State v. McClendon

133 So. 3d 239, 2013 La.App. 4 Cir. 1454, 2014 WL 530058, 2014 La. App. LEXIS 226
CourtLouisiana Court of Appeal
DecidedJanuary 30, 2014
DocketNo. 2013-K-1454
StatusPublished
Cited by16 cases

This text of 133 So. 3d 239 (State v. McClendon) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McClendon, 133 So. 3d 239, 2013 La.App. 4 Cir. 1454, 2014 WL 530058, 2014 La. App. LEXIS 226 (La. Ct. App. 2014).

Opinion

PAUL A. BONIN, Judge.

hWe granted the prosecution’s application for a writ of certiorari in order to review whether the district judge erred when he suppressed for use at trial the illegal narcotics evidence seized from the person of the defendant, Jonathan McClendon, following an investigatory stop.1 The parties were afforded oral argument.

In his motion to suppress, Mr. McClen-don contended that the police violated his fundamental right to be secure in his person when he was unconstitutionally seized without reasonable suspicion. After hearing the testimony of Sergeant Eric Gillard, the district judge granted Mr. McClen-don’s motion to suppress. After our de novo review, we also hold the seizure to be unreasonable under the Fourth Amendment and find that the officers lacked reasonable suspicion to effectuate a lawful investigatory stop. Furthermore, we find that the district judge did not abuse his discretion in granting Mr. McClendon’s motion to suppress. We thus affirm the ruling and remand the matter to the trial court for further proceedings. We explain our decision in greater detail below.

Jl1

In this Part, we set forth the facts pertinent to our review. At approximately 7:15 p.m. on September 10, 2013, Mr. McClen-don and a companion were standing near the corner of Second and Dryades Streets in New Orleans. Sergeant Gillard, the only witness to testify at the suppression hearing,2 stated that it “was still kind of daylight” and “wasn’t actually getting dark” at that time. Sergeant Gillard described the neighborhood in which Mr. McClendon and his companion were standing as one of the worst in the Sixth Police District, which covers the area commonly referred to as “Central City.” According to Sergeant Gillard, in the vicinity of that corner, there is bar that is a nuisance and attracts illegal conduct, such as shootings, robberies, stabbings, fights, and sales of illegal narcotics.

Sergeant Gillard, a nineteen-year veteran of the police force, was traveling on Dryades Street in a police unit following several car lengths behind another unit occupied by two other officers. As the lead car approached Second Street, the officers observed Mr. McClendon and his companion. According to Sergeant Gil-lard, when Mr. McClendon saw the police vehicle, he became “kind of anxious and kind of hurried to get from the area.” Mr. McClendon then entered a vehicle driven by his companion, and the vehicle attempted to pull off. At this point, the ^police elected to conduct an investigatory stop, and the lead police unit blocked in the vehicle such that it could not proceed down the road.

[244]*244Subsequent to the initiation of the investigatory stop, the officers approached the vehicle, noticed that the vehicle’s brake tag was expired, and explained to the men their reason for stopping and detaining them. As Sergeant Gillard approached the vehicle from the passenger side, he observed Mr. McClendon in the vehicle fumbling with his waistband area and looking around nervously as if he was trying to reach for or destroy something.

The officers then elected to remove the subjects from the vehicle and conduct a limited weapons frisk. At this point, Mr. McClendon became visibly nervous and started shaking. When Sergeant Gillard patted down Mr. McClendon’s right front pocket area, he felt a bulge. Mr. McClen-don then blurted out that “it was drugs.” Sergeant Gillard advised Mr. McClendon of his rights and handcuffed him. He recovered crack cocaine wrapped in plastic from Mr. McClendon’s front pocket. Sergeant Gillard then re-advised Mr. McClen-don of his rights and explained that he was being placed under arrest for possession of cocaine. While in the patrol car, Mr. McClendon made statements that he was just trying to take care of his family. Sergeant Gillard was not present, however, when other incriminating statements were made by Mr. McClendon.

After hearing Sergeant Gillard’s testimony, the district judge suppressed for use at trial the evidence seized from Mr. McClendon as well as the statements made by him.

Ji.II

In this Part, we discuss the legal precepts that guide our review. The Fourth Amendment to the United States Constitution3 and Article I, Section 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. It is important to remember that “the Fourth Amendment protects people, not places.” Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (citing Katz v. U.S., 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). In order for the Fourth Amendment to guard a citizen from unreasonable state action, however, that person must have a reasonable expectation of privacy at the time of the search or seizure. See id. See also State v. Clausen, 97-0885, p. 4 (La.App. 4 Cir. 7/2/97), 697 So.2d 1066, 1068.

“Reasonableness is always the touchstone in striking the balance between legitimate law enforcement concerns, such as officer safety, and protected individual privacy interests.”4 State v. Francis, 10-1149, pp. 4-5 (La.App. 4 Cir. 2/16/11), 60 So.3d 703, 708 (citing State v. Bell, 09-0574, p. 14 (La.App. 4 Cir. 12/9/09), 28 So.3d 502, 512). Warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless the governmental conduct is shielded by one of the few narrow exceptions to the warrant requirement. See State v. Surtain, 09-1835, p. 7 (La.3/16/10), 31 So.3d 1037, 1043 (citing Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). The prosecution carries the burden of proving that a warrantless search is com[245]*245patible with one of these exceptions and is thus reasonable under the Fourth Amendment. See La.C.Cr.P. art. 708 D. This requires that pertinent facts and circumstances be articulated through testimony by 15law enforcement officials at evidentiary hearings on motions to suppress. See State v. Temple, 02-1895, p. 5 (La.9/9/03), 854 So.2d 856, 860.

A Fourth Amendment violation alone, however, is not sufficient to justify the suppression of evidence recovered pursuant to unconstitutional searches and seizures. See Herring v. U.S., 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (citing Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). If the prosecution fails to elicit adequate information, the district judge should still only grant a motion to suppress upon a finding that the application of the exclusionary rule furthers the interest protected by that constitutional guarantee. See Hudson v. Michigan, 547 U.S. 586, 593, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006); Wong Sun v. U.S., 371 U.S. 471, 491-492, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); U.S. v. Ceccolini, 435 U.S. 268, 278-279, 98 S.Ct.

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Bluebook (online)
133 So. 3d 239, 2013 La.App. 4 Cir. 1454, 2014 WL 530058, 2014 La. App. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcclendon-lactapp-2014.