State of Louisiana Versus Leonidas Lowry AKA "Chico" ( 2024 )

STATE OF LOUISIANA NO. 23-KA-392
VERSUS FIFTH CIRCUIT
LEONIDAS LOWRY AKA "CHICO" COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-7077, DIVISION "D"
HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING
May 15, 2024
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Stephen J. Windhorst
AFFIRMED; REMANDED FOR CORRECTION OF UNIFORM
COMMITMENT ORDER AND SENTENCING MINUTE ENTRY
JGG
SMC
SJW
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Darren A. Allemand
COUNSEL FOR DEFENDANT/APPELLANT,
LEONIDAS LOWRY
Bertha M. Hillman
GRAVOIS, J.
Defendant, Leonidas Lowry a/k/a “Chico,” appeals his
conviction and sentence for second degree murder. There is only one
issue on appeal: Did the trial court err in denying defendant’s motion
to suppress evidence extracted from his cell phone? We conclude,
based on a plain reading of La. C.Cr.P. art. 163, the pertinent statute,
the trial court properly denied the motion to suppress the contents of
the cell phone. We affirm defendant’s conviction and sentence. We
remand the matter for correction of the Uniform Commitment Order
and the sentencing minute entry, as noted below in our Errors Patent
Review.
PROCEDURAL STATUS
In 2017, a Jefferson Parish Grand Jury indicted defendant,
Leonidas Lowry a/k/a “Chico,” with the second degree murder of
Ethan Allen, in violation of La. R.S. 14:30.1. Defendant pled not
guilty at his arraignment.
The bill of indictment also charged Steven R. Tate Jr., a/k/a
“Bubba,” with the second degree murder of Mr. Allen and with
conspiracy to commit an armed robbery of Mr. Allen, along with
defendant, “A.L.,” and other persons, in violation of La. R.S. 14:26
and 14:64. In a separate trial, Tate was convicted of second degree
murder. This Court upheld Tate’s conviction. See State v. Tate, 22-
570 (La. App. 5 Cir. 6/21/23), 368 So.3d 236. The State’s theory of
the case against defendant was that he was a principal with Steven
Tate to second degree felony murder (armed robbery) of Mr. Allen.
In due course, defendant filed a motion to suppress the evidence
extracted from his cell phone. After a hearing, the trial court denied
the motion.
On March 23, 2022, a jury found defendant guilty as charged.
The trial court sentenced defendant to life imprisonment without the
benefit of probation or suspension of sentence.1 In May 2023, the trial
1
At the time of the offense, defendant was sixteen years old. He was
indicted on March 30, 2017. Under La. C.Cr.P. art. 878.1(B)(1), if a juvenile
offender was indicted for second degree murder prior to August 1, 2017, and a
hearing to determine the juvenile offender’s parole eligibility was not held before
23-KA-392 1
court granted defendant an out-of-time appeal. On appeal, defendant
argues the court erred in denying his motion to suppress extractions
from his cell phone.
FACTS ESTABLISHED AT TRIAL
During the evening of November 29, 2016, Gerald Katicich
heard gunshots outside his home at 801 Gulf Drive in Gretna.
Specifically, he heard a couple of shots from one gun, a slight pause,
and then a return of gunfire from another gun. Mr. Katicich went
outside and heard people across the street yelling: “He’s been hit!”
Mr. Katicich then observed a car swerving down the street. He got
into his truck and followed the swerving car as he called 9-1-1. The
car he was following eventually stopped against a traffic sign. As Mr.
Katicich approached the car, Officer Corey Boudreaux with the
Gretna Police Department arrived.
Officer Boudreaux saw the driver, later identified as Ethan
Allen, gasping for air. Mr. Allen had a cell phone and cash on his lap.
Officer Boudreaux placed the cell phone and cash on the dashboard
and removed Mr. Allen from the car. Mr. Allen stopped breathing
once he was removed from the car. Officer Boudreaux performed
CPR on Mr. Allen as other officers arrived.
Dr. Dana Troxclair, a forensic pathologist, established that Mr.
Allen died from a single gunshot wound that entered his right lateral
chest and exited his back. She explained the lack of searing, soot, and
stippling indicated it was a distant-range gunshot wound, which is
“over two to three feet” from the firearm.
Casings and a gun were found in the back seat of the car. The
rear passenger window was shattered and there was glass inside the
car. No “weed” was found in the car.2 A search warrant of the car
that date, the State was afforded the opportunity to file a notice of its intent to
seek a sentence of life imprisonment without the possibility of parole within
ninety days of August 1, 2017. State v. Smith, 18-131 (La. App. 5 Cir. 10/17/18),
258 So.3d 973, 977-78, writ denied, 18-1959 (La. 4/15/19), 267 So.3d 1123. The
State did not file such a notice in the present case. Therefore, La. C.Cr.P. art.
878.1 requires that defendant “shall be eligible for parole pursuant to R.S.
15:574.4(E) without the need of a judicial determination … .” See Smith, supra.2
“Weed” is a commonly used slang term for marijuana.
23-KA-392 2
was obtained and executed and the following items were recovered: a
Smith and Wesson .40 caliber firearm, a projectile located in the
passenger front door, and eight spent casings—seven from inside of
the vehicle and one from underneath Mr. Allen. Mr. Allen’s phone
and $7 were also recovered in the vehicle, and $93 was found on Mr.
Allen’s person.
Kremly Marrero, who lived at 803 Gulf Drive, also heard
gunfire—“Pom! Pom!” a pause, and then “Pom! Pom! Pom! Pom!
Pom!”—around the same time Mr. Katicich did. Mr. Marrero went
outside and saw a young man screaming that his friend had been shot.
He ran across the street to 812 Gulf Drive and attended to a person,
whom he described as being “hit everywhere.” Defendant was also
present at that time. The Gretna police arrived within minutes.
Officer Damond Bartlett with the Gretna Police Department
approached the carport area of 812 Gulf Drive where Steven Tate
(also called “Bubba”), who had been shot, was located. EMS took
Tate to the hospital for multiple gunshot wounds. Evidence from the
roadway where the incident occurred, including two .45 caliber shell
casings, projectiles, and automotive glass, was collected. A .45
caliber Springfield Armory 1911 handgun was located in the back
yard of 810 Gulf Drive, and a Sig Sauer 9 mm firearm was found on
top of a utility shed in the rear of 812 Gulf Drive.
Authorities executed a search warrant of 812 Gulf Drive,
defendant’s residence, on the night of the incident. Two phones
located on the sofa were recovered, as well as a 9 mm Taurus
Millennium firearm found between the fitted sheet and mattress in
defendant’s bedroom.
That night, the Gretna Police Department took defendant to the
police station where he gave two recorded statements to the police.
Defendant’s grandmother, Debra Lowry, was also present. After
advising him of his Miranda3 rights, Detective Ralph Dunn with the
Gretna Police Department took defendant’s first recorded statement.
3
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).
23-KA-392 3
Defendant told Detective Dunn that he and Tate were standing on his
porch after walking outside to smoke a cigarette when Tate received a
phone call. Defendant was texting while Tate walked up and down
the driveway and sidewalk and talked on the phone. During this time,
defendant’s family and his friend, Treven Vinet, were inside.
Defendant stated he saw a dark, grayish-blueish four-door SUV pass
by and slow down by Tate in front of a neighbor’s house. The front
passenger window of the car rolled down and defendant heard at least
six shots and saw a flame. He ran toward his porch, and as he looked
back, he saw Tate coming towards him. Tate was screaming and told
him to call an ambulance. Defendant and his grandmother called 9-1-
1. When the detective asked who started shooting at the car,
defendant said something indiscernible and then, “Bubba ain’t start
shooting at the car.” Later in his statement, defendant stated he saw
Tate return fire at the car. Defendant denied firing any weapons
during the incident. Defendant also denied Tate was dealing “dope.”
Defendant acknowledged he knew Tate to carry a gun. Defendant
said Tate had previously been charged with attempted murder and
speculated this shooting was in retaliation.
Defendant stated he saw Tate and Treven with three guns that
day and earlier he “played” with all three guns in his backyard. Tate
had a black .45 with a wooden grip and the brand was “something
armory,” and Tate also had a black 9 mm Millennium. Treven had a
black 9 mm Sig Sauer. Defendant thought the two guns found outside
were placed there by Treven. He said Treven was asking for the guns
and looking for them as defendant cared for Tate. Defendant also said
Tate must have thrown his gun when he ran to the porch where he
collapsed.
Detective Dunn obtained video surveillance from the Jefferson
Parish Sheriff’s Office (“JPSO”) uniform shop located at the end of
Gulf Drive where the victim, Mr. Allen, was located. He also
obtained video from 1121 8th Street, which is in the area of 812 Gulf
Drive where Tate was located. He explained the video showed two
people exit the porch area of 812 Gulf Drive and approach the street
prior to when the victim’s Honda CRV approached down Gulf Drive.
23-KA-392 4
A few minutes later, two people ran from the street back to the porch
area of 812 Gulf Drive. Because defendant’s statement, that he was
under the carport when Tate ran back, did not match the video,
Captain Jerry Broome interviewed defendant a second time that same
night.
Captain Broome learned that defendant, his grandmother, his
two sisters,4 Tate, Treven, and Chris Cross were at the house on the
day in question. Defendant told Detective Broome that Tate and
Treven brought the three guns to the house and were showing him the
guns in the back yard. After Chris arrived, they went inside and
played video games. Shortly before the incident, Treven gave him the
Millennium gun found in his bedroom. After defendant’s sisters
arrived, Tate called Mr. Allen. Mr. Allen went to his house because
he was supposed to sell Tate “weed.”
Defendant and Tate went outside to wait for Mr. Allen, the
victim. Everyone else was inside. Defendant had the Millennium
firearm with him and Tate had the Springfield .45 firearm on his
person. Mr. Allen pulled up one house down. As defendant stood
under the carport, Tate went to the car. Tate acted like he was going
to get in the back passenger side, but then he closed the door and got
in the front. As Tate exited the car, defendant heard shots. He
thought Tate shot first and Tate was outside the car when he fired two
or three times. The person inside the car returned fire. Defendant
turned around to run inside, but Tate ran to him before he made it
inside. At that point, Treven was outside trying to find Tate’s gun.
Defendant and his grandmother called the police, and as the police
arrived, his grandmother told them they better not have any “weed”
and to “throw that s***.” Defendant denied getting rid of any “weed”
or seeing any on Tate. Defendant saw Treven still had a gun and told
him to put it away. Treven then “speedwalked” to the back yard.
Defendant put the Millennium firearm under his mattress in his
bedroom.
4
The two sisters were identified at trial as Tatiana and Arianna.
23-KA-392 5
Defendant stated the police would not find evidence from him
which would show Tate planned to rob Mr. Allen. He stated Tate
never mentioned a robbery that night and he did not know what
caused the shooting. Defendant acknowledged Tate had robbed
people before and the prior attempted murder charge was “supposed
to be a robbery.”
Subsequently, when defendant’s grandmother, Ms. Lowry, was
alone with him in the interview room, defendant used her phone to
make a call. He asked to speak to Tatianna, his sister, and asked her if
they had said anything about “robbing.” She replied negatively. An
officer entered the room and instructed defendant not to use the
phone. After more time left alone during which defendant continued
to use Ms. Lowry’s phone, an officer took it away.
An iPhone found on the couch in the living room at 812 Gulf
Drive belonged to defendant. He provided the police with the
passcode to it. A Samsung Galaxy also found there belonged to
Treven. Search warrants were obtained for both phones.
JPSO Sergeant Solomon Burke, an expert in mobile device
forensics, performed cell phone extractions on three phones in this
case and reviewed excerpts from his report. Regarding defendant’s
phone, two photographs were taken on November 29, 2016 (the day
of the shooting) from 812 Gulf Drive showing firearms. On the same
day, the number associated with defendant sent text messages that
referenced a “million-dollar lick” and referenced being in possession
of firearms. Sergeant Burke defined a “lick” as “slang for robbery.”
Additionally, on the day of the shooting, Sergeant Burke testified that
the number associated with defendant sent the following message:
“Bubba just came got a whole QP from me. In an hour he gonna [sic]
bring a half pound back.”
Sergeant Burke testified that prior to the date of the shooting,
on October 23, 2016, there were messages from the number associated
with defendant to a contact named “Bubba” which stated they were
going to “jack” a man when they find out the location of his house.
Sergeant Burke also testified that on November 23, 2016, a message
was sent from “Ari” to defendant’s phone number in which she asked
23-KA-392 6
to use his “hammer” and said I need to “hit a lick.” A message from
defendant’s number responded, stating: “Whatever lick it is, [wh]y
don’t you send it by me?” A message sent from defendant’s number
indicated he would not give his gun to Ari. A message sent from
defendant’s number asked how she was going to “jack him,” and she
replied: “You’re not going to let me use your hammer though.” A
message sent from defendant’s number then stated that he does not let
Bubba hold his gun.
Further, the lead investigator, JPSO Lieutenant Brandon
Leblanc, testified that texts from November 22, 2016 showed Arianna
was asking for a gun to “hit a lick.” Defendant responded he would
not let her do it and would instead do it himself. Lieutenant Leblanc
testified that a text sent from defendant’s number to Arianna’s number
in the same conversation after she mentioned defendant was under
house arrest stated: “What he got and I just jacked some the other day.
I’m just telling him pull up next door.”
Sergeant Ashton Gibbs received Mr. Allen’s cell phone and
obtained a search warrant for it. Prior to submitting Mr. Allen’s
phone to the crime lab, Sergeant Gibbs looked through it and
determined that two phone numbers—one belonging to Tate and the
number associated with Arianna—were communicating with Mr.
Allen before his death. The sergeant did not recall seeing any
communication between Mr. Allen and defendant.
At 4:03 p.m. on the day of the shooting, Mr. Allen’s phone
received a call and a text from the number associated with Arianna.
The number associated with Arianna called Mr. Allen’s number at
5:25 p.m. A message sent from Arianna’s phone number to Mr.
Allen’s phone number on November 29, 2016 said: “805 gulf drive
she said you coming rn [right now]??” At 5:28 p.m., a message was
sent from Arianna’s phone number that said: “She’s on her house
arrest. Her [brother’s] number ***-1266.” Additionally, a message
sent from Arianna’s phone number to Mr. Allen’s phone stated that
her brother was going to come to the car or he had to go to the door.
Sergeant Burke acknowledged there were several phone calls
(outgoing, incoming, and missed) to Tate’s number between 5:30 and
23-KA-392 7
5:58 p.m. that day. At 5:33:05, Mr. Allen’s phone received a message
from Tate’s phone number that stated: “805 [G]ulf Dr.” Lieutenant
Leblanc agreed the text messages indicated that two people contacted
Mr. Allen to have “weed” delivered and there were no calls from
defendant to Mr. Allen.
Linda Tran, an expert in “forensic firearms and analyst,”
created a firearm and toolmark analysis report. She reported that eight
cartridge cases and one .40 copper jacket projectile she analyzed were
fired from the Smith & Wesson .40 caliber semi-automatic pistol (the
gun found in the victim’s car), and two .45 auto-caliber fired cartridge
cases and two copper jacketed bullets she analyzed were fired from
the Springfield .45 auto caliber semi-automatic pistol (the gun located
in the back yard of 810 Gulf Drive).
Timothy Scanlan testified as an expert in crime scene
investigations and reconstruction. He stated that a bullet entrance
hole in the vehicle showed a bullet traveled from the rear of the
vehicle forward as it entered the vehicle. The bullet’s path or
trajectory indicated the car door was open or ajar at the time it was
struck. Also, several projectiles originated from inside the vehicle at
or near the driver’s seat and went through the roof. It was not focused
fire and such sporadic fire could be consistent with someone who was
injured. Upon viewing a diagram he prepared, Mr. Scanlan explained
the car had damage consistent with one bullet entrance hole and five
areas of damage consistent with bullet exits that originated from the
driver’s side of the vehicle. He agreed the evidence was “consistent
with two shots from the .45, pop, pop, a pause, and then this sporadic
fire before the gun falls down.”
Lieutenant Leblanc testified that in his opinion, the evidence
indicated Tate fired the two shots from the murder weapon and
nothing indicated Tate fired in self-defense. There was no evidence
indicating defendant drew or fired his gun.
After deliberations, the jury found defendant guilty of second
decree murder.
23-KA-392 8
HEARING AND RULING ON MOTION TO SUPPRESS
At the hearing on November 14, 2019 on defendant’s motion to
suppress the information extracted from the cell phones, Sergeant
Gibbs stated he recovered the victim’s cell phone from his vehicle,
and four cell phones from the residence. He identified the search
warrant for Mr. Allen and defendant’s phones. The purpose of the
warrant was to examine the phones’ contents through a forensic
extraction done by the JPSO forensic unit. The phones were stored in
a secure location and manner so as to prevent any tampering of the
phones prior to their extraction.
Sergeant Burke, an expert in mobile device forensics, was in
charge of performing the cell phone extractions. He received six
phones and the warrants for them on December 9, 2016. He
completed the analysis of those phones on January 4, 2017. At that
time, there were between 100 and 200 phones waiting to be analyzed
by him. One phone could require up to eighteen hours to extract and
interpret.
Once Sergeant Burke received the phones, he stored them in an
evidence locker at the crime lab with controlled access. Nothing
could be placed on or removed from those phones. Nothing on the
phone vitiated or nullified the probable cause that previously existed
for the search warrant. A new search warrant would contain the exact
same probable cause affidavit with a different date, because nothing
on the phones would change. Sergeant Burke stated it was physically
impossible at that time to fully extract and analyze each phone within
ten days of receiving it. It was his understanding that as long as he
had the phone and the warrant within ten days of the warrant being
obtained, he could test the phone at any time in the future. This was
the understanding of the JPSO digital forensics unit and digital
forensics units across the state, including the State Police.
On December 2, 2019, the judge denied defendant’s motion to
suppress the information extracted from the cell phones, finding that
the 2019 amendment to Louisiana Code of Civil Procedure art. 163
was procedural in nature and not substantive, and thus applied
retroactively in this case.
23-KA-392 9
ARGUMENTS OF THE PARTIES
On appeal, defendant argues the trial court erred in denying his
motion to suppress evidence obtained pursuant to a search warrant not
executed within ten days after its issuance, as required by Article 163.
He contends the version of Article 163 in effect at the time of the
offense should apply in this case, and because the searches of the
phones were performed outside of the ten-day period permitted by
Article 163(C), the evidence should have been excluded. He asserts
the 2019 amended version of Article 163 does provide more time to
extract a phone, but that version was not in effect at the time of the
offense and when the warrant was obtained. Defendant argues the
judge committed reversible error in finding the amendment was a
procedural change and in applying the amended law retroactively. He
also asserts no warrant requirement exceptions apply.5
The State argues the judge properly denied the motion to
suppress. It contends defendant lacked standing to challenge the
search of Mr. Allen’s cell phone. The State contends preliminary
searches of the phones were conducted within the ten-day period, and
law enforcement was not required to complete the extraction within
ten days. Alternatively, the State argues Article 163 should be viewed
as interpretative or procedural and should be given retroactive effect.
Even if the time period in Article 163 was not followed, suppression
was not warranted under the exclusionary rule or inevitable discovery
doctrine. Finally, the State argues any error would be harmless.
LAW AND ANALYSIS
When evidence is seized pursuant to a search warrant, the
defendant bears the burden of proof at a hearing on his motion to
suppress that evidence. La. C.Cr.P. art. 703(D); State v. McQuarter,
19-594 (La. App. 5 Cir. 11/25/20), 305 So.3d 1055, 1073, writ not
considered, 21-00295 (La. 8/6/21), 322 So.3d 247. The trial court is
afforded great discretion in ruling on a motion to suppress, and its
ruling will not be disturbed absent an abuse of discretion. State v.
5
Even though numerous cell phones were seized and extracted, only the
extractions of defendant’s and Mr. Allen’s cell phones were discussed at trial and
raised on appeal.
23-KA-392 10
Isaac, 17-87 (La. App. 5 Cir. 10/25/17), 229 So.3d 1030, 1038, writ
denied, 17-2106 (La. 6/15/18), 257 So.3d 679.
As a general rule, searches and seizures must be conducted
pursuant to a validly executed search warrant or arrest warrant. State
v. Every, 19-40 (La. App. 5 Cir. 5/23/19), 274 So.3d 770, 777, writ
denied, 19-1048 (La. 10/1/19), 280 So.3d 159. A search warrant may
be issued only upon probable cause established to the satisfaction of a
magistrate, by the affidavit of a credible person, particularly
describing the person or place to be searched and the things to be
seized. State v. Richardson, 18-717 (La. App. 5 Cir. 9/4/19), 279
So.3d 501, 511, writ denied, 19-1722 (La. 7/2/20), 297 So.3d 764; La.
C.Cr.P. art. 162. Probable cause for the issuance of a search warrant
exists when the facts and circumstances, within the affiant’s
knowledge and of which he has reasonably trustworthy information,
are sufficient to support a reasonable belief an offense has been
committed and that evidence or contraband may be found at the place
to be searched. Every, 274 So.3d at 780.
A search warrant must establish a probable continuing nexus
between the place sought to be searched and the property sought to be
seized. Richardson, supra. The facts establishing probable cause for
the warrant must be contained within the four corners of the affidavit.
State v. Shiell, 16-447 (La. App. 5 Cir. 12/7/16), 204 So.3d 1213,
1217, writ denied, 17-41 (La. 9/15/17), 225 So.3d 477. An affidavit
supporting a search warrant is presumed to be valid; the defendant has
the burden of proving the representations made in the affidavit are
false. Id.Concerning the search or extraction of cell phones, the United
States Supreme Court has found the police generally may not, without
a warrant, search digital information on a cell phone seized from an
individual who has been arrested. Riley v. California, 573 U.S. 373,
134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). In reaching this conclusion,
the Court observed that modern cell phones “are now such a pervasive
and insistent part of daily life that the proverbial visitor from Mars
might conclude they were an important feature of human anatomy.”
Riley, 573 U.S. at 385, 134 S.Ct. at 2484. However, given the
23-KA-392 11
pervasiveness of cell phones, the Supreme Court also recognized that
they “have become important tools in facilitating coordination and
communication among members of criminal enterprises, and can
provide valuable incriminating information about dangerous
criminals.” Riley, 573 U.S. at 401, 134 S.Ct. at 2493.
A warrant may become stale if facts and circumstances at the
time of its execution show probable cause no longer exists. Every,
supra. Thus, “staleness is only an issue when the passage of time
makes it doubtful that the object sought in the warrant will be at the
place where it was observed.” Id.Louisiana Code of Criminal Procedure article 163 sets forth the
law regarding the proper procedure for the execution of search
warrants. Effective between August 1, 2012 and July 31, 2019,
Article 163 provided, in pertinent part:
***
C. Except as authorized by Article 163.1, a search
warrant cannot be lawfully executed after the
expiration of the tenth day after its issuance.
***
D. (2) Notwithstanding any other provision of law to the
contrary, any examination or testing of the seized
property may be conducted at any time before or
during the pendency of any criminal proceeding in
which the property may be used as evidence.
***
Effective between August 1, 2019 and July 31, 2022, Article 163
provided, in pertinent part:
***
C. Except as authorized by Article 163.1 or as otherwise
provided in this Article, or as otherwise provided by
law, a search warrant cannot be lawfully executed
after the expiration of the tenth day after its issuance.
***
D. (2) Notwithstanding any other provision of law to the
contrary, any examination or testing of the seized
property may be conducted at any time before or
during the pendency of any criminal proceeding in
which the property may be used as evidence.
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E. (1) Notwithstanding any other provision of law to the
contrary, if a warrant is issued to search for and
seize data or information contained in or on a …
cellular telephone … the warrant is considered to
have been executed within the time allowed in
Paragraph C of this Article if the device was
seized before the expiration of the time allowed,
or if the device was in law enforcement custody at
the time of the issuance of the warrant.
(2) Notwithstanding any other provision of law to the
contrary, if a device described in Subparagraph
(1) of this Paragraph was seized before the
expiration of the time allowed in Paragraph C of
this Article, or if the device was in law
enforcement custody at the time of the issuance of
the warrant, any data or information contained in
or on the device may be recovered or extracted
pursuant to the warrant at any time, and such
recovery or extraction shall not be subject to the
time limitation in Paragraph C of this Article.
***
In State v. Folse, 20-18 (La. App. 5 Cir. 4/7/20), 2020 WL
8770900 (unreported writ disposition), writ denied, 20-527 (La.
6/22/20), 297 So.3d 771, the defendant sought supervisory review of
the judge’s ruling which denied her motion to suppress evidence
obtained from her cell phone. The defendant’s phone had been seized
pursuant to a warrant after her arrest in 2017. The judge denied the
motion to suppress and found the amendments to Article 163(E)
applied retroactively. This Court denied the writ application based on
a plain reading of Article 163, clarified by the legislature in the 2019
amendments to the statute. This Court analogized the seizure of a
phone for later review of the contents by a computer team to the
removal of a defendant’s documents for later review of the contents
by investigators. Because the phone was seized and submitted for
testing by the digital forensics unit within the time limitation of
Article 163(C), the forensic examination was not required to be
completed within ten days. It was thus not necessary to apply it
retroactively in that case.
Similarly, in State v. Sullivan, 21-K-714 (La. App. 5 Cir.
1/21/22) (unpublished writ disposition), writ denied, 22-302 (La.
4/20/22), 336 So.3d 464, this Court addressed the staleness of a
warrant for electronic devices. The relator in that case argued in part
23-KA-392 13
that the warrants for the devices seized from his home were stale
because they were over a year old before they were executed and the
amendment to Article 163 applied prospectively only. This Court
applied the 2012 version of Article 163(D)(2) in effect when the
search warrants were signed. Because the examination of the seized
devices was conducted “before or during the pendency of this criminal
proceeding,” pursuant to the plain wording of the article, the contents
of the devices could be admitted into evidence at trial. Additionally,
this Court concluded the amendment to Article 163 was interpretive,
rather than substantive, and the interpretative legislation of Article
163(E) was to be applied retroactively. Pursuant to Article 163(E)(2),
any information contained on the devices could be extracted and such
extraction was not subject to the time limitation in Paragraph C.
In the present case, we initially conclude defendant lacks
standing to challenge the search of Mr. Allen’s cell phone. 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 “there must be an invasion of someone’s rights to privacy
before there can be an unreasonable search.” Every, 274 So.3d at 783.
In Every, this Court concluded the defendant had no possessory
interest or reasonable expectation of privacy in the personal property
of the victim. Even if the defendant was “adversely affected” by the
search of the victim’s cell phone, the victim, who had the privacy
interest in the cell phone, was deceased. Id. at 783-84. As in Every,
supra, in the present case, we conclude defendant has no reasonable
expectation of privacy in the personal property of the deceased victim.
Additionally, we conclude the judge did not err in denying the
motion to suppress based on a plain reading of Article 163 in effect at
the time the warrants were issued. The 2012 version of Article
163(D)(2) in effect when the search warrants were signed provided:
“Notwithstanding any other provision of law to the contrary, any
examination or testing of the seized property may be conducted at any
time before or during the pendency of any criminal proceeding in
which the property may be used as evidence.” Defendant’s phone was
23-KA-392 14
seized and submitted to testing by the digital forensics unit within the
time limitation of Article 163(C), and thus, the extraction was not
required to be completed within ten days. Because the examination of
the seized devices was conducted before or during the pendency of the
criminal proceeding, pursuant to the plain wording of the 2016
version of Article 163(D)(2), we conclude the contents of the phones
were properly not suppressed.
Defendant’s assignment of error is without merit.
ERRORS PATENT REVIEW
The record was reviewed for errors patent according to La.
C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and
State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990).
On April 7, 2022, the judge sentenced defendant in several
other cases. The judge then sentenced defendant in the instant matter
to life imprisonment without the benefit of probation or suspension of
sentence and ordered the sentences to run concurrently. The transcript
indicates the judge ordered “all cases to run concurrent with one
another.” The minute entry states: “The Court ordered that the above
sentence is to run concurrently with any and all other sentences
currently serving time for.” The Uniform Commitment Order
(“UCO”) states the sentence is concurrent with “any and all other
sentences currently serving time for.”
When there is a discrepancy between the minute entry or
commitment and the transcript, the transcript prevails. State v. Nellon,
18-385 (La. App. 5 Cir. 12/19/18), 262 So.3d 441, 445 (citing State v.
Lynch, 441 So.2d 732, 734 (La. 1983)). The transcript reflects the
judge ordered the sentences imposed that day to run concurrently with
one another. However, the sentencing minute entry and UCO appear
to expand the judge’s order to include any other cases beyond those
imposed that day which defendant was serving time for.
The transcript also demonstrates the judge imposed the
sentence without the benefit of probation or suspension of sentence.
The UCO contains a column that states: “Amount of time to be served
without benefit, if applicable (8).” That column is void of the amount
23-KA-392 15
of time to be served without the benefit of probation or suspension of
sentence.
In light of these discrepancies, we remand for correction of the
UCO to specify which cases this sentence is to run concurrently with
and to reflect the restriction of probation and suspension of sentence.
Also, we direct the Clerk of Court for the 24th Judicial District Court
to transmit the original of the corrected UCO to the institution to
which defendant has been sentenced and to the Department of
Corrections’ legal department.
The sentencing minute entry also does not reflect that
defendant’s conviction of second degree murder is a crime of
violence. Per La. C.Cr.P. art. 890.3(C), second degree murder “shall
always be designated by the court in the minutes as a crime of
violence.” We order the correction of the minute entry to designate
the conviction as a crime of violence. See State v. Le, 22-468 (La.
App. 5 Cir. 8/9/23), 370 So.3d 162, writ denied, 23-1230 (La. 2/6/24),
378 So.3d 752. We also order the correction of the minute entry to
address the previously discussed discrepancy regarding which
sentences were imposed concurrently.
Finally, defendant was not advised of the prescriptive period
within which to seek post-conviction relief pursuant to La. C.Cr.P. art.
930.8. Defendant is hereby informed no application for post-
conviction relief, including applications that seek an out-of-time
appeal, shall be considered if filed more than two years after the
judgment of conviction and sentence has become final under the
provisions of La. C.Cr.P. arts. 914 or 922. See State v. Taylor, 20-215
(La. App. 5 Cir. 4/28/21), 347 So.3d 1008.
DECREE
For the foregoing reasons, defendant’s conviction and sentence
are affirmed. The matter is remanded for correction of the Uniform
Commitment Order and sentencing minute entry, as noted above.
AFFIRMED; REMANDED FOR CORRECTION OF
UNIFORM COMMITMENT ORDER AND
SENTENCING MINUTE ENTRY
23-KA-392 16
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 15, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-392
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE)
HONORABLE JOHN E. LEBLANC (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) DARREN A. ALLEMAND (APPELLEE) THOMAS J. BUTLER (APPELLEE)
BERTHA M. HILLMAN (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053