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State v. Brignac

Court of Appeals of Louisiana, Fourth Circuit

January 18, 2017

STATE OF LOUISIANA
v.
KAYLA BRIGNAC

         ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 529-070, SECTION "SECTION D" Honorable Graham L Bosworth, Judge Pro Tempore

         WRIT GRANTED.

          LEON A.CANIZZARO, JR DISTRICT ATTORNEY OF ORLEANS PARISH DAVID S. PIPES ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH COUNSEL FOR STATE OF LOUISIANA

          RYAN F. LAPORTE Laporte Law Offices, LLC COUNSEL FOR DEFENDANT/RESPONDENT

          Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Roland L. Belsome

          JAMES F. MCKAY III CHIEF JUDGE

         The State seeks a review of the trial court's granting of the defendant's motion to suppress the evidence.

         On May 6, 2016, the State filed a bill of information charging the defendant, Kayla M. Brignac, with possession of cocaine with intent to distribute; possession of oxycodone; possession of marijuana (third offense); and possession of a legend drug. On July 20, 2016, the defendant filed motions for discovery, suppression of evidence and for a preliminary hearing. The court conducted a hearing on the suppression motion on August 9, 2016, and at its conclusion denied the motion and found probable cause. On September 9, 2016, the defense filed a motion for reconsideration on the suppression issue; the State filed an opposition on September 29, 2016; and after oral argument conducted the following day, the court granted the defense motion on October 6, 2016. The State noticed its intent to seek writs and the court set a return date of November 4, 2016 and granted its motion to stay the proceedings. The State timely filed the application on its due date.

         STATEMENT OF THE FACTS

         Probation and Parole Officer Chris Turner testified that he participated in a residence check of the defendant's home on March 8, 2016, located at 524 Vi Bourbon Street. Officer Turner learned that the defendant may have been involved in illegal narcotics sales from another law enforcement agency. At approximately 7 a.m., Officer Turner, accompanied by Agent Tiffany Eagles, arrived at the residence where a man later identified as Jermain Tobias answered the door. The officers relocated Jermain Tobias to the porch outside the residence and later learned that he was on parole in St. Charles Parish. After encountering another female (Kisha Camile) in the home, the officers found the defendant in the far left bedroom. In the bedroom occupied by the defendant, the officers observed what appeared to be a burned marijuana cigarette in plain view. The officers then searched the kitchen and discovered:

... a black digital scale with some residue on it. We found a bag containing four tan pills, another bag containing, I believe it was five white oval shaped pills, just another pill, another white round pill, just some other baggies with some - it looked like some white residue, white powder residue on it, as well as a bag containing some multi-colored like straws.

         The tan pills were identified as Flexeril. Outside the residence on the porch, in a container, the officers recovered approximately 10 small clear bags containing white powder and another bag containing off-brown powder. The officers from the U.S. Marshals, the ATF and the State Police discovered the contraband found on the porch. The officers then administered Miranda warnings to all the suspects; none made statements but Kisha Camile who directed the officers to additional narcotics (a small bag of marijuana) located in her bedroom. During a search incident to arrest, officers recovered $1266.00 in various denominations from Jermain Tobias.

         On cross, Officer Turner again noted the presence of officers from other law enforcement agencies and acknowledged that he was not the agent regularly assigned to monitor the defendant. Officer Turner also admitted that when he personally arrived at the residence through the porch, he was not inspecting the area for plastic key containers (where the additional contraband was found). After he and Agent Eagles entered the residence and removed Jermain Tobias, Officers Bartel, Easley and Dickens remained on the porch with him. Officer Turner identified Agent Bo Bartel of the U.S. Marshal's Office as the officer who discovered the contraband in the key container.

         The defendant's attorney conducted cross and elicited the admission that the report prepared by Officer Turner contained a clerical error, indicating that defendant was the owner of the currency seized from Jermain Tobias. Office Turner clarified that Officer Bartel "was confident that they key ...


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