State v. Jones

• Decision Date: 24 April 2013
• Docket Number: No. 2012–KA–0438.,2012–KA–0438.
• Citation: 119 So.3d 9
• Parties: STATE of Louisiana v. Donald B. JONES, Jr.
• Court: Court of Appeal of Louisiana — District of US

119 So.3d 9

STATE of Louisiana
v.
Donald B. JONES, Jr.

No. 2012–KA–0438.

Court of Appeal of Louisiana,
Fourth Circuit.

March 13, 2013.
On Rehearing April 24, 2013.

[119 So.3d 11]

Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.

Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).

[119 So.3d 12]

TERRI F. LOVE, Judge.

[4 Cir. 1]This appeal arises from defendant Donald Jones' conviction of attempted possession of a firearm by a felon. The defendant was sentenced to seven years at hard labor, without benefit of probation, parole, or suspension of sentence. In his appeal, the defendant alleges the trial court abused its discretion in denying the motion to suppress evidence because the officers had no authority to conduct a warrantless search of his residence in the absence of a reasonable suspicion of criminal activity. We find that the trial court did not abuse its discretion in denying his motion to suppress as the officers would have inevitably discovered the firearm under the defendant's bed. Furthermore, the probation officers had reasonable cause to arrest the defendant without a warrant for violating a condition of his probation—living under the roof of another probationer—and incident to that arrest the probation officers would have been authorized to search the defendant and his immediate surroundings. Therefore, we affirm.

PROCEDURAL HISTORY

Donald Jones (“the defendant”) was charged by bill of information with felon in possession of a firearm in violation of La. R.S. 14:95.1. The bill of information alleged that the defendant was previously convicted of attempted [4 Cir. 2]simple burglary. Jones subsequently filed several pre-trial motions, including a motion to suppress and a motion for preliminary hearing. At the preliminary hearing the trial court found probable cause to substantiate the charges. After a hearing on defendant's motion to suppress, the trial court denied the motion to suppress. The defendant filed an application for supervisory writ, and this court declined to exercise its supervisory jurisdiction and informed the relator of his right to re-urge the matter again on appeal in the event of his conviction.

Thereafter, the defendant filed writs with the Louisiana Supreme Court to review this court's decision. The Louisiana Supreme Court denied the defendant's writ application.

The matter subsequently proceeded to trial. At trial, the defendant entered into a plea agreement with the State. In exchange for the State's recommendation of a seven year sentence, the defendant pled guilty to the lesser included offense of attempted possession of a firearm by a felon. The defendant also reserved his right to appeal the trial court's denial of his motion to suppress the evidence pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

The trial court sentenced the defendant to seven years at hard labor, without the benefit of probation, parole, or suspension of sentence, to run concurrently with any other sentence, with credit for time served. The defendant moved for appeal, and contends the trial court erred in denying his motion to suppress evidence.

STATEMENT OF FACTS

In the present case, Officer J.D. Bertrand (“Officer Bertrand”) of Probation and Parole testified at the preliminary hearing. At the motion to suppress, Detective Korey Keaton (“Detective Keaton”) of the Orleans Parish [4 Cir. 3]Police Department and Ms. Kathy Guy (“Ms. Guy”), the defendant's guardian, testified.

Officer J.D. Bertrand's Testimony

At the preliminary hearing, the only witness called was Officer Bertrand of Probation and Parole. Officer Bertrand testified that he and several other officers were doing a routine residence check on the defendant in the 3000 block of Edith Weston Place. He stated that the probation

[119 So.3d 13]

officers are permitted to conduct residence checks under La.C.Cr.P. Art. 895(A)(13). ¹ Officer Bertrand testified that when he and the other officers arrived at the defendant's residence, they knocked on the door and were greeted by who he thought was the defendant's mother, Kathy Guy (“Ms. Guy”). The record reveals that Kathy Guy is the mother of another probationer Rondell Guy and the custodian of the defendant, not the defendant's mother. Officer Bertrand stated that Ms. Guy gave them access to the residence and when asked about the defendant and Rondell Guy, she directed them upstairs towards their bedrooms. Officer Bertrand and another probation agent, Officer Spangler, proceeded upstairs. The other officers remained downstairs with Ms. Guy.

[4 Cir. 4]When Officer Bertrand entered the defendant's bedroom, he observed the defendant and a juvenile asleep on the bed. He also stated that the defendant was sleeping on the left side of the bed. Officer Bertrand informed the defendant the officers were there to conduct a residence check and asked him and the juvenile to step out of the room for officer safety. After exiting the room, the defendant was handcuffed by Officer Spangler and sent downstairs. Officer Bertrand subsequently conducted a search of the bedroom and found a loaded 9 mm handgun under the left side of the mattress, near the foot of the bed. After securing the firearm, Officer Bertrand found a box of .38 revolver ammunition under the left side of the bed. Officer Bertrand also stated that he observed a grinder, typically used for marijuana, a small scale, and the defendant's birth certificate on the bedroom dresser.

On cross-examination, Officer Bertrand admitted that prior to visiting the defendant's residence, he had no information that the defendant was in possession of a gun or information that he was involved in criminal activity. He stated the reason for going to the defendant's residence was to conduct a routine probation check. Officer Bertrand testified that when he went upstairs, Supervisor Puhlman spoke with Ms. Guy and stayed with the family as he and

[119 So.3d 14]

Officer Spangler searched the bedroom. He stated that he did not know if Ms. Guy signed a consent form. Officer Bertrand testified that six people were living at the residence, but he did not ask to whom the gun belonged. He testified that when the officers recovered the handgun, he turned it over to Detective Keaton to log into evidence.

Detective Korey Keaton's Testimony

[4 Cir. 5]At the hearing on the motion to suppress the evidence, Detective Keaton of the Orleans Parish Police Department, Special Operation Division testified. He testified on the date of defendant's arrest, he was assisting the probation officers conduct the residence check. Detective Keaton testified that one of the reasons for the officers visiting the residence was because the defendant had violated his probation by living at the same address as Rondell Guy, another probationer. He testified that when he and six other probation agents arrived at the defendant's house, Supervisor Larry Puhlman, knocked on the door and “announced his presence and authority.” Shortly thereafter, Officer Keaton stated that Ms. Guy and two other females opened the door. He testified that two probation officers went upstairs to defendant's bedroom after Ms. Guy informed them that the defendant was upstairs. He also testified that Supervisor Puhlman found a box of ammunition for a .44 caliber gun in the living room on the first floor.

On cross-examination, Officer Keaton testified that he did not receive any information that there was criminal activity occurring at the Edith Weston residence. He stated that the only information he had was that two probationers, who were just placed on probation two weeks prior, were living at the same residence. Officer Keaton again testified that after Supervisory Puhlman announced his presence, Ms. Guy let the officers in the home. He stated he did not speak with Ms. Guy personally and was not aware if any of the agents spoke to Ms. Guy. Officer Keaton testified that Ms. Guy did not sign a consent form.

Ms. Kathy Guy's Testimony

Ms. Guy also testified at the motion to suppress. Ms. Guy resides at the residence where the defendant was searched and is the defendant's guardian. Ms. Guy testified that when she opened the door for the detective and the probation officers, they asked her where the defendant and her son, Rondell Guy, were. She also stated that she heard one law enforcement officer state “we gained entry” after putting his foot through the door. Ms. Guy testified that her son's probation [4 Cir. 6]officer, Officer Summer, and another officer asked again where Rondell Guy and the defendant were, and she said they were asleep. She stated that the officers then announced they were probation and parole officers and pushed their way in the house. Ms. Guy stated neither the probation agents nor the police officer asked for her permission to enter the home. Ms. Guy testified that when she asked them if they had a warrant, the officers informed her that they did not need one because as probationers, Rondell Guy and the defendant signed a form allowing probation officers to enter the home. When asked on direct examination if she felt like she could refuse to let the officers in, Ms. Guy stated “[n]o. I didn't feel like I could—I thought I could have refused them, but when they had done busted and entered ... they said when my son and them signed some papers, that that [sic] the reason why they came.”

On cross-examination, Ms. Guy stated that she was not aware that Rondell Guy and the defendant were not allowed to be living together because they were on probation. Ms. Guy testified that she did not

[119 So.3d 15]

direct the probation officers upstairs, but that after she said they were sleeping and that the officers “must have automatically assumed that they [were] upstairs.”

ERRORS PATENT

A review of the...