In re State

• Citation: 240 So.3d 310
• Decision Date: 21 February 2018
• Docket Number: NO. 17–KA–579,17–KA–579
• Parties: STATE of Louisiana IN the INTEREST OF T. L.
• Court: Court of Appeal of Louisiana — District of US

240 So.3d 310

STATE of Louisiana IN the INTEREST OF T. L.

NO. 17–KA–579

Court of Appeal of Louisiana, Fifth Circuit.

February 21, 2018

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Elizabeth B. Curren, Amanda L. Calogero, Jody J. Fortunato, Ann Kirkpatrick Harris

COUNSEL FOR DEFENDANT/APPELLANT, T. L., Katherine M. Franks

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson

JOHNSON, J.

Defendant, T.L., appeals his delinquency adjudications for possession of a handgun by a juvenile and revocation of his probation from the Juvenile Court for the Parish of Jefferson, Section "B".¹ For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 23, 2015, the Jefferson Parish District Attorney filed a petition in juvenile court alleging that the juvenile, T.L., possessed marijuana in violation of La. R.S. 40:966(C). The juvenile denied the allegations of the petition on that same date. On May 13, 2015, the hearing on the petition was continued without date, and the juvenile entered into the Diversion Program.

On February 24, 2016, the Jefferson Parish District Attorney filed a petition in juvenile court alleging that the juvenile obstructed or interfered with members of the staff, faculty, or students of educational institutions in violation of La. R.S. 14:328(B) (petition "A"). On March 30, 2016, the State amended petition "A" to simple battery on a minor child in violation of La. R.S. 14:35, and the juvenile admitted the allegations.² The disposition hearing for the simple battery adjudication was set for May 5, 2016. On May 5, 2016, the judge committed the juvenile to the Office of Juvenile Justice (hereinafter referred to as "OJJ") for six months or until his 21^stbirthday, whichever was sooner, suspended the sentence, and placed the juvenile on active and intensive probation for two years.

On July 18, 2017, the Jefferson Parish District Attorney filed a petition in juvenile court alleging that the juvenile violated La. R.S. 14:95.8 by committing the offense of illegal possession of a handgun by a juvenile (counts one and two) (petitions "C" and "D").³ The juvenile denied the allegations of those petitions on that same date. On August 7, 2017, the juvenile filed omnibus motions, including a Motion to Suppress Evidence, Statement, and Identification. On August 16, 2017, the judge held the suppression and the adjudication hearings at the same time. Afterwards, on that same date, the judge denied the Motion to Suppress Evidence and Statement, finding that there was no illegal stop by the officer and that there was no statement taken by the police.

Deputy Galvin Livers of the Jefferson Parish Sheriff's Office ("JPSO") testified at the suppression/adjudication hearing that on July 11, 2017, at nighttime, he and Deputy Andre Nelson were dispatched "to a reported gunfire." Deputy Livers explained that an anonymous complainant advised them that he observed occupants of a four-door silver vehicle discharging firearms while the vehicle was in motion in the area of Bent Tree Boulevard and Leo Kerner Parkway. Deputy Livers also explained that he heard Deputy Nelson "put out a traffic stop of a silver four-door vehicle," and that he responded to Deputy Nelson. He asserted that once he arrived on the scene, he removed the driver from the vehicle and spoke with him afterward. He further asserted that he advised the driver that they were there because gunshots were heard in the area and that the reporting person described the vehicle as a silver four-door vehicle, which matched the vehicle that he pulled over. Deputy Livers testified that he asked the driver for permission to search the vehicle for any contraband that would be associated with that crime and that he received verbal consent from the driver to do so.

Deputy Livers noted that he subsequently conducted a search of the vehicle but did not locate anything in the front passenger compartment. He stated that upon going to the rear passenger compartment, he conducted a search of the floorboard but did not find anything. Deputy Livers testified that upon exiting the backseat of the vehicle on the rear passenger side, he noticed that the padding in the backseat was "loose from the rest of the vehicle." He explained that he lifted it up and observed two firearms underneath the seat, one silver and one black. Deputy Livers asserted that the whole seat was removable and that it took very minimal force to lift it up. He stated that the seat was removed from the vehicle once they discovered the evidence.

Deputy Livers testified that he discovered a Bersa model .380 handgun when he lifted up the seat. He also testified that he discovered a Ruger model handgun under the backseat of the vehicle as well. Deputy Livers submitted that one of the firearms was located directly under the rear driver's-side seat and that the other firearm was located closer to the middle of the vehicle in the backseat. He noted that they were approximately six inches from each other.

Deputy Livers testified that the entire seat was removable from the vehicle and that the padding and the fabric of the seat were removable from the metal underneath. He stated that the whole seat could be taken out and that there was a compartment underneath. Deputy Livers did not know if those firearms had ammunition in them when he found them. He maintained that he brought the firearms to Deputy Nelson and that Deputy Nelson handled them afterward. Deputy Livers noted that there was nothing else in the compartment. He testified that if there was weight on top of the firearms, they would not have been able to move if the car had turned sharply. He later testified that he would not describe the place he found the guns as a "compartment" or a storage space. He explained that the area where the guns were found was a flat surface with padding sitting on top of it. Deputy Livers stated that it was easy to tuck items underneath it.

Deputy Livers positively identified the juvenile in court as one of the passengers in that vehicle. He did not know where the juvenile was sitting in that vehicle. Deputy Livers asserted that he was not there for the initial stop of the car. He testified that when he arrived on the scene, he asked the driver, Guy Robinson, to step out of the vehicle and that everybody else in the vehicle was also asked to step out. He said that there were four individuals in that vehicle.

Deputy Livers testified that neither he nor Deputy Nelson obtained a signed consent to search the car. He stated that he did not have a warrant to search the vehicle and that he did not observe any weapons in plain view. Deputy Livers maintained that there were no other officers present other than him and Deputy Nelson. He did not take photographs of the guns that he found. Deputy Livers asserted that he did not participate in taking any statements from the other two passengers or the driver. He explained that he searched the vehicle because it matched the description of the vehicle they were looking for. They also searched the vehicle because there were reported gunshots fired in the area, and there was the possibility of evidence being located in the vehicle.

JPSO Deputy Andre Nelson Jr. testified at the suppression/adjudication hearing that on July 11, 2017, they received an anonymous call from an individual who heard multiple gunshots in the area "between Ames and Barataria all the way to approximately East Ames and Ames" in Jefferson Parish and that individual observed a four-door silver vehicle fleeing the area. Deputy Nelson asserted that after he received that report, he began to patrol the area for that vehicle. He stated that approximately one minute later, he observed a silver four-door vehicle leaving the intersection of Barataria Boulevard and Leo Kerner turning toward Ames. At that time, Deputy Nelson conducted an investigatory stop since it was nighttime and the only vehicle he saw on the road "was that vehicle." He did not know the exact time but recalled that it was very dark, the streetlights were on, and it was "almost close to morning hours."

Deputy Nelson stated that the vehicle turned into the Brother's Food Mart located at Barataria and Ames. He ordered the driver out of the vehicle and explained to the driver why he was stopped. Deputy Nelson noticed that there were three other occupants in the vehicle. He testified that when Deputy Livers arrived to assist, they asked the other occupants to exit the vehicle for officer safety. He explained that this was done since the investigatory stop was based on gunshots and potential weapons in the vehicle. Deputy Nelson stated that during the stop, he observed a backseat passenger, who was later identified as the juvenile, leaning toward the floorboard of the vehicle. He further stated that the juvenile was in the backseat on the driver's side. Deputy Nelson explained that the juvenile's action of leaning toward the floorboard was enough to alert him that the juvenile might have something in his possession.

Deputy Nelson testified that after he got everyone out of the vehicle, he began to identify everyone. In the process of doing so, Deputy Livers came to assist him. They asked the driver if he would allow them to search the vehicle since they were investigating it for potential weapons. Deputy Nelson testified that the driver complied. He stated that after he spoke to the driver, he conducted a background check of each individual. Deputy Nelson asserted that Deputy Livers then conducted a search of the vehicle. He recalled that during the search, Deputy Livers came and informed him, so as not to alert anyone, that he had found two firearms in the vehicle.

Deputy Nelson testified that they subsequently handcuffed everyone, read everyone their rights, and placed them into the police vehicles. He recalled that he placed the juvenile and the other backseat occupant in the backseat of his vehicle and that Deputy Livers...