STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 09-62
STATE OF LOUISIANA
VERSUS
DAVY C. HARRIS
**********
APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. C14069 HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Shannon J. Gremillion, Judges.
Amy, J., dissents and would affirm the ruling of the trial court.
REVERSED.
Van Hardin Kyzar District Attorney, 10th JDC Billy J. Harrington, Assistant District Attorney P. O. Box 838 Natchitoches, LA 71458 (318) 357-2214 Counsel for Plaintiff/Appellee: State of Louisiana
Mark Owen Foster Louisiana Appellate Project P. O. Box 2057 Natchitoches, LA 71457 (318) 572-5693 Counsel for Defendant/Appellant: Davy C. Harris GREMILLION, Judge.
The Defendant, Davy C. Harris, was charged by bill of information with
possession of cocaine, a violation of La.R.S. 40:967, after police found cocaine in his
wallet. He was arraigned and entered a plea of not guilty. He filed a Motion to
Suppress which was denied following a hearing.
Defendant entered a guilty plea pursuant to State v. Crosby, 338 So.2d 584
(La.1976), to possession of cocaine and reserved his right to seek review of the denial
of his Motion to Suppress. He was subsequently sentenced to serve three years at
hard labor. The sentence was suspended and Defendant was placed on two years
supervised probation. He was also ordered to pay a fine of $1,000 or serve six
months in jail. He was further ordered to pay fines and fees totaling $2,000.
Defendant is now before this court asserting one assignment of error. He
contends the trial court erred in denying his Motion to Suppress. We agree.
The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Similarly, the Louisiana Constitution provides that “[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” LA. CONST. art. 1, § 5. As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. Warrantless searches and seizures are considered to be per se unreasonable unless they can be justified by one of the Fourth Amendment’s warrant exceptions. See, e.g., State v. Freeman, 97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, 634. The state has the burden of showing that one of the exceptions applies. See, e.g., State v. McHugh, 92-1852 (La.1/6/94), 630 So.2d 1259, 1262. We review a trial court[’]s ruling on a motion to suppress under the manifest error standard. State v. Williams, 08-272, p. 3 (La.App. 5 Cir. 12/16/08), 3 So.3d 526; State v. Higgins, 03-1980, p. 20-21 (La.4/1/05), 898 So.2d 1219, 1233, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).
State v. Holmes, 08-719 p. 2 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 278.
1 Deputy Roger Henson testified he received information from Lieutenant Brad
Walker “in which he stated that he had received information of narcotics activity
occurring at the boarding house on Berry Avenue . . . .” Deputy Henson was unaware
of the source of the information relayed to him by Lieutenant Walker. Several
deputies with the narcotics task force went to that location, later established as a
“high drug area” by witness testimony. Deputy Henson testified that as the officers
pulled up to the boarding house, there were ten to fifteen people in front of the
building and Defendant, among others, ran inside the boarding house. Deputy
Henson stated that he and two other officers followed Defendant into the boarding
house.
Deputy Henson further testified that Defendant ran into his bedroom. An
officer knocked on the bedroom door. However, Defendant would not respond.
After several “attempts” to get Defendant out of the room, he finally opened the
door. Deputy Henson testified that he then “escorted” Defendant out of the boarding
house into an area where several others had been “detained.” During that time,
Defendant was not handcuffed and was observed trying to give his wallet to someone
else several times. Deputy Henson described the subsequent sequence of events as
follows:
At that time I grabbed the wallet and asked him if there was anything in it. He said no. I asked him if he minded me looking inside the wallet. He said that’s okay. So I opened the wallet up and observed one rock of crack/cocaine inside the wallet.
Deputy Henson further testified that there were suspected crack pipes and
empty wrappers, which were indicative of crack cocaine and marijuana use, on the
ground outside the boarding house when the officers arrived. Deputy Henson
testified that he did not observe Defendant selling drugs or using drugs.
2 Corporal Jessie Taitano (one of the other officers on the scene) testified that
he did not observe Defendant committing a crime. However, he observed Defendant
attempt to give his wallet to someone else, but he was not close enough to hear what
was said during that time.
ANALYSIS
The procession of the officers’ conduct began with a tip. However, the State
did not present any evidence regarding the source of that tip to Lieutenant Walker.
Thus, one must presume the information was provided via an anonymous tip. See
State v. Young, 99-2120 (La.App. 4 Cir. 9/6/00), 770 So.2d 7, 10, writ denied, 00-
2798 (La. 9/21/01), 797 So.2d 63. See also State v. Boson, 99-1984 (La.App. 4 Cir.
1/17/01), 778 So.2d 687, writ denied, 01-430 (La. 9/13/02), 824 So.2d 1192.
An anonymous tip is actionable if it bears a “sufficient indicia of reliability”
Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 2415 (1990). This boils down
to two elements. The first is a “tendency to identify a determinate person.” Florida
v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 1379 (2000). The second, and much more
important element, is reliability regarding its “assertion of illegality.” Id. Here, we
have no evidence that the tip at issue provided any information that would tend to
identify Defendant. Furthermore, although Deputy Henson testified there were
suspected crack pipes and wrappers on the ground outside the boarding house that
were indicative of marijuana and crack cocaine use, he did not testify that he saw
Defendant using these items, in possession of these items, or that the items were even
close to where Defendant had been upon the arrival of police. Without more, there
was simply no reason to believe the tip was reliable as to its assertion of illegality.
Upon the officers’ arrival, Defendant fled to his room in the boarding house.
3 “Flight, nervousness, or a startled look at the sight of a police officer is, by itself,
insufficient to justify an investigatory stop; however, this type of conduct may be
highly suspicious and, therefore, may be one of the factors leading to a finding of
reasonable suspicion.” State v. Stanfield, 05-839, p. 5 (La.App. 5 Cir. 3/14/06), 925
So.2d 710, 715.
It is the State’s contention that Defendant’s flight to his room was, indeed,
highly suspicious when placed together with the tip, the drug paraphernalia, and the
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 09-62
STATE OF LOUISIANA
VERSUS
DAVY C. HARRIS
**********
APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. C14069 HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Shannon J. Gremillion, Judges.
Amy, J., dissents and would affirm the ruling of the trial court.
REVERSED.
Van Hardin Kyzar District Attorney, 10th JDC Billy J. Harrington, Assistant District Attorney P. O. Box 838 Natchitoches, LA 71458 (318) 357-2214 Counsel for Plaintiff/Appellee: State of Louisiana
Mark Owen Foster Louisiana Appellate Project P. O. Box 2057 Natchitoches, LA 71457 (318) 572-5693 Counsel for Defendant/Appellant: Davy C. Harris GREMILLION, Judge.
The Defendant, Davy C. Harris, was charged by bill of information with
possession of cocaine, a violation of La.R.S. 40:967, after police found cocaine in his
wallet. He was arraigned and entered a plea of not guilty. He filed a Motion to
Suppress which was denied following a hearing.
Defendant entered a guilty plea pursuant to State v. Crosby, 338 So.2d 584
(La.1976), to possession of cocaine and reserved his right to seek review of the denial
of his Motion to Suppress. He was subsequently sentenced to serve three years at
hard labor. The sentence was suspended and Defendant was placed on two years
supervised probation. He was also ordered to pay a fine of $1,000 or serve six
months in jail. He was further ordered to pay fines and fees totaling $2,000.
Defendant is now before this court asserting one assignment of error. He
contends the trial court erred in denying his Motion to Suppress. We agree.
The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Similarly, the Louisiana Constitution provides that “[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” LA. CONST. art. 1, § 5. As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. Warrantless searches and seizures are considered to be per se unreasonable unless they can be justified by one of the Fourth Amendment’s warrant exceptions. See, e.g., State v. Freeman, 97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, 634. The state has the burden of showing that one of the exceptions applies. See, e.g., State v. McHugh, 92-1852 (La.1/6/94), 630 So.2d 1259, 1262. We review a trial court[’]s ruling on a motion to suppress under the manifest error standard. State v. Williams, 08-272, p. 3 (La.App. 5 Cir. 12/16/08), 3 So.3d 526; State v. Higgins, 03-1980, p. 20-21 (La.4/1/05), 898 So.2d 1219, 1233, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).
State v. Holmes, 08-719 p. 2 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 278.
1 Deputy Roger Henson testified he received information from Lieutenant Brad
Walker “in which he stated that he had received information of narcotics activity
occurring at the boarding house on Berry Avenue . . . .” Deputy Henson was unaware
of the source of the information relayed to him by Lieutenant Walker. Several
deputies with the narcotics task force went to that location, later established as a
“high drug area” by witness testimony. Deputy Henson testified that as the officers
pulled up to the boarding house, there were ten to fifteen people in front of the
building and Defendant, among others, ran inside the boarding house. Deputy
Henson stated that he and two other officers followed Defendant into the boarding
house.
Deputy Henson further testified that Defendant ran into his bedroom. An
officer knocked on the bedroom door. However, Defendant would not respond.
After several “attempts” to get Defendant out of the room, he finally opened the
door. Deputy Henson testified that he then “escorted” Defendant out of the boarding
house into an area where several others had been “detained.” During that time,
Defendant was not handcuffed and was observed trying to give his wallet to someone
else several times. Deputy Henson described the subsequent sequence of events as
follows:
At that time I grabbed the wallet and asked him if there was anything in it. He said no. I asked him if he minded me looking inside the wallet. He said that’s okay. So I opened the wallet up and observed one rock of crack/cocaine inside the wallet.
Deputy Henson further testified that there were suspected crack pipes and
empty wrappers, which were indicative of crack cocaine and marijuana use, on the
ground outside the boarding house when the officers arrived. Deputy Henson
testified that he did not observe Defendant selling drugs or using drugs.
2 Corporal Jessie Taitano (one of the other officers on the scene) testified that
he did not observe Defendant committing a crime. However, he observed Defendant
attempt to give his wallet to someone else, but he was not close enough to hear what
was said during that time.
ANALYSIS
The procession of the officers’ conduct began with a tip. However, the State
did not present any evidence regarding the source of that tip to Lieutenant Walker.
Thus, one must presume the information was provided via an anonymous tip. See
State v. Young, 99-2120 (La.App. 4 Cir. 9/6/00), 770 So.2d 7, 10, writ denied, 00-
2798 (La. 9/21/01), 797 So.2d 63. See also State v. Boson, 99-1984 (La.App. 4 Cir.
1/17/01), 778 So.2d 687, writ denied, 01-430 (La. 9/13/02), 824 So.2d 1192.
An anonymous tip is actionable if it bears a “sufficient indicia of reliability”
Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 2415 (1990). This boils down
to two elements. The first is a “tendency to identify a determinate person.” Florida
v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 1379 (2000). The second, and much more
important element, is reliability regarding its “assertion of illegality.” Id. Here, we
have no evidence that the tip at issue provided any information that would tend to
identify Defendant. Furthermore, although Deputy Henson testified there were
suspected crack pipes and wrappers on the ground outside the boarding house that
were indicative of marijuana and crack cocaine use, he did not testify that he saw
Defendant using these items, in possession of these items, or that the items were even
close to where Defendant had been upon the arrival of police. Without more, there
was simply no reason to believe the tip was reliable as to its assertion of illegality.
Upon the officers’ arrival, Defendant fled to his room in the boarding house.
3 “Flight, nervousness, or a startled look at the sight of a police officer is, by itself,
insufficient to justify an investigatory stop; however, this type of conduct may be
highly suspicious and, therefore, may be one of the factors leading to a finding of
reasonable suspicion.” State v. Stanfield, 05-839, p. 5 (La.App. 5 Cir. 3/14/06), 925
So.2d 710, 715.
It is the State’s contention that Defendant’s flight to his room was, indeed,
highly suspicious when placed together with the tip, the drug paraphernalia, and the
fact that they were in a “high drug area.” In fact, in State v. Hill, 01-1372, p. 6
(La.App. 5 Cir. 5/15/02), 821 So.2d 79, 83, the fifth circuit stated, “This court has
found that presence in a high crime area, coupled with nervousness, startled behavior,
flight, or suspicious actions upon the approach of officers, is sufficient to justify an
investigatory stop.” See also State v. Jones, 02-1168 (La.App. 4 Cir. 1/29/03), 839
So.2d 377; State v. Johnson, 01-2081 (La. 4/26/02), 815 So.2d 809; State v. Jackson,
26,138 (La.App. 2 Cir. 8/17/94), 641 So.2d 1081; State v. Williams, 613 So.2d 259
(La.App. 1 Cir. 1992); State v. Solomon, 93-1199 (La.App. 3 Cir. 3/2/94), 634 So.2d
1330.
However, in State v. Temple, 02-1895 (La. 9/9/03), 854 So.2d 856, the
supreme court noted that citizens are presumed law abiding, even those in high crime
areas. Further, the case at bar is distinguishable from cases where courts have found
the presence of a defendant in a high crime area coupled with flight provided a basis
for police to conduct an investigatory stop. Defendant lived at the boarding house;
thus, he was at his residence when police arrived and he ran into his own room.
Police followed Defendant into the boarding house. They made several
attempts to get Defendant out of the room and he eventually opened the door. There
4 was no testimony regarding what was said to Defendant during that time, and
consequently, no evidence which would allow us to conclude that he willingly left his
room.
Additionally, Defendant was “escorted” out of the boarding house into an area
where several others had been “detained.” Witnesses did not describe what was
meant by the phrase “escort” or if Defendant was free to leave during that time.
Again, it is unclear if Defendant was free to leave at the time he was brought to the
area where he, along with several others, were being detained.
Deputy Henson did testify that Defendant consented to the search of his wallet
after he grabbed it. “[V]oluntary consent is an exception to the warrant requirement.”
State v. Phillips, 04-827, p. 9 (La.App. 3 Cir. 11/10/04), 887 So.2d 670, 677. “If
consent to search is obtained after an illegal detention or entry, the consent is valid
only if it was the product of free will and not the result of exploitation of the previous
illegality.” State v. Veals, 07-605, p. 17 (La.App. 5 Cir. 1/22/08), 977 So.2d 1030,
1039-40, writ denied, 08-571 (La. 11/26/08), 997 So.2d 543. “The burden is on the
state to prove that the consent was given freely and voluntarily.” State v. Cooper,
43,809, p. 9 (La.App. 2 Cir. 1/14/09), 2 So.3d 1172, 1179 (citation omitted).
In State v. Owen, 453 So.2d 1202, 1206 (La.1984) (citations omitted), the
supreme court explained:
[I]f the consent was obtained after an illegal detention or entry, the consent was valid only if it was the product of a free will and not the result of an exploitation of the previous illegality. Among the factors considered in determining whether the consent was sufficiently attenuated from the unlawful conduct to be a product of a free will are whether the police officers adequately informed the individual that he need not comply with the request, the temporal proximity of the illegality and the consent, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct.
5 Although we do not find flagrant misconduct by the police, the fact remains
that we do not know enough about the initial tip to find it sufficiently reliable. We
do not find Defendant’s flight from is own front yard to his own room to be
particularly suspicious even though the yard and his room exist within a high crime
area and the yard contained possible drug paraphernalia. We cannot determine, based
on the record, whether Defendant willingly opened the door to his room. We cannot
know if Defendant consented to be escorted from his room or the temporal proximity
of this escort to the ultimate consent to search. From Deputy Henson’s testimony, it
is clear that Defendant did not willingly give his wallet to the officer. There is also
no testimony regarding whether Defendant was told he did not have to comply with
the officer’s request to search his wallet.
We agree with the trial court that Deputy Henson obtained consent to search
the Defendant’s wallet. However, considering the officers’ conduct, and the many
unknown facts surrounding this incident, we must conclude that the State failed to
meet its burden to prove not only that Defendant gave his consent, but also that the
consent was free and voluntary.
JUDGMENT
The Defendant’s conviction and sentence are set aside. The matter is
remanded to the trial court for further proceedings consistent with this ruling.