State v. McClendon

• Decision Date: 30 January 2014
• Docket Number: No. 2013–K–1454.,2013–K–1454.
• Citation: 133 So.3d 239
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE of Louisiana v. Jonathan McCLENDON.

133 So.3d 239

STATE of Louisiana
v.
Jonathan McCLENDON.

No. 2013–K–1454.

Court of Appeal of Louisiana,
Fourth Circuit.

Jan. 30, 2014.

[133 So.3d 242]

Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, Donald G. Cassels, III, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for State of Louisiana.

John T. Fuller, Gregory Q. Carter, John T. Fuller & Assoc., New Orleans, LA, for Jonathan McClendon.

[133 So.3d 243]

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge ROSEMARY LEDET).

PAUL A. BONIN, Judge.

We 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. McClendon 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. McClendon'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.

I

In this Part, we set forth the facts pertinent to our review. At approximately 7:15 p.m. on September 10, 2013, Mr. McClendon 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 Gillard, 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.

[133 So.3d 244]

Subsequent 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. McClendon 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. McClendon 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.

II

In this Part, we discuss the legal precepts that guide our review. The Fourth Amendment to the United States Constitution ³ 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.” ⁴State 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 compatible

[133 So.3d 245]

with one of these exceptions and is thus reasonable under the Fourth Amendment. SeeLa.C.Cr.P. art. 703 D. This requires that pertinent facts and circumstances be articulated through testimony by law 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. 1054, 55 L.Ed.2d 268 (1978).

With regards to violations of the Fourth Amendment, “[t]he exclusionary rule should only apply where it “results in appreciable deterrence” of police misconduct. Id. at 141, 129 S.Ct. 695 (citing United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (2004)) (internal punctuation omitted). This requires “an assessment of the flagrancy of the police misconduct,” and review of whether “the law enforcement officer had knowledge, or may be properly charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. at 143, 129 S.Ct. 695. The district judge, prior to making his ruling on a motion to suppress, should then weigh the benefit of this deterrence against the social costs of the application of the exclusionary rule, namely letting guilty, possibly dangerous defendants go free and stifling truth seeking. See id. at 141, 129 S.Ct. 695.

In our review of a district judge's decision to deny or grant a petitioner's motion to suppress, we first look to the factual findings underlying the judge's decision. We grant great deference to these findings of fact, and will “not overturn those findings unless there is no evidence to support those findings.” State v. Wells, 08–2262, p. 4 (La.7/6/10), 45 So.3d 577, 580.See also State v. Morgan, 09–2352, p. 5 (La.3/5/11), 59 So.3d 403, 406 (“Furthermore, a reviewing court must give due weight to factual inferences drawn by resident judges.”). This extremely heightened deference is rooted in the limitations of our appellate jurisdiction set forth in La. Const. art. 5, § 10(B), which provides: “In criminal cases, [an appellate court's] jurisdiction extends only to questions of law.” This limited scope of review also stems from the “complementary role of trial courts and appellate courts,” State v. Love, 00–3347, p. 9 (La.5/23/03), 847 So.2d 1198, 1206, as district judges have the unique “opportunity to observe the witnesses and weigh the credibility of their testimony.” Wells, 08–2262 at p. 5, 45 So.3d at 581.

Applying the district court's supported findings of fact, we review the district judge's holdings on questions of law, including the reasonableness of government conduct under the Fourth Amendment, de novo. See Id., 08–2262 at p. 4, 45 So.3d at 580;State v. Pham, 01–2199, p. 3 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218. Should we find no reversible legal error in the court's reasonableness determination, we then review the

[133 So.3d 246]

district judge's decision to grant a motion to suppress for abuse of discretion, see Wells, 08–2262 at p. 5, 45 So.3d at 581, as the ruling as to whether the exclusionary rule is being...