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State v. Nelson

Court of Appeals of Louisiana, Fourth Circuit

November 29, 2018

STATE OF LOUISIANA
v.
DANNY NELSON

          APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 539-751, SECTION "E" Honorable Keva M. Landrum-Johnson, Judge

          Leon Cannizzaro DISTRICT ATTORNEY Donna Andrieu Scott G. Vincent ASSISTANT DISTRICT ATTORNEYS Parish of Orleans COUNSEL FOR RELATOR/STATE OF LOUISIANA

          Gregory Q. Carter The G. Carter Law Firm COUNSEL FOR RESPONDENT/DEFENDANT

          Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Dale N. Atkins

          Dale N. Atkins Judge.

         The State seeks review of the trial court's October 18, 2018 ruling that found no probable cause and granted Defendant, Danny Nelson's ("Defendant") motion to suppress evidence and statement. We grant the writ and reverse the trial court's ruling.

         On February 5, 2018, Defendant was charged by bill of information with possession of a firearm by a convicted felon; possession of marijuana, second conviction; and possession of drug paraphernalia, violations of La. R.S. 14:95.1, La. R.S. 40:966(E)(2), and La. R.S. 40:1023, respectively. Defendant appeared for arraignment on February 23, 2018 and entered a plea of not guilty.

         Defense counsel filed a number of written pre-trial motions, including a motion to suppress statement, motion to suppress evidence, and a motion for preliminary examination. After a hearing conducted on October 18, 2018, the trial court granted the motion to suppress statement, the motion to suppress evidence, and found insufficient probable cause to substantiate the charges against Defendant. The State objected and noticed its intent in open court to seek a supervisory writ of the trial court's ruling and filed a written Notice of Intent to File Writ. The State's writ was timely filed.

         At the October 4, 2018 hearing, the State presented the testimony of Louisiana Division of Probation and Parole Officer, Francisco Dean ("Off. Dean"). Off. Dean reported that he was supervising the probation of Defendant's brother, Quendrick Bailey ("Bailey"). Bailey had been at the scene of a crime after curfew hours and had reported to Off. Dean's office to admit to violating his probation. Bailey also admitted to possessing and smoking marijuana. Based upon the information provided by Bailey, Off. Dean detained Bailey and made the decision to conduct a residence check of Bailey's home pursuant to La. C.Cr.P. art. 895 (A)(13)(a)[1] and relative to the conditions of Bailey's probation.[2] Off. Dean and other officers, all of whom were in uniform, arrived at Bailey's residence with Bailey, and knocked on the door. Defendant answered the door and allowed the officers inside but did not specifically give consent to search the residence. As he entered, Off. Dean smelled a strong odor of burned marijuana in the residence. Defendant was therefore detained. While conducting a protective sweep of the residence for officer safety, marijuana was observed in plain view in Defendant's bedroom on his bed. Defendant told the agents the bedroom was his, admitting he lived in the residence with Bailey. Having learned that Defendant was also on probation, Off. Dean acquired the name of Defendant's probation officer, Kenny Temple, and requested that he come to Defendant's residence. Once Defendant's probation officer was present, a search of Defendant's room was conducted. A gun box with ammunition was found and a marijuana grinder and marijuana were in plain view, all located in Defendant's bedroom. Upon finding a .38 caliber loaded revolver in the bathroom, Off. Dean advised Defendant of his rights and signed a written waiver of rights form. Defendant stated the gun belonged to him and also signed a written statement indicating the gun did not belong to Bailey. Defendant was transported to the Seventh District Station where he was questioned by ATF agents and admitted to finding the firearm near his residence and again stated that the gun belonged to him.

         On October 18, 2018, the trial court ruled as follows:

After reviewing the factors, this Court finds that Agent Dean exceeded his authority and acted unreasonably in conducting the search of the defendant's residence. Here the scope and justification of Agent Dean's intrusion was unreasonable. Agent Dean had reasonable suspicion to believe that his probationer, Mr. Bailey, had been engaged in criminal activity, when Mr. Bailey was seen out past his curfew.
Under certain circumstances, and an informer's tip, can provide reasonable suspicion. Generally, there must be some corroboration of that tip. However, Agent Dean confirmed the suspicion when Mr. Bailey, himself, admitted, while at the Probation and Parole office, that he violated his probation by breaking curfew and smoking marijuana on that day.
As a result of Mr. Bailey's confession, Agent Dean detained Mr. Bailey. And he was not free to leave the office. Considering that Mr. Bailey was detained and not free to leave, Agent Dean should have obtained a warrant for Mr. Bailey's residence.
No exigent circumstances existed that Agent Dean relocated and had to relocate to Mr. Bailey's residence without a warrant. There is no evidence that Mr. Bailey was dangerous or that contraband was located in the residence that would have ...

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