State v. Bell

• Decision Date: 09 December 2009
• Docket Number: No. 2009-K-0574.,2009-K-0574.
• Citation: 28 So.3d 502
• Parties: STATE of Louisiana v. Richard BELL.
• Court: Court of Appeal of Louisiana — District of US

28 So.3d 502

STATE of Louisiana v. Richard BELL.

No. 2009-K-0574.

Court of Appeal of Louisiana, Fourth Circuit.

December 9, 2009.

Autumn Snyder Harrell, Justin C. Harrell, Orleans Indigent Public Defenders, New Orleans, LA, for Richard Bell.

Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.

(Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).

PAUL A. BONIN, Judge.

Richard Bell moved to suppress from evidence at his trial a .357 Magnum and a marijuana "cigar" seized from his bedroom by a police officer who had entered his apartment without a warrant. La. C. Cr. P. art. 703 A. The district court denied the motion to suppress and Mr. Bell applied for supervisory writs in this court. See La. Const. Art. V, § 10(A) and La. C. Cr. P. art. 912.1 C(1). We ordered additional briefing as well as oral argument in order to more closely examine Mr. Bell's contention that the prosecution had not established one of the limited and well-recognized exceptions for entry into his home without a warrant and for conducting a "protective sweep" of his bedroom once inside the home. We conclude that an exception to the search warrant requirement justified the warrantless entry, but that the police, having accomplished the purpose for their entry, were nevertheless unreasonable in later entering into Mr. Bell's bedroom. For the reasons which follow, we grant the writ and reverse the trial court's ruling.

I

Richard Bell was in the bedroom of his apartment on the evening of August 19, 2008. At approximately 10:50 p.m., Mr. Bell and his girlfriend, Unique Tolliver, were roused. Six police officers had entered the apartment and announced their presence. Ms. Tolliver left their bedroom to speak with the police and closed the door behind her. Along with their two minor children, Mr. Bell remained in the bedroom.

Six police officers had been on patrol in the apartment complex when they observed a man, one Cameron Mack, smoking a marijuana joint in the hallway. When Mr. Mack noticed the officers observing him, he discarded the joint and dashed into Mr. Bell's apartment. The officers pursued him into the apartment through the unlocked front door. Mr. Mack was seized inside and immediately brought outside the apartment by some of the officers. It was at this point that Ms. Tolliver left her bedroom and shut the door behind her. Ms. Tolliver told the officers that she knew Mr. Mack, but that he was not a resident of her apartment. Officers were in the midst of interviewing Ms. Tolliver when they heard a noise coming from the back area of the apartment, prompting them to enter the bedroom where they found Mr. Bell with the contraband. Once the officers learned that Mr. Bell previously had been convicted of a felony, he was arrested for violating La. R.S. 14:95.1 and for simple possession of marijuana, a violation of La. R.S. 40:966 D(1).¹ This prosecution ensued.

Mr. Bell argues that the trial court erred in denying his motion to suppress on two grounds: (1) that the Fourth Amendment does not allow for a warrantless entry into a home when the police, even with probable cause, are in "hot pursuit" of a wanted person whose offense is a misdemeanor, and (2) that the Fourth Amendment does not extend to the full "sweep" of his apartment, and especially his bedroom, which the officers conducted under the particular circumstances of this case. The prosecution argues that there is no constitutional distinction between a felony and a misdemeanor when officers are in "hot pursuit" of a person whom the police have probable cause to believe committed a crime. The prosecution also argues that the officers, once lawfully inside the apartment, were authorized to conduct a "protective sweep" of the entire apartment to ensure their personal safety during the investigation.

At the outset of the discussion, we emphasize that there is no dispute that the police officers had probable cause to believe that Mr. Mack had committed a misdemeanor.² There is also no dispute that the officers had removed Mr. Mack from the apartment at least some short while before other officers approached Mr. Bell's bedroom. Finally, there is no suggestion that Ms. Tolliver was viewed by any of the officers as a confederate of Mr. Mack or as a threat to the officers' safety.

II

The Fourth Amendment protects "the right of the people to be secure in their ... houses ... against unreasonable searches and seizures." U.S. Const. amend. IV. "At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) (emphasis added). The Louisiana Constitution similarly protects the right of each person to keep his home free of unreasonable searches or seizures. La. Const. Art. I § 5. Warrantless searches are per se unreasonable under the Fourth Amendment, "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Because the evidence sought to be suppressed in this case was seized from within Mr. Bell's home without a warrant as ordinarily required by the federal and Louisiana constitutions, the prosecution bears the burden of establishing that the evidence was seized pursuant to one of the limited exceptions to the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Tatum, 466 So.2d 29, 31 (La.1985); State v. Kelly, 06-0475, pp. 1-2 (La.App. 4 Cir. 11/21/06), 946 So.2d 222, 223; La. C. Cr. P. art. 703 D.

To penetrate the broad protections afforded the home, the police must show probable cause and exigent circumstances to justify warrantless entry into the premises. Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Payton, the United States Supreme Court expressed this principle:

In terms that apply equally to seizures of property and to seizures of persons the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Id. Of course, "the Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Although the actions of Mr. Mack must be considered, our discussion is limited to Mr. Bell, the householder, and emphasize that it is his home which the police entered. The Fourth Amendment only protects persons against unreasonable searches and seizures. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) ("As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is reasonableness."). For the police to violate a defendant's Fourth Amendment protection, the defendant must have had a "reasonable expectation of privacy" which involves both a person's subjective expectation of privacy and an expectation that society is prepared to recognize as "reasonable." See Katz, at 361, 88 S.Ct. 507 (Harlan, J., concurring). The determination of a motion to suppress involves "the substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge." Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In order to obtain the remedial benefits of a Fourth Amendment violation through the suppression or exclusion of evidence, it is necessary to establish not only that the search was illegal, but "also that [the defendant] had a legitimate expectation of privacy" in the premises searched. See Rawlings v. Kentucky, 448 U.S. 98, 104-105, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (citing Rakas, at 131, n. 1, 99 S.Ct. 421). Mr. Bell's expectation of privacy is at its height in his own home, for it is the "physical entry of the home that is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Having determined that Mr. Bell had a legitimate expectation of privacy in the premises searched, we now turn to the question of whether the police properly entered Mr. Bell's home in pursuit of Mr. Mack after observing Mr. Mack commit a crime.

III

Mr. Bell first argues that the Fourth Amendment does not allow for a warrantless entry into a home when the police are in "hot pursuit" of a wanted person whose offense is a misdemeanor. We find it helpful in our resolution of this controversy to distinguish between the attributes of offenses classified as misdemeanors and as felonies. Possession of marijuana, by way of illustration, is a misdemeanor offense for first-time offenders—a relatively minor offense punishable by a fine of not more than five hundred dollars, a prison sentence of not more than six months, or both. Because a person convicted on that charge is not subject to punishment at hard labor, a person charged with possession of marijuana is not entitled to a jury trial. La. R.S. 14:2 A(6) and La. R.S. 40:966 E. Further, a person convicted of a first-time marijuana charge will not be entitled to an appeal, because appellate jurisdiction extends only to those cases that are triable by jury. La. Const. art. 5 § 10; La. C. Cr. P. art. 912.1. Cases for ordinary street crimes like possession of marijuana must be processed and brought to trial quickly, as the constitution tolerates relatively brief delays for simple misdemeanor offenses. State v. Reaves, 376 So.2d 136, 138 (La. 1979) (citing Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)) ("[T]he delay that can be tolerated for an ordinary street...