United States District Court, E.D. Louisiana
ORDER AND REASONS
NANNETTE JOLIVETTE BROWN, District Judge.
Before the Court is Defendant Tosh Toussaint's ("Toussaint") "Motion to Suppress Evidence and Statements." Having considered the pending motion, the memoranda in support, the memoranda in opposition, the record testimony and the applicable law, the Court will grant the pending motion.
On June 5, 2014, Toussaint was charged by an indictment with one count of possession with the intent to distribute a quantity of a mixture or substance containing a detectable amount of cocaine base ("crack"), one count of possession of a firearm in furtherance of a drug trafficking crime, and one count of possession of a firearm by a convicted felon.
On the evening of November 3, 2013, Federal Bureau of Investigation ("FBI") Special Agent Keith Burriss ("Burriss") was monitoring a wiretap on the phone of Robert Williams, a suspected leader of a drug trafficking organization operating on the Westbank area of Louisiana. Burriss heard what he interpreted to be a credible threat of violence against an individual driving a silver Infiniti coupe. Later that evening, Jefferson Parish Sheriff's Office ("JPSO") officers conducted a "routine" traffic stop of a silver Infiniti coupe driven by Toussaint near the Kennedy Heights neighborhood in Avondale, Louisiana. Toussaint initially complied with the stop, but fled when he was asked to produce his driver's license. He was placed under arrest by JPSO officers. A search incidental to Toussaint's arrest revealed a stolen firearm and approximately 10.5 grams of crack cocaine in his possession.
On June 12, 2015, Toussaint filed the instant motion to suppress the admission of the cocaine and firearm seized from his possession during the November 3, 2013 traffic stop and to suppress the statements he made to JPSO detectives while in custody following the stop. The Court conducted an evidentiary hearing and heard oral argument on the motion on July 2, 2015. Burriss, JPSO Deputy Jean Cadet ("Cadet") and JPSO Detective Brad Roniger ("Roniger") testified. A summary of the officers' testimony follows.
A. Testimony Adduced at the July 2, 2015 Hearing
1. The Intercepted Phone Conversation
On November 3, 2013, Burriss was monitoring a wiretap on the phone of Robert Williams, the suspected leader of the Harvey Hustlers, a drug trafficking organization. According to Burriss's testimony, Burriss heard a phone call between Williams and an unidentified individual. Burriss believed that the individuals made a "credible threat of violence." Burriss testified that he interpreted the call to mean that Williams was giving the unidentified individual permission to kill an individual driving an Infiniti coupe, who Burriss believed was named "Tye" or "Todd." Burriss testified that he believed Williams was instructing that the individual kill "Tye" or "Todd" if he was not outmanned and if there was not a police presence in the area.
The FBI report summarizing the call states:
8:45 p.m.: Williams received an incoming call from telephone number [redacted]. The unidentified male talked to Williams briefly and then another unidentified male, referred to as "Minny" got on the line, with Williams. During the conversation between Williams and "Minny, " "Minny" told Williams that "Tosh was in a silver coupe Infiniti near "Lambert" Street (Avondale, Louisiana). "Minny" asked Williams if they should "f" with it, to which Williams responded in the affirmative if there were not too many people around. Agents who reviewed the call believed that "Minny, " with permission granted by Williams, was about to attempt to kill "Tosh."
Burriss listened to the call several times to gather as much information as possible. Burriss testified that he then contacted Brad Roniger, the case agent, who was a deputy with the Jefferson Parish Sheriff's Office and assigned to the FBI's Gang Task Force at that time. Burriss told Roniger that the call referenced a "Lambert" Street near Glen Della Drive. Roniger indicated that the caller was likely referencing Layman Street. Burriss testified that FBI protocol instructs that he call the case agents when he hears a threat of violence.
Roniger testified that in 2013 he was assigned to the JPSO Gang Task Force, and he led the investigation of the Harvey Hustlers. He identified Robert Williams as a leader of the Harvey Hustlers. According to Roniger, on November 3, 2013, Burriss contacted Roniger to inform him that a credible threat had been made on the life of a person named "Tye" or "Tosh" driving a silver Infiniti coupe near Glen Della Drive and "Lambert" Street. At the time of the call, Roniger was on uniformed detail in Metairie. Roniger left the detail and traveled to the Westbank area. Roniger could not recall his route of travel from Metairie to the Westbank on the night of November 3, 2013. He believed that it took him approximately 15 minutes to get from Metairie to the Westbank.
2. Formulation of a "Plan"
Roniger testified that while he was driving to the Westbank area he requested assistance from the Third District patrol division. In response to this request, Deputies Prudhomme, Cadet and Henry met him at a gas station on Highway 90. Roniger informed the other officers that there was a credible threat on the life of the person driving a silver Infiniti coupe. According to Roniger, during this meeting the officers "formulated a plan to enter the neighborhood and attempt to locate the subject whose life was being threatened." Roniger testified that his goal was "[t]o locate the subject via his vehicle and warn him that his life was in danger and also to warn him that he should not frequent that neighborhood anymore due to the nature of the phone call."
Roniger testified that he wanted to meet the deputies in person prior to beginning the search because he "wanted to be able to accurately relay the information to the patrol deputies, and [he] also wanted to come up with some sort of plan to approach this subject in a safe manner." He denied that any part of the plan was to orchestrate a traffic stop. He testified that his plan was "to identify the person... whose life had been threatened and to warn them of that threat." He stated that he wanted to meet with the deputies face-to-face "to explain to them in simple terms that if we did locate the subject and [he] was going to engage in a conversation with them, [he] wanted them to look the other way while [he] was doing it so nobody came up behind [them] and attempted to hurt Mr. Toussaint or myself while [they] were explaining it to him." Roniger acknowledged that he knew from the wiretap that Williams told the individual not to shoot Toussaint if it was "too hot, " meaning if police were around.
Cadet testified that he is a patrol deputy for JPSO. He participated in the arrest of Toussaint on November 3, 2013. At that time, he was still in training as a road deputy. Cadet testified that he and his partner, Deputy Henry, met Roniger at a truck stop on Highway 90 in Avondale. On cross-examination, Cadet acknowledged that Deputy Prudhomme was also at the meeting. Cadet testified that he was told that someone was trying to murder an individual driving a silver Infiniti coupe. Cadet was instructed to drive around the Kennedy Heights neighborhood, and contact Roniger if he found the vehicle.
Cadet testified that the truck stop where he met Roniger was less than a few miles from Butler Street and Highway 90. Prior to meeting Roniger, Cadet was conducting proactive patrols. Cadet testified that he was not conducting proactive patrols when he began looking for the silver Infiniti coupe. Conversely, Roniger testified that he was conducting proactive patrols on November 3, 2013, not that he was on the scene to intervene in a murder. Roniger also acknowledged that his report states that the officers were conducting proactive patrols, and does not mention the threat to Toussaint's life.
3. Patrol of the Kennedy Heights Neighborhood and the Alleged Traffic Violation
Following the meeting, Roniger entered Prudhomme's marked police vehicle. Cadet and Henry were in a separate marked vehicle. Roniger testified that he did not go to Layman Street during the November 3, 2013 patrol of the Kennedy Heights neighborhood. Roniger could not recall the exact streets they patrolled that night. Cadet also testified that he did not recall the streets he patrolled in the neighborhood.
Cadet testified that his vehicle and Roniger's vehicle did not patrol the Kennedy Heights neighborhood together. However, Cadet also testified that Roniger's vehicle was behind him when they spotted the silver Infiniti coupe. He believed that Roniger's vehicle got behind him on Gambino Street.
According to Cadet, he first observed a silver Infiniti coupe driving southbound on Glen Della Drive. Cadet testified that the vehicle was going 35 miles per hour in a 20 miles per hour speed zone. He stated that he made this determination by pacing the vehicle. Cadet described the pacing process as follows: "we get behind the car, and we are doing approximately 35 miles an hour. And we couldn't keep up with the car, so that gave us the-pretty much the idea that 35 was over the speed limit." Based upon this observation, Cadet elected to conduct a traffic stop.
Cadet further testified that he first saw the silver Infiniti coupe on Glen Della Drive, but he could not recall where on Glen Della Drive he was when he saw the vehicle. He testified that he was driving at a speed of 25 miles per hour when he saw the vehicle. He sped up to 35 miles per hour, but could not catch up with the vehicle. Cadet could not recall the length of time that he paced the vehicle, but he believed it was for "maybe about a block or two." He believed that Roniger may have been in the vehicle behind him, but he was not certain. When asked to identify a photograph, Cadet could not identify the intersection of Glen Della Drive and Highway 90.
After Cadet activated the police vehicle's overhead lights and sirens, the silver Infiniti coupe made a left turn from Glen Della Drive on to Highway 90, and immediately pulled over on the side of the road on Highway 90.
Cadet testified that they were leaving the neighborhood when they saw the silver Infiniti coupe. When asked why he decided to pace the vehicle instead of warning the driver that he was in danger of being killed, Cadet stated that "[t]he problem is we had been in the area for-I can't recall the amount of time. We saw a lot of silver Infinities that matched the car, and at that time we were just leaving the area." He did not know why he decided to initiate a traffic stop instead of simply warning the driver that someone was trying to kill him.
Roniger testified that they entered the Kennedy Heights neighborhood, and a "short time later [they] observed an Infiniti coupe heading southbound on Glen Della towards Highway 90 at a high rate of speed." Cadet and Henry were in the police vehicle closer to the Infiniti coupe. Roniger witnessed the Infiniti coupe turn left onto Highway 90, and "shortly thereafter Deputies Cadet and Henry initiated a traffic stop." Roniger testified that he arrived at the scene "within seconds."
Roniger stated that he first saw Toussaint's vehicle on Glen Della Drive. Cadet's vehicle was "a ways in front of [Roniger's vehicle]." He did not know how fast the vehicles were traveling. Roniger only recalled seeing one silver Infiniti that night. He believed that Glen Della Drive and Butler Street are approximately two to three blocks apart.
Roniger testified that the speeding occurred while Toussaint was traveling southbound on Glen Della Drive toward Highway 90. He acknowledged that his supplemental report states that the speeding occurred while Toussaint was traveling northbound on Glen Della Drive. Roniger did not include the information related to the wiretap in his supplemental report "to protect the integrity of the ongoing wiretap investigation."
4. Events Following the Stop
According to Cadet, he approached the vehicle and advised the driver to step to the rear with his driver's license, registration and insurance. Cadet testified that it was standard procedure to ask an individual to produce these documents during a traffic stop. The driver, who was later identified as Toussaint, stepped to the rear of the vehicle without any documents. Cadet testified that Roniger asked Toussaint where the documents were, and Toussaint fled. Roniger tackled Toussaint; Cadet and Henry then assisted Roniger in handcuffing Toussaint.
Roniger testified that he observed Cadet ask the driver to step to the rear of the vehicle with his license, vehicle registration and proof of insurance. The driver, who was later identified as Toussaint, exited the vehicle without anything in his hands, and Roniger asked him where his documents were. According to Roniger, if Toussaint would have exited the vehicle with his documents in hand, he would have immediately informed Toussaint of the threat against his life. Because Toussaint exited the car without his documents, Roniger stated that he believed "the next logical question to ask [Toussaint] was Where is your driver's license.'" Roniger testified that in his experience individuals are not always truthful about their identity. Roniger indicated that it was his intention to look at Toussaint's driver's license to get his name. Roniger did not tell Toussaint that his life could be in danger. Roniger testified that Toussaint was stopped because he was observed committing a traffic violation. He stated that he was not sure that the person who committed the traffic violation was the same individual whose life was threatened until after Toussaint was placed under arrest and provided his name.
When Roniger asked Toussaint where his documents were, Toussaint then fled on foot. Roniger chased after Toussaint. He was able to grab Toussaint from behind and they both fell to the ground. Roniger testified that he observed Toussaint reaching into his waistband. Cadet assisted Roniger in handcuffing Toussaint. Cadet informed Roniger that he felt "a large hard object within the pants leg of Mr. Toussaint." Roniger then advised Toussaint of his Miranda rights.
Detective Anthony Buttone then arrived at the scene. Buttone and Roniger searched Toussaint's person, and observed "a clear plastic bag containing off-white rocks." Toussaint again attempted to flee on foot. Buttone stopped Toussaint and completed the search incident to the arrest, recovering approximately 10 grams of off-white rocks, which tested positive for the presence of cocaine. A search of Toussaint's car by a canine unit revealed no additional drugs or contraband.
Cadet testified that after Toussaint was restrained, Cadet wrote the traffic citation. Roniger testified that after the stop, Roniger gave Toussaint's name to Cadet, and Cadet used the information to perform a search and gather the identifying information necessary to complete the traffic ticket. On the traffic ticket, Cadet listed the offense location as "Butler and U.S. 90." Cadet testified that he listed this location on the ticket because during his police ...