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United States v. Harris

United States District Court, M.D. Louisiana

January 21, 2018




         This matter comes before the Court on the Motion to Suppress (Doc. 16) filed by Defendant Lakeithdrick Harris. The Government opposes the motion. (Doc. 21.) An evidentiary hearing on this matter was held on October 13, 2017. (Doc. 27.) After the transcript was filed into the record on November 13, 2017 (Doc. 28), both parties filed post-hearing memoranda (Docs. 29-30) and replies (Docs. 31-32). Further argument is not necessary. The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule. For the following reasons, Defendant's motion is denied.

         I. Introduction

         On May 17, 2017, the grand jury returned a two-count indictment against the Defendant. (Doc. 1.) He is charged with one count of possession of a firearm by a convicted felon and one count of possession of a stolen firearm. (Id.) Both offenses are alleged to have occurred on April 21, 2017. (Id.)

         These alleged crimes and this motion center on a traffic stop that took place on the day in question. It is undisputed that the Defendant was driving a black Toyota Camry on Ardenwood with his girlfriend, Troymesia Cloud, and an infant when Corporal Jesse Barcelona initiated a traffic stop. After being joined by another officer, Barcelona conducted a search of the Camry and found a firearm. The Defendant was subsequently arrested and purportedly made incriminating statements.

         Defendant seeks to suppress the weapon and statements as fruits of an unlawful search. The motion turns on two main questions: (1) whether Barcelona in fact saw pieces of marijuana in the vehicle so as to justify the search; and (2) whether Cloud, the registered owner of the vehicle, gave Barcelona consent to search.

         In sum, having considered the record and the live testimony of the witnesses, the Court finds that Barcelona observed marijuana in plain view and thus had probable cause to search the Camry. As a result, the automobile exception to the warrant requirement applies, and the Defendant's motion is denied.

         II. Relevant Factual Background

         A. Preliminary Note

         Barcelona and Cloud were the only witnesses to testify at the hearing. Their accounts differ greatly on the key issues, so the Court listened carefully to the testimony and conducted a thorough review of the record. Aside from these witnesses, the Defendant submitted the narrative of Barcelona's incident report (Def. Ex. 1), and the Government submitted a video (without audio) of the traffic stop (Gov't Ex. 1). Timestamps given throughout the opinion refer to this video. The Court's review of the record is contained in the next two sections.

         B. Testimony of Corporal Jesse Barcelona

         1. Barcelona's Background

         Barcelona works with the Baton Rouge City Police Department (“BRPD”), and he has been with that organization for fourteen and a half years. (Hr'g Tr., 4, Doc. 28.) During that time, he worked as a uniform patrolman for nearly five years, and he served with the K9 unit for nearly seven years. (Id. at 4-5.) Currently, he is assigned to the street crimes unit, which “patrol[s] high crime areas and respond[s] to violent crimes in progress.” (Id. at 5.) However, throughout his entire time with the BRPD, he has conducted traffic stops, but “a little bit more” while with the violent crimes unit. (Id.)

         2. The Traffic Stop's Initiation

         Barcelona testified that, on the day in question, he made a traffic stop of a black Toyota Camry in Baton Rouge on Ardenwood and Renoir, north of Florida Boulevard. (Hr'g Tr., 5, 24, Doc. 28.) Barcelona said his dash camera activates as soon as the lights in his police unit are turned on, so the video captured from before the point in which the car actually stopped until the end of the traffic stop. (Id. at 5-6.)

         Barcelona stated that, prior to activating his lights, he “observed the front passenger lean over into the back seat, almost climbing over the top of it, and they were unrestrained; not in a seat belt.” (Hr'g Tr., 6, Doc. 28.) After seeing this, Barcelona turned on his lights and performed the stop. (Id. at 6-7.) When watching the video, Barcelona noted that, between the start of the video and the 0:33 mark, the recording shows that “the front passenger turn[ed] around toward the back seat”. (Id. at 7.) When Barcelona was later asked how he concluded that the front passenger was unrestrained, he testified: “the way she had leaned over and reached all the way to the back seat almost climbing over I guess you would say the top part [/] in between the seats right there.” (Id. at 24.) Barcelona also said that the unrestrained child did not form the basis for the traffic stop at its inception, as he “did not see the child.” (Id. at 35.)

         Barcelona stated (correctly) that there was no sound in the video; he said that, “[f]or the most part, ” he “normally activate[s] sound when . . . conducting traffic stops”, but, in this case, the mic that officers carry on their belt “was in [his] charging station.” (Hr'g Tr., 7-8, Doc. 28.)

         Barcelona testified that it was “probably” charged and capable of recording. (Id. at 26.) When asked if he “just neglected to put the microphone on [his] person so that [he] could record [his] interactions with the Defendant and with the passenger”, Barcelona said, “Yes, I did not have it on my belt”, even though it would have worked had he put it there. (Id. at 26.) Barcelona admitted that there was a department policy providing that “if it's available you need to have it on.” (Id.)

         Around the 0:44 mark of the video, Barcelona said that he was “advising the driver and the passenger [of] the reason for the traffic stop. Basically, [Barcelona] was able to identify why the passenger was leaning into the back seat. There was approximately an eight month old child unrestrained, no car seat, in the back seat.” (Hr'g Tr., 8-9, Doc. 28.) The child was unbuckled and “just kind of laying on the back seat.” (Id. at 9) Barcelona also said that, when he walked up to the vehicle, he did not see a seat belt on the passenger. (Id. at 25.) According to Barcelona, at the 1:13 mark of the video, “[t]he driver reaches back and grabs the child and pulls him up front with him.” (Id. at 9.)

         Barcelona said that, at the 1:30 mark, the “passenger had handed . . . his driver's license and the registration and proof of insurance . . . . to the driver and the driver [had] handed it to [Barcelona].” (Hr'g Tr., 9, Doc. 28.) At the 1:55 mark, Barcelona was “walking back toward [his] patrol unit.” (Id. at 9-10.) Afterward, he determined that Ms. Cloud was the registered owner of the car, as she was leasing or subleasing it; the first registered owner was a business named Ride Now, Incorporated. (Id. at 9, 32, 37.) Barcelona stated that, at the 2:00 mark, he was “checking the registration and the driver's license on [his] police computer . . . to verify that [the car was] not stolen or anything of that nature.” (Id. at 10.) Barcelona again stated later that he did not run the license plate after he turned on his lights; he ran them “when [he] walked back to [his] vehicle to check the driver's license.” (Id. at 29.)

         When asked if there was “any insurance information or anything that came back on that vehicle when [he] ran that plate”, Barcelona said “[i]t doesn't show insurance on [their] system.” (Hr'g Tr., 30, Doc. 28.) Barcelona was also asked if they had “a special request for that, ” and he said, “No, we don't -- we usually just view from the . . . glovebox -- the paperwork correct. At some point it'll show if the vehicle's insured, it says yes or no, but to be honest with you that's not very accurate because somebody could have got insurance somewhere else.” (Id.)

         3. Marijuana in the Vehicle

         Barcelona stated under oath:

Q: Was there anything else that you observed during your initial approach to the vehicle when you were talking to the driver?
A: Yes. When I was standing there talking to them, I was there for a few minutes, I observed several little small pieces of marijuana, some marijuana seeds and stuff of that nature throughout the vehicle and it basically appeared as if the vehicle had been smoked in on several occasions.
Q: Did you detect an odor of marijuana?
A: There wasn't really much of an odor, but I could just see the small pieces.

(Hr'g Tr., 11, Doc. 28.) This testimony is consistent with his narrative, which states: “While I was speaking with Harris and Cloud, I observed numerous small pieces of Marijuana throughout the inside of the vehicle.” (Def. Ex. 1.)

         When later asked where the marijuana pieces were located, Barcelona stated: “There were several throughout the vehicle. They were on the seats, the cup holders, the floor, stuff of that nature.” (Hr'g Tr., 28, Doc. 28.) While Barcelona was standing outside the vehicle, he could not see it on the floor underneath where the driver was sitting or on the driver's lap, but, when Barcelona “opened the passenger door that was one of the areas that [he] did see it.” (Id.) Barcelona also said that the “pieces” were “just crumbs that fall out, seeds and stuff of that nature”. (Id. at 28-29.) While Barcelona “could have collected and preserved it”, he did not do so. (Id. at 29) Barcelona also admitted again that “there was no odor of freshly smoked marijuana in the car.” (Id.) Barcelona later clarified that, as he “approached the vehicle and questioned the driver and the passenger of the vehicle”, that was “the time frame when [he] observed the marijuana in the vehicle.” (Id. at 35.) Barcelona stated that he has seen marijuana before and that he had no question as to whether it was, as he has “made hundreds of arrests for marijuana in [his] career.” (Id.)

         Barcelona said that, even without consent, he still would have searched the car “because of the marijuana [he] observed inside the vehicle.” (Id. at 16.) Barcelona admitted, however, that, as of the date of the hearing, “we don't know what that material was” because “it was never analyzed” or “preserved.” (Id. at 34.)

         4. Purported Consent to Search

         Barcelona testified that, at the 3:17 mark, he and Corporal David Kennedy approached the vehicle. (Hr'g Tr., 11, Doc. 28.) Kennedy was speaking with the driver and the child “for [Barcelona's] safety.” (Id. at 12.) Barcelona was on the passenger side “[b]ecause [he] wanted to contact the passenger in reference to the seat belt violation and the unrestrained child.” (Id. at 11.) Barcelona opened the door at the 3:25 mark “because [he] was going to have her step out and talk to [him].” (Id. at 12.) At the 3:53 mark, Barcelona took Ms. Cloud to the rear of the car “because [he] wanted to speak to her about the violation and [he] had just got[ten] her ID.” (Id. at 12-13.”) Barcelona said he did not speak to her inside the vehicle “because [he] wanted to ask her about the little pieces of marijuana [he] had also observed in the car and see if she had any knowledge of that”. (Id.)

         According to Barcelona, at the 4:26 mark, Ms. Cloud shook her head from side to side, and Barcelona says that he believed “at that point [he] asked her if she had any weapons or anything of that nature inside the vehicle.” (Hr'g Tr., 13, Doc. 28.) At the 4:30 mark, she shook her head up and down, and Barcelona said that, at this point, he “basically asked her if [he] could search the inside of the vehicle, if she minded if [he] searched.” (Id.) When Barcelona was asked if he had a standard approach to getting consent to search, he said: “I ask if they have anything inside the vehicle, any weapons or anything that I need to know about, and if they say no they don't, I ask if they'd mind if I take a quick look.” (Id. at 13-14.)

         Barcelona testified that, at the time Cloud gave consent, (1) there were no “threats made to her about issuing a citation or arresting her”; (2) neither his nor her voice were raised throughout the traffic stop; (3) she was not under the effect of prescription drugs, non-prescription drugs, or alcohol, and she was responsive to the questions asked of her; (4) he was able to understand Cloud's responses when he spoke to her; and (5) Cloud did not at any time “indicate to [him] that [he was] going to find a handgun or any other illegal items in the vehicle, and, in fact, she “seemed very surprised when [he] came out with the firearm.” (Hr'g Tr., 17-18, Doc. 28.)

         However, when Barcelona was asked if he advised Cloud “of the fact that she did not have to give consent”, he admitted that he did not so advise. (Id. at 18.) Barcelona also stated that he had with him written consent to search forms that were “readily available” to him when he discussed with Ms. Cloud the searching of her car, and the document advises the person in writing “that they have a right not to consent to search.” (Id. at 32.) Barcelona admitted that he did not use that form in this case or inform her of her right not to consent. (Id. at 32-33.)

         5. The Search, the Firearm, and Cloud's Reaction

         At about the 5:03 mark, Barcelona opened the driver's side door, and he stated that this was “to get the driver out of the vehicle so [he] could perform a search.” (Hr'g Tr., 14, Doc. 28.) Barcelona said that, “at this point the driver[/][D]efendant got fairly nervous and was asking what the probable cause to search the vehicle was.” (Id.) As the Defendant exited the vehicle, Barcelona entered to “tak[e] a quick look on the inside[.]” (Id.)

         Around the 5:40 mark, Barcelona exited the vehicle and put the Defendant in handcuffs. (Hr'g Tr., 15, Doc. 28.) Barcelona testified that he did so:

Because whenever I asked him to step out the vehicle I had asked if there was any weapons or anything right there, he said no, and when I located a weapon inside the vehicle it raised my suspicion of why it was located right next to him and he denied any knowledge of it.

(Id.) Barcelona said the weapon “was stuck in between the driver's seat and the center console”, and the infant “would have been directly over where the firearm was located.” (Id.) Barcelona said that, though he was looking in the inside of the vehicle when he first walked up to it “to see if there were any weapons or anything in the car, ” he did not see the gun before then. (Id. at 28.)

         Around the 6:22 mark, Barcelona re-entered the vehicle with black gloves on, and he used the gloves “to try to preserve DNA or fingerprints.” (Hr'g Tr., 15-16, Doc. 28.) He exited the vehicle a few seconds later carrying a 40-caliber Springfield firearm. (Id. at 16.) Barcelona testified that he told Ms. Cloud: “I thought you said you didn't have any weapons inside the vehicle”, and she replied that “she didn't know.” (Id.) After unloading and securing the weapon, Barcelona returned to speak with Ms. Cloud, and he testified:

She stated she didn't know that the firearm was inside the vehicle, that the driver had just picked her up a few minutes prior to this incident, her and the child, and she just had no knowledge of it. And due to her expressions and the way she was speaking I believed her.

(Id. at 17.)

         6. Wrapping up the Traffic Stop

         Barcelona said that Corporal Kennedy got the serial number from the gun “to run it through our criminal investigation unit.” (Hr'g Tr., 19, Doc. 28.) The officers continued to search the vehicle for the next few minutes. (Id.) When asked if they found any evidence of criminal activity, Barcelona said: “There were several pieces of marijuana throughout the vehicle. It appeared the vehicle had probably been smoked in on several occasions and just, like I said, little seeds, little pieces on the floor, on the seats and stuff like that, but nothing that I would arrest somebody for.” (Id. at 19.) After opening the trunk at around the 9:30 mark, and concluding the search thereof at around 10:00, Barcelona said that, because it was “kind of hot that day and [Cloud] had the child out in the sun, ” he told Cloud that she could re-enter the vehicle. (Id. at 20.)

         Around the 11:15 mark, Barcelona returned to the police car. (Hr'g Tr., 20, Doc. 28.) He testified that, at that point, he Mirandized the Defendant and questioned him about the gun. (Id.) Barcelona said that, at that point, he knew that the Defendant had a prior felony conviction based on a criminal history that they ran. (Id. at 21.) Barcelona also stated that there was “an NCIC of the stolen firearm.” (Id.) Barcelona said he did not threaten the Defendant during their interview of him. (Id. at 23.)

         At the 14:50 mark, Corporal Kennedy was talking to Cloud while she was in the Camry. At this point, the Defendant was arrested, and the ...

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