State of Louisiana v. Joseph Michael Moultrie , 2017 La. LEXIS 1382 ( 2017 )

PER CURIAM

11 Defendant was found guilty as charged of possession with intent to distribute co-came, La.R.S. 40:967(A), based on approximately two ounces of crack cocaine found by officers in a barbeque grill in a driveway between two trailers, one of which belonged to defendant’s mother. Officers noticed defendant standing in the street in front of the trailer at approximately 11 p.m. in a high crime neighborhood.'Defendant quickly retreated out of view into' the driveway when he saw the officers before returning to the street. One officer approached defendant while two others entered the driveway to see if defendant had discarded drugs or a weapon. They noticed that there were torn baggies on the ground that appeared to have cocaine and marijuana residue. At the end of the driveway farthest from the street, one officer also noticed a grill whose lid was slightly askew with dew that had been disturbed on the handle. Inside the grill was the large quantity of cocaine.

When arrested, defendant claimed he lived in the trailer, the grill belonged to his family, and he disavowed any knowledge of the cocaine but said there was npthing the officers “could do about it” because the cocaine was found on his property. At trial, defendant’s sister 'testified that their mother lives in the trailer (and she gave a street address , for the trailer that was not the same as that provided by defendant earlier) but defendant does not live with their mother although he does visit her. Defendant’s sister also testified that their mother owns a barbeque Iggrill, which she moves to various locations on the property as she uses it but she does not normally place where this grill was described to have been.

On appeal, defendant contended the district court erred in denying his motion to suppress and that the evidence was insufficient to support the conviction. At the outset, the court of appeal correctly noted that, in reviewing a trial court’s ruling on a motion to suppress, the reviewing court looks to the totality of the evidence presented at the motion to suppress hearing and the trial. See State v. Burkhalter, 428 So.2d 449, 455 (La. 1983) (citing State v. West, 408 So.2d 1302, 1307 (La. 1982)). The court of appeal also found that the officers had reasonable suspicion to stop and question the defendant based on his location, the hour, the reputation of the neighborhood, and his reaction when he' saw the officers. The court of appeal determined, however, that the search inside the grill Was beyond the permissible scope of a protective search for weapons that might be used to harm them. See State v. Moultrie, 14-1535, pp. 5-8 (La. App. 3 Cir. 10/23/15), 182 So.3d 1017, 1022-23. The dissent, in contrast, found no basis to suppress the evidence because, among other reasons, defendant had no reasonable expectation of privacy in the grill. See id., 14-1535, p.2, 182 So.3d at 1025-26 (McDonald, J., dissenting). After examining the totality of the evidence presented at the motion to suppress hearing and the trial, we agree with the dissenting judge’s determination.

The Fourth Amendment to .the United States Constitution and Article 1, Section 5 of the Louisiana. Constitution prohibit unreasonable searches and seizures. A-warrantless search is per-se unreasonable unless the state can show it falls within one of the limited and well-delineated exceptions to the warrant requirement. State v. Hernandez, 410 So.2d 1381, 1383 (La. 1982) (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)); State v. Zito, 406 So.2d 167, 168 (La. 1981). A limited search incident to an | .¡investigatory stop is one such exception. Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993).

La. Const, art. I, § 5 extends standing to “[a]ny person adversely affected” by an invalid search or seizure to raise its illegality. However, the protection is not unqualified, because La. Const, art. I, § 5 also presupposes that “there must be an invasion of someone’s rights to privacy before there can be an unreasonable search.” State v. Perry, 502 So.2d 543, 558 (La. 1986). The test of whether and when an intrusion on privacy rights occurs as a matter of the Louisiana constitution is identical to the Fourth Amendment standard, i.e. the person must possess an objectively reasonable expectation of privacy in the area. Perry, 502 So.2d at 558; State v. Ragsdale, 381 So.2d 492, 497 (La. 1980) (“The test for determining whether one has a reasonable expectation of privacy is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable.”).

Although the state ultimately bears the burden of establishing the validity of a warrantless search, in challenging the search a defendant bears an initial threshold burden of showing that he had a reasonable expectation of privacy in the premises. See, e.g., United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2555, 65 L.Ed.2d 619 (1980). Defendant thus was in the difficult position of having to both distance himself from the barbeque grill, if he hoped to be found not guilty of possession of the cocaine found inside it, and tie himself more closely to the grill, if he hoped to obtain a favorable ruling on the motion to suppress. Trying to do both, he succeeded at neither.

As noted by the dissent in the court below, the ownership of the grill was never established. See Moultrie, 14-1535, pp. 3-4, 182 So.3d at 1026-27 L(McDonald, J., dissenting). It was never seized as evidence and never identified from any photograph as the grill belonging to defendant’s mother. Although defendant’s sister testified that her mother used a grill, her testimony did not establish that the grill in which the drugs were found belonged to defendant’s mother. Defense counsel, in fact, argued in closing that the state never proved who owned the barbeque grill or on whose property it sat. Because defendant failed at the threshold to make a showing of any reasonable expectation of privacy in the barbeque grill, the inquiry ends. Accordingly, we reverse the court of appeal’s ruling and remand for consideration of defendant’s claim that the evidence is insufficient to support the conviction.¹

REVERSED AND REMANDED

WEIMER, Justice, recused. HUGHES, Justice, dissents for the reasons given by the court of appeal. CRICHTON, Justice, additionally concurs and assigns reasons. GENOVESE, Justice, dissents and assigns reasons.

1 . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).