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State v. Haley

Court of Appeals of Louisiana, Second Circuit

May 24, 2017

PETER E. HALEY Appellant

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Lower Court Case No. 299710 Honorable Brady D. O'Callaghan, Judge

          PETER E. HALEY Pro Se.

          LOUISIANA APPELLATE PROJECT By: Paula Corley Marx Counsel for Appellant.

          JAMES E. STEWART, SR. District Attorney Counsel for Appellee.


          Before GARRETT, STONE, and BLEICH (Pro Tempore), JJ.

          BLEICH, J. (Pro Tempore)

         This appeal arises out of the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Peter E. Haley, was convicted by a jury of one count of possession of pornography involving juveniles in violation of La. R.S. 14:81.1. Haley was subsequently sentenced to eight years at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served, to run concurrent with any other sentences. Haley did not file a motion to reconsider sentence and now appeals his conviction.[1] For the following reasons, Haley's conviction and sentence are affirmed, and this matter is remanded to the trial court for compliance with the sex offender registration requirements.


         On August 24, 2011, William Tuggle, supervising agent at the Louisiana Department of Corrections Division of Probation and Parole, received a voicemail message from an anonymous male caller indicating that Haley had been sending inappropriate text messages of a sexual nature to the caller's mother. The caller indicated that the matter was serious enough that he and his mother were going to seek a restraining order against Haley. Agent Tuggle informed Haley's parole officer, John Dupree at the Caddo Parish Sherriff's Office, of the voicemail.[2] Haley was contacted through his employer and asked to meet on the following morning. He arrived at the probation office around 7:00 a.m. on August 25, 2011. Agent Tuggle testified that Haley was not under investigation when he arrived but was called simply to discuss the voicemail and determine if the complaint was well founded.

         Agent Tuggle and Ofc. Dupree asked Haley about the text messages, and, according to both, Haley admitted he was acquainted with the woman and communicating with her via text messages. However, Haley was evasive about the content of the text messages and did not believe he had messaged anything inappropriate. Agent Tuggle asked to see Haley's cellphone, and Haley told him that it was in the visor of his truck parked outside the building.[3] Haley provided the keys to his vehicle, and Ofc. Dupree went to retrieve the cellphone while Agent Tuggle continued speaking with Haley. Officer Dupree returned to the office with Haley's cellphone and laptop computer. He then handed the cellphone to Agent Tuggle and opened the laptop.

         At trial, Ofc. Dupree testified that the laptop was in plain view inside Haley's vehicle and was retrieved by him because laptops can also be used to send messages and text communications. He further testified that Haley voluntarily entered the passcode to allow access to the laptop. Officer Dupree stated that he clicked on the "pictures" icon, which revealed a "pornographic image that appeared to be a juvenile engaged in a sex act." After seeing a couple of these images, Ofc. Dupree arrested Haley, who was advised of his Miranda rights and handcuffed. According to Ofc. Dupree's testimony, the pictures on the laptop were observed before any incriminating information was located on the cellphone.

         Following Haley's arrest, the U.S. Marshal's Service and Bossier City Marshal's Office were contacted to assist in the investigation. Sergeant Randal Thomas, a deputy marshal at the Bossier City Marshal's Office Cyber Crimes Unit, advised that a search warrant should be obtained to further search the laptop. The warrant was secured based on the affidavit of Agent Tuggle, which allowed for the dismantling and copying of the laptop's hard drive. In addition, later in the afternoon on August 25, 2011, a warrantless search of Haley's residence was conducted to check for other parole violations, and a box of CDs was seized. The CDs were turned over to the Bossier City Marshal's Office Child Internet Crimes Task Force, and found to contain several images that resembled child pornography.

         Haley was charged by bill of information with one count of pornography involving juveniles. Counsel from the Indigent Defender Office was appointed to represent him, and Haley entered a plea of not guilty that same day. Haley filed both pro se and counseled motions to suppress evidence, and both motions were denied. A supplemental counseled motion to suppress was subsequently filed, and also denied following a hearing. The subject of each of the motions was the evidence obtained from Haley's cellphone and laptop. Haley also filed a motion to exclude the testimony of pediatrician Dr. Margaret Ann Springer, which was denied following a Daubert hearing. Trial commenced on March 16, 2016, and the following day, the jury found Haley guilty as charged.[4] Motions for new trial and for post-verdict judgment of acquittal were denied. Haley was sentenced to eight years at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served, to run concurrent with any other sentence. Haley filed a motion to appeal and the Louisiana Appellate Project was appointed as counsel. This appeal followed.


         A counseled appeal brief has been filed on Haley's behalf by the Louisiana Appellate Project, but additionally Haley has filed a supplemental pro se brief submitting seven assignments of error for review.[5]

         Motion to Suppress

         In one of his assignments of error, Haley challenges the trial court's denial of his motions to suppress the images obtained from his cellphone and laptop.[6] Haley argues that the seizure of his laptop violated his Fourth Amendment protections, because the officers' reasonable suspicion of a possible probation violation concerned only text messages on his cellphone. He submits that Ofc. Dupree's clicking on the "picture's icon" and looking at photographs on his laptop was outside the scope of any search that would have confirmed the existence of inappropriate sexual text messages on his cellphone. Accordingly, Haley argues that the search of the laptop was illegal and, thus, all evidence seized from that illegal search should have been suppressed. We disagree.

         An appellate court reviews the trial court's ruling on a motion to suppress under the manifest error standard in regard to factual determinations, while applying a de novo review to its findings of law. State v. Monroe, 49, 365 (La.App. 2 Cir. 11/19/14), 152 So.3d 1011, 1015. The appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress, and should not overturn a trial court's ruling unless the trial court's conclusions are not supported by the evidence, there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. Id.

         An individual on probation does not have the same freedom from governmental intrusion into his affairs as does the ordinary citizen. United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001); State v. Malone, 403 So.2d 1234 (La. 1981). While a warrantless search is generally unreasonable, a person on parole or probation has a reduced expectation of privacy under the Fourth Amendment of the U.S. Constitution and under La. Const. art. I, § 5. State v. Angel, 44, 924 (La.App. 2 Cir. 01/27/10), 31 So.3d 547. This reduced expectation of privacy allows reasonable warrantless searches of their person and residence by their probation or parole officer. State v. Malone, supra. That reduced expectation of privacy evolves from a probationer's conviction and agreement to allow a probation officer to investigate his activities in order to confirm compliance with the provisions of his probation. State v. Angel, supra; State v. Drane, 36, 230 (La.App. 2 Cir. 09/18/02), 828 So.2d 107, 111, writ denied, 2002-2619 (La. 03/28/03), 840 So.2d 566. This is to further the purposes of probation, rehabilitation of the convicted individual and protection of society and is a standard condition of probation that the probationer allow the probation officer to visit his home at the option of the officer. State v. Malone, supra; State v. Vailes, 564 So.2d 778 (La.App. 2 Cir. 1990).

         While the decision to search must be based on something more than a mere hunch, probable cause is not required, and only a reasonable suspicion that criminal activity is occurring is necessary for a probation officer to conduct the warrantless search. State v. Malone, supra; State v. Odom, 34, 054 (La.App. 2 Cir. 11/01/00), 772 So.2d 281. However, a probationer is not subject to the unrestrained power of the authorities. State v. Angel, supra. Even though warrantless searches by a probation or parole officer are allowed, a search to which a probationer is subjected may not serve as a subterfuge for a police investigation, but instead, must be conducted when the probation officer believes such a search is necessary in the performance of his duties and must be reasonable in light of the total atmosphere in which it takes place. Id., citing State v. Vailes, supra.

         The Louisiana Supreme Court adopted the factors from Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447, 481 (1979), to determine if a warrantless search of a probationer's home violated the probationer's constitutional rights. The factors include: (1) the scope of the particular intrusion; (2) the manner in which it was conducted; (3) the justification for initiating it; and, (4) the place in which it was conducted. State v. Malone, supra at 1239.

         An "electronic textual communication" means a textual communication made through the use of a computer online service, internet service, or any other means of electronic communication. La. R.S. 14:81.3(D); State v. Green, 49, 741 (La.App. 2 Cir. 04/15/15), 164 So.3d 331; see State v. Smith, 2015-1359 (La.App. 4 Cir. 04/20/16), 192 So.3d 836 (where communication with victim was reported as "text messages, " but actually occurred over an unidentified social media platform, rather than mobile text messaging).

         Relevant to the instant issue is the parole agreement signed by Haley in Utah, wherein he agreed to obey all state, federal and municipal laws. He further agreed that he would "permit officers of adult probation and parole to search my person, residence, vehicle, or any other property under my control without a warrant at any time, day or night, upon reasonable suspicion." The record reveals that in 2005 Haley completed the necessary paperwork to transfer his supervised parole to Louisiana, and the transfer was approved; thus Haley came under the supervision of the Louisiana Department of Corrections. Haley then signed a Louisiana probation and parole agreement in which he waived his right to the same Fourth Amendment protections afforded other citizens and expressly waived his right to object to warrantless searches of his person, residence and belongings while under supervision. Accordingly, the issue herein is simply whether there was a reasonable suspicion that Haley was violating his parole such that the search and seizure of his cellphone and laptop was proper.

         The evidence presented at the hearings on the motions to suppress established that the officers had reasonable suspicion that Haley may have violated the terms of his probation by sending inappropriate text messages of a sexual nature making the search and seizure of his cellphone and laptop proper. Notably, the two parole agreements previously signed by Haley clearly state that he specifically agreed to searches of his person, residence, and belongings "for the purpose of ensuring compliance with the conditions of [his] parole." At the time of the search, Haley voluntarily provided his car keys and assisted Ofc. Dupree in accessing his laptop, thus further consenting to the search. Haley maintains that the forensic analysis of his laptop indicated that no password was needed to gain access. Additionally, the state stipulated that no password was required. A close reading of the testimony makes clear that when the login screen appeared, Ofc. Dupree handed the laptop to Haley, who voluntarily did what was necessary to allow access-thereby consenting to the search of his laptop. However, his consent is not the only consideration since reasonable suspicion was already established, and Haley, as a parolee, had a lower expectation of privacy.

         Additionally, Haley left his cellphone and laptop in plain view inside his vehicle. Both the cellphone and laptop could have been utilized to send inappropriate electronic communications, as the term "text messages" encompasses many different types of textual electronic communications and is not limited to mobile text messaging. The trial court heard arguments twice on this motion and both times concluded that the officers were justified in conducting the search by reasonable manner and within a reasonable scope. Based on this record and the jurisprudence explaining the reduced expectation of privacy of probationers and parolees, the trial court was clearly within its discretion in denying the motion to suppress, and in finding that the officers had reasonable suspicion to search both the cellphone and laptop. This assignment of error is without merit.

         Sufficiency of the Evidence

         In his second and fifth assignments of error, Haley submits that the evidence adduced at trial was insufficient to prove he committed the offense of possession of pornography involving juveniles. Haley also urges that due to the program malfunctions during Sgt. Thomas's analysis of the laptop's hard drive and cellphone the evidence recovered from the laptop is unfit to support a criminal conviction. Finally, Haley argues that the offensive photos found on his phone were "loaded" onto his phone on August 25, 2011, around 1:01 p.m., while his phone was in the officers' custody.

         The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La. 05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42, 894 (La.App. 2 Cir. 01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La. 02/22/06), 922 So.2d 517; State v. Dotie, 43, 819 (La.App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43, 788 (La.App. 2 Cir. 02/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913.

         An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43, 786 (La.App. 2 Cir. 01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/06/09), 21 So.3d 299.

         Where there is conflicting testimony concerning factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36, 180 (La.App. 2 Cir. 09/18/02), 828 So.2d 622, writs denied, 2002-2595 (La. 03/28/03), 840 So.2d 566 and 2002-2997 (La. 06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Baker, 49, 175 (La.App. 2 Cir. 08/27/14), 148 So.3d 217. Such testimony alone is sufficient ...

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