State v. Rousset
| Decision Date | 03 June 2020 |
| Docket Number | NO. 2020-K-0202,2020-K-0202 |
| Citation | 302 So.3d 55 |
| Parties | STATE of Louisiana v. Christopher ROUSSET |
| Court | Court of Appeal of Louisiana — District of US |
Stanislav Moroz, Orleans Public Defenders, 2601 Tulane Ave., Ste. 700, New Orleans, LA 70119 COUNSEL FOR DEFENDANT
(Court composed of Judge Terri F. Love, Judge Paula A. Brown, Judge Tiffany G. Chase )
This is a pre-trial criminal writ application. 1
The State seeks review of the district court's March 5, 2020 judgment granting Defendant's, Christopher Rousset, motion to suppress evidence and finding of no probable cause to arrest.2 For the reasons set forth below, we grant the writ application, reverse the district court's judgment, and remand the matter for a hearing consistent with this writ opinion.
Defendant was charged, on May 8, 2019, by bill of information with sixty-five counts of possessing child pornography, violations of La. 14:81.1. The offensive pictures were on Defendant's cell phone. On May 10, 2019, Defendant appeared for arraignment and entered pleas of not guilty. In addition, counsel for Defendant filed an omnibus motion wherein Defendant sought to suppress statements and evidence, and moved for a preliminary examination. The motion did not specify the evidence Defendant sought to suppress, nor the specific grounds to support suppressing the evidence, and a finding of no probable cause.
A hearing on the motion to suppress and a preliminary hearing was held on December 13, 2019. The State called one witness to testify, the responding officer, Vanessa Adams, who was employed by the New Orleans Police Department ("NOPD"). In addition, the State introduced, filed, and admitted into evidence the search warrant, the arrest warrant, and footage of the body-worn camera of Officer Adams which depicted Officer Adams speaking to the complainant, Mr. Gilbert, Defendant, and Clayton Babin, the person who discovered the inappropriate pictures.
Officer Adams, testified that she responded, on March 10, 2019, to a call at 3337 Ridgeway Boulevard located in New Orleans, Louisiana, regarding an incident involving indecent behavior with a juvenile. When the officer arrived and exited her police vehicle, Mr. Gilbert opened the door of a black truck and obtained a white cell phone. Mr. Gilbert informed Officer Adams that the day before, March 9, 2019, Charles Wolfe, Defendant's uncle, and Mr. Babin discovered the child pornography on Defendant's phone. Mr. Gilbert continued explaining that Mr. Babin picked up Defendant's cell phone to take a picture, and Mr. Babin discovered the offensive pictures when checking to see if the picture had taken. Mr. Gilbert stated that Defendant left the cell phone unattended, the cell phone did not have service, and the cell phone was not locked with a passcode. After discovering the inappropriate pictures, Mr. Babin, who did not know what to do about finding the images on Defendant's cell phone, gave the cell phone to Mr. Wolfe, who gave the cell phone to Mr. Gilbert. Mr. Gilbert informed Officer Adams that the cell phone belonged to Defendant, the roommate of Mr. Gilbert's nephew. Mr. Gilbert attempted to show Officer Adams one of the inappropriate pictures, but Officer Adams stated the picture was too dark. Mr. Gilbert, then, gave the cell phone to Officer Adams.
Officer Adams followed Mr. Gilbert to the residence of Mr. Gilbert's nephew, where Defendant was staying; it was not far from where Officer Adams met Mr. Gilbert. Upon arrival, Officer Adams approached Defendant, who identified himself, and she read Defendant his Miranda3 rights. Following, Officer Adams showed Defendant the cell phone she received from Mr. Gilbert, and she asked Defendant if the cell phone belonged to him. Defendant answered affirmatively. Officer Adams handcuffed Defendant, walked Defendant to her police vehicle, and informed Defendant why he was being arrested when they reached the police vehicle. In the police vehicle, Officer Adams viewed the pictures on Defendant's cell phone, and she testified that there were pornographic pictures of children dating back to 2002.
As part of the investigation, Officer Adams contacted Mr. Babin, the person who discovered the pictures, by phone, as he was on a boat with Mr. Wolfe. During the phone interview, Mr. Babin explained Defendant placed the cell phone on a welding trailer and walked away. Mr. Babin picked up the cell phone from the welding trailer to take a picture/video of a four-wheeler as it was being repossessed. After taking the picture/video, Mr. Babin checked the cell phone to see if the picture/video had taken. At that moment, he discovered pictures depicting child pornography. Mr. Babin stated that the cell phone was not locked with a passcode.
Officer Adams notified Detective Takeshia D. Fournier, an investigator for the NOPD, of the offensive photographs.
On March 27, 2020, an affidavit for a search warrant for Defendant's cell phone was prepared by Det. Fournier, and a search warrant was issued for Defendant's cell phone on that same date. In addition, Officer Fournier prepared an affidavit for arrest of Defendant, wherein she attested that Defendant's cell phone was searched pursuant to a search warrant, and she observed on the cell phone "sixty-five images of children under the age of 13 years old engaged in sexual acts including but not limited to oral rape and/or posed in sexual manner where their genitals are the clear focus of the camera." Office Fournier also attested that on April 9, 2020, Lisa Maher, with the Bureau of Investigation Cyber Crime, unit "viewed and confirmed the images and identified sixty-five images as Child Pornography." An arrest warrant for Defendant was issued on April 9, 2019.
No testimony or evidence was presented by Defendant at the hearing.
Following the hearing, on January 31, 2020, the parties submitted memoranda. On March 4, 2020, the State filed a motion seeking to dismiss the motion to suppress for lack of particularity or to reopen the hearing to allow the State to introduce additional evidence. On March 5, 2020, the district court denied the motion to reopen the hearing, found no probable cause for the arrest, and granted Defendant's motion to suppress. The State objected and proffered additional testimony of Officer Adams. This writ application followed.
After the State filed its writ application and Defendant filed his opposition, on April 27, 2020, pursuant to this Court's order, the district court issued a per curiam wherein the issues that it addressed were set forth:
At issue now before the [Appellate] Court is the trial court's rulings regarding the warrantless search of a cellular phone, the suppression of evidence obtained through that warrantless search, the suppression of statements made by the defendant, and the trial court's finding of no probable cause in this matter.
The district court granted the motion to suppress based on the warrantless search of the cell phone relying on Riley v. California , 573 U.S. 373, 401, 134 S.Ct. 2473, 2493, 189 L.Ed.2d 430 (2014), wherein the United States Supreme Court held that "a [search] warrant is generally required before such a search, even when a cell phone is seized incident to arrest." The district court suppressed the "unlawfully obtained evidence." In addition, the district court, based on the failure of the officer to inform the Defendant of his charge, suppressed the Defendant's statement that the cell phone belong to him. Furthermore, the district court found, as a result of the warrantless search, that there was no probable cause for Defendant's arrest. The district court concluded that two of the State's arguments in defense of the warrantless search of the cell phone by Officer Adams—the cell phone was abandoned and/or a result of a search by a private party—were without merit, and not properly before the appellate court because these arguments were not raised in the district court.
The State asserts that the district court erred by: (1) suppressing "the images of child pornography" seized from Defendant's cell phone; (2) suppressing Defendant's statement acknowledging that the cell phone belong to him; and (3) finding no probable cause for Defendant's arrest. For clarity, we discuss the alleged errors out of turn.
Probable cause for arrest
The State asserts the district court erred in finding no probable cause to support Defendant's arrest. We agree.
The standard of review for a trial court's ruling on probable cause to arrest is abuse of discretion. State v. Hilton , 16-0325, p. 3 (La. 3/24/16), 187 So.3d 981, 983 ().
The Louisiana Supreme Court in State v. Simms , 571 So.2d 145, 148-49 (La. 1990) explained:
Probable cause to arrest exists when the facts and circumstances within the officer's knowledge are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) ; State v. Wilson, 467 So.2d 503 (La.1985). The determination of probable cause, although requiring something more than bare suspicion, does not require evidence sufficient to support a conviction. Probable cause, as the very name implies, deals with probabilities. Brinegar v. United States , 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the available evidence supports a reasonable belief that the person to be arrested has...
To continue reading
Request your trial