APPLICATION FOR SUPERVISORY WRITS FROM THE SIXTEENTH JUDICIAL
DISTRICT COURT PARISH OF ST. MARTIN, NO. 06-250213 HONORABLE
PAUL JOSEPH DEMAHY, DISTRICT JUDGE.
Bofill Duhe District Attorney W. Claire Howington Iberia
Parish Assistant District Attorney, COUNSEL FOR
PLAINTIFF/APPLICANT: State of Louisiana.
D. Register, III McCorvey Law, LLC P. O., COUNSEL FOR
DEFENDANT/RESPONDENT: Jeffrey Malveaux, Jr.
composed of Phyllis M. Keaty, John E. Conery, and Van H.
State of Louisiana has filed the instant application for
supervisory writs from the trial court's granting of a
motion to suppress evidence, including cell phone GPS
location data and statements of Defendant and his
co-defendants. For the reasons herein, we grant the writ,
make it peremptory, and remand to the trial court for further
proceedings consistent herewith.
AND PROCEDURAL HISTORY
Jeffrey Malveaux, Jr., was charged by a Bill of Information
with being an accessory after the fact to attempted second
degree murder, in violation of La.R.S. 14:25, La.R.S. 14:27,
and La.R.S. 14:30.1. On June 14, 2017, Defendant filed a
"Motion to Suppress Evidence as a Result of an Illegal
Search and Seizure." The purpose of the motion was to
suppress, for use as evidence, certain cell phone GPS
location data for the location of a cell phone belonging to a
female subject, Ashley Seaux. Said location data was secured
without a warrant. The motion further seeks to suppress the
inculpatory statements of Defendant as "fruit" of
the alleged unconstitutional search, and also the statements
of co-defendants as obtained in violation of Defendant's
hearing on the motion to suppress, the State called Deputy
Kim Talley of the St. Martin Parish Sheriffs Department to
testify. Ms. Talley was a detective with the St. Martinville
City Police on May 20, 2016, the date of the crime involved
herein. On that date, she participated in the investigation
into the shooting of a male victim, Mike Zeno. Deputy Talley
testified that Mr. Zeno and a female occupant of the car he
was driving arrived at the police station and reported the
shooting. Detective Talley attended to the female first, who
had been hit with shattered glass, while other officers
assisted Mr. Zeno, who had been shot in the abdominal area.
Mr. Zeno told Detective Talley and other officers that he
came to a stop behind another car at the intersection of
LaSalle and Port Streets in St. Martinville when a male
exited from the left rear passenger compartment of the car,
walked back toward Mr. Zeno's car armed with a gun, and
fired two shots at Mr. Zeno through the car's window. The
shooter then returned to the car he was riding in, and it
pulled away. Mr. Zeno told the officers that the car involved
was a maroon Honda Accord and that he knew the owner of the
car to be Ashley Seaux. Deputy Talley stated that she knew
Ms. Seaux personally as she is the mother of a child whose
father is Deputy Talley's husband's best friend.
Deputy Talley called the cell phone of Ms. Seaux, who
initially answered, but upon learning whom was calling, Ms.
Seaux abruptly stated that she could not talk. Deputy Talley
then sent Ms. Seaux a text message inquiring into her
whereabouts. Receiving no reply, Deputy Talley texted Ms.
Seaux again, telling her that she was not in any trouble and
that Deputy Talley just needed to know where she was. Deputy
Talley finally received a reply, detailed in her testimony
per the following colloquy:
Q. Okay. And what is it that she is telling you in these text
A. She is telling me, "Kim, I'm scared for my
life." I responded with, "Please talk to me. Where
are you at?" She responds. "At this time I am
around people. I will get killed." I didn't
understand that statement. So she responds, "No. Help
me, please. Please help me."
Troy LeBlanc of the St. Martinville Police Department also
testified. He went to the scene of the shooting and was able
to locate a video recording of the incident from a gas
station adjacent to the corner where it occurred. The
recording showed a male exit the maroon Honda from the rear
driver's side and proceed to shoot Mr. Zeno. Police were
able to identify the maroon Honda as belonging to Ms. Seaux.
Detective LeBlanc then went to the home of Ms. Seaux's
aunt, Ms. Johnson. According to Detective LeBlanc, Ms.
Johnson called Ms. Seaux while in his presence and had a
momentary conversation. He then attempted to call Ms. Seaux
himself but got no answer. After reviewing the text messages
received by Deputy Talley from Ms. Seaux, he and Detective
Cody Dodge contacted AT&T, the cell service provider, to
attempt to access the GPS location data for Ms. Seaux's
phone via an exigent circumstances request for the GPS data
as authorized by 18 U.S.C. § 2702(c)(4). None of the
investigating detectives applied for a warrant. AT&T
provided the information that the cell phone was located in
Natchez, Mississippi. Natchez police authorities were
contacted for assistance, ultimately leading to several
subjects being apprehended, including Defendant, other
co-defendants, and Ms. Seaux.
trial court held hearings on Defendant's motion to
suppress on August 24, 2017 and September 5, 2017. The court
held that use of information regarding a third party's
GPS location obtained from a cell phone service provider
violated the third party's Fourth Amendment rights.
Pursuant to this ruling, the court suppressed the location
data and statements by Defendant and co-defendants obtained
thereafter. In its initial ruling at the end of the hearing
held on August 24, 2017, the court stated:
BY THE COURT:
First off, with regard to the right of privacy, Mr. Register
accurately quoted Section 5 of Article I of the Louisiana
Constitution which says, "Any person adversely affected
by a search or seizure conducted in violation of this section
shall have standing to raise its illegality in the
If someone else's 4th Amendment Rights are
violated and it affects Mr. Malveaux, even though his
4th Amendment Rights were not violated, he can
assert their 4th Amendment Rights.
Secondly, with regards to exigent circumstances, I am going
to take judicial notice of the fact that in the 16th Judicial
District Court and the St. Martin Parish - the St.
Martinville Police Department, they can obtain electronic
warrants which can be done in a matter of minutes. It takes
them longer to talk to AT&T than it does to obtain an
electronic search warrant.
With regard to expectation of privacy, there are certain
records that the phone company has and there is no
expectation of privacy because it is held by a third party.
But somebody's physical location, or the physical
location of their phone, is not a record maintained by
AT&T, or the cell phone provider. They had to take action
to find, to locate that cell phone. I am not aware of any
particular case regarding that. However, attaching a GPS
locator to somebody's vehicle and to track it is a
violation of their right to privacy as to where they have
traveled. So I would think in the same way, a GPS locator of
the telephone violates the same right to privacy. For those
reasons, I find that the action of obtaining a GPS location
of the cell phone through AT&T was a violation of Miss
Seaux's 4th Amendment Rights, which can be
asserted by Mr. Malveaux.
the conclusion of the September 5, 2017 hearing, the trial
BY THE COURT:
With regards to the statements of the possible codefendants,
those will be suppressed because it violates the
defendant's right of confrontation. As the Court had
previously ruled, the phone company located the telephone and
notif[ied] the Police Department - they located the phone at
the Police Department's request and notifying the Police
Department of the phone's location was a violation of the
owner's 4th Amendment right to reasonable
search and seizure. In fact, the Court finds there was in
fact a search without a warrant and the Court, again, took
judicial notice that the St. Martinville Police Department
and the 16th Judicial District Court has an electronic
warrant system. And therefore, there is no exigent
circumstance because the time it takes them to get a warrant
is probably less than the time it took them to get AT&T
to undergo the operation. According to the Louisiana
Constitution, the defendant can object to a violation of
someone else's 4th Amendment rights, or their
state rights against an illegal search and seizure.
Therefore, as a result of that information, they were able to
arrest the defendant and obtain a statement from him. I find
that that would be considered "the fruit of the
poisonous tree" and therefore, his statement is
State now seeks review, assigning as a single and general
error in brief that the trial court erred in granting the
motion to suppress. However, it divides the assignment into
three sub-arguments. The State argues the trial court erred
by granting Defendant's motion to suppress because
Defendant had "no legitimate expectation of privacy in
data logs stored by third parties and voluntarily disclosed
to law enforcement by those third parties." The State
further contends the trial court erred in finding "that
the exigent circumstances did not vitiate the warrant
requirement." The State notes that police officers
reasonably believed that a woman who was potentially involved
in the offense was in imminent physical danger. Finally, the
State argues that even if the trial court did not err
regarding the two points just noted, it erred by suppressing
the co-defendants' statements on the basis that police
had violated Defendant's confrontation rights.
review a trial court's ruling on a motion to suppress
using the "abuse of discretion" standard. State
v.Williams, 16-966 (La.App. ...