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State v. Every

Court of Appeals of Louisiana, Fifth Circuit

May 23, 2019

STATE OF LOUISIANA
v.
JOSHUA EVERY

          ON 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. Clark

          COUNSEL FOR DEFENDANT/RELATOR, JOSHUA EVERY, Kerry P. Cuccia

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson

          JUDE G. GRAVOIS, JUDGE

         Relator, 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.

         PROCEDURAL BACKGROUND AND FACTS

         On 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.

         On January 3, 2018, relator filed eight motions to suppress evidence, challenging evidence seized from the search of a Mercedes automobile (DM-39)[1]; 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.

         On 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)[2] (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.

         On 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.

         Relator 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.

         ASSIGNMENT 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).

         In this 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[3] 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.

         The 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.

         The 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.

         As a 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 686.

         The 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.

         After 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 Detective Ricke.

         Detective 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 was pending.

         In 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." Id.

         In 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.

         Both 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.

         In this 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.

         Relator 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.

         Accordingly, we find no abuse of the trial court's discretion in denying the motion to suppress. This assignment of error is without merit.

         ASSIGNMENT ...


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