FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 542-667,
SECTION "D" Honorable Paul A. Bonin, Judge
Cannizzaro District Attorney Donna Andrieu Kyle Daly DISTRICT
ATTORNEY'S OFFICE ORLEANS PARISH COUNSEL FOR
Harwell Bitoun Louisiana Appellate Project COUNSEL FOR
composed of Judge Daniel L. Dysart, Judge Joy Cossich
Lobrano, Judge Tiffany G. Chase
COSSICH LOBRANO, JUDGE
an appeal of the district court's denial of a Motion to
Suppress the Evidence and Statement filed by defendant, Malik
Lawson ("Defendant"). On January 10, 2019,
Defendant entered a Crosby plea of
guilty to the charges against him, while
reserving his right to appeal the district court's
decision to deny his motion to suppress.
reviewing the record and applicable law, we find that the
district court properly denied Defendant's motion to
suppress, thereby affirming Defendant's conviction.
Finding, however, errors in Defendant's sentencing, we
remand the matter to the district court to make the
appropriate corrections consistent with this opinion.
September 7, 2018, the State filed a bill of information
charging Defendant with one count of possession of a firearm
by a felon, a violation of La. R.S. 14:95.1, and one count of
resisting an officer, a violation of La. R.S. 14:108. On
September 12, 2018, Defendant entered pleas of not guilty. On
September 17, 2018, Defendant filed motions for discovery; to
preserve evidence; for suppression of statements, evidence,
and identification; and for preliminary examination.
November 15, 2018, the district court heard Defendant's
motion to suppress and conducted a preliminary examination.
Finding probable cause, the district court took the motion to
suppress under advisement. On January 7, 2019, the district
court denied Defendant's motion to suppress. On January
9, 2019, Defendant filed motions to reconsider the motion to
suppress and supplement the record, and request for a stay.
All motions were denied. On January 10, 2019, Defendant
withdrew his pleas of not guilty and pled guilty as charged,
reserving his right to appeal the denial of his motion to
suppress as per Crosby.
court sentenced Defendant to five years in the custody of the
Department of Corrections without the benefit of probation,
parole, or suspension of sentence for count one, possession
of a firearm by a convicted felon. As to count two, resisting
an officer, Defendant was sentenced to six months at Orleans
Justice Center without benefit of probation, parole, or
suspension of sentence. Defendant was given credit for time
served with both sentences to run concurrently.
record reveals two patent errors. First, the sentence for
resisting an officer was imposed without benefit of
probation, parole, or suspension of sentence. This is
contrary to the sentencing requirements of La. R.S.
14:108. The matter is remanded to the district
court to remove restrictions on the sentence.
the sentence imposed under La. R.S. 14:95.1, possession of a
firearm by a felon, is illegally lenient because it did not
impose the fine mandated by law. The district court correctly
imposed a sentence of not less than five years without the
benefit of probation, parole, or suspension of sentence but
without a fine.
R.S. 14:95.1(B) provides that:
Whoever is found guilty of violating the provisions of [La.
R.S. 14:95.1] shall be imprisoned at hard labor for not less
than five nor more than twenty years without the benefit of
probation, parole, or suspension of sentence
and be fined not less than one thousand
dollars nor more than five thousand dollars. (Emphasis
See also State v. Watson, 13-1532, p. 6 (La.App. 4
Cir. 8/6/14), 147 So.3d 1169, 1172-73 (the fine imposed by
La. R.S. 14:95.1 is mandatory and the trial judge is without
discretion to waive it).
we remand this case for the district court to correct the
sentence under La. R.S. 14:108 to remove restrictions and
impose a fine under La. R.S. 14:95.1(B).
raises two assignments of error, however, the first assigned
error is closely related to the second. Thus, we address
both in our discussion of whether the police conducted an
illegal warrantless search (assignment of error number two).
outset, we note our well-settled jurisprudence that an
appellate court is to review the district court's
findings of fact on a motion to suppress under a clearly
erroneous standard, while the review of the district
court's ultimate determination of Fourth Amendment
reasonableness is de novo. State v.
Everett, 13-0322, p. 4 (La.App. 4 Cir. 3/26/14), 156
So.3d 705, 709 (citing State v. Dorsey, 00-2331, p.
1 (La.App. 4 Cir. 1/24/01), 779 So.2d 1008, 1009. "On
mixed questions of law and fact, the appellate court reviews
the underlying facts on an abuse of discretion standard, but
reviews conclusions to be drawn from those facts de
novo." Everett, 13-0322, pp. 4-5, 156
So.3d at 709. Furthermore, a district court's decision as
to the suppression of evidence is afforded great weight and
will not be set aside unless there is an abuse of that
discretion. Id. (citing State v. Wells,
08-2262, p. 5 (La. 7/6/10), 45 So.3d 577, 581). When 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 disturb those findings unless there is no evidence to
support them. State v. Thompson, 11-0915, pp. 13-14
(La. 5/8/12), 93 So.3d 553, 563; Wells, 08-2262, p.
5, 45 So.3d at 581.
well settled that "[t]he State bears the burden of
proving the admissibility of the evidence seized without a
warrant when the legality of a search or seizure is placed at
issue by a motion to suppress evidence. La. C.Cr.P. art.
703(D)."Wells, 08-2262, p. 5, 45 So.3d at
581; State v. Loicana, 18-0497, pp. 6-7 (La.App. 4