Opinion
NO. 2021-K-0738
03-30-2022
STATE of Louisiana v. Thomas RILES
Jason R. Williams, DISTRICT ATTORNEY FOR ORLEANS PARISH, G. Ben Cohen, Chief of Appeals, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/RELATOR. Diana Yu, ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, Seventh Floor, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/RESPONDENT.
Jason R. Williams, DISTRICT ATTORNEY FOR ORLEANS PARISH, G. Ben Cohen, Chief of Appeals, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/RELATOR.
Diana Yu, ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, Seventh Floor, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/RESPONDENT.
(Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Rosemary Ledet )
Judge Joy Cossich Lobrano
Relator, the State of Louisiana, seeks review of the district court's November 10, 2021 ruling, wherein the district court granted the motion to suppress the evidence and statement filed by Thomas Riles ("Defendant") and found no probable cause. For the reasons discussed below, we grant the writ and reverse the district court's ruling.
At the hearing on Defendant's motion to suppress, the State offered the testimony of Officer David DeSalvo, which the video footage from his body camera corroborated. Before the arrest, Officer DeSalvo and his superior officer were driving a marked police vehicle down Saint Mary Street to get lunch, with several other officers following in police vehicles. Defendant was walking on the adjacent sidewalk in the same direction as the officers. When Defendant noticed the police approaching him from behind, Defendant immediately turned around, walking toward the approaching police before turning down a driveway on the side of a residence he had just passed. Down the driveway, Defendant approached a door and feigned a knocking motion on the door. Officer DeSalvo stopped to watch Defendant, at which point Defendant made "the lightest knock possible" on the door, such that "no one would have heard it." Officer DeSalvo noted this behavior was odd and also noticed a bulge in Defendant's waistband, which he believed was a firearm. Defendant then stepped over the railing of the porch where he stood and walked toward a fence at the rear of the residence as if he was preparing to jump the fence into the backyard.
Officer DeSalvo testified that at least six other officers followed in police units.
Officer DeSalvo testified he had eleven years of experience dealing with concealed weapons, and had been involved in over one hundred cases involving concealed weapons.
Officer DeSalvo did not believe Defendant "belonged at that address" and elected to make a suspicious person stop. Officer DeSalvo requested the other officers to assist with the stop. Officer DeSalvo drove around the corner to the rear of the residence while the other officers followed Defendant from the front of the residence as Defendant jumped over the fence. One of the assisting officers reported seeing Defendant discard an object as he fled from the police.
Officer DeSalvo found Defendant behind an adjacent residence lying on the ground next to a fence doing pushups, at which point he placed Defendant in handcuffs and immediately read him his Miranda rights. A handgun was found on the ground in the area where it had been reported Defendant discarded an object.
The district court's findings of fact on a motion to suppress are reviewed under a clearly erroneous standard, and its ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Polkey , 20-0482, pp. 3-4 (La. App. 4 Cir. 11/25/20), 310 So.3d 605, 608 (citing State v. Pham, 01-2199, p. 3 (La. App. 4 Cir. 1/22/03), 839 So.2d 214, 218 ; U.S. v. Seals, 987 F.2d 1102, 1106 (5th Cir. 1993) ). Accordingly, on mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions drawn from those facts de novo . Polkey , 20-0482, p. 4, 310 So.3d at 608 (citing Pham, 01-2199, p. 3, 839 So.2d at 218 ). Where the facts are not in dispute, the reviewing court must consider whether the district court came to the proper legal determination under the undisputed facts. Id . The parties in this case do not dispute the facts and the video footage from the officer's body camera corroborated the testimony; thus, we must review de novo whether the officers had a reasonable, particularized, and objective basis to suspect criminal activity. See State v. Morgan , 09-2352, p. 5 (La. 3/15/11), 59 So.3d 403, 406.
In State v. Fisher , 97-1133 (La. 9/9/98), 720 So.2d 1179, the Louisiana Supreme Court recognized a useful three-tiered analysis of interactions between citizens and the police, which the court reiterated in State v. Hamilton , 09-2005 (La. 5/11/10), 36 So.3d 209, as follows:
In the first tier, there is no seizure or Fourth Amendment concern during mere communication with police officers and citizens where there is no coercion or detention. State v. Fisher , 97-1133 (La. 9/9/98), 720 So.2d 1179, 1183. The second tier consists of brief seizures of a person, under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), if the officer has an objectively reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal activity. Fisher , 720 So.2d at 1183. The third tier is custodial arrest where an officer needs probable cause to believe that the person has committed a crime. Id .
Within the first tier, officers have "the right to engage anyone in conversation, even without reasonable grounds to believe that they have committed a crime." Dobard, 824 So.2d at 1130 (quoting State v. Johnson , 01-2436, p. 3 (La. 1/25/02), 806 So.2d 647, 648 ). Further, the police do not need probable cause to arrest or reasonable suspicion to detain an individual each time they approach a citizen. Dobard , 824 So.2d at 1130. As long as the person approached by the officers remains free to disregard the encounter and walk away, there are no constitutional implications. Id. In State v. Dobard , this court stated, "It is settled that ‘law enforcement officers’ do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen ...." 01-2629, p. 8 (La. 6/21/02), 824 So.2d 1127, 1132 (quoting Florida v. Royer , 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) ).
Hamilton , 09-2005, p. 4, 36 So.3d at 212-13.
We find that the investigatory stop of Defendant was lawful. "[C]ourts reviewing the legality of an investigatory stop must consider the totality of the circumstances of each case to see whether the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity." State v. Morgan , 09-2352, p. 5 (La. 3/15/11), 59 So.3d 403, 406 (citations omitted).
Our court and the Supreme Court have found reasonable suspicion sufficient to justify an investigatory stop in cases presenting similar suspicious and unprovoked flight behavior to those presented in the case sub judice . See e.g. State v. Frosch , 816 So.2d 269, 270 (La. 2002) (the defendant looked into a truck and jiggled the door handle and attempted to flee upon noticing police in a neighborhood having many vehicle thefts in the past ); State v. Devore , 00-0201 (La. App. 4 Cir. 12/13/00), 776 So.2d 597 (the defendant concealed himself in a vehicle upon seeing police officers); State v. Keller , 98-0502 (La. App. 4 Cir. 3/10/99), 732 So.2d 77 (the defendant hastily walked away from police officers and removed a white object from his pants pocket and shoved the object into his mouth while walking away). See also State v. Moultrie , 14-1535 (La. App. 1 Cir. 10/23/15), 182 So.3d 1017, rev'd on other grounds , 15-2144 (La. 6/29/17), 224 So.3d 349.
We find it immaterial in our reasonable suspicion analysis in the case sub judice as to whether the area of the arrest was a high-crime neighborhood or whether New Orleans is a high-crime city. Defendant's odd and evasive flight behavior at the sight of the police coupled with the reasonable suspicion that Defendant was carrying a concealed firearm was sufficient for a finding that the investigatory stop did not infringe on Defendant's Fourth Amendment constitutional right, which protects people from unreasonable searches and seizures by the government. Moreover, Defendant's flight onto private property under the circumstances was a crucial factor in our reasonable suspicion analysis. Our totality of the circumstances balancing analysis is based on all available information rather than bright-line rules. This analytical framework allows courts to be free to consider a range of evidence when making Fourth Amendment reasonableness determinations. In Florida v. Harris , 568 U.S. 237, 244, 133 S.Ct. 1050, 1055, 185 L.Ed.2d 61 (2013), the United States Supreme Court affirmed that judges must "reject[ ] rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach."
The Supreme Court reversed the appellate court's ruling that the search of a barbecue grill exceeded the permissible scope of a protective search for weapons but did not disturb the appellate court's ruling that the officers had reasonable suspicion to stop and detain the defendant. The defendant quickly walked away upon recognizing police officers in a high-crime area. When the officers, just seconds later, arrived at the driveway where the defendant had disappeared, the defendant reappeared, walking back toward them.
The totality of the circumstances—Defendant's odd and evasive behavior, the visible bulge in Defendant's waistband, and Defendant's unprovoked flight over a fence and into the backyard of a private residence he could not access—gave the police a reasonable basis to stop Defendant. Consequently, we find that evidence obtained in the ensuing investigation—the gun discovered near the site of Defendant's arrest and statements made to police after Defendant was arrested and read his Miranda rights—was obtained lawfully. Likewise, we find probable cause for Defendant's arrest.
In Morgan , the Louisiana Supreme Court observed that, "although flight, alone, is insufficient to support a finding of reasonable suspicion, ... a defendant's flight, especially when unprovoked, appears to be the crucial factor in the reasonable suspicion analysis." 09-2352, p. 9, 59 So.3d at 408-09.
In light of the foregoing facts and law, we find the district court erred in granting the motion to suppress and finding no probable cause for Defendant's arrest. Accordingly, we grant the State's writ application and reverse the district court's November 10, 2021 judgment.
WRIT GRANTED; JUDGMENT REVERSED.
LOMBARD, J., DISSENTS WITH REASONS,
The Fourth Amendment of the U.S. Constitution and Article 1, Section 5 of the Louisiana Constitution protect persons from unreasonable searches and seizures. The Louisiana Supreme Court has outline the appropriate levels of interactions between citizens and police as follows:
In the first tier, there is no seizure or Fourth Amendment concern during mere communication with police officers and citizens where there is no coercion or detention. The second tier consists of brief seizures of a person, under Terry v. Ohio , if the officer has an objectively reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal activity. The third tier is custodial arrest where an officer needs probable
La. Code Crim. Proc. art. 215.1, codifying Terry v. Ohio, recognizes a law enforcement officer's right "to stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense."
cause to believe that the person has committed a crime.
Within the first tier, officers have the right to engage anyone in conversation, even without reasonable grounds to believe that they have committed a crime. Further, the police do not need probable cause to arrest or reasonable suspicion to detain an individual each time they approach a citizen. As long as the person approached by the officers remains free to disregard the encounter and walk away, there are no constitutional implications. [T]his court [has previously] stated ... that law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen
State v. Hamilton , 2009-2005, pp. 4-5 (La. 5/11/10), 36 So.3d 209, 212-13 (citations and internal quotation marks omitted).
The applicable standard of review in this matter is whether the district court abused its discretion in granting the defendant's motion to suppress and, accordingly, the relevant question before us is whether there is evidence in the record support the district court findings and not whether our review of the facts could lead to a different conclusion. Specifically, when (as in this case) the district court finds no probable cause and suppresses the evidence based on the weight of the testimony and the credibility of witnesses, we owe those findings great deference "and may not overturn those findings unless there is no evidence to support those findings." State v. Wells, 2008-2262, p. 4 (La. 7/6/10), 45 So.3d 577, 580-81 (reversing an appellate court decision based on improper de novo review of underlying facts).
The following evidence was adduced at the hearing: Officer DeSalvo testified that on July 22, 2021, about midday, he and his sergeant were driving down the 700 block St. Mary Street in their patrol car "going to maybe even get something to eat," followed by at least 6 other police officers who, presumably, were also driving in marked police cars. The defendant, a resident of the neighborhood , was walking down the street and, in the words of Officer DeSalvo, "doing nothing wrong" The defendant passed in front of 750 St. Mary Street, glanced in the direction of the police car caravan, then turned down the driveway towards the house at 750 St. Mary Street. Officer DeSalvo conceded he had no prior knowledge of the defendant but, nonetheless, found this behavior (turning from a sidewalk down a driveway towards a house) to be suspicious behavior. He did not, however, initiate an investigatory stop or attempt to ask the defendant to answer any questions at this point. Rather, Officer DeSalvo and his sergeant watched from the police car as the defendant knocked on the door of the house. From this vantage point (inside the police car, presumably with the engine running), Officer DeSalvo determined that the defendant's knock on the door was too light to attract the attention of anyone in the house. Again, Officer DeSalvo did not initiate an investigatory stop, call to the defendant, or attempt to question him. Next, the defendant turned from the door and walked towards the side of the house. As the defendant turned away from the door, Officer DeSalvo glimpsed a protrusion of some sort in the vicinity of the defendant's waistband. He conceded, however, that the protrusion had no particular characteristics of a gun and could have been a cellphone. Again, Officer DeSalvo did not initiate an investigatory stop or ask any questions. Rather, as the defendant walked down the side of the house, Officer DeSalvo ordered the 6-8 other police officers to establish a perimeter around the defendant. With the perimeter in place, Officer DeSalvo walked down between the houses, found the defendant doing push-ups behind 760 St. Mary, and immediately arrested and handcuffed the defendant, again without asking any preliminary questions of the defendant. Other officers retrieved an unloaded gun behind 748 St. Mary Street.
The defendant resided a few blocks away on Annunciation Street.
Contrary to the majority's characterization of the defendant's actions, there is no testimony (or other evidence) that the defendant ran or took any other action that could be construed as taking flight.
A review of Officer DeSalvo's body worn camera reflects that Officer DeSalvo had his firearm deployed when he approached defendant, Officer DeSalvo immediately ordered the defendant to put his hands up, Officer DeSalvo immediately handcuffed the defendant and read him the Miranda warnings. The defendant stated he did not have a pistol and no weapon was retrieved from his person.
Discussion
Officer DeSalvo had every right to approach the defendant and ask questions if the defendant was willing to answer. However, according to his testimony, Officer DeSalvo never approached or attempted to question the defendant until after his fellow officers established a perimeter around him, i.e., when the stop was imminent. Specifically, Officer DeSalvo and his sergeant spotted the defendant as he was walking down the street doing (as Officer DeSalvo stated) "nothing wrong." The officers apparently stopped their police vehicle in front of the house to watch the defendant knock on the door of 750 St. Mary. They then watched the defendant turn and walk towards the side of the house and then walk down the side of the house towards the back. At this point, Officer DeSalvo instructed 6-8 nearby officers to establish a perimeter around the defendant and then arrested him. Officer DeSalvo did testify that he saw something near the waistband of the defendant's pants but conceded it could have been a cellphone or other object. Officer DeSalvo had his weapon drawn when he encountered the defendant behind 760 St. Mary and, without asking questions, immediately arrested him. These events took place during the day and there was no testimony of crimes occurring in the neighborhood. Although the defendant may have appeared nervous at the sight of a line of police cars approaching him on a neighborhood street, an individual's nervous behavior at the sight of the police is not alone sufficient to establish reasonable suspicion. State v. McClendon , 2013-1454, p. 10 (La. App. 4 Cir. 1/30/14), 133 So.3d 239, 247. Similarly, flight alone is also insufficient. State v. Benjamin , 97-3065, p. 3, 722 So.2d 988, 989 (La. 1998), and, in any event, there is no evidence that the defendant did anything but walk towards a house and then towards the back of the house. Based upon these factors, the defendant was subjected to an imminent stop without reasonable suspicion.
Review of the evidence submitted by the State at the hearing in this matter supports the district court judgment and, accordingly, the State's writ should be denied. Accordingly, I respectfully dissent.