STATE OF LOUISIANA * NO. 2024-K-0491
VERSUS * COURT OF APPEAL DARNELL T. MCKEY * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 560-951, SECTION “A” Honorable Simone A. Levine, ****** Judge Sandra Cabrina Jenkins ****** (Court composed of Chief Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Rachael D. Johnson)
Jason R. Williams District Attorney Brad Scott Chief of Appeals Zachary M. Phillips Assistant District Attorney ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE 619 South White Street New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/RELATOR
Jarred P. Bradley THE BRADLEY LAW FIRM, PLLC 143 Metairie Heights Ave. Metairie, LA 70001
COUNSEL FOR DEFENDANT/RESPONDENT
WRIT GRANTED. JUDGMENT REVERSED. OCTOBER 21, 2024 SCJ TFL RDJ The State of Louisiana seeks review of the trial court’s July 10, 2024 ruling
granting defendant’s motion to suppress the evidence and finding no probable
cause. Finding that the trial court abused its discretion in granting the defendant’s
motion to suppress the evidence and no probable cause, we grant the State’s
application for supervisory writs and reverse the trial court’s rulings.
PROCEDURAL HISTORY
On February 19, 2024, defendant, Darnell McKey, was charged, in a bill of
information, with one count illegal carrying of a weapon, in violation of La. R.S.
14:95; one count of possession of a firearm while in possession of a controlled
dangerous substance, in violation of La. R.S. 14:95(E); twos count of possession
with the intent to distribute cocaine, in an amount less than 28 grams, in violation
of La. R.S. 40:967(B)(1)(a); and one count of possession with the intent to
distribute fentanyl, in an amount less than 28 grams, in violation of La. R.S.
40:967(B)(4)(a). On March 6, 2024, defendant appeared for arraignment and
entered pleas of not guilty.
1 The defendant filed a motion to suppress evidence on April 25, 2024. The
trial court conducted a hearing on the motion on June 27, 2024, and took the matter
under advisement. On July 10, 2024, the trial court issued its ruling granting
defendant’s motion to suppress. On August 8, 2024, the State noticed its intent to
seek supervisory writs, and the trial court set a return date of August 10, 2024. The
State timely filed its writ application on August 9, 2024. On that same date, the
defendant filed a motion for leave to file an opposition to the state’s writ
application.
STANDARD OF REVIEW
When reviewing trial court decisions on motions to suppress, the trial court’s
determinations of fact are reviewed for abuse of discretion, and legal decisions are
reviewed de novo. State v. Candebat, 2013-0780, pp. 6-7 (La. App. 4 Cir.
1/30/14), 133 So.3d 304, 306 (citing State v. Wells, 2008-2262 (La. 7/6/10), 45
So.3d 577).
DISCUSSION
The State asserts that the trial court erred when it granted the defendant’s
motion to suppress and found no probable cause. The defendant argued in his
motion that there was no probable cause to arrest him for concealing a firearm
because his gun was not concealed. At the hearing on the motion to suppress, the
two arresting officers testified.
New Orleans Police Officer Giana Leach testified that on the date of
defendant’s arrest, she and her partner were in the back of a store located at 6100
St. Claude Avenue in New Orleans getting breakfast. The officers observed a male
individual (defendant) waiting to purchase something at the store’s front counter,
and Officer Leach observed “a bulge on his right side.” That observation led
2 Officer Leach to believe that defendant had “a weapon on his right side under his
shirt.” Officer Leach notified her partner as to what she had observed and her
partner, Officer Brionna Antoine, saw the “same thing.” At that point, both
officers approached defendant to perform “a suspicious person stop” and found he
had a firearm under his shirt. The officers took the gun and the defendant was
placed in handcuffs. The officers asked the defendant if he had a conceal carry
permit. Officer Leach could not recall defendant’s response, but stated that he
“[m]ost likely” responded that “he was legal.” The officers then “proceeded to do a
pat-down of his pockets,” recovering “drugs and cash.” Thereafter, defendant was
arrested and given his Miranda1 rights. Officer Leach confirmed that it was after
they removed defendant’s weapon that a search was performed. Pursuant to this
search, they found the illegal drugs.
New Orleans Police Officer Brionna Antoine testified that she, along with
Officer Leach, arrested defendant on October 1, 2023 while at a store located at
6100 St. Claude Avenue. Officer Antoine stated that the “clip” from defendant’s
weapon was “bulging from under his shirt.” Officer Antoine confirmed that
defendant’s shirt “was completely covering” the weapon.
In her ruling, the trial judge stated:
Police may arrest an individual if they have probable cause to believe that the individual has committed a crime. State v. Hamilton, 36 So.3d 209, 212-213 (La. 5/11/10). However, a defendant cannot be said to be carrying a concealed weapon if the weapon is sufficiently exposed to reveal its identity. State v. Dyer, 388 So.2d 374, 376 (La. 1980), quoting State v. Fluker, 311 So.2d 863 (La. 1975). The Dyer court found that where a defendant was walking down a street in New Orleans and was observed by a police officer to have a weapon protruding from his right front pocket, he could not be said to have a concealed firearm. Id. at 376.
1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 69 (1966).
3 The trial court concluded that the defendant’s gun was not concealed, and
the officers lacked probable cause to arrest and then search defendant, thereby
necessitating the suppression of the evidence. The court relied upon on State v.
Fluker which held that “a weapon, although not in ‘full, open view,’ is nonetheless
not a ‘concealed’ weapon if it is sufficiently exposed to reveal its identity.” 311
So.2d 863, 866 (La. 1975). In Fluker, the Court determined that the weapon was
not concealed because the “[d]efendant wore the gun in a holster on his hip in open
view. The gun was exposed, except for that portion in the holster.” Id.
In the present case, defendant’s gun was not in open view; it was not
exposed. Instead, it was concealed underneath the defendant’s shirt as established
by the testimony of both arresting officers and their body cam video. In clip 2 of
the footage, one can see from a distance defendant’s gun protruding from his
waistband but completely covered underneath his shirt. Another clip reflects the
same footage, but closer-up, showing the bulge underneath defendant’s shirt more
distinctly. In clip 1, an officer can be seen lifting defendant’s shirt so she could
remove his weapon.
Thus, contrary to the situation in Fluker, the defendant’s gun was not in
open view; it was concealed underneath his shirt. In State v. Moore, 2024-0158, p.
4 (La. App. 4 Cir. 5/10/24), 390 So.3d 413, 415, this Court recently recognized that
the “[d]efendant presented suspicious behavior by placing his left arm across his
waistband to cover a bulge” and justified an investigatory stop ultimately justifying
search yielding contraband. Further, the defendant provided no proof to the
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STATE OF LOUISIANA * NO. 2024-K-0491
VERSUS * COURT OF APPEAL DARNELL T. MCKEY * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 560-951, SECTION “A” Honorable Simone A. Levine, ****** Judge Sandra Cabrina Jenkins ****** (Court composed of Chief Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Rachael D. Johnson)
Jason R. Williams District Attorney Brad Scott Chief of Appeals Zachary M. Phillips Assistant District Attorney ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE 619 South White Street New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/RELATOR
Jarred P. Bradley THE BRADLEY LAW FIRM, PLLC 143 Metairie Heights Ave. Metairie, LA 70001
COUNSEL FOR DEFENDANT/RESPONDENT
WRIT GRANTED. JUDGMENT REVERSED. OCTOBER 21, 2024 SCJ TFL RDJ The State of Louisiana seeks review of the trial court’s July 10, 2024 ruling
granting defendant’s motion to suppress the evidence and finding no probable
cause. Finding that the trial court abused its discretion in granting the defendant’s
motion to suppress the evidence and no probable cause, we grant the State’s
application for supervisory writs and reverse the trial court’s rulings.
PROCEDURAL HISTORY
On February 19, 2024, defendant, Darnell McKey, was charged, in a bill of
information, with one count illegal carrying of a weapon, in violation of La. R.S.
14:95; one count of possession of a firearm while in possession of a controlled
dangerous substance, in violation of La. R.S. 14:95(E); twos count of possession
with the intent to distribute cocaine, in an amount less than 28 grams, in violation
of La. R.S. 40:967(B)(1)(a); and one count of possession with the intent to
distribute fentanyl, in an amount less than 28 grams, in violation of La. R.S.
40:967(B)(4)(a). On March 6, 2024, defendant appeared for arraignment and
entered pleas of not guilty.
1 The defendant filed a motion to suppress evidence on April 25, 2024. The
trial court conducted a hearing on the motion on June 27, 2024, and took the matter
under advisement. On July 10, 2024, the trial court issued its ruling granting
defendant’s motion to suppress. On August 8, 2024, the State noticed its intent to
seek supervisory writs, and the trial court set a return date of August 10, 2024. The
State timely filed its writ application on August 9, 2024. On that same date, the
defendant filed a motion for leave to file an opposition to the state’s writ
application.
STANDARD OF REVIEW
When reviewing trial court decisions on motions to suppress, the trial court’s
determinations of fact are reviewed for abuse of discretion, and legal decisions are
reviewed de novo. State v. Candebat, 2013-0780, pp. 6-7 (La. App. 4 Cir.
1/30/14), 133 So.3d 304, 306 (citing State v. Wells, 2008-2262 (La. 7/6/10), 45
So.3d 577).
DISCUSSION
The State asserts that the trial court erred when it granted the defendant’s
motion to suppress and found no probable cause. The defendant argued in his
motion that there was no probable cause to arrest him for concealing a firearm
because his gun was not concealed. At the hearing on the motion to suppress, the
two arresting officers testified.
New Orleans Police Officer Giana Leach testified that on the date of
defendant’s arrest, she and her partner were in the back of a store located at 6100
St. Claude Avenue in New Orleans getting breakfast. The officers observed a male
individual (defendant) waiting to purchase something at the store’s front counter,
and Officer Leach observed “a bulge on his right side.” That observation led
2 Officer Leach to believe that defendant had “a weapon on his right side under his
shirt.” Officer Leach notified her partner as to what she had observed and her
partner, Officer Brionna Antoine, saw the “same thing.” At that point, both
officers approached defendant to perform “a suspicious person stop” and found he
had a firearm under his shirt. The officers took the gun and the defendant was
placed in handcuffs. The officers asked the defendant if he had a conceal carry
permit. Officer Leach could not recall defendant’s response, but stated that he
“[m]ost likely” responded that “he was legal.” The officers then “proceeded to do a
pat-down of his pockets,” recovering “drugs and cash.” Thereafter, defendant was
arrested and given his Miranda1 rights. Officer Leach confirmed that it was after
they removed defendant’s weapon that a search was performed. Pursuant to this
search, they found the illegal drugs.
New Orleans Police Officer Brionna Antoine testified that she, along with
Officer Leach, arrested defendant on October 1, 2023 while at a store located at
6100 St. Claude Avenue. Officer Antoine stated that the “clip” from defendant’s
weapon was “bulging from under his shirt.” Officer Antoine confirmed that
defendant’s shirt “was completely covering” the weapon.
In her ruling, the trial judge stated:
Police may arrest an individual if they have probable cause to believe that the individual has committed a crime. State v. Hamilton, 36 So.3d 209, 212-213 (La. 5/11/10). However, a defendant cannot be said to be carrying a concealed weapon if the weapon is sufficiently exposed to reveal its identity. State v. Dyer, 388 So.2d 374, 376 (La. 1980), quoting State v. Fluker, 311 So.2d 863 (La. 1975). The Dyer court found that where a defendant was walking down a street in New Orleans and was observed by a police officer to have a weapon protruding from his right front pocket, he could not be said to have a concealed firearm. Id. at 376.
1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 69 (1966).
3 The trial court concluded that the defendant’s gun was not concealed, and
the officers lacked probable cause to arrest and then search defendant, thereby
necessitating the suppression of the evidence. The court relied upon on State v.
Fluker which held that “a weapon, although not in ‘full, open view,’ is nonetheless
not a ‘concealed’ weapon if it is sufficiently exposed to reveal its identity.” 311
So.2d 863, 866 (La. 1975). In Fluker, the Court determined that the weapon was
not concealed because the “[d]efendant wore the gun in a holster on his hip in open
view. The gun was exposed, except for that portion in the holster.” Id.
In the present case, defendant’s gun was not in open view; it was not
exposed. Instead, it was concealed underneath the defendant’s shirt as established
by the testimony of both arresting officers and their body cam video. In clip 2 of
the footage, one can see from a distance defendant’s gun protruding from his
waistband but completely covered underneath his shirt. Another clip reflects the
same footage, but closer-up, showing the bulge underneath defendant’s shirt more
distinctly. In clip 1, an officer can be seen lifting defendant’s shirt so she could
remove his weapon.
Thus, contrary to the situation in Fluker, the defendant’s gun was not in
open view; it was concealed underneath his shirt. In State v. Moore, 2024-0158, p.
4 (La. App. 4 Cir. 5/10/24), 390 So.3d 413, 415, this Court recently recognized that
the “[d]efendant presented suspicious behavior by placing his left arm across his
waistband to cover a bulge” and justified an investigatory stop ultimately justifying
search yielding contraband. Further, the defendant provided no proof to the
officers that he had a permit to carry a concealed weapon as was his duty under
4 applicable law.2 By not informing the officers about a permit, the officers had
probable cause to arrest him for the illegal carrying of a concealed weapon.
Because the officers possessed probable cause to arrest defendant, the
subsequent search in which the narcotics were discovered was also valid. In this
case, while the weapon was found and the defendant was handcuffed, he was not
formally placed under arrest and read his Miranda rights until after the narcotics
were discovered on his person. However, searches incident to arrest conducted
immediately before formal arrest are valid if probable cause to arrest existed prior
to the search. See State v. Sherman, 2005-0779, p. 9 (La. 4/4/06), 931 So.2d 286,
292.
Accordingly, the trial court abused its discretion in granting the motion to
suppress and finding no probable cause. We grant the State’s writ application and
reverse the trial court’s judgment.
WRIT GRANTED. JUDGMENT REVERSED.
2 La. R.S. 40:1379.3(I)(2) provides, in pertinent part:
A permittee armed with a handgun in accordance with this Section or a person carrying a weapon pursuant to R.S. 14:95(M) shall notify any police officer who approaches the permittee in an official manner or with an identified official purpose that he has a weapon on his person, submit to a pat down, and allow the officer to temporarily disarm him.