Opinion
No. 09-K-404.
April 27, 2010.
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 08-76, DIVISION "C" HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING.
HON. THOMAS F. DALEY, District Attorney, ORENTHAL J. JASMIN, Assistant District Attorney, Laplace, La., COUNSEL FOR RELATOR, STATE OF LOUISIANA.
PETER Q. JOHN, Attorney at Law, Baton Rouge, La., COUNSEL FOR RESPONDENT, HILTON MILLET.
Panel composed of Judges MARION F. EDWARDS, CLARENCE E. MCMANUS, and MARC E. JOHNSON.
MCMANUS, J., DISSENTS WITH REASONS.
The State, Relator, filed a supervisory writ to review the decision of the trial court of the 40th Judicial District Court to grant the Motion to Suppress filed by Respondent, Hilton Millet. For the following reasons, we deny the writ.
FACTS AND PROCEDURAL HISTORY
The facts of the case are taken from the evidence and testimony presented at the Motion to Suppress hearing held on February 19, 2009.
On February 4, 2008, at approximately 1:00 a.m., Sergeant Graham Saturley and Detective Monty Adams of the St. John the Baptist Sheriffs Office were two of several officers dispatched to Kenny's RB Club in LaPlace, Louisiana. While clearing the parking lot, there was a Pontiac Bonneville parked in an unusual position that blocked the exit of other vehicles.
Officer Saturley testified that they were dispatched to the scene in response to a violent altercation that had occurred in the parking lot. However, the owner of Kenny's RB Club, Kenny Gray, testified that he did not call for the assistance of law enforcement the entire night, and there were no disturbances in the parking lot.
After clearing the parking lot, the Detectives noticed the odor of marijuana emanating from the unusually positioned car. The car was locked from the inside. Detective Adams further detected that the odor was unusual and similar to that involved in another major narcotics investigation that was ongoing. Subsequently, the K-9 Unit was called to the scene.
Sergeant Brian Bertrand, a canine handler with St. John the Baptist Sheriffs Office, arrived on the scene with his narcotics dog and was asked to have the dog investigate the outside of the car. The dog alerted twice at the car's door seams that contraband was present in the vehicle. Attempts to locate the owner of the car were made, but no one claimed it.
Sergeant Saturley testified that the officers had the disc jockey in the club make an announcement requesting that either the driver or the owner of the car proceed outside to speak with the officers. Mr. Gray testified that the disc jockey never made an announcement on that night regarding the car in question.
Sergeant Saturley and Detective Adams conducted a license plate inquiry and determined the registered owner of the car was Terri Victor. Sergeant Saturley recognized the car owner's name as the lessee for a storage bin, where a substantial amount of marijuana that had a very distinct odor was found. The odor emanating from the car was similar to the odor found in the storage bin.
Sergeant Saturley seized the car and called a tow truck to tow the car from the nightclub's parking lot to the St. John the Baptist Parish Sheriffs Office. At 5:40pm, Sergeant Saturley obtained the search warrant signed by Judge Sterling Snowdy. Sergeant Saturley testified that he did not obtain a search warrant before having the car towed due to the officers' safety on the scene, and he was "just tired." The search of car at the Sheriffs Office uncovered approximately 5.44 grams of marijuana, a marijuana "blunt," a speed feeder for a Glock pistol magazine, and a 100 gram weight. Respondent filed a Motion to Suppress the evidence seized from the search of the car. The trial court took the matter under advisement and granted the motion in a written judgment. The State filed the instant supervisory writ from that ruling.
This Court originally denied the writ application. The State filed a supervisory writ with the Louisiana Supreme Court. The supreme court granted the writ and remanded it to this Court for docketing, argument, if appropriate, and opinion. As a result of that remand, we are reconsidering the writ.
ASSIGNMENT OF ERROR
On supervisory writ, Relator alleges that the trial court erred in granting Respondent's Motion to Suppress as there was overwhelming evidence presented that the police officers acted in a reasonable constitutional manner with regard to the seizure and search of Respondent's vehicle.
LAW AND ANALYSIS
A 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. Wilder, 09-2322 (La. 12/18/09); 24 So.3d 197, 198; State v. Lee, 05-2098, p. 15 (La. 1/16/08); 976 So.2d 109, 122, cert, denied, — U.S. —, 129 S.Ct. 143, 172 L.Ed.2d 39. We do not find that the trial court abused its discretion in granting Respondent's Motion to Suppress.
The Constitutions of the United States and Louisiana protect individuals from unreasonable searches and seizures. U.S. Const. Amend. IV; LSA-Const. Art. 1 § 5. The exclusionary rule bars physical and verbal evidence obtained either during or as a direct result of an unlawful search or seizure. State v. Hunt, 09-1589 (La. 12/1/09); 25 So.3d 746, 752; Wong Sun v. United States, 371 U.S. 471, 484, 835 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).
It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless seizure and search can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 02-0333, p. 6 (La. 4/9/03); 842 So.2d 330, 335.
The first cases establishing the automobile exception to the Fourth Amendment's warrant requirement were based on the automobile's "ready mobility," an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996); California v. Carney, 471 U.S. 386, 390-391, 105 S.Ct. 2066, 2068-2069, 85 L.Ed.2d 406 (1985).
When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving that the search and seizure was justified pursuant to one of the exceptions to the warrant requirement. State v. Joseph, 02-717, p. 4 (La.App. 5 Cir. 6/27/06); 850 So.2d 1049, 1052, writ denied, 04-2404 (La. 6/17/05); 904 So.2d 686.
In the instant case, the trial court found that the car was unconstitutionally seized without a warrant because 1) the car was not readily mobile, and 2) the officers at the scene had ample time to obtain a search warrant before Respondent was alerted to the officers' suspicions.
The car in question was parked in the parking lot of Kenny's RB club. The car was locked from the inside. The owner and/or driver of the car did not claim it at any time during the officers' investigation of the emanating odor. It is not stated in either the testimonies of the officers or the police reports that the officers were apprehensive that the car and the contraband would be removed from the premises without seizure of the car. Under these circumstances, the State did not meet its burden that the car was readily mobile at the time the car was seized.
In all of the cases cited by the State, the defendant was associated with a vehicle by either being in or around it, which would give validity to the notion that the car could be moved and the contraband could be lost unless an immediate seizure and search were conducted. If the defendant would have claimed the car at the scene, then the officers would have been justified in seizing the car. Here, it could not be reasonably assumed by the officers that the unclaimed, locked car would have been removed from the scene before a search warrant was obtained.
Accordingly, because the State did not meet its burden of proving that the car was readily mobile, the automobile exception to the warrant requirement did not apply to this case. Additionally, we find that the officers were not justified in towing the car to the police station before obtaining the search warrant. Therefore, we do not find that the trial court erred in granting the Respondent's motion to suppress the evidence.
DECREE
For the foregoing reasons, we deny the writ.
WRIT DENIED
I would reverse the trial court and render judgment denying the motion to suppress. For constitutional purposes, there is no difference between seizing and holding a car before presenting the probable cause issue to a magistrate and carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment and the Louisiana Constitution. State v. Jackson, 778 So.2d 23 (La. App. 5 Cir. 12/13/00), writ denied 802 So.2d 629 (La. 2001), citing State v. Tatum, 466 So.2d 29 (La. 1985). I believe that the officers had probable cause to conduct a search at the scene, See State v. Joseph, 02-717 (La. App. 5 Cir. 6/27/03), 850 So.2d 1049, writ denied 04-2404 (La. 6/17/05) and State v. Anderson, 06-1031 (La. App. 4 Cir. 1/17/07), 949 So.2d 544, writ denied, 07-0468 (La. 10/12/07), 965 So.2d 399, and therefore the seizure of the vehicle was constitutionally permissible. Therefore I respectfully dissent.
NOTICE OF JUDGMENT AND CERTIFICATE OF MAILING
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILED ON OR DELIVERED THIS DAY APRIL 27, 2010 TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
HON. THOMAS F. DALEY DISTRICT ATTORNEY ORENTHAL J. JASMIN ASSISTANT DISTRICT ATTORNEY 40TH JUDICIAL DISTRICT PARISH OF ST. JOHN THE BAPTIST P.O. BOX 399 EDGARD, LA 70049
PETER "Q" JOHN ATTORNEY AT LAW 12011 BRICKSOME AVENUE SUITE D BATON ROUGE, LA 70816