State v. Stewart

785 So. 2d 1053, 2001 La.App. 4 Cir. 0530, 2001 La. App. LEXIS 1441
CourtLouisiana Court of Appeal
DecidedMay 2, 2001
DocketNo. 2001-K-0530
StatusPublished
Cited by1 cases

This text of 785 So. 2d 1053 (State v. Stewart) 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. Stewart, 785 So. 2d 1053, 2001 La.App. 4 Cir. 0530, 2001 La. App. LEXIS 1441 (La. Ct. App. 2001).

Opinion

|, MURRAY, Judge.

We grant the State’s writ application to review its contention that the trial court erred in granting a motion to suppress evidence seized while executing a search warrant. We find that under the facts of this case and the applicable jurisprudence, the seizure was illegal and the evidence was properly suppressed. Accordingly, for the reasons stated below, the trial court’s judgment is affirmed.

FACTS AND PROCEEDINGS BELOW

New Orleans Police Detective Steven Payne testified at the motion hearing that on November 30, 2000, he obtained a warrant to search a residence located at 2010 Lizardi Street. Detective Payne averred in the affidavit in support of the search warrant that within seventy-two hours of November 29, 2000, he had spoken with a reliable confidential informant who stated that crack cocaine was being distributed from the residence by a black male known as “Skee .” The C.I. described “Skee” as approximately 5'10" to 6' tall, medium build, and thirty-five to forty years old. The C.I. further stated that the crack cocaine “is normally hidden |2in the residence.” Detective Payne queried the NCIC computer and learned that several different people had been arrested for narcotics violations at 2010 Lizardi Street. The affidavit then recounted a controlled buy made by the C.I. from “Skee” at the Lizardi Street residence: As officers watched, “Skee” met with the C.I., entered the residence, then exited and gave the C.I. what was shown by subsequent testing to be one piece of crack cocaine.

Detective Payne further testified that, on December 6, 2000, six days after the search warrant had been issued, Detective James Fosha was conducting a surveillance of the targeted residence while Detective Payne was at the station assembling a team of officers to execute the warrant. Detective Fosha was instructed to advise Detective Payne if he observed “the target or anybody in the residence that would be home at that time.” Detective Fosha saw a black male exit then return to the residence, but the detective could not determine if the individual was “Skee.” When Detective Payne and his team arrived at the residence, they entered and saw the defendant, Ralph Stewart, on the couch within inches of approximately six grams of crack cocaine and a crack pipe. Mr. Stewart was immediately arrested, but it was learned that he was not “Skee,” the target of the investigation. While a search of the residence was negative for any additional contraband, the officers seized a letter addressed to Mr. Stewart at 2010 Lizardi Street.

On cross-examination, Detective Payne was first questioned about the C.I. and the controlled buy described in the warrant affidavit. He was then asked about any surveillance between the controlled buy on November 30th and the execution of the warrant on December 6th. Detective Payne testified that “[pjeriodic checks were made ... but nothing was observed. No individuals were observed hanging in lathe area, so it wasn’t — so surveillance [1055]*1055wasn’t actually established.” While these “periodic checks” were made on different days, Detective Payne did not recall the specific dates or times, but only that he had checked the residence while driving by on patrol. He acknowledged that Mr. Stewart had not been seen engaging in any narcotics activities, either during surveillance or when the search warrant was executed.

Detective Payne was then questioned by defense counsel about the actual entry into the residence:

Counsel: How did you enter the house?
Witness: Basically, we just opened the front door. It was open.
Counsel: Did you knock first?
Witness: We announced ourselves as being police officers, and before we hit [the door] with the ram we always cheek the knob, you know, we don’t like to destroy the door if we don’t have to, and basically we just walked in.
[[Image here]]
Counsel: Did you knock first when you say that you announced yourself?
Witness: No.
Counsel: You just opened the door?
Witness: Correct.
By the Court: You never knocked?
Witness: We announced ourselves and opened the door.
Counsel: You announced yourselves as you were opening the door?
Witness: Correct.

In further cross-examination, Detective Payne was questioned on whether [4the police had received any information about weapons at the Lizardi Street residence. He stated they had not. Additionally, they ltad no information that the target of the investigation had any prior criminal history of weapons, and, in fact, the police did not even know “Skee’s” real name. Detective Payne testified that Detective Fosha had been engaged in surveillance of the residence for thirty to forty minutes before the other officers arrived to execute the warrant.

When defense counsel finished cross-examination, the trial court asked the witness to again describe the entry in the residence. The court established that the officers had a battering ram with them but did not use it because the door was unlocked. As Detective Payne described it, ‘We announced ourselves as police and we opened the door. If it wouldn’t have opened, then we would have hit it with the ram.” When the court mentioned the “knock and announce” rule, the detective replied, “Well, like I said, it was announced.”

Based upon this testimony,1 the trial court suppressed the evidence seized from Mr. Williams. Citing United States v. Ramirez, 523 U.S. 65, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998), the court stated that the evidence in this case did not establish that the requisite special circumstances existed to justify the officers’ failure to “knock and announce” before entering the residence.

DISCUSSION

Relying on State v. Miskell, 98-2146 (La.10/19/99), 748 So.2d 409, the State first contends that because the officers had “a search warrant which was issued because of suspected drug transactions” at that address, they “were not required to perform a knock and announce entry.” It is further argued that because ^Criminal [1056]*1056Procedure article 224 requires only an officer’s announcement of “his authority and purpose,” the trial court erred in holding that the failure to physically knock on the door invalidated this entry.

In Miskell, our Supreme Court surveyed the relevant jurisprudence and held that Louisiana law, like the U.S. Constitution and applicable federal statutes, permits police officers executing a search warrant to “dispense with the knock-and-announce requirement when ‘they have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.’ ” Id. at 5, 748 So.2d at 412, quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615. Noting that there is no “blanket no-knock exception in all searches for narcotics,” id.

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Related

State v. Nelson
817 So. 2d 158 (Louisiana Court of Appeal, 2002)

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Bluebook (online)
785 So. 2d 1053, 2001 La.App. 4 Cir. 0530, 2001 La. App. LEXIS 1441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stewart-lactapp-2001.