State of Louisiana v. Zachary Hunt

• Court: Louisiana Court of Appeal
• Decided: October 31, 2024
• Docket: 2024-K-0497
• Status: Published

Opinion

STATE OF LOUISIANA * NO. 2024-K-0497

VERSUS * COURT OF APPEAL ZACHARY HUNT * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 557-644, SECTION “D” Judge Kimya M. Holmes, ****** Judge Sandra Cabrina Jenkins ****** (Court composed of Chief Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Rachael D. Johnson)

Jason Rogers Williams District Attorney Brad Scott Chief of Appeals A.Spencer Gulden Assistant District Attorney ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE 619 S. White Street New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/RESPONDENT

Arianne Bennett ORLEANS PUBLIC DEFENDERS 2601 Tulane Avenue, Seventh Floor New Orleans, LA 70119

COUNSEL FOR DEFENDANT/RELATOR

WRIT GRANTED. RELIEF DENIED. OCTOBER 31, 2024 SCJ TFL RDJ The defendant, Zachary Hunt, seeks review of the trial court’s ruling of July

10, 2024, denying his motion to suppress evidence and finding probable cause to

arrest. For the following reasons, we hold that the trial court did not err in denying

the defendant’s motion to suppress and finding probable cause. We grant the

defendant’s application for supervisory writs; however, we deny relief.

PROCEDURAL HISTORY

On April 5, 2023, the defendant, Zachary Hunt, was charged by bill of

information with one count each of illegally possessing a firearm while in

possession of a controlled dangerous substance; illegally carrying a concealed

firearm; resisting an officer; possession of a stolen firearm; and possession of a

schedule II controlled dangerous substance (in an amount less than two grams).

The defendant appeared for arraignment on June 6, 2024, and entered pleas of not

guilty to all counts.

On July 10, 2024, the trial court held a preliminary hearing and also heard

defendant’s motion to suppress evidence. At the hearing, NOPD Officer Kristopher

1 Devore testified that on January 9, 2023, he was patrolling the Sixth District in

tandem with the Special Operations Division due to the rise in violent crimes

occurring in the area. Office Devore stated that the police unit he was operating

with his partner, Officer Perez, was the third in a caravan of police vehicles led by

his supervisor, Sergeant Johnson. The caravan set out for patrol after dark, around

6:30-7:00 pm, and had only travelled a few blocks when Sergeant Johnson stopped

the lead vehicle for reasons Officer Devore did not know at the time, because

Sergeant Johnson’s unit was the first one to turn onto Chippewa Street. Officer

Devore testified that as Sergeant Johnson exited his vehicle, two men ran. He

stated that Sergeant Johnson chased the defendant, and he assisted Officer

Rodriguez with the apprehension of the other man.

Officer Devore testified that based on what he learned from Sergeant

Johnson and other officers on the team, apparently Sergeant Johnson had observed

defendant and the other man (defendant’s co-defendant, Lee) walking together on

the sidewalk when he turned his police vehicle onto Chippewa Street. Johnson told

him that the defendant had a phone in his hand but his other hand was clutching an

unknown object in his jacket, which Sergeant Johnson suspected was a firearm.

Once the two men noticed the police caravan, they separated, and Lee crossed the

street. Sergeant Johnson then stopped his vehicle and exited the vehicle when the

defendant fled. While fleeing, the defendant threw the firearm over a fence. The

firearm was retrieved and the defendant was apprehended. Officer Devore testified

that Officer Rodriguez also observed Lee throw a firearm into a bush as he fled.

Officer Devore testified that a search incident to the defendant’s arrest

yielded one Tapentadol pill, and stated that a search of Lee yielded a higher

quantity of Tapentadol, as well as marijuana. He also testified that the firearms that

2 they recovered—that defendant and Mr. Lee had each discarded as they fled— had

both been reported stolen. On cross-examination, Officer Devore acknowledged

that he had not personally observed defendant or Lee engage in any hand-to-hand

transactions or other overt criminal offenses. Officer Devore confirmed on redirect

examination that his knowledge of the situation prior to his personal observation of

Sergeant Johnson starting to exit his vehicle and the two suspects fleeing, was

comprised solely of information he learned from other officers at the scene and

from the police report drafted in this case.

Following oral argument, the court issued its ruling from the bench, denying

defendant’s motion to suppress evidence and finding probable cause.1

STANDARD OF REVIEW

When a trial court finds facts based on the weight and credibility of

witnesses’ testimony, a reviewing court may not overturn those findings unless

there is no evidence to support them. State v. Wells, 2008-2262, pp. 4-5 (La.

7/6/10), 45 So.3d 577, 580-81. On the other hand, a trial court’s holdings on

questions of law are reviewed de novo. Id., 2008-2262, p. 4, 45 So. 3d at 580. At

a hearing on a motion to suppress, the burden is on the State to prove the

admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D); State v.

Ulmer, 2012-0949, p. 5 (La. App. 4 Cir. 5/29/13), 116 So. 3d 1004, 1007.

DISCUSSION

The defendant raises three arguments as to why the trial court erred in

denying the motion to suppress and finding no probable cause. First, he argues

1 The defendant objected and orally noticed his intent to seek a writ. The court set a

return date of August 12, 2024, on which date defendant timely filed his writ application in this Court. Trial was originally set for October 8, 2024, but moved to December 3, pending resolution of this matter.

3 that Sergeant Johnson lacked reasonable suspicion to justify an investigative stop

of the defendant, thus his subsequent arrest was unconstitutional and any evidence

seized incident thereto should be inadmissible. He asserts that the firearm he

abandoned in response to the unjustified stop should also have been suppressed.2

Next, the defendant asserts that Office Devore’s testimony was insufficient for the

trial court to make factual findings on which to base its ruling. Defendant’s final

argument is the inadmissibility of hearsay testimony of Officer Devore.

Specifically, he argues that because Officer Devore personally did not witness the

defendant’s actions that Sergeant Johnson claimed gave rise to the reasonable

suspicion justifying the investigatory stop.

We begin by addressing the testimony of Officer Devore. The court did not

err in considering office Devore’s testimony. Hearsay testimony is admissible in a

suppression hearing.” State v. Bentley, 2012-1106, p. 8 (La. App. 4 Cir. 5/15/13),

116 So.3d 891, 896. In State v. Caliste, 2012-1548, n.7 (La. App. 4 Cir. 6/14/13),

131 So.3d 902, 907, this Court recognized that the “collective knowledge doctrine,

or “fellow officer rule[,”] provides that in certain circumstances, several officers'

observations can be aggregated to establish the probable cause needed for a

warrantless search or seizure, or to obtain a search or arrest warrant under the

Fourth Amendment.”

The U.S. and Louisiana Constitutions recognize the rights of persons to be

secure in their person, property, and effects, and to be free from unreasonable

2 Mr. Hunt arguably failed to preserve his right to review the district court’s ruling denying

suppression of the firearm he discarded, as he specifically stated to the district court during the hearing that he was limiting his notice of intent to seek review of the portion of the district court’s ruling denying the suppression only of the controlled substance. However, Mr. Hunt fails to recognize this apparent limitation in his writ application to this Court and instead requests the reversal of the ruling denying suppression of “the evidence seized.” Further, Mr. Hunt’s unsigned Notice of Intention to Apply for Supervisory Writs sought review of the findings of probable cause and the denial of the Motion to Suppress.

4 searches and seizures. U.S. Const. amend. IV; La. Const. art. 1 § 5.3

Reasonableness dictates the balance between legitimate law enforcement concerns

and an individual’s protected privacy interests. State v. McClendon, 2013-1454 p,

4 (La. App. 4 Cir. 1/30/14), 133 So. 3d 239, 244. “A search and seizure conducted

without a warrant issued on probable cause is per se unreasonable unless the

warrantless search and seizure can be justified by one of the narrowly drawn

exceptions to the warrant requirement.” State v. Surtain, 2009-1835, p. 7 (La.

3/16/10), 31 So. 3d 1037, 1043. A reviewing court “must look to the facts and

circumstances of each case to determine whether the detaining officer had

sufficient facts within his knowledge to justify an infringement of the suspect’s

rights.” State v. Guillot, 2012-0726, p. 4 (La. App. 4 Cir. 4/17/13), 115 So. 3d 624,

628.

Police officers have the right to approach anyone in public and engage in

conversation or ask questions without the need for probable cause or reasonable

suspicion as long as the person approached feels free to disregard the encounter

and walk away, and such an encounter does not violate the Fourth Amendment.

State v. Hamilton, 2009-2205, p. 4 (La. 5/11/10), 36 So. 3d 209, 212. La. C.Cr.P.

art. 215.1 provides, in pertinent part:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.

See also Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968)

(“a law enforcement officer, who reasonably concludes in light of his experience

3 La. Const. art. 1 § 5 also protects an individual’s right to be free from unreasonable invasions of

privacy.

5 that criminal activity may be occurring, or may have occurred, may briefly stop a

suspicious person and make reasonable inquiries for the purpose of confirming or

dispelling his suspicions.”).

The reasonable suspicion standard required for an investigatory stop “is

considerably less than proof of wrongdoing by a preponderance of the evidence.”

United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1

(1989); see also Terry, supra, 392 U.S. at 16, 88 S.Ct. at 1877 (the reasonable

suspicion standard required for an investigatory stop is less demanding than

probable cause required to justify an arrest).

In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy it entails and consider the totality of the circumstances in determining whether reasonable suspicion exists. The detaining officers must have knowledge of specific articulable facts, which, if taken together with rational inferences from those facts, warrant the stop. The officer’s past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable, and deference should be given to the experience of the officers present at the time of the incident.

State v. Marzett, 2009-1080, pp. 5-6 (La. App. 4 Cir. 6/9/10), 40 So. 3d 1204,

1208, citing State v. Williams, 2007-0700, pp. 11-12 (La. App. 4 Cir. 2/13/08), 977

So. 2d 1101, 1111 (internal citations omitted). “Furthermore, a reviewing court

must give due weight to factual inferences drawn by resident judges and local law

enforcement officers.” State v. Morgan, 2009-2352, p. 5 (La. 3/15/11), 59 So. 3d

403, 406.

The United States Supreme Court has identified a number of factors courts

can consider to determine whether police had a “particularized and objective basis”

for harboring such suspicion, such as presence in a high-crime area, the suspect’s

6 unprovoked flight from police officers, the “lateness of the hour,” and whether the

area is dimly lit. Morgan, 2009-2352, p. 5, 59 So. 3d at 406-07. Other factors that

may be considered include a suspect’s nervous, furtive, or evasive conduct at the

presence of police officers. State v. Adams, 2001-3231, p. 2 (La. 1/14/03), 836 So.

2d 9; State v. Morton, 2008-164, p. 7 (La. App. 5 Cir. 7/29/08), 993 So. 2d 651,

656. While any factor standing alone may be insufficient to constitute reasonable

suspicion, the Supreme Court has held that unprovoked flight by an individual in a

high-crime area is sufficient to give police officers reasonable suspicion of

criminal activity. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145

L.Ed.2d 570 (2000).4

In State v. Alvarez, 2009-0328, p. 1 (La. 3/16/10), 31 So. 3d 1022, 1023,

police were conducting a traffic stop in a “high crime area,” and noticed the

defendant observing them from in between two apartment buildings and behaving

in a “nervous and erratic manner.” The officers started to approach the defendant,

but he fled through the alleyway between the buildings. Id., 2009-0328, pp. 1-2,

31 So. 3d at 1023. The officers gave chase and observed the defendant remove a

firearm from his waistband, discard it in the bushes, and then run into a nearby

apartment. Id. The officers forcibly entered the apartment and arrested defendant;

4 The United States Supreme Court in Wardlow noted that flight from police officers is a primary

consideration in the totality of the circumstances analysis, stating:

Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. . . . Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.

528 U.S. at 124-125, 120 S.Ct. at 676. Notably, the police in Wardlow converged on the defendant in a “four-car caravan.” 528 U.S. at 121, 120 S.Ct. at 674.

7 a search incident to arrest yielded crack-cocaine located in the defendant’s pocket.

Id., 2009-0328, p. 2, 31 So. 3d at 1023.

The district court found the stop was justified and denied suppression of the

evidence. Id., 2009-0328, p. 4, 31 So. 3d at 1024. Notwithstanding the appellate

court’s recognition that police officers may approach anyone in public and ask

them questions without the need for reasonable suspicion (as long as the individual

remains free to disregard the encounter), the Fifth Circuit nevertheless vacated the

defendant’s conviction and sentence finding that, “while the police had not actually

seized defendant at the time he discarded the gun concealed in his waistband, the

officers had chased him ‘with such force that, regardless of [his] attempts to flee or

elude the encounter, an actual stop [was imminent].’” Alvarez, 2009-0328, p. 2, 31

So.3d at 1023 (quoting State v. Alvarez, 2008-0558, p. 8 (La. App. 5 Cir. 1/13/09),

8 So. 3d 50, 55). The appellate court reasoned that the defendant had merely

exercised his right to disregard the police encounter and had walked away; without

reasonable suspicion of criminal activity, the police were neither justified in

conducting an investigatory stop nor an “imminent stop,” thus the seizure of the

discarded firearm was tainted by the illegal imminent stop of the defendant,

rendering it inadmissible. Id., 2009-0328, pp. 2-3, 31 So. 3d at 1023.

Relying on Wardlow, the Louisiana Supreme Court reversed the appellate

court, holding that “headlong, unprovoked flight” is distinguishable from a simple

refusal to cooperate. Alvaraz, 2009-0328, p. 3, 31 So. 3d at 1024. The Court

further held that the totality of the circumstances, which included “the lateness of

the hour, the “high crime” nature of the area, the furtive behavior of the defendant

[in which he] was attempting to evade the officers’ sight and watch their actions,”

as well as his unprovoked flight, provided reasonable suspicion to initiate an

8 investigatory stop, “whether that stop was actual or ‘imminent.’” Id. Thus, the

recovery of the abandoned firearm was also lawful, which provided the officers

with probable cause to arrest the defendant for illegally carrying a concealed

firearm, and the narcotics discovered in the defendant’s pocket during the search

incident to his arrest were admissible. Id., 2009-0328, p. 4, 31 So. 3d at 1024.

We find that Alvarez is controlling precedent. In this case, although the

defendant contends that Officer Devore never testified that he was patrolling a

“high crime area,” he did testify that the area had become notorious for a rash of

violent crimes, which necessitated a special task force and a caravan of patrolling

police units. Accordingly, while Officer Devore did not use the exact phrase “high

crime area,” his testimony communicated that the area being patrolling was

plagued by violent crimes so high in number, that the regular police force assigned

to patrol the area was evidently insufficient, thus constituting a “high crime area.”

Therefore, when the defendant fled from the scene in response to nothing

more than Sergeant Johnson starting to exit his vehicle, police officers possessed

reasonable suspicion to conduct an investigatory stop. The district court was also

permitted to consider the circumstances in totality, which included the darkness, as

the sun had already set; the two men splitting up at the sight of the police presence,

arguably to avoid continued observation or apprehension; and Sergeant Johnson’s

inability to view the object the defendant was concealing in his jacket. Based on

the totality of the circumstances discussed above, we find the police officers

possessed sufficient reasonable suspicion to justify conducting an investigatory

stop on the defendant.

Moreover, once police officers observed the defendant throw a firearm over

a fence during his flight, any suspicion that the defendant was concealing a firearm

9 in his jacket became probable cause for his arrest therefor. Accordingly, the search

of the defendant incident to his arrest for carrying a concealed firearm was valid,

and the district court did not err in denying his motion to suppress the evidence

recovered in this case.

Accordingly, the defendant’s writ application is granted, but relief is denied.

WRIT GRANTED. RELIEF DENIED.