APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT
ORLEANS PARISH NO. 534-549, SECTION "L" Honorable
Franz Zibilich, Judge.
A. Cannizzaro, Jr. District Attorney Parish
of Orleans Scott G. Vincent, Assistant District Attorney
Parish of Orleans COUNSEL FOR STATE OF LOUISIANA .
T. Fuller Marcus O. DeLarge. COUNSEL FOR DEFENDANT.
composed of Judge Rosemary Ledet, Judge Sandra Cabrina
Jenkins, Judge Paula A. Brown
A. BROWN JUDGE
State seeks review of the district court's granting of
Defendant's Motion to Suppress.
State v. McMasters, 18-0027, p. 6 (La.App. 4 Cir.
3/15/18), (unpub.), we remanded the matter "for further
consideration in light of [State v. ]
Greenberry [14-1126 (La. 4/10/15), 164 So.3d 824],
[State v. ] Fearheiley [08-0307, p. 1 (La.
4/18/08), 979 So.2d 487, 488)], [State v. ]
Cure [11-2238 (La. 7/2/12), 93 So.3d 1268');">93 So.3d 1268 [State
v.] Bush, [12-0720 (La. 6/1/12), 90 So.3d
395)], et al" to determine "whether, under
a totality of the circumstances, the police possessed the
requisite level of suspicion to effectuate the brief
detention, which blossomed into probable cause to arrest once
defendant fled from the scene and ignored the officer's
command to stop."
district court concluded, following remand, that "as a
matter of fact and law the officers involved lack[ed] the
requisite probable cause and reasonable suspicion to stop and
search the defendant under the totality of the circumstances.
We find the district court did not abuse its discretion in
granting the Defendant's motion.
district court properly considered the totality of the
circumstances. Based upon the testimony elicited at the
hearing on the motion to suppress, the district court made
several specific factual findings:
This Court reiterates the following: Number one, the Record
does not indicate how long before the instant surveillance
the alleged phone calls were made concerning the address/area
The testimony adduced at the motion hearing was that numerous
phone calls had been made to either the police or the HANO
police relative to a certain address. We don't know when
those phone calls were made in relationship to the activity
on the date in question.
Number two, there is certainly no evidence or suggestion that
the defendant was one of the suspects engaged in
transactions. That was likewise brought out on
cross-examination where the officer admitted that he had no
evidence that this particular defendant was one of the four
to five suspects engaged in transactions.
Number three, there is no description of the defendant either
by name or physical trait given by the alleged caller.
Number four, prior to the defendant running [, ] there was no
evidence the defendant was committing a crime. All we have
here that is suspicious is that the defendant ran. That
simply is not enough to establish reasonable suspicion or
probable cause because if it were every single time somebody
ran when the police arrived at the scene, they would be
subjecting themselves to searches pursuant to the Fourth
a district court makes findings of fact based on the weight
of the testimony and the credibility of the witnesses, a
reviewing court owes those findings great deference, and may
not overturn those findings unless there is no evidence to
support those findings." State v. Wells,
08-2262, p. 4 (La. 7/6/10), 45 So.3d 577, 580 (citations
omitted); See State v. Morgan, 09-2352, p. 5 (La.
3/5/11), 59 So.3d 403, 406 ("Furthermore, a reviewing
court must give due weight to factual inferences drawn by
Additionally, the district court provided a discussion of the
four cases referenced by this Court's prior writ decision
and distinguished the present case in light of those cases:
So here is the new Ruling relative to the Fourth Circuit
Court of Appeal[']s mandate. This Court has re-examined
the law pursuant to the Fourth Circuit Court of
Appeal['s] remand. The Court has reviewed and studied the
four cases cited by the Court of Appeal and reconsidered this
factual backdrop under "a totality of
circumstances." This Court is still convinced if not
more so that the stop hearing [sic] was not supported by
Probable Cause or reasonable suspicion. Unlike
Fear[heighley] there is nothing in the instant
record to suggest that the defendant was involved in
hand-to-hand transactions were [sic] observed in the instant
The Bush facts likewise differ as well as the
totality of circumstances gave rise to a reasonable belief
that a hand-to-hand transaction occurred even though one was
Again, in the case at bar the Record is devoid of any
evidence that the defendant was one of the four to five
individuals suspected of alleged transactions.
Cure, the experience[d] officer observed behavior
consistent with drug transaction and use.
in Greenbe[rry] the defendant brought attention to
himself by continuously circling the block in a high crime,
district court's ruling is generally entitled to review
under a deferential standard with regard to factual and other
trial determinations, and legal findings are subject to a
de novo standard of review. State v.
Julien, 17-0557, p. 24 (La. 10/18/17), 234 So.3d 21, 24,
citing State v. Hunt, 09-1589 (La. 12/1/09), 25
So.3d 746, 751. "[A] reviewing court must look at the
totality of the circumstances to determine if an officer has
reasonable suspicion to stop a suspect." State v.
Lewis, 15-0773, p. 14 (La.App. 4 Cir. 2/3/16), 187 So.3d
24, 32, (citing, State v. Temple, 02-1895, p. 5
(La.9/9/03), 854 So.2d 856, 860). A trial ...