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State v. Julien

Supreme Court of Louisiana

October 18, 2017

STATE OF LOUISIANA
v.
AVERY JULIEN

         ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS

          JOHNSON, CHIEF JUSTICE.

         The underlying issue in this case concerns the reasonableness of a warrantless search of a probationer's residence conducted by a multi-agency law enforcement task force. Specifically, we are called upon to determine whether the search violated Louisiana Code of Criminal Procedure Article 895(A)(13)(a), which provides as a condition of probation that the defendant agree "to searches of … his place of residence … at any time, by the probation officer … assigned to him, with or without a warrant … when the probation officer … has reasonable suspicion to believe that the person who is on probation is engaged in or has been engaged in criminal activity."

         After review of the law and record, and considering the arguments of the parties, we hold that the warrantless search of defendant's residence violated the provisions of Article 895(A)(13)(a) because the search was not conducted by the probation officer assigned to him. We further find that violation of this statute constituted an unconstitutional search under Louisiana Constitution Article I, §5, requiring exclusion of the evidence pursuant to Louisiana Code of Criminal Procedure Article 703(C). Thus, we affirm the ruling of the district court which granted defendant's motion to suppress the evidence.

         FACTS AND PROCEDURAL HISTORY

         The charges against defendant, Avery Julien, stem from a warrantless search of his residence on March 8, 2016. On that date, two officers from the New Orleans District of the Louisiana Department of Probation and Parole, James Bertrand and Jason Hardy, conducted a "compliance check" at defendant's home at 6:00 a.m. Officers Bertrand and Hardy were accompanied by officers from the New Orleans Police Department and the United States Marshals Gulf Coast Criminal Fugitive Task Force. Officer Bertrand testified that the compliance check was conducted in conjunction with the U.S. Marshals violence reduction operation, "Operation VR12."

         After knocking on the door of Mr. Julien's residence for a period of time, someone opened the front door and the officers entered, secured the residence and were directed to Mr. Julien's bedroom, where Officers Bertrand and Hardy found Mr. Julien in bed with a female companion. The officers handcuffed Mr. Julien and the female and escorted them from the room. Then, while conducting a "protective sweep to make sure that there were no other individuals in the room, " Officer Bertrand saw a live nine-millimeter round of ammunition on the windowsill. Upon locating the ammunition, the officers deemed they possessed "enough reasonable suspicion to conduct a search." Officer Hardy discovered a firearm in the drawer of the nightstand next to where Mr. Julien was sleeping. The search of the remainder of the residence yielded a second firearm and accompanying ammunition. Both weapons were determined to be stolen. Officers Bertrand and Hardy reported their discovery of the contraband to a U.S. Marshal on the scene, who then took over the investigation.

         According to Officer Bertrand's testimony, neither he nor Officer Hardy were Mr. Julien's assigned probation officer. They were conducting compliance checks throughout the city as part of the Marshals task force and Mr. Julien was put on their list by the probation department.

         On April 5, 2016, the State filed a bill of information charging defendant with possession of a firearm by a convicted felon and illegal possession of a stolen firearm. Defendant filed various motions, including a motion to suppress the evidence. The district court held a hearing on November 3, 2016, and granted the motion to suppress. The district court found the officers who conducted the search did not have the ability to conduct a warrantless search under Article 895(A)(13)(a), noting the probation officers involved were not assigned to Mr. Julien's case.

         The court of appeal denied the state's writ application with reasons. State v. Julien, 16-1223 (La.App. 4 Cir. 3/15/17), __So. 3d__. The court explained that while any probation officer could presumably conduct a compliance check pursuant to La. C.Cr. P. art. 895(A)(4), [1] the agents' conduct in this case surpassed that contemplated by law when they entered Mr. Julien's bedroom and handcuffed both him and his female companion and escorted them out of the room before viewing the ammunition on the windowsill. Id. at p. 3. The court noted the state presented no evidence suggesting reasonable suspicion prior to assembling the law enforcement team to conduct the compliance check. Id. The court found that given the totality of the circumstances, the compliance check was unreasonably pretextual. The court reasoned:

Agents Bertrand and Hardy should not have been in Mr. Julien's bedroom and thereby able to view the ammunition in plain sight. The legality of the search conducted thereafter was vitiated by the fact that neither Agent Bertrand, nor Hardy was assigned as Mr. Julien's probation officer, which triggered La. C.Cr.P. Art. 895(13)(a). Once implicated, La. C.Cr.P. Art. 895(13)(a) requires that the warrantless search be conducted by the probation officer assigned to Mr. Julien. It is undisputed that the probation officer assigned to Mr. Julien was not present.

Id. at p. 4. The court of appeal found the district court did not abuse its discretion in granting the motion to suppress. Id. at p. 5. Judges Ledet and Dysart concurred in the writ denial, finding the probation officers' compliance check crossed the line to a warrantless probation violations search. As such, the state was required to establish there was a reasonable suspicion that criminal activity was occurring, but failed to do so.

         On the state's application, we granted supervisory review and consolidated this case for argument with State v. Brignac, 17-0448 (La. 5/12/17), 219 So.3d 1107, decided in a separate opinion issued contemporaneously with this matter. State v. Julien, 17-0557 (La. 5/12/17), 219 So.3d 1107.

         DISCUSSION

         For the reasons assigned this day in State v. Brignac, 17-448 (La. 10/18/17), __So. 3d.__, we hold La. C.Cr. P. art. 895(A)(13)(a) requires a warrantless search of a probationer be conducted by the particular probation officer who is generally and regularly assigned to a particular probationer. ...


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