated:
On Tuesday, May 31, 2022[,] at approximately 11:45 a.m., while working a graduation ceremony detail at Xavier . . . , a[n] [NOPD] detail officer overheard shots fired outside of the graduation ceremony. The officer exited the building and observed several bystanders shot. . . . A . . . female victim was located on scene suffering from an apparent gunshot wound to the head. . . . and was [subsequently] pronounced deceased.
Video surveillance obtained from the area of the crime scene revealed a black male subject standing in the threshold of a red sedan vehicle, later recovered by police. On the footage[,] the subject’s hands can not [sic] be seen, however, multiple subjects who were involved in the altercation can be seen running and getting into the 2014 Red Infiniti four door sedan, . . . , registered to Damon McFarland, which is driven [away] by the black male.
The driver of the vehicle, later identified as [Mr.] McFarland is detained by police pending the homicide investigation. Throughout the course of the investigation, detectives learned that a firearm was inside of the red sedan driven by Mr. McFarland.
1 Detective Jones specified that “the scope of [his] investigation [was] only into the
possession of the firearm and the narcotics that were located in [Mr. McFarland’s] vehicle.”
3 The video surveillance, as described in the above affidavit, also shows Mr.
McFarland drive his vehicle away from the scene after the shooting with some of
the individuals involved in the altercation inside of the vehicle.
Counsel for the State then asked Detective Jones about the specifics of what
the officers located in the vehicle, and he responded that the officers located a
firearm, some marijuana, and some pills later identified as methamphetamine.
Regarding the gun, Detective Jones identified it as “a privately manufactured
firearm,” which is “commonly referred to as a ‘ghost gun’ on the street.”2
According to Detective Jones, after officers took Mr. McFarland into custody,
Detective Guirreri also seized his cell phone. Detective Jones testified that he
subsequently authored a search warrant for Mr. McFarland’s phone. The State also
offered that search warrant into evidence. The affidavit for the search warrant for
Mr. McFarland’s phone detailed the items seized during the search of Mr.
McFarland’s car, namely the “[g]host gun”; “a digital scale (commonly used to
weigh narcotics)”; “one and a half pounds of marijuana in . . . vacuum seal bags”;
“clear plastic bags (commonly used to package narcotics)”; “sixty dollars of United
States currency in various denominations”; “a clear plastic bag containing an
unknown quantity of pills (believed to be pharmaceutical grade narcotic)”; and “[a]
plastic bag containing 49 multicolored pills (believed to be ecstasy).” Further,
Detective Jones stated in his affidavit that “[p]redicated on the facts,” he believed
Mr. “McFarland [was] engaged in trafficking of narcotics at a street level” and, in
doing so, “would utilize his mobile device in furtherance of the trade by setting up
sales and contacting sources.” In other words, the affidavit explained that, based
2 Detective Jones further explained that the gun “was made from a mold.”
4 on officer knowledge of the common way modern drug transactions occur,
additional evidence of drug trafficking was likely on Mr. McFarland’s cell phone.
Then, the following colloquy occurred:
A So ultimately, [Mr. McFarland’s] phone was defeated[3] and a report was generated. And by going through the content of the phone, there were several instances of correspondence where drug transactions were set up. There were discussions of a type of strain, prices, and then frequently there was [sic] locations set, and there was Cash App money sent.
Q And in your experience, what did that look like to you?
A To me, it looked like narcotic trafficking, street level.
Q Okay. And what did you do with that information after that?
A So having now obtained the information . . . from the phone and having the firearm as well as the narcotics that was [sic] seized from Mr. McFarland’s car, we applied for an arrest warrant.
Thereafter, according to Detective Jones, he located Mr. McFarland at his
residence and, based on the totality of the circumstances, obtained a search warrant
for that location.
The affidavit Detective Jones authored for the search warrant for Mr.
McFarland’s residence detailed the items officers seized from Mr. McFarland’s car
and stated the search of Mr. McFarland’s phone “revealed conversations directly
after the shooting in which [Mr.] McFarland indicated the firearm and narcotics are
his and in his vehicle.” Further, Detective Jones’ affidavit stated that in a
conversation on his phone, Mr. McFarland “attempt[ed] to have his girlfriend . . .
retrieve the firearm and narcotics from [his] vehicle, however, at the time of that
conversation Mr. McFarland’s vehicle had already been seized by police on the
scene.” Additionally, Detective Jones detailed evidence of drug dealing activity
3 Based on Detective Jones’ testimony, “defeated” meant the ATF Task Force was able to
get past any passwords or other security systems on Mr. McFarland’s phone.
5 found on Mr. McFarland’s phone, namely sending pictures of marijuana to
contacts; answering questions about the “strand type, flavor, and price” of the
marijuana; and providing meet up locations “that were preceded or followed by
Cashapp transactions in small denominations.” Detective Jones stated in his
affidavit that he believed he and his fellow detectives would not only be able to
apprehend Mr. McFarland at his residence, but also search for any outstanding
narcotics, firearms, and electronics used by Mr. McFarland in the distribution of
narcotics. During his testimony, Detective Jones explained they did in fact discover
“additional firearms and magazines, marijuana, and some packing material
[associated with drug dealing].” Detective Jones testified this concluded his
involvement in the matter.
Counsel for Mr. McFarland then questioned how the investigating officers
initially developed Mr. McFarland as a suspect so as to as to justify the search
warrant for his vehicle. Detective Jones explained:
I [do not] think it was clear at the time his vehicle was seized and his phone was seized and he was asked for an interview who the perpetrator [of the shooting incident] was. So I think that was a normal part of the investigation that they were conducting. They were trying to obtain all the facts. They were trying to obtain all of the evidence. There was a firearm used. They were looking for the firearm for ballistic reports, and [those are] common things that are done in homicide reports so . . .
Detective Jones further explained, “I know that [Mr. McFarland] was present in the
surveillance footage of the incident, and he was there in his vehicle.” Additionally,
Detective Jones testified, “I believe, if I recall correctly,” that Mr. McFarland “was
part of [the] altercation in which this homicide occurred, and he entered and exited
his car on more than one occasion,” so the officers searched his vehicle “to locate
any potential weapons that were used in the incident.” Further, Detective Jones
6 explained that the surveillance video showed multiple individuals involved in the
shooting incident run to and get inside Mr. McFarland’s vehicle, which fled the
scene. Detective Jones acknowledged that the investigating officers ultimately
determined that Mr. McFarland was not the one who committed the homicide. But,
Detective Jones pointed out that at the time those officers searched Mr.
McFarland’s car, they did not know who had committed the homicide, and they
had to investigate their case.
As stated previously, Detective Jones referred to surveillance footage during
his testimony. Then, while arguing against Mr. McFarland’s Motion to Suppress,
counsel for the State also referred to that surveillance footage, noting it “revealed a
black male standing outside of a red Infinity sedan” and multiple subjects involved
in the shooting incident getting into that vehicle. Counsel for the State argued that
this video provided officers with probable cause to seize and search the vehicle to
determine if the gun used to commit the homicide was located inside. The district
court held Mr. McFarland’s Motion to Suppress open and requested to review the
video evidence, including the aforementioned surveillance footage and body worn
camera footage from on-campus officers who responded to the incident. Of import,
the State did not offer, file, or introduce the video evidence into the record during
the hearing. And, counsel for Mr. McFarland did not object to the district court
viewing the videos.
Denial of Mr. McFarland’s Motion to Suppress
On July 20, 2023, the district court denied Mr. McFarland’s Motion to
Suppress. In so doing, the district court noted that although officers eventually
determined Mr. McFarland was not responsible for the homicide, “they [initially]
developed him as a potential suspect” and thus had probable cause to seize his
7 vehicle and subsequently search it. Mr. McFarland then timely filed a writ
application with this Court regarding the district court’s denial of his Motion to
Suppress. In reviewing the district court’s ruling, this Court ordered Mr.
McFarland to supplement his writ application with the video exhibits viewed by
the district court. Ultimately, this Court denied Mr. McFarland’s writ application,
ruling the district court did not abuse its discretion in denying Mr. McFarland’s
Motion to Suppress. The matter then proceeded once again before the district
court.
Plea Agreement
Thereafter, Mr. McFarland and the State reached a plea agreement; and on
January 9, 2024, Mr. McFarland entered a guilty plea pursuant to La. C.Cr.P. art.
890.1.4 Specifically, Mr. McFarland pled guilty to: (1) one count of violating La.
R.S. 14:95(E) (“Illegal carrying of weapons”); (2) one count of violating La. R.S.
40:966(B)(2)(a) (“Penalty for distribution or possession with intent to distribute
narcotic drugs listed in Schedule I; possession of marijuana, synthetic
cannabinoids, and heroin”); and (3) one count of violating La. R.S. 40:967(B)(1)(a)
(“Prohibited acts—Schedule II; penalties”). After summarizing the plea agreement
for the district court, counsel for Mr. McFarland subsequently explained to the
4 Louisiana Code of Criminal Procedure Article 890.1 is titled “Waiver of minimum
mandatory sentences; procedure; exceptions” and provides in pertinent part as follows:
A. Notwithstanding any other provision of law to the contrary, if a felony or misdemeanor offense specifies a sentence with a minimum term of confinement or a minimum fine, or that the sentence shall be served without benefit of parole, probation, or suspension of sentence, the court, upon conviction, in sentencing the offender shall impose the sentence as provided in the penalty provisions for that offense, unless one of the following occurs:
(1) The defendant pled guilty pursuant to a negotiated plea agreement with the prosecution and the court, which specifies that the sentence shall be served with benefit of parole, probation, or suspension of sentence or specifies a reduced fine or term of confinement.
8 district court that he was “working with the [District Attorney (“DA”)]’s office” to
amend the plea agreement “in the next 24 hours” to make it eligible for appeal
pursuant to Crosby, 338 So.2d 584. The district court advised counsel for Mr.
McFarland that if he received approval from the DA’s office to make this a Crosby
plea, then the court would approve this. However, neither the written plea
agreement nor the agreement as orally summarized by counsel for Mr. McFarland
to the district court made mention of Crosby.
The district court judge explained that because the parties brought the plea
agreement pursuant to La. C.Cr.P. art. 890.1, she could sentence Mr. McFarland
below the mandatory minimum.5 Then, the district court sentenced Mr. McFarland
to five years at the Department of Corrections at hard labor, with five years
suspended/deferred, and three years of active probation on Count 1 (violation of
La. R.S. 14:95(E)); five years at the Department of Corrections at hard labor, with
five years suspended/deferred, and three years of active probation on Count 2
(violation of La. R.S. 40:966(B)(2)(A)); and five years at the Department of
Corrections at hard labor, with five years suspended/deferred, and three years of
active probation on Count 3 (violation of La. R.S. 40:967(B)(1)(A)). Additionally,
the district court ordered that all of the sentences were to run concurrently and with
credit for time served.
In the record before this Court are two pleadings Mr. McFarland
subsequently filed with the district court. One is a “Notice of Intent to Apply to the
5 In particular, the district court noted the parties’ agreement departed from the mandatory minimum sentence for illegal carrying of a weapon while in possession of narcotics in violation of La. R.S. 14:95(E).
In State v. Kondylis, the Louisiana Supreme Court explained that La. C.Cr.P. art. 890.1, grants district courts “the authority to depart from the mandatory terms of imprisonment and conditions placed on those sentences otherwise specified by law by agreement of all parties.” 2014-0196, pp. 2-3 (La. 10/3/14), 149 So.3d 1210, 1211.
9 Louisiana Fourth Circuit Court of Appeal” (“Notice of Intent”), and the other is a
“Petition and Order for Appeal” (“Petition for Appeal”). Mr. McFarland dated both
of these pleadings April 3, 2024, but the district court stamped them as filed in July
2024.
ASSIGNMENTS OF ERROR
On appeal, Mr. McFarland asserts four assignments of error:
1. The [district] court erred and abused its discretion in denying [Mr. McFarland’s] Motion to Suppress the evidence illegally obtained from Mr. McFarland’s vehicle.
2. The [district] court erred in finding that there was sufficient probable cause for the issuance of a search warrant for Mr. McFarland’s vehicle, cell phone, and residence on the basis that the officer(s) lacked sufficient probable cause to obtain search warrants for Mr. McFarland’s vehicle and cell phone.
3. The [district] court erred when it considered the contents of the video surveillance, even though the video surveillance was not offered, filed, and introduced into evidence.
4. The [district] court erred in failing to suppress all evidence obtained as a result of the search warrant of Mr. McFarland’s vehicle, cell phone, and residence because all the seized evidence constitutes “fruit of the poisonous tree”.
Before considering the merits of these assignments of error, we address some
preliminary matters and review the matter for errors patent.
PRELIMINARY MATTERS
Timeliness of Mr. McFarland’s Appeal
Before discussing the merits of Mr. McFarland’s appeal, we ex proprio motu
question the timeliness of Mr. McFarland’s appeal. We do so because for an
appellate “court to have appellate jurisdiction over a criminal case, the motion for
appeal must be timely filed.” State v. Counterman, 461 So.2d 664, 665 (La. App.
1st Cir. 1984) (emphasis removed) (citations omitted). If the defendant has not
10 timely filed his motion for appeal, then “there is nothing for an appellate court to
review, and the appeal should be dismissed.” Id., 461 So.2d at 665-66 (citations
omitted). This is because the defendant’s “conviction and sentence became final
when the defendant failed to appeal timely.” State v. Gray, 2004-1272, p. 3 (La.
App. 5 Cir. 4/26/05), 902 So.2d 1060, 1061 (citing State v. Counterman, 475 So.2d
336, 338 (La. 1985)). For the conviction and sentence to be “subject to review
under the ordinary appellate process,” the defendant must “obtain[] the
reinstatement of his right to appeal.” Id.
Delineating the time period for filing an appeal in criminal matters, La.
C.Cr.P. art. 914(B)(1) provides that “[t]he motion for an appeal must be made not
later than . . . [t]hirty days after the rendition of the judgment or ruling from which
the appeal is taken.” Despite the above-cited jurisprudence and the deadline
provided in La. C.Cr.P. art. 914(B)(1), this Court has previously considered a
defendant’s untimely appeal if the State failed to object to the procedural
irregularity at the time the defendant sought the appeal. State v. Laneheart, 2012-
1580, pp. 2-3 (La. App. 4 Cir. 2/26/14), 135 So.3d 1221, 1224-25. So too has the
Louisiana Fifth Circuit Court of Appeals. State v. Williams, 2011-881, p. 2 (La.
App. 5 Cir. 3/27/12), 91 So.3d 442, 443 n.2. As this Court explained in Laneheart,
“ordering a dismissal to allow the defendant to properly seek reinstatement of
appeal rights would only prolong the proceedings without serving any useful
purpose.” 2012-1580, p. 2, 135 So.3d at 1225 (citing Williams, 2011-881, p. 2, 91
So.3d at 443 n.2).
As stated previously, on January 9, 2024, Mr. McFarland pled guilty to all
the charges brought by the State, and the district court sentenced him that same
day. Then, the district court received two pleadings from Mr. McFarland dated
11 April 3, 2024—his Notice of Intent and Petition for Appeal—whereby he sought
review from this Court. Mr. McFarland filed both of these pleadings beyond the
thirty-day deadline for seeking an appeal, but the State did not object to the
procedural irregularity at the time Mr. McFarland filed the pleadings. Nor does the
State object in its brief to this Court. Because a dismissal of Mr. McFarland’s
appeal to allow him time to properly seek reinstatement of his appeal rights would
only prolong this matter without serving any useful purpose, we find this appeal is
properly before this Court.
Whether Mr. McFarland Reserved His Right to Appeal
A second preliminary matter we must consider is whether Mr. McFarland
reserved his right to appeal the district court’s denial of his Motion to Suppress in
light of the plea agreement. The reason we question this is because “[i]n general, a
plea of guilty waives nonjurisdictional defects in the proceedings prior to the plea,”
including insufficiency of the evidence. State v. Willis, 52,126, pp. 5-6 (La. App. 2
Cir. 8/15/18), 253 So.3d 915, 919 (first citing State v. Mack, 45,552, p. 3 (La. App.
2 Cir. 8/11/10), 46 So.3d 801, 803; and then citing State v. Whittington, 46,723, pp.
4-5 (La. App. 2 Cir. 12/14/11), 80 So.3d 723, 725). Nonetheless, “[u]nder Crosby,
a defendant [ca]n plead[] guilty, but reserve[] his right to appeal alleged pretrial
errors.” State v. Gross, 2009-6, p. 2 (La. App. 3 Cir. 7/8/09), 16 So.3d 551, 554.
The purpose “of this type of contingent or conditional plea ‘is to permit a fair and
efficient review of a central issue when the pretrial ruling on that issue, if
erroneous, would mandate reversal of any resulting conviction.” Id. at pp. 2-3, 16
So.3d at 554 (quoting State v. Cooper, 43,809, p. 6 (La. App. 2 Cir. 1/14/09), 2
So.3d 1172, 1177-78). The rulings a defendant “typically” preserves with a Crosby
plea “include denial of a motion to suppress evidence.” State v. Joseph, 2003-315,
12 p. 2 (La. 5/16/03), 847 So.2d 1196, 1197. See also State v. Hall, 2014-0738, p. 1
(La. App. 4 Cir. 2/18/15), 160 So.3d 1060, 1062 n.3. This is precisely what Mr.
McFarland seeks from this Court—review of the district court’s denial of his
Motion to Suppress.
Notably, “[t]he consent of the district attorney to a Crosby-plea is not
necessary.” State v. Brown, 2015-1319, p. 2 (La. App. 4 Cir. 4/20/16), 193 So.3d
267, 269 n.1 (citing State v. Gillis, 2007-1909, p. 4 (La. App. 1 Cir. 3/26/08), 985
So.2d 745, 747). Rather, in Crosby, the Louisiana Supreme Court held, “the
[district] court has very great and virtually unreviewable discretion to reject rather
than accept a guilty plea conditioned upon reservation of appellate review of pre-
plea assignments of non-jurisdictional error.” 338 So.2d at 590 (citations omitted).
Thus, the district court, has “plenary power” to accept or reject a Crosby “plea,
regardless of whether the State [agreed or] disagreed with the plea.” Gillis, 2007-
1909, p. 4, 985 So.2d at 747. In other words, a defendant’s right “to condition his
plea upon the reservation for appellate review of pre-plea errors is subject [solely]
to acceptance by the [district] court” because “[n]othing in Crosby or the Crosby
jurisprudence suggests that there must also be agreement by the State before a trial
court can accept a Crosby plea.” Id. Also of note, “a Crosby plea, by its very
nature, is limited.” Gross, 2009-6, p. 3, 16 So.3d at 554. If “[a] defendant . . . fails
to specify which pre-trial ruling he wishes to reserve for appeal as part of a guilty
plea entered under Crosby,” the defendant “is not precluded from review
altogether, but his appellate review may be limited in scope.” State v. Lewis, 2010-
1022, p. 5 (La. App. 5 Cir. 9/27/11), 75 So.3d 495, 499 (citing Joseph, 2003-315,
p. 1, 847 So.2d at 1196).
13 Turning to the matter sub judice, our concern is whether Mr. McFarland’s
plea was a Crosby plea as he alleges it was. This concern stems from the fact that
neither the written plea agreement nor the oral summary of the plea given to the
district court by Mr. McFarland’s counsel stated that the plea was a Crosby plea.
Nevertheless, after counsel for Mr. McFarland summarized the plea agreement, he
subsequently informed the district court that he was “working with the DA’s office
to . . . amend” the plea to be a Crosby plea and simultaneously referenced this
Court’s denial of Mr. McFarland’s writ application regarding his Motion to
Suppress. In response, the district court stated, “If you get approval from the DA’s
office to take it under [Crosby], the [c]ourt will allow it to be taken under
[Crosby].” Thus, the district court clearly approved Mr. McFarland’s plea being a
Crosby plea. As the previously-delineated jurisprudence explains, the approval of
the DA’s office was unnecessary—even though Mr. McFarland’s counsel sought
it6—as long as the district court approved the plea being a Crosby plea. Moreover,
Mr. McFarland’s counsel referred to Crosby at the time Mr. McFarland entered his
plea, thereby preserving his right to appellate review. Cf. State v. Smith, 2009-168,
p. 4 (La. App. 5 Cir. 6/23/09), 19 So.3d 509, 510-11 (explaining “[a] defendant
may be allowed appellate review if at the time he enters a guilty plea, he expressly
reserves his right to appeal a specific adverse ruling in the case” but holding the
defendant therein did not preserve his appellate rights under Crosby because
“[t]here was no mention that the guilty plea was being entered pursuant to Crosby
6 In its brief to this Court, counsel for the State explains:
Although Appellant states that his plea was taken under . . . Crosby[] . . . and that the State withdrew any objections to a “Crosby plea” on March 19, 2024, the undersigned attorney cannot find anything in the record which substantiates that claim. However, the undersigned attorney does believe, after speaking with trial attorneys familiar with the case, that this assertion is accurate.
14 either during the plea colloquy or on the [plea] form”). Further, by referencing this
Court’s denial of Mr. McFarland’s writ application regarding his Motion to
Suppress, Mr. McFarland’s counsel established the issue for which Mr. McFarland
sought to preserve his appellate rights under Crosby, i.e., the suppression issue.
The district court therefore accepted Mr. McFarland’s guilty plea with the
preservation of his right to appeal its ruling on his Motion to Suppress. In sum, we
agree with Mr. McFarland that his plea was a Crosby plea. Having determined that
Mr. McFarland’s appeal is properly before this Court, we next conduct our errors
patent review.
ERRORS PATENT REVIEW
In accordance with La. C.Cr.P. art. 920, we review all criminal appeals for
errors patent. An error patent is one “that is discoverable by a mere inspection of
the pleadings and proceedings and without inspection of the evidence.” La. C.Cr.P.
art. 920(2). We have reviewed the pleadings and proceedings in this record and
find there are no errors patent. Next, we turn to the merits of Mr. McFarland’s
assignments of error but discuss them out of order.
DISCUSSION
Assignment of Error Number Three: Whether the District Court Erred in Considering the Video Evidence When Deciding Mr. McFarland’s Motion to Suppress
In his third assignment of error, Mr. McFarland contends the district court
erred in considering the surveillance and body-worn camera videos in denying his
Motion to Suppress. Mr. McFarland asserts this was an error because the State did
not offer the videos into evidence during the hearing on his Motion to Suppress
and the district court did not admit them into evidence. The State counters the
15 district court properly considered the video evidence because Mr. McFarland—or
rather, his counsel—did not object to the district court doing so.
We begin our discussion of the merits of Mr. McFarland’s appeal by
resolving this assignment of error. The reason we do so is because “[a] court may
not consider exhibits . . . in the record which were not filed into evidence unless
the exhibits were introduced and . . . [deemed] admissible at the trial or hearing.”
Landis Constr. Co. v. State, 2015-1167, p. 3 (La. App. 1 Cir. 2/29/16), 199 So.3d
1, 2 n.1. This is true for both the district court and the appellate court. State v.
Leggett, 2018-647, p. 2 (La. App. 5 Cir. 3/18/19), 2019 WL 1246911, at *2
(holding the district court “judge improperly considered evidence not properly
offered and introduced at the . . . hearing” on the defendant’s motion to suppress);
State v. Cobb, 2013-0431, p. 1 (La. App. 4 Cir. 6/25/14), 161 So.3d 28, 29
(explaining this Court could not consider an investigating officer’s affidavit
because the district court did not admit it into evidence during the hearing on the
defendant’s motion to quash). Thus, while Mr. McFarland questions the propriety
of the district court having reviewed the video footage, resolution of this
assignment of error not only informs the correctness of the district court’s ruling
but also what we, as an appellate court, may consider in our analysis of Mr.
McFarland’s other assignments of error.
Despite the foregoing rule, however, Louisiana courts have held that in
criminal cases “in which evidence is considered by the [district] court without
objection,” that “evidence is deemed to be tacitly admitted.” State v. Lloyd, 48,914
(La. App. 2 Cir. 1/14/15), 161 So.3d 879, 893 (citations omitted). See also State v.
Nargo, 2015-779, pp. 3-5 (La. App. 3 Cir. 6/1/16), 193 So.3d 1263, 1266-67.
Moreover, in Lloyd, the Louisiana Second Circuit Court of Appeal observed that
16 defense counsel not only failed to object to the State playing certain recordings at
trial but also that “the record [was] clear that defense counsel wanted the
recording[s] played in open court so the [district] court could hear it.” Lloyd,
48,914, p. 16, 161 So.3d at 892 (emphasis added). The forgoing jurisprudence
implements the so-called “contemporaneous objection” rule established in La.
C.Cr.P. art. 841. That rule provides, in pertinent part, that “[a]n irregularity or error
cannot be availed of after verdict unless it was objected to at the time of
occurrence.” La. C.Cr.P. art. 841(A). As this Court recently explained, “[o]ne
purpose of this rule is so that ‘the [district court] judge can cure the error.’” State v.
Henderson, 2025-0097, p. 19 (La. App. 4 Cir. 12/30/25), ___ So.3d ___, ___, 2025
WL 3763924, at *10 (quoting State v. Lanclos, 2007-0082, p. 6 (La. 4/8/08), 980
So.2d 643, 648). The rule thus “prevent[s] the defendant from gambling for a
favorable verdict and then resorting to appeal on errors that might easily have been
corrected by an objection.” State v. Rickmon, 2023-0048, p. 12 (La. App. 4 Cir.
8/30/23), 372 So.3d 60, 70 (citing State v. Vernon, 2016-0692, p. 8 (La. App. 4 Cir.
12/21/16), 207 So.3d 525, 529).
In the matter sub judice, when the district court judge stated she wanted to
view the videos prior to ruling on Mr. McFarland’s Motion to Suppress and asked
the State to provide her with copies of same, Mr. McFarland’s counsel did not
contemporaneously object. Further, Mr. McFarland’s counsel actually argued
before the district court that the videos served as a basis to grant Mr. McFarland’s
Motion to Suppress. Based on La. C.Cr.P. art. 841(A), Lloyd, and Nargo, we deem
the videos “tacitly admitted” into evidence. As such, the district court did not err in
17 considering the videos, and we can consider them in our resolution of Mr.
McFarland’s remaining assignments of error.7
Assignment of Error Number One: Whether the District Court Erred and Abused Its Discretion in Denying Mr. McFarland’s Motion to Suppress with Respect to the Evidence Obtained from His Vehicle
In his first assignment of error, Mr. McFarland asserts the district “court
erred and abused its discretion in denying [his Motion to Suppress] the evidence
illegally obtained from [his] vehicle.” Mr. McFarland contends the officers seized
the evidence “in violation of the United States and Louisiana Constitution[s]”
because they “lacked sufficient probable cause to seize and tow his vehicle”
without a warrant in the first place. As the State accurately summarizes this
assignment of error in its brief, Mr. McFarland “contest[s] all evidence seized
pursuant to . . . [the subsequent search] warrants[8] on the theory that the . . .
warrants were tainted by the initial warrantless seizure[] of [Mr. McFarland’s] car .
. . .” The State counters that Mr. McFarland’s “arguments fail here because . . .
[Detective] Jones explained the exigent circumstances” surrounding the
warrantless seizure of Mr. McFarland’s vehicle. Further, the State argues that even
if this Court were to find the situation did not present “exigent circumstances, the
warrantless seizure of [Mr. McFarland]’s car and phone did not affect any privacy
interest since a search was only conducted after police officers obtained warrants
to search [his] property.”
7 We note the videos were not originally part of the appellate record for this case. However, in November 2025, this Court issued an Order, which advised that the “Court will utilize the entire record, including the video recordings previously submitted in [Mr. McFarland’s] writ application . . . in order to render a decision in the instant appeal, pursuant to Uniform Rules-Courts of Appeal, 2-1.14.” Rule 2-1.14 of the Uniform Rules of the Courts of Appeal provides that “[a]ny record lodged in the Court of Appeal may, with leave of court, be used, without necessity of duplication, in any other appeal or writ application.” 8 As delineated earlier in the Opinion, after obtaining search warrants, officers searched
Mr. McFarland’s vehicle, phone, and residence.
18 Standard of Review
We begin our analysis with the relevant standard of review. As this Court
recently explained, “a motion to suppress presents a mixed question of law and
fact.” State v. Brown, 2025-0440, p. 7 (La. App. 4 Cir. 9/10/25), 424 So.3d 150,
154-55 (quoting State v. Hill, 2025-0316, pp. 10-11 (La. App. 4 Cir. 8/19/25), 418
So.3d 1119, 1127). In considering the district court’s ruling on a motion to
suppress, “the appellate court reviews the underlying facts for an abuse of
discretion but reviews conclusions to be drawn from those facts de novo.” Id. at p.
7, 424 So.3d at 155 (quoting Hill, 2025-0316, p. 11, 424 So.3d at 1127). The
reason an appellate court reviews the facts for an abuse of discretion and affords
great weight to the district court’s factual findings is because “the district court
ha[d] the opportunity to observe the witnesses and weigh the credibility of their
testimony.” Id. at p. 7, 424 So.3d at 154 (internal quotation marks omitted)
(quoting Hill, 2025-0316, p. 10, 418 So.3d at 1127). When no facts are in dispute,
“the appellate court need only consider whether the district court came to the
proper legal determination under the undisputed facts.” Id. at p. 7, 424 So.3d at 155
(quoting Hill, 2025-0316, p. 11, 418 So.3d at 1127). In the instant matter, there are
no underlying facts in dispute. Accordingly, we will conduct a de novo review of
the district court’s ruling.
Warrantless Seizures
As Mr. McFarland correctly states in his brief, both the United States and
Louisiana Constitutions protect from unreasonable searches and seizures. The
Fourth Amendment to the United States Constitution, which is titled “Searches and
Seizures; Warrants[,]” provides that people have the right “to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures”
19 and that this right “shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” Similarly, La. Const.
art. 1, § 5, states:
Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.
As this Court has held, “a warrantless . . . seizure is presumed to be unreasonable”
in light of the above constitutional provisions. State v. Debose, 2024-0217, p. 12
(La. App. 4 Cir. 6/13/24), 390 So.3d 971, 980 (quoting State v. Willis, 2022-0452,
p. 13 (La. App. 4 Cir. 9/1/22), 348 So.3d 167, 175).
When a defendant believes that officers unconstitutionally obtained evidence
against him, he may file a motion to suppress pursuant to La. C.Cr.P. art. 703.9
State v. Randolph, 2023-0690, p. 11 (La. App. 4 Cir. 11/20/23), 377 So.3d 825,
833. If the “defendant makes an initial showing of a warrantless seizure, the burden
shifts to the [S]tate to show that the seizure falls into one of the exceptions to the
warrant requirement.” State v. Hall, 555 So.2d 495, 497 (La. App. 4th Cir. 1989)
(first citing State v. Pomes, 376 So.2d 133, 135 (La. 1979); and then citing State v.
Smith, 466 So.2d 752, 757 (La. App. 4th Cir. 1985)). See also State v. Washington,
591 So.2d 1388, 1389 (La. App. 4th Cir. 1991) (citing Pomes, 376 So.2d at 135).
9 Louisiana Code of Criminal Procedure Article 703(A) provides that “[a] defendant
adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.”
20 The Exigent Circumstances Exception
In relevant part, “exigent circumstances” are one such exception. Hall, 555
So.2d at 497-98 (first citing State v. Franklin, 353 So.2d 1315, 1319 (La. 1977);
and then citing State v. Perkins, 451 So.2d 1146, 1149 (La. App. 4th Cir. 1984)).
The Louisiana Supreme Court has reasoned the exception exists because in certain
“situations, the need for effective law enforcement trumps the right of privacy and
the requirement of a search warrant, thereby excusing an otherwise
unconstitutional intrusion.” State v. Warren, 2005-2248, p. 11 (La. 2/22/07), 949
So.2d 1215, 1224-25 (citing Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct.
1642, 1645-46, 18 L.Ed.2d 782 (1967)). The exigent circumstances exception
“arise[s] from the need to prevent [an] offender’s escape,” particularly if “the car is
movable” and “the occupants [of the car] are alerted” to the situation. State v.
Ledford, 40,318, p. 6 (La. App. 2 Cir. 10/28/05), 914 So.2d 1168, 1173 (citations
omitted); State v. Wright, 562 So.2d 1192, 1195 (La. App. 5th Cir. 1990) (citation
omitted). See also State v. Howard, 2012-1117, p. 13 (La. App. 4 Cir. 7/3/13), 120
So.3d 831, 840 (listing an exigent circumstance as one when “possessors of the
contraband were aware that the police were on their trail”). Further, the exigent
circumstances exception arises when there exists “the need . . . to minimize the
possibility of a violent confrontation which could cause injury to the officers and
the public.” Ledford, 40,318, p. 6, 914 So.2d at 1173 (citations omitted). To this
end, “[t]he safety of others is a particular concern when police respond to a report
of a crime in progress, and, in such a situation,” the officers “should be afforded an
extra degree of deference.” Warren, 2005-2248, p. 9, 949 So.2d at 1224 (quoting
Reardon v. Wroan, 811 F.2d 1025, 1029 (7th Cir. 1987)). Additionally, the exigent
circumstances exception arises if there exists a need to “preserve evidence from
21 destruction or concealment.” Ledford, 40,318, pp. 6-7, 914 So.2d at 1173. In this
regard, the reasoning behind the exception is that “the car’s contents may never be
found again if a warrant must be obtained” before seizure of the car. Wright, 562
So.2d at 1195 (citation omitted).
The Louisiana Supreme Court has explained that “[i]n determining whether
sufficient exigent circumstances exist to justify the warrantless entry and search or
seizure, the court must consider the totality of the circumstances and the inherent
necessities of the situation at the time.” Warren, 2005-2248, p. 10, 949 So.2d at
1224 (internal quotation marks omitted) (quoting U.S. v. Rohrig, 98 F.3d 1506,
1511 (6th Cir. 1996)). In other words, “the exigent circumstances must be known
to the officers” at the time of the warrantless seizure, not “based on evidence
discovered during [a subsequent] search.” Id. (citations omitted)
As this Court has explained, for this exception to apply, the situation must
not only present exigent circumstances, but also “there must be probable cause to
believe the vehicle contains contraband or evidence of a crime.” State v. Neville,
2008-0014, p. 6 (La. App. 4 Cir. 6/4/08), 986 So.2d 884, 888 (citations omitted). In
this scenario, “[p]robable cause means ‘a fair probability that contraband or
evidence of a crime will be found.’” Id. (quoting Illinois v. Gates, 462 U.S. 213,
238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). It is “reasonable grounds for
belief, supported by less than prima facie proof but more than mere suspicion.”
Warren, 2005-2248, p. 10, 949 So.2d at 1224 (quoting United States v. Bennett,
905 F.2d 931, 934 (6th Cir. 1990)). The probable cause determination “must be
judged by the probabilities and practical considerations of everyday life on which
average people, and particularly average police officers, can be expected to act.”
Neville, 2008-0014, p. 6, 986 So.2d at 888 (first citing State v. Fischer, 1997-1133,
22 p. 8 (La.1998), 720 So.2d 1179, 1184; and then citing State v. Flagg, 1999-1004, p.
10 (La. App. 5 Cir. 4/25/00), 760 So.2d 522, 528). Further, the Louisiana Supreme
Court has instructed that the probable cause “determination must be made from the
totality of the circumstances, based on the objective facts known to the officer at
the time.” Warren, 2005-2248, p. 10, 949 So.2d at 1224 (citing United States v.
Ferguson, 8 F.3d 385, 391-92 (6th Cir.1993)).
Analysis
In this matter, the record establishes that officers seized Mr. McFarland’s
vehicle without first obtaining a warrant, so the State bore the burden of proving an
exception to the warrant requirement. We find, as the State asserts in its brief, that
the exigent circumstances exception applied because the situation presented
exigent circumstances and the officers had probable cause to seize Mr.
McFarland’s vehicle without waiting for a warrant. The officers were investigating
an active crime scene involving gun violence after an altercation arose between
two groups of people and an innocent bystander died. As Detective Jones testified,
Mr. McFarland “was present in the surveillance footage of the incident . . . in his
vehicle.” More particularly, Detective Jones stated, “Mr. McFarland was part of
this altercation in which this homicide occurred, and he entered and exited his car
on more than one occasion.” Likewise, Detective Jones stated that “individuals
from [the shooting] incident were seen entering [Mr. McFarland’s] car and
fleeing.” The video surveillance confirms this and shows Mr. McFarland drive his
vehicle and the individuals away from the scene. As Detective Jones testified, the
investigating officers “were trying to obtain all of the evidence” and “looking for
the firearm[s]” used in the shooting. The exigency stemmed from the mobility of
Mr. McFarland’s vehicle; the occupants’ knowledge of the shooting and likely
23 ensuing investigation; the necessity of preventing Mr. McFarland and any
individuals potentially responsible for the homicide from escaping; and the
officers’ need to protect potential evidence pertinent to the shooting from
destruction or concealment. Further, because a shooting had just occurred, the
officers needed to secure the scene to prevent harm to themselves and members of
the public. Mr. McFarland’s first assignment of error is without merit.
Assignment of Error Number Two: Whether the District Court Erred in Finding That There was Sufficient Probable Cause for the Issuance of the Search Warrants
In his second assignment of error, Mr. McFarland argues the district “court
erred in finding . . . sufficient probable cause for the issuance of [the] search
warrant[s]” because “the officer(s) lacked sufficient probable cause to obtain
search warrants for Mr. McFarland’s vehicle, cell phone, and residence.” Further,
Mr. McFarland alleges “the officer(s) and detective mislead [sic] the Magistrate
Commissioner, by providing information . . . regarding the unrelated
homicide/shooting incident in an effort to successfully obtain a search warrant for
Mr. McFarland’s vehicle, cell phone, and residence.” Essentially, Mr. McFarland
argues the district court should have granted his Motion to Suppress because the
warrants were not based on probable cause. The State counters that Mr. McFarland
“failed to carry his burden to prove that the warrants were invalid,” noting he “did
not call any witnesses or present any evidence in any fashion that showed that the
warrant was based on material misrepresentations or omissions.”
Principles Applicable to a Motion to Suppress Evidence Obtained Pursuant to a Search Warrant
As stated previously, in considering a district court’s ruling on a motion to
suppress, we “review[] the underlying facts for an abuse of discretion but review[]
24 conclusions to be drawn from those facts de novo.” Brown, 2025-0440, p. 7, 424
So.3d at 155 (quoting Hill, 2025-0316, p. 11, 418 So.3d at 1127). As we also
explained in the prior section, the initial burden of proof on a motion to suppress
rests with the defendant. La. C.Cr.P. art. 703(D). This is true when a defendant
challenges a search warrant via a motion to suppress. That is, if officers seized the
evidence that is the subject of the motion to suppress “pursuant to a search warrant,
the burden is on the defendant to show that the warrant lacked probable cause.”
State v. Lang, 2019-0586, p. 5 (La. App. 4 Cir. 7/22/19), 276 So.3d 558, 562
(citing La. C.Cr.P. at. 703(D)).
Probable Cause Requirement
“[T]he admissibility of evidence” depends “upon the validity of the search.”
Id. (citing State v. Bradford, 1998-1428, p. 4 (La. App. 4 Cir. 12/9/98), 729 So.2d
1049, 1051). For a search pursuant to a warrant to be valid, the warrant must be
supported by probable cause. This is because La. C.Cr.P. art. 162 states that “[a]
search warrant may issue only upon probable cause established to the satisfaction
of the judge, by the affidavit of a credible person, reciting facts establishing the
cause for issuance of the warrant.” Probable cause:
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 to be searched. This determination rests on whether the totality of the circumstances forms a substantial basis for a finding of probable cause. Thus, [p]robable cause for the issuance of a search warrant does not involve certainties of proof beyond a reasonable doubt, or even a prima facie showing, but rather involves probabilities of human behavior as understood by persons trained in law enforcement and based on the totality of the circumstances. The Louisiana Supreme Court has explained that when a magistrate has already found probable cause in an affidavit, reviewing courts should interpret the affidavit in a realistic and common sense fashion, aware that it is
25 normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation.
Randolph, pp. 12-13, 377 So.3d at 834 (internal quotation marks omitted) (internal
citations omitted) (alteration in original).
Further, probable cause needs to “be within the ‘four corners’ of the
affidavit.” Randolph, p. 14, 377 So.3d at 834 (quoting State v. Casey, 1999-0023,
p. 4 (La. 1/26/00), 775 So.2d 1022, 1028). The reasoning behind this requirement
is that “the judge, not the affiant, . . . must be satisfied as to the existence of
probable cause.” Id. (quoting State v. Green, 2002-1022, p. 8 (La. 12/4/02), 831
So.2d 962, 969). Accordingly, the affiant must give the magistrate judge sufficient
“information to make an independent judgment that probable cause exists” rather
than leaving the magistrate judge to ratify “the bare conclusions of others.” Id. The
Louisiana Supreme Court advises courts to simultaneously follow these guidelines
and “[to] strive to uphold warrants to encourage their use by police officers.” Id. at
p. 14, 377 So.3d at 834.
Continuing Nexus Requirement
For a search pursuant to a warrant to be valid, the warrant also needs to
“establish a probable continuing nexus between the place sought to be searched
and the property sought to be seized.” Id. at p. 13, 377 So.3d at 834 (quoting
Casey, 1999-0023, p. 4, 775 So.2d at 1028). This is because La. C.Cr.P. art. 162(C)
requires the “search warrant [to] particularly describe the person or place to be
searched, the persons or things to be seized, and the lawful purpose or reason for
the search or seizure.” The continuing nexus requirement is met when one can
logically infer the evidence sought would be found in the place(s) officers seeks to
26 search. Randolph, 2023-0690, p. 14, 377 So.3d at 834 (quoting U.S. v. Edwards,
124 F.Supp.2d 387, 421 (M.D. La. 2000)).
Presumption of Validity
Courts are to presume the validity of an affidavit supporting a search
warrant; and if a defendant alleges the representations in the affidavit are false,
then the defendant has the burden of proving this. State v. Williams, 2020-46, p. 51
(La. App. 5 Cir. 12/30/20), 308 So.3d 791, 830 (first citing State v. Shiell, 2016-
447, p. 4 (La. App. 5 Cir. 12/7/16), 204 So.3d 1213, 1217; and then citing State v.
Dee, 2009-712, p. 11 (La. App. 5 Cir. 2/23/10), 34 So.3d 892, 899). To meet his
burden of proof, the defendant must demonstrate “by a preponderance of the
evidence that the affidavit contains intentional misrepresentations.” Id. (citing
Shiell, 2016-447, p. 4, 204 So.3d at 1217). If the defendant meets this burden of
proof, the reviewing court will invalidate the warrant and suppress the items seized
because “[a] material and intentional misrepresentation made in an affidavit
presented to a magistrate constitutes a fraud upon the court.” Id.
With these principles in mind, we consider their application to the matter sub
judice. The affidavit submitted in support of a search warrant for Mr. McFarland’s
vehicle explained that (1) an NOPD detail officer heard multiple shots fired at
Xavier and then observed several people who had been shot; (2) video surveillance
of the crime scene revealed [Mr. McFarland] standing in the threshold of a vehicle,
with multiple individuals involved in the shooting incident running toward and
getting inside said vehicle subsequently driven away by Mr. McFarland; and (3)
officers learned during the investigation of the shooting that the vehicle contained
a firearm. Under the totality of the circumstances, the magistrate correctly found
27 probable cause to issue the search warrant for Mr. McFarland’s vehicle and a
continuing nexus between the items sought and the location. The affiant explained
an offense occurred (the shooting) and demonstrated that evidence of same
(particularly the firearm(s) used in the shooting) might be found in Mr.
McFarland’s vehicle in light of his presence at the scene and individuals involved
in the altercation entering his vehicle immediately after the shooting. The
information was not conclusory in nature but based on officer observation and
corroborated by surveillance evidence. Accordingly, the magistrate did not err in
finding probable cause existed to issue the search warrant for Mr. McFarland’s
vehicle. Further, while Mr. McFarland contends the officers misled the magistrate
by referring to the “unrelated homicide/shooting incident,” Mr. McFarland offered
no evidence to meet his burden of proving this. For example, Mr. McFarland
offered nothing to demonstrate that officers knew at the time they sought the
search warrant that he was not involved in the shooting incident and that no
evidence of same would be in his vehicle.
Subsequently, after the search of Mr. McFarland’s vehicle yielded evidence
of multiple crimes, including illegal possession of firearms and possession of
illegal drugs and drug paraphernalia, the investigating officers sought another
search warrant for Mr. McFarland’s cell phone to obtain information related to
suspected drug dealing activity. Detective Jones’ affidavit for the search warrant
for Mr. McFarland’s cell phone established that, pursuant to a lawful search of Mr.
McFarland’s vehicle, officers discovered a handgun with an extended magazine
and no serial number (a privately made firearm commonly known as a “ghost
gun”); 1.5 pounds of marijuana; pills (believed to be illicit drugs); and
paraphernalia related to drug dealing, such as a digital scale and packaging
28 material. The affidavit explained that, based on officer knowledge of the common
way modern drug transactions occur, additional evidence of drug trafficking was
likely on Mr. McFarland’s cell phone. The foregoing established probable cause
and a continuing nexus sought between the location of the search (Mr.
McFarland’s cell phone) and the information sought (drug dealing activity).
Then, Detective Jones authored the affidavit for the search warrant for Mr.
McFarland’s residence. Therein, Detective Jones explained what officers had
already seized from Mr. McFarland’s car and what he and his fellow detectives had
gleaned from Mr. McFarland’s phone. In this latter regard, Detective Jones
explained Mr. McFarland admitted in cell phone conversations that he owned the
ghost gun and narcotics seized by officers from his vehicle and had attempted to
hide this evidence from police. Further, Detective Jones’ affidavit detailed
evidence of drug dealing activity discovered by detectives on Mr. McFarland’s
phone. Detective Jones explained they were likely to discover additional narcotics,
firearms, and electronics used by Mr. McFarland in the distribution of narcotics in
his home. The foregoing established probable cause and a continuing nexus sought
between the location of the search (Mr. McFarland’s home) and the evidence
sought (drugs, electronics used to deal drugs, and illegal firearms).
In sum, we find all three search warrants met the required probable cause
and continuing nexus requirements. Thus, the district court did not err in denying
Mr. McFarland’s Motion to Suppress on this basis. Mr. McFarland’s third
assignment of error is without merit.
29 Assignment of Error Number Four: Whether the District Court Erred in Failing to Suppress All Evidence Under the “Fruit of the Poisonous Tree” Doctrine
In his fourth and final assignment of error, Mr. McFarland asserts the district
“court erred in failing to suppress all evidence obtained as a result of the search
warrant of Mr. McFarland’s vehicle, cell phone, and residence because all the
seized evidence constitutes ‘fruit of the poisonous tree.’” More particularly, Mr.
McFarland argues that “because the initial seizure and search of Mr. McFarland’s
vehicle lacked probable cause, such search was illegal; therefore, any evidence
ascertained as a result of the search and subsequent evidence must be suppressed
because all the evidence (gun and drugs) were obtained as a direct result of the
illegal seizure and search of Mr. McFarland’s vehicle.” The State counters that Mr.
McFarland’s assignment of error is without merit because he “has failed to
demonstrate any deficiencies in any of the warrants upon which the searches were
based.” Further, the State reiterates that “exigent circumstances existed to seize
[Mr. McFarland]’s property and that property was not searched until after law
enforcement obtained valid search warrants.” We agree with the State.
As this Court recently delineated:
“the [fruit of the poisonous tree] doctrine serves to exclude from evidence the direct and indirect products of illegal violations of the Fourth Amendment” to the United States Constitution. Also known as “[t]he exclusionary rule,” it “bars, as illegal ‘fruit of the poisonous tree,’ any physical and verbal evidence obtained either during or as a direct result of an unlawful invasion.” Not only does “[t]he rule extend[] to . . . primary evidence obtained during or as a direct result of an illegal search or seizure,” but also to “evidence later discovered and found to be a derivative of illegality.” However, as this Court has further explained, “[w]hen there is no primary illegality, the ‘fruit of the poisonous tree theory’ does not apply.” Accordingly, a trial court should not suppress evidence or statements subsequently obtained if the initial interaction with the defendant was not illegal.
30 Hill, 2025-0316, pp. 18-19, 418 So.3d at 1132 (footnote omitted) (internal citations
omitted) (alterations in original). In this latter regard, as we explained previously,
the exigent circumstances exception “excus[es] an otherwise unconstitutional
intrusion.” Warren, 2005-2248, p. 11, 949 So.2d at 1224-25 (citation omitted).
That is, when the exigent circumstances exception applies, a warrantless seizure is
not unconstitutional or illegal. Likewise, as explained by the Louisiana Fifth
Circuit Court of Appeal, “evidence collected pursuant to a valid search warrant is
patently not an unlawful invasion” and “evidence retrieved pursuant to a valid
search warrant is not considered an illegality or fruit of the poisonous tree.”
Williams, 2020-46, p. 50, 308 So.3d at 830.
In a preceding section of this Opinion, we found there was no initial
illegality in the officers’ warrantless seizure of Mr. McFarland’s vehicle due to the
exigent circumstances and because the officers had probable cause to seize the
vehicle. Then, in the prior section of this Opinion, we also found the officers had
probable cause to obtain the search warrants for Mr. McFarland’s vehicle and cell
phone. Because there was no initial illegality, the fruit of the poisonous tree
doctrine does not apply to the evidence subsequently obtained by the officers.
Accordingly, the district court did not err in denying Mr. McFarland’s Motion to
Suppress on that basis. This assignment of error is without merit.
DECREE
For the foregoing reasons, we hold the district court did not err in denying
Mr. McFarland’s Motion to Suppress. Accordingly, we affirm Mr. McFarland’s
convictions and sentences.
AFFIRMED
Related
Cite This Page — Counsel Stack
State of Louisiana v. Damon Z. McFarland Jr., Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-louisiana-v-damon-z-mcfarland-jr-lactapp-2026.