APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH
JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF
LOUISIANA NO. 16-4176, DIVISION "P" HONORABLE LEE
V. FAULKNER, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA Paul D.
Connick, Jr., Terry M. Boudreaux, David P. Wolff, Juliet L.
COUNSEL FOR DEFENDANT/RELATOR, JOSHUA EVERY, Kerry P. Cuccia
composed of Judges Jude G. Gravois, Marc E. Johnson, and
Robert A. Chaisson
G. GRAVOIS, JUDGE
Joshua Every, seeks this Court's supervisory review of
various rulings of the trial court denying his Motions to
Suppress Evidence. Relator argues five assignments of error
in his writ application. For the following reasons, we deny
this writ application.
BACKGROUND AND FACTS
October 27, 2016, a Jefferson Parish Grand Jury returned a
true bill of indictment charging relator with violating La.
R.S. 14:30 by committing the first degree murder of Taylor
Friloux on June 29, 2016 while engaged in the perpetration or
attempted perpetration of armed robbery, aggravated
kidnapping, and second degree kidnapping upon her and during
the perpetration or attempted perpetration of an aggravated
burglary upon a Raising Cane's Restaurant.
January 3, 2018, relator filed eight motions to suppress
evidence, challenging evidence seized from the search of a
Mercedes automobile (DM-39); two searches of the Mercedes
pursuant to warrants (DM-40 and -41); an Alcatel cell phone
seized from the Mercedes (DM-42); a silver iPhone seized from
the Raising Cane's (DM-43); a black Kyocera cell phone
(DM-44); a black iPhone 5 (DM-45); and a black and silver
iPhone 6S (DM-46). The State filed written responses to each
motion. Relator's motions DM-39 through DM-46 were heard
at suppression hearings held on February 1, March 9, and
March 19, 2018, at which hearings the trial court heard the
testimony of witnesses and pertinent evidence was admitted.
On August 17, 2018, the parties presented arguments as to
DM-39 through DM-41 (regarding the warrantless search and
seizure of the Mercedes and the two subsequent search
warrants). Relator and the State submitted on their pleadings
as to DM-42 through DM-46 (searches of cell phones pursuant
to warrants). The trial court denied DM-39 through DM-46 for
reasons assigned from the bench at the hearing on this date.
September 6, 2018, relator filed additional motions to
suppress evidence seized from relator's Facebook account
(DM-77); a black iPhone linked to Ariana Runner, a
co-defendant (DM-78); the same black and silver iPhone 6S
(DM-79); a cell phone belonging to Candace Rose (DM-80); a
cell phone owned by Felix Santiago (DM-82); a phone owned by
Taylor Friloux, the victim (the same phone seized from the
manager's office) (DM-84); the black Kyocera cell phone
(DM-85); the black iPhone 5 (DM-86); and the black Alcatel
cell phone (DM-87). The State filed responses to each of
these written motions to suppress.
November 2, 2018, the parties argued DM-77 and submitted
DM-78 through DM-87 on the pleadings. After taking the
motions under advisement, on November 14, 2018, the trial
court denied DM-77 through DM-87.
filed a timely writ application in this Court. Upon review,
this Court found deficiencies in the writ application, namely
that it failed to contain the full transcripts of the
hearings on the motions to suppress referenced in the writ
application, and ordered relator to supplement the writ
application with any and all relevant transcripts in an Order
dated February 27, 2019. This Court further ordered relator
to supplement the writ application, in accordance with
Uniform Rules - Courts of Appeal, Rule 4-5(C)(8), with the
State's responses to the various motions to suppress and
post-hearing memoranda filed by relator. Having received the
requested supplements to the writ application, this Court now
considers relator's assignments of error.
OF ERROR NO. ONE
The trial judge erred as a matter of law in finding that Det.
Ricke had the right to enter the Every property and
scrutinize the interior of the Mercedes for evidence after
the premises had been secured and after Mr. Every had been
removed from the premises (DM-39).
assignment, relator argues that in light of the United States
Supreme Court's decision in Collins v. Virginia,
___ U.S. ___, 138 S.Ct. 1663, 201 L.Ed.2d 9 (2018), the trial
court erred in finding that Detective Ricke lawfully entered
relator's property and scrutinized the interior of the
Mercedes. He argues that because Detective Ricke was within
the curtilage of the home, he was required to have either
probable cause to conduct the search of the Mercedes under
the automobile exception to the warrant requirement or there
must have been exigent circumstances present. He asserts that
the Mercedes had no connection to the crime as it was located
over twenty miles away from the Raising Cane's and was
peered into by the police more than five hours after the
incident occurred. He also argues the holding of State v.
Hernandez, 410 So.2d 1381 (La. 1982) applies.
State responded that Detective Ricke was legally justified in
conducting a warrantless search of the vehicle under the
automobile exception as it was probable that the Mercedes
contained contraband and/or under the plain view exception.
It further argued that the officers had a lawful right to
access the driveway, which was not within the curtilage of
the home. It argued that the Collins and
Hernandez decisions are distinguishable, and that
Detective Ricke more than complied with constitutional
mandates by obtaining two search warrants for the Mercedes.
Fourth Amendment to the United States Constitution and
Article I, § 5 of the Louisiana Constitution prohibit
unreasonable searches and seizures. If evidence is derived
from an unreasonable search or seizure, the proper remedy is
exclusion of the evidence from trial. State v.
Aston, 12-955 (La.App. 5 Cir. 9/4/13), 125 So.3d 1148,
1156, writ denied, 13-2374 (La. 3/21/14), 135 So.3d
618. A defendant who is adversely affected may move to
suppress evidence from use at the trial on the merits on the
ground that it was unconstitutionally obtained. La. C.Cr.P.
art. 703(A). The trial court's decision to deny a motion
to suppress is afforded great weight and will not be set
aside unless the preponderance of the evidence clearly favors
suppression. State v. Butler, 01-907 (La.App. 5 Cir.
2/13/02), 812 So.2d 120, 124.
general rule, searches and seizures must be conducted
pursuant to a validly executed search warrant or arrest
warrant. State v. Holmes, 08-719 (La.App. 5 Cir.
3/10/09), 10 So.3d 274, 278, writ denied, 09-816
(La. 1/8/10), 24 So.3d 857. Warrantless searches and seizures
are per se unreasonable unless justified by one of the
exceptions to the warrant requirement. Id. When the
constitutionality of a warrantless search or seizure is
placed at issue by a motion to suppress the evidence, the
State bears the burden of proving that the search and seizure
was justified pursuant to one of the exceptions to the
warrant requirement. La. C.Cr.P. art. 703(D); State v.
Joseph, 02-717 (La.App. 5 Cir. 6/27/03), 850 So.2d 1049,
1052, writ denied, 04-2404 (La. 6/17/05), 904 So.2d
testimony and evidence at the hearing on the motions to
suppress show that a witness to the robbery identified
relator as a known perpetrator and that his name was provided
to Officer Matthew Glapion of the Kenner Police Department at
around 2:45 a.m. Officer Glapion found relator's address
at 168 River Oaks Drive in LaPlace, Louisiana, in St. John
the Baptist Parish, and learned that a black Mercedes was
registered to the same address. After pulling up a photo of
relator, Officer Glapion drove to LaPlace where, at 5:53
a.m., he saw a black Mercedes driving away from the River
Oaks house apparently being driven by relator. Because he
could not see the license plate, Officer Glapion established
surveillance of the house. At approximately 7:00 a.m.,
Officer Glapion saw the Mercedes return and pull into the
driveway in front of the home's garage. Relator exited
the vehicle and entered the house through a rear door on the
backside of the garage. Officer Glapion called for
assistance, which arrived at approximately 8:10 a.m. Relator
was detained shortly thereafter without incident.
assisting other officers with a protective sweep of the
residence, Officer Glapion left the house and went over to
the Mercedes, still parked in the driveway, to speak to
officers standing nearby. He looked through the front
windshield and observed a sleeve of coins on the front
passenger floorboard. Officer Glapion did not enter the
vehicle, but stayed on the scene until the arrival of
Ricke testified that he arrived at relator's residence
around 8:53 a.m. after relator had been detained and
transported. He spoke with Officer Glapion and also observed
the presence of approximately ten officers from the different
agencies of Kenner Police, the U.S. Marshals, and St. John
the Baptist Parish in the immediate area who had secured the
scene in anticipation of the issuance of search warrants.
Detective Ricke looked through the front passenger window and
windshield of the Mercedes and observed the roll of coins
encased in wrapper that was similar to the coin wrappers he
had observed near and inside of the safe at Raising
Cane's. He also observed an item he described as a
"Kids Meal kind of thing" from Raising Cane's.
It was determined that the Mercedes was registered to
relator's mother, who also lived at the same address.
Officers did not enter the Mercedes while it was parked in
the driveway. The Mercedes was then towed to the Kenner
Police Department while an application for a search warrant
Collins, supra, the United States Supreme
Court resolved the issue of "whether the automobile
exception to the Fourth Amendment permits a police officer,
uninvited and without a warrant, to enter the curtilage of a
home in order to search a vehicle parked therein."
Id., 138 S.Ct. at 1668. In Collins, the
property that was subject to an illegal search was a stolen
motorcycle. The stolen motorcycle was parked at the
defendant's girlfriend's house in a partially
enclosed area at the top of the driveway and was covered by a
tarp but was partially visible by investigating officers
while they viewed the property from the street. An officer
entered the partially enclosed portion of the driveway,
lifted the tarp off the motorcycle, and photographed it. The
court found that the area where the motorcycle was parked was
inside a partially enclosed top portion of the driveway that
adjoined the house and was within the curtilage of the home.
Accordingly, the court held that "[t]he automobile
exception does not permit the warrantless entry of a home or
its curtilage in order to search a vehicle."
Hernandez, supra, the defendant was
arrested for DWI and related traffic offenses as he parked
his car in his driveway after police officers had chased him
through the streets for some distance. Id., 410
So.2d at 1383. As the defendant was escorted to the patrol
car, he stated he did not want anyone driving his car.
Nevertheless, in accordance with alleged police policy, the
officers radioed for a wrecker to tow the car. While waiting
for the wrecker, one officer returned to the private property
upon which the car was parked, entered the car, and inspected
its interior. He discovered marijuana cigarettes on the
console between the front seats and on the left floorboard
and seized the cigarettes as evidence. Id. The court
held that police had no right to re-enter the private
property on which the defendant's car was parked and
inspect its interior, including the glove compartment, after
the defendant was in custody and removed from the scene since
the search of the car was not contemporaneous with the
arrest, and there was no probable cause or any circumstances
to justify an exception to the warrant requirement.
Id., 410 So.2d at 1383-84.
cases cited by relator are readily distinguishable from the
instant matter. The curtilage of a home is that "area to
which extends the intimate activity associated with the
sanctity of a man's home and the privacies of life."
State v. Salinas, 17-485 (La.App. 5 Cir. 7/6/18),
251 So.3d 1166, 1177 n. 8, writ denied, 18-1301 (La.
4/8/19), 2019 WL 1619783. It is considered part of the home
itself and is therefore afforded Fourth Amendment protection.
Id. To determine whether an outside area is part of
the curtilage or extension of the residence's living
area, courts look at four factors which indicate how
intimately the area is tied to the home itself: (1) the
area's proximity to the home; (2) whether the area is
included within an enclosure surrounding the home; (3)
whether the area is being used for the intimate activities of
the home; and (4) the steps taken by the resident to protect
the area from observation by passers-by. Id.
matter, photographs of the driveway reveal that the driveway
was not enclosed but was entirely open, led to the street,
and was the path on which any person would approach the front
door of the house and access it from the street. The driveway
was open to law enforcement officers as well as any other
member of the public. Therefore, even if it was a part of the
curtilage of the home, this open driveway did not enjoy the
same measure of Fourth Amendment protection that a home does,
nor that enjoyed by the partially enclosed driveway space
where the motorcycle in Collins was parked covered
by a tarp. As the Louisiana Supreme Court noted in State
v. Deary, 99-0627 (La. 1/28/00), 753 So.2d 200, 201 (per
curiam), "police with legitimate business may enter the
areas of the curtilage which are impliedly open to use by the
public, and that in so doing they are free to keep their eyes
open and use their other senses." It further stated that
the police "have the same right as other members of the
public to approach the doorway [of a home] and see what was
exposed by the owner to the view of the general
populace." Id. (citing State v. Dixon,
391 So.2d 836, 838 (La. 1980)). It is also important to note
that unlike in Collins, where the officer uncovered
the motorcycle, and Hernandez, where the officers
entered the vehicle during the search, no officer entered the
Mercedes while it was parked in relator's driveway.
also argued that the Mercedes had "no connection"
to the crime; however, the facts show that the vehicle was
clearly connected to relator, who had been identified as a
perpetrator of the crime within an hour of its occurrence.
Relator was seen by Officer Glapion driving the vehicle,
registered to relator's mother at the address they
shared, at 5:53 a.m., only hours after the crime occurred.
we find no abuse of the trial court's discretion in
denying the motion to suppress. This assignment of error is