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State v. Clay

Court of Appeals of Louisiana, Fifth Circuit

May 23, 2018

STATE OF LOUISIANA
v.
RAYMOND M. CLAY

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-1186, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Thomas J. Butler Blair C. Constant Lindsay Truhe.

          COUNSEL FOR DEFENDANT/APPELLANT, RAYMOND M. CLAY Chad M. Ikerd.

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson;

         JUDGMENT ON MOTION TO SUPPRESS THE EVIDENCE REVERSED; CONVICTION AND SENTENCE VACATED; REMANDED

         FHW

         SMC

         RAC

          FREDERICKA HOMBERG WICKER JUDGE.

         Defendant, Raymond M. Clay, appeals his conviction for possession of a firearm by a convicted felon, a violation of La. R.S. 14.95.1. For the reasons assigned, we reverse the trial court's ruling denying defendant's motion to suppress the evidence, vacate defendant's conviction and sentence, and remand the matter for further proceedings consistent with this opinion.

         STATEMENT OF THE CASE

         On April 22, 2014, the State filed a bill of information charging defendant, Raymond Clay, with possession of a firearm by a convicted felon on or about February 18, 2014, in violation of La. R.S. 14:95.1.[1] Defendant was arraigned on April 30, 2014, and pleaded not guilty. Thereafter, defendant filed a motion to suppress the evidence on May 12, 2014, and, following a hearing on October 27, 2014, that motion was denied. Defendant filed a motion to reconsider the previously denied motion to suppress on April 17, 2017, which motion was also denied.[2] Subsequently, on April 18, 2017, the case was tried before a twelve-person jury, which found defendant guilty as charged to one count of a convicted felon in possession of a firearm. Defendant was sentenced to imprisonment at hard labor for fifteen years without benefit of parole, probation, or suspension of sentence. Defendant now appeals, challenging the trial court's denial of his motion to suppress and the sufficiency of the evidence.

         PERTINENT FACTUAL BACKGROUND

         At the crux of this case is a February 18, 2014 warrantless search- represented by the State to be a parolee "compliance check"-which resulted in a Louisiana Department of Probation and Parole agent's seizure of a Keltec 32-caliber handgun from inside the pocket of a pair of coveralls located on the front passenger seat of a vehicle owned by defendant, a parolee, that was parked in front of defendant's residence. The brief February 18, 2014 investigation of defendant, which culminated in his arrest on these charges, was initially conducted by Gretna Police Department Detective Alfred Disler and Jefferson Parish Sheriff's Office Agent Pat DiGiovanni, detailed to the U.S. Marshal Gulf Coast Regional Fugitive Task Force. Following their initial investigation, Detective Disler contacted Louisiana Department of Probation and Parole agents, as well as other Gretna Police Department officers, who thereafter assisted in Probation and Parole's compliance check that resulted in the weapon seizure and defendant's arrest.

         The Hearing on Defendant's Motion to Suppress the Evidence

         At the October 27, 2014 hearing on defendant's motion to suppress the evidence, the State called only one witness, Detective Disler; the parole officers who conducted the "compliance check" and subsequent search of defendant's residence and vehicle did not testify. During the hearing, Detective Disler explained that on February 18, 2014, he was contacted by Agent DiGiovanni, who stated that he had spoken to an informant who told him that a suspect in an "unrelated investigation, " identified as Raymond Clay, was involved in an armed robbery in Lafourche Parish. Detective Disler also learned from Agent DiGiovanni that the informant had advised that defendant was selling guns from a residence located behind a Circle K convenience store. According to Detective Disler, he and Agent DiGiovanni then conducted a computer search of Raymond Clay during which they learned that defendant was on parole for a previous 2004 armed robbery conviction. At that point, Detective Disler contacted Agent Justin Edgecombe of the Louisiana Department of Probation and Parole to advise him of the investigation involving defendant.[3] Agent Edgecombe confirmed to Detective Disler that defendant was on parole and provided him with the address defendant had listed with Probation and Parole. According to Detective Disler, he also contacted other members of the Gretna Police Department to assist in the anticipated compliance check of defendant's residence.

         After contacting Probation and Parole and the Gretna Police Department, Detective Disler and Agent DiGiovanni briefly surveilled defendant's Gretna residence located at 319 9th Street, Apartment B, during which they observed defendant "interact" with a black Honda Accord parked in front of the apartment. At that point, Detective Disler notified the officers from the Gretna Police Department and the agents from Probation and Parole of his intention to conduct "a compliance check … at that location." Thereafter, Probation and Parole agents, including J.D. Bertrand, Wayne Griffis, and Justin Edgecombe, arrived at defendant's residence, knocked on the door, and defendant answered. The Probation and Parole agents then conducted a compliance check while Detective Disler and officers from the Gretna Police Department provided security outside the residence. Inside of defendant's kitchen pantry, Probation and Parole agents found marijuana, a one-hit pipe, a drug test kit, and a scale.

         Detective Disler testified that during the compliance check, Probation and Parole agents "searched" the black Honda Accord parked outside the apartment and, on the front passenger seat, found a handgun located in the pocket of a pair of coveralls. By then, however, Detective Disler was already inside of the apartment.

         On cross-examination, Detective Disler acknowledged that he did not personally speak to the informant, was not the informant's control agent, did not know whether the informant had previously provided information which led to arrests and/or convictions, and did not know whether or not the informant's information was reliable. Detective Disler did not provide the informant's name. He gave no testimony as to what parish the Circle K convenience store where defendant was purportedly selling guns was located, and conceded that the detectives had no information that defendant was selling guns either from his apartment or his vehicle. Detective Disler also did not know which agent from Probation and Parole was defendant's supervising agent, and specifically did not know whether or not Agent Edgecombe was defendant's supervising agent. Detective Disler also testified to his understanding that, as a parolee, defendant consented to searches of his residence and vehicle as a condition of his parole.

         At the conclusion of the hearing, the trial judge denied the motion to suppress, stating:

All right, the Court has heard in this Motion to Suppress Evidence from Det. Alfred Distal [sic] of the Gretna Police Department who has indicated he received information from Officer Pat Digiovanni [sic] regarding a Raymond Clay, information that Mr. Clay was involved in the selling of guns. It was learned that Mr. Clay was currently on probation.
The Probation and Parole Department conducted a compliance search at 319 9th Street, Apartment B, in which they discovered marijuana, a pipe, a drug test kit, and a scale. They also determined that a black Honda belonged to Mr. Clay. The Probation and Parole officer searched that Honda and located a gun on the front passenger seat in a pair of blue coveralls.
We also heard that Mr. Clay was involved in some jail phone calls, which the record would indicate, and that his girlfriend, Monique, had told Probation and Parole that the ownership of the vehicle was with Mr. Clay.
Based upon the testimony, the Motion to Suppress Evidence is denied.

         Defendant's Motion to Reconsider Motion to Suppress Evidence

         Prior to the commencement of trial, defendant filed a motion requesting that the trial court reconsider its denial of his motion to suppress in light of the Fourth Circuit's decision in State v. Julien, 16-1223 (La.App. 4 Cir. 3/15/17), 229 So.3d 640, which he averred held that a compliance check conducted by an agent other than the probationer's assigned agent was a pretext for a warrantless search.[4]Relying on Julien, defendant argued that, because the searches of his residence and vehicle were conducted by Probation and Parole agents who were not actually assigned to him, the seizure of the weapon taken from his vehicle should have been suppressed. In response, the State argued that Julien was distinguishable in that the compliance check in that case was conducted with no reasonable suspicion, whereas, due to the tip provided by the informant to Agent DiGiovanni, the agents conducting the compliance check of defendant's residence had reasonable suspicion to believe defendant had been engaged in criminal activity justifying a search of his residence and vehicle.

         Following a hearing, and agreeing with the State that the Julien case was distinguishable, the trial court denied defendant's motion to reconsider stating, in pertinent part:

[I]n this case the officers went into [defendant's] place of residence as a result of information provided to them. The law clearly states that probable cause is not necessary, just a reasonable suspicion. This case does include a reasonable suspicion that is distinguished from the Julien case in which the Fourth Circuit clearly states that this was not - - in Julien not based on any type of tip, and, therefore, the district court did, in fact, find that it was simply pretextual.

         Thereafter, the matter proceeded to trial before a twelve-person jury.

         The Trial

         During the April 19, 2017 trial, the State called five witnesses, including Detective Disler, Agent DiGiovanni, and Probation and Parole Agents, Wayne Griffis and J.D. Bertrand, all of whom participated in the February 18, 2014 search of defendant's residence.[5]

         Detective Alfred Disler

         At trial, Detective Disler expanded upon his prior testimony in several respects. He explained to the jury that before he and Agent ...


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