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State v. Malveaux

Court of Appeals of Louisiana, Third Circuit

May 30, 2018

STATE OF LOUISIANA
v.
JEFFREY MALVEAUX, JR.

          ON APPLICATION FOR SUPERVISORY WRITS FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 06-250213 HONORABLE PAUL JOSEPH DEMAHY, DISTRICT JUDGE.

          M. Bofill Duhe District Attorney W. Claire Howington Iberia Parish Assistant District Attorney, COUNSEL FOR PLAINTIFF/APPLICANT: State of Louisiana.

          Harold D. Register, III McCorvey Law, LLC P. O., COUNSEL FOR DEFENDANT/RESPONDENT: Jeffrey Malveaux, Jr.

          Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

          VAN H. KYZAR JUDGE.

         The 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.

         FACTS AND PROCEDURAL HISTORY

         Defendant, 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 confrontation rights.[1]

         At the 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 messages?
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."

         Detective 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.

         The 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 appropriate court."
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.

         After the conclusion of the September 5, 2017 hearing, the trial court ruled:

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 suppressed.

         The 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.

         OPINION

         We review a trial court's ruling on a motion to suppress using the "abuse of discretion" standard. State v.Williams, 16-966 (La.App. ...


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