STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-1169
STATE OF LOUISIANA
VERSUS
REGINALD TARAL WARREN
**********
ON APPLICATION FOR SUPERVISORY WRITS FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. 23,906-A HONORABLE DESIREE DYESS, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Marc T. Amy, and Candyce G. Perret, Judges.
WRIT DENIED. Billy Joseph Harrington District Attorney Tenth Judicial District P.O. Box 838 Natchitoches, LA 71458-0838 (318) 357-2214 COUNSEL FOR PLAINTIFF/RESPONDENT: State of Louisiana
David Michael Williams Attorney at Law 720 Murray Street Alexandria, LA 71301 (318) 442-6240 COUNSEL FOR DEFENDANT/APPLICANT: Reginald Taral Warren SAUNDERS, Judge.
On June 9, 2016, Defendant, Reginald Warren, was charged by bill of
information with second offense possession with the intent to distribute CDS II
(methamphetamine), in violation of La.R.S. 40:967 and 40:982; possession of CDS
V (promethazine), in violation of La.R.S. 40:970; third offense possession of CDS
I (marijuana), in violation of La.R.S. 40:966 and 40:982; illegal window tint, in
violation of La.R.S. 32:361; and driving while under suspension, in violation of
La.R.S. 32:415.
On September 22, 2016, Defendant filed two motions to suppress, alleging
an illegal search of a residence and an illegal traffic stop which led to invalid
consent to search a vehicle. On June 15, 2017, the trial court held a single hearing
on the motions to suppress. On September 11, 2017, the trial court denied
Defendant’s motions, and on September 28, 2017, the trial court issued “Written
Reasons for Judgment,” denying Defendant’s motions to suppress.
On September 22, 2017, Defendant filed his notice of intent to seek review
and the trial court set a November 3, 2017 return date. On November 3, 2017,
Defendant sought an extension of the return date from the trial court, which on
November 7, 2017, extended the return date to December 18, 2017. Defendant’s
writ application was timely postmarked on December 18, 2017, and seeks review
of the trial court’s denial of the motions to suppress.
ASSIGNMENT OF ERROR:
In his sole assignment of error, Defendant alleges the trial court erred in
denying his motions to suppress. Defendant breaks his argument into four parts:
(1) the search of his wallet and seizure of the Motel 6 key card was illegal, (2) the
search of the motel room itself should be illegal due to the illegality of the initial
search of Defendant’s wallet, (3) the search of the motel room was not legal “as a probationer search based on valid ‘[r]easonable [s]uspicion’ that [he] was engaged
in criminal activity[,]” and (4) the State failed to prove the motel room was his
residence to make it subject to a probationer search. We will address the legality of
the initial stop of Defendant, as well as the search of the wallet, and the search of
the motel room itself.
The testimony presented at trial shows that on March 31, 2016, Defendant
was stopped by two law enforcement officers who were on the look-out for him for
driving a vehicle with illegal tint on the windows. Both officers smelled
marijuana, leading to a K-9 open air sniff of the car. The animal alerted, and the
officers searched the vehicle, finding marijuana residue. Based on information
provided by a narcotics task force sergeant, the officers searched Defendant’s
wallet and obtained a motel room key card for a nearby Motel 6. At that time,
following the arrival of Probation and Parole agents at the traffic stop, Defendant
was transported to the Motel 6, and local law enforcement joined officers from
Probation and Parole in entering the motel room whose key card Defendant, a
parolee, had in his possession at the traffic stop. Officers found marijuana in plain
sight in the room and subsequently found methamphetamine hidden in a small bag
inside a clothes hamper. At that point, Probation and Parole turned the
investigation over to local law enforcement. Upon taking over the investigation
from Probation and Parole, local law enforcement sought a warrant for the motel
room, after having already located the marijuana and methamphetamine.
On March 31, 2016, was the defendant stopped by Deputy Brandon Smith
and Sergeant Clinton Dunn for driving with illegal tint on his windows. While
speaking with Defendant, both Deputy Smith and Sergeant Dunn testified they
could smell marijuana. Both officers testified the tint was measured and was
illegal. Agent Cory Campbell, a K-9 officer, ran his dog around the vehicle, and it 2 alerted. Deputy Smith was clear that the vehicle was not searched until after Agent
Campbell ran his K-9, which alerted. Deputy Smith testified he found “marijuana
shake and residue” inside the vehicle, along with cigars and spray bottles that he
would consider paraphernalia due to the residue. Deputy Smith clarified that
marijuana shake was “loose marijuana that they drop on the carpet or in a vehicle,
not enough for us . . . we could really charge for it, but we don’t. It’s just pieces of
it, small pieces of it.” Deputy Smith testified that he was instructed to bring
Defendant to the Motel 6 by Sergeant Dunn and that he entered a motel room with
several Probation and Parole officers, Sergeant Dunn, and Agent Trent Perry to
clear the room for officer safety. Deputy Smith noted that while clearing the room,
he observed a bag of suspected marijuana in plain view on the bed. He stated he
heard the Probation and Parole officers say they were going to search the room
prior to the decision to obtain a search warrant.
Sergeant Dunn testified that after the K-9 alerted on Defendant’s vehicle, he
searched Defendant’s wallet where he found a key to a room at Motel 6. Sergeant
Dunn believed the search of Defendant’s wallet was legal because he felt they had
probable cause to search him as a result of the K-9 alerting on the vehicle. Sergeant
Dunn testified that he did not observe or recover any narcotics in the vehicle or on
Defendant’s person. He testified that once he obtained the card from Defendant’s
wallet, he spent the remainder of the time covering logistics with Sergeant Roberts
via the radio. While certain an officer from Probation and Parole eventually arrived
at the traffic stop, he did not know the name of the officer. Sergeant Dunn testified
the uniformed officers who entered the motel room were there specifically to assist
Probation and Parole. He stated that he noticed flakes of marijuana on the table,
and he was present when someone found a bag of methamphetamine in a clothes
3 hamper, at which point Sergeant Roberts had everyone exit the room while
obtaining a search warrant.
Sergeant Dunn, on cross-examination, reiterated that he did not find
narcotics in Defendant’s car and that Defendant was not arrested for having illegal
narcotics prior to the search of his wallet. He also acknowledged the K-9 alerting
to the car did not create probable cause to arrest Defendant, but Defendant was
detained at Probation and Parole’s request. Sergeant Dunn also testified the sole
purpose of searching Defendant’s wallet was to obtain the motel key; he was not
looking for weapons or narcotics, merely the key. Although Sergeant Dunn
initially stated that Defendant was cooperative and handed over his wallet when
asked, he acknowledged after reviewing body-cam footage Defendant simply
acknowledged the wallet on the hood of the patrol car was his when asked. No
testimony was presented to explain why Defendant’s wallet was simply sitting on
the hood of the car.
Sergeant Dunn testified that Defendant told him he was coming from the
mechanic’s shop, which was located next to the Motel 6. As Sergeant Roberts had
already told Sergeant Dunn and Deputy Smith that Defendant had left the motel,
they considered his claim of coming from the mechanic a lie. Sergeant Dunn
acknowledged that multiple Probation and Parole officers arrived on-scene at the
traffic stop, but he did not know their names. He acknowledged Sergeant Roberts
was already in contact with Probation and Parole prior to the traffic stop, though he
could not say when the initial contact between them occurred. Sergeant Dunn was
unsure who found the methamphetamines in the laundry basket.
Following testimony from Deputy Smith and Sergeant Dunn, defense
counsel stated he would not be challenging the validity of the K-9 alerting on the
car. Subsequently, Agent Danny Green, an agent with Probation and Parole for the 4 State of Louisiana took the stand. He testified Defendant was on parole at the time
of the traffic stop, but that Agent Green was not the parole officer assigned to
Defendant. Agent Green testified that if Defendant was staying at a motel, even
temporarily, he was required to inform Probation and Parole where he was staying.
Furthermore, he testified that Defendant’s parole officer, Agent LaPoole, did not
know for sure where Defendant was staying when he had been stopped on a prior
traffic stop. Agent Green testified that he and other Probation and Parole officers
went to the traffic stop to determine if Defendant had violated the conditions of his
parole.
Agent Green testified that while speaking with Defendant at the scene of the
traffic stop, he asked Defendant “if anyone else was staying with him [at the
motel], he said no[.]” Agent Green testified Defendant told him he was staying at
the motel room by himself. Agent Green later clarified that Defendant did not
directly admit to staying in the motel room but that when asked if anyone else was
staying in the room with him, he simply said “no.” He also specifically stated that
he asked officers from the Natchitoches Parish Sheriff’s Office to assist him in
searching the motel room, as it was his intent to search the room. He stated the
motel staff informed him Defendant had been staying in Room 166 for
approximately five days, although he had been in multiple other rooms since
February. Agent Green testified he and several other officers entered the motel
room using the key card recovered from Defendant, and upon confirming no one
else was in the room, he noticed a bag of marijuana on the bed. Agent Green
testified that he asked the narcotics task force officers to take over the investigation
once it was clear that there were narcotics in plain sight, noting they typically “let
the locals” handle it since they were the ones who would need to have the narcotics
tested. 5 Agent Green testified that he did not remember anything other than the
marijuana being found before he asked the task force officers to take over and that
they chose to seek a search warrant because of departmental policy. He left prior to
the search pursuant to the warrant. Agent Green testified the conditions of
Defendant’s parole included: “I agree to visits at my residence or place of
employment by my parole officer at any time. I also agree to searches of my
person, property, residence, and/or vehicle when reasonable suspicion exists that I
am or have been engaged in criminal activity.”1
Sergeant Jonathan Roberts, a member of the Natchitoches Sheriff’s Office’s
Drug Task Force, testified that he was conducting a narcotics investigation into
Defendant based upon a complaint involving Defendant staying at the Motel 6.2
Sergeant Roberts testified that while surveilling Defendant pursuant to the
complaint, he noted a 2001 tan Chevy Tahoe parked outside the Motel 6 and that
roughly thirty minutes after seeing the vehicle at the Motel 6 on March 29, he
encountered Defendant driving the vehicle at a Chevron station nearby. Sergeant
Roberts stated that he saw the vehicle leave the motel on March 31, at which time
he alerted other officers to be on the lookout for the Tahoe. This alert led to the
traffic stop by Deputy Smith shortly thereafter. Sergeant Roberts testified that he
was never present at the scene of the traffic stop, but that he was the one who
informed Probation and Parole that Defendant had been stopped. He testified he
alerted Sedrick Smith, the Probation and Parole supervisor, who sent Agent Green
1 We note that the actual written conditions of Defendant’s parole were not submitted as an exhibit at the motion to suppress hearing. However, this language tracks the language of La.R.S. 15:574.4.2(A)(2)(i), as noted by defense counsel’s remark that “this isn’t just something that your office made up, this is the law.” 2 We note that the details of the complaint which prompted the investigation of Defendant are not provided, as neither the State nor the defense actually asked about the details of the complaint. 6 to meet Sergeant Roberts at the motel. He also testified he was never instructed by
Probation and Parole to detain Defendant.
Sergeant Roberts testified Defendant had been frequenting the motel and
giving an address of 1445 Grace Avenue, which he stated “prompted Agent Green
to realize that something was not right” because it was not the address Defendant
had reported. Sergeant Roberts testified that he was speaking to Defendant when
the motel room was initially entered. Sergeant Roberts testified that when he
entered the room the bag of marijuana on the bed was obvious, and he
subsequently noticed a bag that was out of place in the clothes hamper. He testified
there was a pencil bag which felt like it contained a “rock-like substance” in the
clothes hamper. Upon opening the bag, it contained “cellophane baggies with light
crystal-like substance in it. At that time, I knew that uh . . . I believed it to be
methamphetamine, due to the complaint I got already.” Sergeant Roberts testified
that at that point he put down the bag, photographed the bag, and informed Agent
Green of what he had found. Sergeant Roberts testified that he felt he was assisting
Probation and Parole when he found the methamphetamine and that he obtained a
search warrant once Probation and Parole turned the investigation over to him as a
matter of personal preference because “[y]ou can’t go wrong getting a search
warrant.”
Sergeant Roberts testified on cross-examination that, according to his report,
he stated they needed a search warrant when he first entered the room but
Probation and Parole told him no warrant was necessary. Sergeant Roberts noted
the address Defendant gave to Probation and Parole was on Schoolhouse Road in
Cloutierville, but he registered for the motel room with a Grace Avenue address.
Sergeant Roberts testified his early surveillance on the motel was “rolling
7 surveillance” where he simply drove through the parking lot, so he could not verify
how long Defendant stayed at the motel each night.
INITIAL TRAFFIC STOP
Although Defendant does not raise the issue of the original traffic stop to
this court, we will quickly address the validity of the initial stop. Testimony from
multiple officers during the suppression hearing makes it clear Deputy Smith and
Sergeant Dunn stopped Defendant because Sergeant Roberts was investigating him
pursuant to a narcotics complaint. As the Supreme Court made clear in Whren v.
U.S., 517 U.S. 806, 116 S.Ct. 1769 (1996), the actual motivations of the officers
making a traffic stop are irrelevant so long as there is objective evidence the
officers had probable cause to believe a traffic violation has occurred. Accordingly,
the initial traffic stop for illegal tint was valid.
SEIZURE AND SEARCH OF DEFENDANT’S WALLET
“A trial court is afforded great discretion when ruling on a motion to
suppress, and its ruling will not be disturbed absent abuse of that discretion.” State
v. Wilder, 09-2322, p. 2 (La. 12/18/09), 24 So.3d 197, 198.
The Fourth Amendment of the U.S. Constitution and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. Warrantless searches and seizures are unreasonable per se unless justified by a specific exception to the warrant requirement. State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 757, cert. denied, 01-2269 (La.9/20/02), 825 So.2d 1156. However, a person on parole or probation has a reduced expectation of privacy under the Fourth Amendment of the U.S. Constitution and under Article I, § 5 of the Louisiana Constitution. State v. Young, 07-988 (La.App. 5 Cir. 6/19/08), 988 So.2d 759, 762.
An individual on parole or probation does not have the same freedom from governmental intrusion into his affairs as does the average citizen. A probationer must necessarily have a reduced expectation of privacy, which allows for reasonable warrantless searches of his person and residence by his probation officer, even though less than probable cause may be shown. This reduced expectation of privacy derives from the probationer’s conviction and his agreement to allow a probation officer to investigate his activities 8 in order to confirm that he is abiding by the provisions of his probation. State v. Saulsby, 04-880 (La.App. 5 Cir. 12/28/04), 892 So.2d 655, 657–658.
A probation officer may not use his authority as a subterfuge to help another police agency that desires to conduct a search, but lacks probable cause. State v. Malone, 403 So.2d 1234, 1238 (La.1981). The parole or probation officer must believe that the search is necessary in the performance of his duties and reasonable in light of the total circumstances. State v. Saulsby, 892 So.2d at 658. In determining whether a warrantless search by a probation or parole officer was reasonable, the court must consider: (1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, and (4) the place in which it was conducted. State v. Malone, 403 So.2d at 1239; State v. Young, 988 So.2d at 763-764. Although the State still bears the burden of proving the admissibility of evidence seized without a warrant, when the search is conducted for probation violations, the State’s burden will be met when it establishes that there was reasonable suspicion that criminal activity was occurring. State v. Saulsby, 892 So.2d at 658.
State v. Bolden, 09-33, pp. 4-5 (La.App. 5 Cir. 5/12/09), 13 So.3d 1168, 1171, writ
denied, 09-1317 (La. 2/5/10), 27 So.3d 297.
“It is well settled under the Fourth and Fourteenth Amendments that a search
conducted without a warrant issued upon probable cause is ‘per se unreasonable
. . . subject only to a few specifically established and well-delineated exceptions.’”
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043 (1973). As laid
out in La.Code Crim.P. art. 703(D), “the state shall have the burden of proving the
admissibility of a purported confession or statement by the defendant or of any
evidence seized without a warrant.” Obviously, there was no warrant issued
granting Sergeant Dunn the authority to seize and search Defendant’s wallet in
order to obtain the key card for the motel room which was subsequently searched.
Thus, the State bears the burden of proving the search falls into a valid exception
to the warrant requirement. The trial court held the search of Defendant’s wallet
was lawful as a search incident to arrest. Defendant argues the search could not be
9 incident to arrest, correctly noting Deputy Smith’s testimony he did not intend to
arrest Defendant for the marijuana residue that was found in the vehicle.
In State v. Sherman, 05-779, p. 15 (La. 4/4/06), 931 So.2d 286, 296, the
supreme court specifically stated “we find the subjective intent of the officers does
not determine the reasonableness of a warrantless search incidental to arrest, where
the officer did not have an intent to arrest for the offense for which probable cause
objectively existed.” In Sherman, law enforcement officers on a narcotics
interdiction patrol observed the defendant standing in the road next to his
motorcycle, which may or may not have been in the roadway. The officers spoke
to the defendant, who told them his motorcycle was out of gas and that he did not
have a driver’s license. One of the officers then searched the defendant and found
crack cocaine, at which point the defendant was arrested for possession with the
intent to distribute CDS II. The supreme court upheld the search as incident to
arrest even though the defendant was not arrested for the crime, operating a motor
vehicle without a license, for which there was probable cause prior to the search,
stating:
Given the fact the lawful custodial arrest alone is sufficient to find a warrantless search of the person reasonable, [United States v.] Robinson, 414 U.S. [218,] 235, 94 S.Ct. [467,] 477 [(1973)], and that the search may precede the actual arrest, Rawlings [v. Kentucky], 448 U.S. [98,] 111, 100 S.Ct. [2556,] 2564 [(1980)], we find where probable cause to arrest exists, a search of the person does not violate the Fourth Amendment or La. Const. art. I, § 5, where the suspect is subject to the greater intrusion of arrest and search.
Nor should the subjective intentions of the officers play any role in our analysis. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996).
Id. at 295.
Although the testimony is not very clear regarding how long the traffic stop
lasted, it is clear that after law enforcement obtained the wallet and motel key card,
10 Deputy Smith transported Defendant to the Motel 6 then subsequently transported
him to the detention center for booking. There seems to have been some confusion
amongst law enforcement, as Sergeant Dunn testified they were detaining
Defendant at the traffic stop for Probation and Parole, yet Probation and Parole
never asked for Defendant to be detained, and Sergeant Roberts never told
Sergeant Dunn and Deputy Smith to detain Defendant.
Under La.Code Crim.P. art. 201: “Arrest is the taking of one person into
custody by another. To constitute arrest there must be an actual restraint of the
person. The restraint may be imposed by force or may result from the submission
of the person arrested to the custody of the one arresting him.” As the supreme
court has previously stated:
An arrest is “the taking of one person into custody by another [through] actual restraint [that] may be imposed by force or may result from submission of the person arrested to the custody of one arresting him.” State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179, 1183; La. C.Cr. P. art. 201. Whether a person has been arrested is determined by an objective test; neither the person’s subjective impression nor the lack of formality of the arrest resolves the issue. State v. Thibodeaux, 414 So.2d 366, 368 (La.1982). The determination of whether an arrest occurred depends on the totality of the circumstances, but several factors distinguish an arrest from lesser infringements on personal liberty. State v. Allen, 95-1754 (La.9/5/96); 682 So.2d 713, 719. A prime characteristic of any Fourth Amendment seizure of a person is whether, under the totality of the circumstances, a reasonable person would not consider himself or herself free to leave. Id. Ultimately, whether a person has been arrested depends on circumstances indicating an intent to impose an extended restraint on the person’s liberty. Id.
State v. Coleman, 14-402, pp. 15-16 (La. 2/26/16), 188 So.3d 174, 190-91, cert.
denied, ___ U.S. ___, 137 S.Ct. 153 (2016).
Although the exact amount of time which passed from the initiation of the
traffic stop to the search of the motel room is unclear, it is clear that Defendant was
detained after the initial traffic stop, was transported to the Motel 6 in a police
cruiser, the Chevy Tahoe he was driving was towed away, and he was formally 11 arrested and booked after the initial search of the motel room. While the defendant
in Coleman was determined to have not been under arrest following the trial
court’s determination he had voluntarily cooperated and agreed to be transported to
the police station without restraints, there is no testimony in the instant case that
would support the notion Defendant voluntarily rode to the Motel 6 with law
enforcement. Considering the testimony presented during the suppression hearing,
we find that Defendant was arrested shortly after the search of his wallet, as no
reasonable person would have considered themselves free to leave under the
circumstances. At the time Sergeant Dunn searched Defendant’s wallet, both he
and Deputy Smith had smelled marijuana, the officers had already determined the
window tint was illegal, a K-9 had alerted on Defendant’s vehicle, Deputy Smith
found marijuana residue in the vehicle, and Defendant had admitted there had been
marijuana in the vehicle that day. Under Sherman, the search would still be
permissible as a search incident to arrest given the existence of probable cause to
arrest Defendant for possession of marijuana and the arrest shortly after the search
of his wallet. Accordingly, we cannot say that the trial court abused its discretion
in finding the search of Defendant’s wallet was valid as a search incident to arrest
where probable cause existed to arrest Defendant for possession of marijuana.
SEARCH OF THE MOTEL ROOM
Defendant argues the search of the motel room was illegal for three reasons:
(1) the illegal search of the wallet produced the key card used to enter the motel
room, so the search of the motel room was tainted by the illegal search of
Defendant’s wallet; (2) the search of the motel room was not a valid probationer
search because there was no valid reasonable suspicion that he was engaged in
criminal activity; and (3) the State failed to prove the motel room was Defendant’s
residence such that it would be subject to a warrantless search. 12 Our prior finding that the search of Defendant’s wallet was legal as a search
incident to arrest precludes the first part of Defendant’s claim regarding the alleged
illegality of the search of the motel room. With regard to Defendant’s second
claim, he acknowledges that he has a reduced expectation of privacy which allows
for warrantless searches when less than probable cause exists for a search due to
his status as a parolee but argues “[t]here is no established and/or corroborated
facts that would promote the presence of [r]easonable [s]uspicion that the
[D]efendant was engaged in criminal [a]ctivity at the motel room[.]” This
argument ignores the evidence presented at the suppression hearing.
By the time law enforcement reached the motel and decided to enter
Defendant’s room, Defendant had already admitted prior to the search of his wallet
that his vehicle had marijuana in it earlier in the day, residue of which was found
by Deputy Smith. Defendant told Sergeant Dunn the key card was an old, invalid
card. However, the motel manager confirmed the card was active for a motel room
Defendant had been renting for nearly a week. Further, the motel manager
informed law enforcement that Defendant had been renting rooms frequently for
over a month. Defendants had not been reporting this to Probation and Parole, and
the address Defendant used when renting the motel room was not the address he
had provided to Probation and Parole as his residence. The trial court held the
officers had reasonable suspicion that Defendant was engaged in or had recently
been engaged in criminal activity, and, given the above evidence known to law
enforcement when they entered the motel room, we cannot say the trial court
abused its discretion.
Defendant, citing State v. Malone, 403 So.2d 1234 (La.1981), correctly
argues Probation and Parole cannot use their authority to conduct searches as a
subterfuge to allow another agency to conduct an otherwise illegal warrantless 13 search. The Malone court set forth that parolee search must be reasonable in light
of the totality of the circumstances, noting a court “must consider (1) the scope of
the particular intrusion, (2) the manner in which it was conducted, (3) the
justification for initiating it and (4) the place in which it was conducted.” Id. at
1239. As noted above, Defendant’s wallet was searched legally incident to arrest,
and the key card for the room was found during that search. The search of the
motel room was conducted by Probation and Parole officers after they were
contacted regarding Defendant’s possible involvement with narcotics. Upon
speaking with Defendant at the traffic stop, Agent Green decided to investigate the
hotel, which had never been reported by Defendant to his parole officer. Agent
Green testified that if Defendant was going to stay anywhere other than the
residence he registered with his parole officer, he would have to notify said officer
and receive permission.
Agent Green testified Probation and Parole needed “to go and check the
room to verify that that’s where he was staying, and look for any items he may not
was [sic] supposed to have.” He also stated they entered the room to “see if there
was anything illegal going on that would be a violation of his probation and his
parole.” Everyone agreed the initial entry into the room was done by Probation
and Parole with local law enforcement assisting. Upon entering the room,
marijuana was located in plain view.
Defendant asserts the scope of the intrusion was illegal because the search of
his wallet was illegal, a claim we have already found lacks merit. He contends the
presence of Probation and Parole officers other than his own is clear proof their
presence was “for the mere purpose of creating a method to subterfuge the warrant
requirement.” While the trial court stated in its written reasons that Danny Green
was Defendant’s parole officer, that finding is directly contrary to the testimony 14 presented to the trial court, namely Agent Green’s specific testimony that he was
not Defendant’s assigned officer. However, this fact is irrelevant to the case sub
judice.
In State v. Brignac, 17-448 (La. 10/18/17), ___ So.3d ___, the supreme court
held the language of La.Code Crim.P. art. 895(A)(13)(a), the statute governing
warrantless searches of probationers based upon reasonable suspicion of criminal
activity, was specific enough to require that the probationer’s actual probation
officer be the one to effectuate such a search. Defendant, however, was on parole,
not probation. Warrantless searches based on reasonable suspicion of criminal
activity for a parolee are governed by La.R.S. 15:574.4.2(A)(2)(i), not La.Code
Crim.P. art. 895(A)(13)(a). As this court noted in State v. Sinegal, 17-527, p. 8
(La.App. 3 Cir. 12/13/17), ___ So.3d ___, ___ “[u]nlike La.Code Crim.P. art.
895(A)(13)(a), La.R.S. 15:574.4.2 does not reference the assignment of the agents
involved in the search.” While La.Code Crim.P. art. 895(A)(13)(a) subjects
probationers to searches “by the probation officer or the parole officer assigned to
[them],” parolees agree “to searches of person, property, residence, or vehicle,
when reasonable suspicion exists that criminal activity has been engaged in while
on parole.” See La.R.S. 15:574.4.2(A)(2)(i). As noted in Brignac, La.Code
Crim.P. art. 895(A)(13)(a) was initially written to apply to parolees, but the
legislature instead chose to apply it to probationers only, subsequently writing a
new statute for parolees which lacked the specificity of the probation article.
Accordingly, parolees are subject to searches pursuant to reasonable suspicion by
more than just that parolee’s supervising officer. Here, there were three agents
from Probation and Parole who felt the circumstances presented sufficient
reasonable suspicion that they needed to search Defendant’s motel room to ensure
he was not violating his parole any further. Defendant, a parolee, was driving a 15 vehicle within which marijuana residue was present and admitted there had been
marijuana in the vehicle earlier that day. Clearly, Probation and Parole had
reasonable suspicion Defendant had engaged in criminal activity while on parole.
Next, Defendant argues there was “no established and/or corroborated facts
that would promote the presence of [r]easonable [s]uspicion that [he] was engaged
in criminal [a]ctivity at the motel room.” As has been noted repeatedly, there were
plenty of facts presented which would support Probation and Parole having
reasonable suspicion Defendant may have been engaged in criminal activity in the
motel room: he claimed the active key card was just an old card that did not work,
there was marijuana residue in his vehicle, he had been renting rooms at the motel
for nearly a month, and he had been registering for the motel rooms with an
address that did not match the address he registered with Probation and Parole.
Finally, Defendant acknowledges his parole conditions allow for warrantless
searches of his residence, but argues the State failed to prove the hotel room was
his residence because “clearly he still maintained a residence and there is no
evidence that he actually spent the night at the motel or that he relinquished his
reported residence.” Defendant’s argument evidences a belief that for the purposes
of parole, a parolee can only have one residence. As noted by the trial court, “to
accept this argument would mean that any probationer or parolee engaged in
criminal activity could evade such a search by simply doing so in a hotel room.”
Multiple federal courts of appeal have held that a person can have multiple
residences for Fourth Amendment purposes:
We have found no authority to support [the defendant’s] implicit assumption that a person can have only one residence for Fourth Amendment purposes. Rather, when evaluating [the defendant’s] expectation of privacy in his home, we are guided by the principle that, so long as [the suspect] possesses common authority over, or some other significant relationship to, the . . . residence, that 16 dwelling “can certainly be considered . . . ‘home’ for Fourth Amendment purposes, even if the premises are owned by a third party and others are living there, and even if [the suspect] concurrently maintains a residence elsewhere as well.”
Case v. Kitsap County Sheriff’s Dept., 249 F.3d 921, 931 (9th Cir. 2001) (quoting
United States v. Risse, 83 F.3d 212, 217 (8th Cir. 1996)).
Defendant’s argument that the motel room was not his residence because it
was not the residence reported to Probation and Parole is an argument that has
been rejected by this court previously. In State v. Edwards, 12-891 (La.App. 3 Cir.
2/6/13), 107 So.3d 883, the defendant was arrested following a parolee search of
his girlfriend’s apartment. The Edwards defendant argued his residence was his
parents’ address that he gave his parole officer, not his girlfriend’s apartment.
Noting the defendant himself told his parole officer he stayed at his girlfriend’s
apartment multiple days a week and his parole officer was unable to contact him at
his listed residence multiple times over a two-week span, this court found the
defendant was residing at his girlfriend’s apartment and that it was therefore
subject to a lowered expectation of privacy.
In the case before us, the trial court’s written ruling states:
This court finds that “residence” as used in condition number 9 of the terms of his parole means to include any place where he is presently housed, albeit temporarily, elsewhere than his place of employment, if different. For the purposes of condition number 9, Room 166 of the Motel 6 was Mr. Warren’s “residence” to which he had given the state consent to search.
Additionally, Black’s Law Dictionary discusses “residence” in part by
Residence, usu. just means bodily presence as an inhabitant in a given place; domicile usu. requires bodily presence plus an intention to make the place one’s home. A person thus may have more than one residence at a time but only one domicile. Sometimes, though, the two terms are used synonymously.
17 BLACK’S LAW DICTIONARY (10th ed. 2014).3
The trial court’s holding that the room was Defendant’s residence would is
appropriate under the facts and circumstances of this case using the definition
found in Black’s Law Dictionary. Accordingly, we cannot find that the trial court
abused its discretion in finding the motel room was Defendant’s residence.
Given the facts that Defendant was carrying an active key card to a motel
room where his vehicle had been seen multiples times, a room Defendant had been
renting for nearly a week in a motel where he had been renting rooms frequently
for over a month, and where Defendant specifically told law enforcement officers
no one else was staying in the motel room, we cannot say the trial court abused its
discretion in finding the motel room was Defendant’s residence such that it was
subject to a parolee search, despite Defendant never admitting he was staying at
the motel.
In light of the above, we cannot say that the trial court abused its discretion
in denying Defendant’s motions to suppress.
WRIT DENIED: Defendant seeks review of the trial court’s September 11, 2017 denial of his motions to suppress filed on September 22, 2016. The trial court did not err in denying Defendant’s motions. Accordingly, Defendant’s writ application is denied.
3 The statutes governing parole do not define the term “residence.” However, an example from a different Chapter of the Code that does define “residennce” is the law governing the registration of sex offenders. Under La.R.S. 15:541(22):
“Residence” means a dwelling where an offender regularly resides, regardless of the number of days or nights spent there. For those offenders who lack a fixed abode or dwelling, “residence” shall include the area or place where the offender habitually lives, including but not limited to a rural area with no address or a shelter. 18