State v. Nolan

• Decision Date: 12 June 2019
• Docket Number: 19-188
• Citation: 274 So.3d 626
• Parties: STATE of Louisiana v. Brandon NOLAN
• Court: Court of Appeal of Louisiana — District of US

274 So.3d 626

STATE of Louisiana

v.Brandon NOLAN

19-188

Court of Appeal of Louisiana, Third Circuit.

June 12, 2019

Keith A. Stutes, District Attorney, Fifteenth Judicial District, P. O. Box 3306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR RESPONDENT: State of Louisiana

Ted L. Ayo, Attorney at Law, 10 S. St. Charles St., Abbeville, LA 70510-5108, (800) 880-1117, COUNSEL FOR RESPONDENT: State of Louisiana

Sean Brucker, 15th J.D. Public Defender's Office, 204 Charity Street, Abbeville, La 70510, (337) 898-2090, COUNSEL FOR DEFENDANT/APPLICANT: Brandon Nolan

Court composed of John D. Saunders, John E. Conery, and Van H. Kyzar, Judges.

SAUNDERS, Judge.

Defendant, Brandon Nolan, was charged by bill of information filed on May 15, 2017, with unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4, and flight from an officer, a violation of La.R.S. 14:108.1. Defendant filed a motion to suppress with memorandum in support thereof on July 25, 2018. The trial court denied the motion at a hearing held on January 31, 2019.

FACTS AND PROCEDURAL HISTORY

Defendant filed a notice of intent to seek review of the trial court's ruling on February 1, 2019. A return date, which was timely extended, was set. Defendant is now before this court via application for writ of supervisory review seeking reversal of the trial court's denial of his motion to suppress.

ON THE MERITS

In his only assignment of error, Defendant contends the trial court erred in denying his motion to suppress because law enforcement entered the curtilage of his home without a warrant to check the Vehicle Identification Number (VIN) of the car he was allegedly driving.

The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Similarly, the Louisiana Constitution provides that "[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy." La. Const. art. 1, § 5. As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. Warrantless searches and seizures are considered to be per se unreasonable unless they can be justified by one of the Fourth Amendment's warrant exceptions. State v. Freeman , 97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630. The state has the burden of showing that one of the exceptions applies. Id.

State v. Vail , 17-354, pp. 46-47 (La.App. 3 Cir. 12/28/17), 236 So.3d 644, 676, writ denied , 18-202 (La.App. 3 Cir. 11/20/18), 256 So.3d 998, cert. denied , ––– U.S. ––––, 139 S.Ct. 1232, 203 L.Ed.2d 246 (2019). See also La.Code Crim.P. art. 703(D). " ‘The trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent abuse of that discretion.’ State v. Lee , 05-2098, p. 15 (La. 1/16/08), 976 So.2d 109, 123." Vail , 236 So.3d at 678.

In his motion, Defendant sought to suppress all evidence and testimony regarding the VIN of the vehicle he was driving when he was arrested. He alleged the viewing of the VIN by police was an unconstitutional search because it was conducted during an unlawful warrantless intrusion into the curtilage of his home. Furthermore, even if the intrusion into the curtilage was not unlawful, the search of the vehicle was not a search incident to arrest and the automobile exception did not apply. Defendant relied on Collins v. Virginia , ––– U.S. ––––, 138 S.Ct. 1663, 201 L.Ed.2d 9 (2018), to support his claims. In Collins , the Supreme Court was called upon to determine whether the automobile exception permitted the warrantless entry of a home or its curtilage in order to search a vehicle therein. The Supreme Court found that it did not.

The State called a single witness at the hearing on Defendant's motion to suppress. Officer Joshua Hebert was employed by the Abbeville Police Department on February 1, 2017. He observed Defendant driving a maroon GMC Yukon on Charity Street. Defendant was not wearing a seat belt. Officer Hebert activated the vehicle's lights. Defendant either flagged Officer Hebert to follow him or go around him. Officer Hebert then activated the vehicle's siren and "called in the vehicle for refusing to stop." Defendant stopped six or seven blocks later at his residence. Defendant pulled "head first" into the driveway "in front of the front door." Officer Hebert pulled up behind Defendant. Defendant was placed on the ground because he refused to stop. He was then handcuffed. Backup officers subsequently arrived.

Detective Trent Guidry ran the VIN on the Yukon, and it came back stolen from Harris County, Texas. The VIN was visible through the front windshield, and police had to stand in the driveway to see it. Defendant had been handcuffed and arrested at that time. Police did not have a search warrant. Defendant's residence was depicted in Defense Exhibit 1.

The trial court denied the motion, finding the case distinguishable from Collins , as Defendant was running away.

In his writ application, Defendant argues police entered the curtilage of his home to search the vehicle without a warrant, and there were no exigent circumstances present that would have permitted such entry without a warrant. Defendant asserts the State attempted to justify the intrusion by claiming his failure to stop was an exigent circumstance. However, even if that were true, hot pursuit did not justify a search of his curtilage after police had already arrested him. The State presented no evidence suggesting that destruction of evidence was a concern. Moreover, the evidence was not in plain view. Defendant contends the search in this case is identical to that in Collins .

We now discuss the facts of Collins . During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, Officer David Rhodes learned that the motorcycle was probably stolen and in Collins' possession. Officer Rhodes discovered photographs on Collins' Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph. Without a search warrant, Office Rhodes walked to the top of the driveway, removed the tarp, confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers, took a photograph of the uncovered motorcycle, replaced the tarp, and returned to his car to wait for Collins. When Collins returned, Officer Rhodes arrested him.

In Collins , the Supreme Court discussed the meaning of curtilage as follows:

[T]the Fourth Amendment's protection of curtilage has long been black letter law. "[W]hen it comes to the Fourth Amendment, the home is first among equals." Florida v. Jardines , 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). "At the Amendment's ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ " Ibid. (quoting Silverman v. United States , 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ). To give full practical effect to that right, the Court considers curtilage—"the area ‘immediately surrounding and associated with the home’ "—to be " ‘part of the home itself for Fourth Amendment purposes.’ " Jardines , 569 U.S. at 6, 133 S.Ct. 1409 (quoting Oliver v. United States , 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ). "The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened." California v. Ciraolo , 476 U.S. 207, 212–213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986).

When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Jardines , 569 U.S. at 11, 133 S.Ct. 1409. Such conduct thus is presumptively unreasonable absent a warrant.

Id. at 1670.

The Supreme Court described the driveway where the motorcycle was parked:

[T]he driveway runs alongside the front lawn and up a few yards past the front perimeter of the house. The top portion of the driveway that sits behind the front perimeter of the house is enclosed on two sides by a brick wall about the height of a car and on a third side by the house. A side door provides direct access between this partially enclosed section of the driveway and the house. A visitor endeavoring to reach the front door of the house would have to walk partway up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch. When Officer Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.

Id. at 1670-71. The Court found the area where the motorcycle was parked was curtilage, stating:

The " ‘conception defining the curtilage’ is ... familiar enough that it is ‘easily understood from our daily experience.’ " Jardines , 569 U.S. at 7, 133 S.Ct. 1409 (quoting Oliver , 466 U.S. at 182, n. 12, 104 S.Ct. 1735 ). Just like the front porch, side garden, or area "outside the front window," Jardines , 569 U.S. at 6, 133 S.Ct. 1409, the driveway enclosure where Officer Rhodes searched the motorcycle constitutes "an area adjacent to the home and ‘to which the activity of home life extends,’ " and so is properly considered curtilage, id. , at 7, 133 S.Ct. 1409 (quoting Oliver , 466 U.S. at 182, n. 12, 104 S.Ct. 1735 ).

Id. at 1671 (emphasis added).

In Collins , Virginia cited Scher v. United States , 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938), in support of its argument that...