State of Louisiana Versus Eric James ( 2023 )

STATE OF LOUISIANA NO. 23-K-186
VERSUS FIFTH CIRCUIT
ERIC JAMES COURT OF APPEAL
STATE OF LOUISIANA
June 01, 2023
Linda Wiseman
First Deputy Clerk
IN RE ERIC JAMES
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE SCOTT U.
SCHLEGEL, DIVISION "D", NUMBER 22-3831
Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and Cornelius E. Regan, Pro Tempore
WRIT GRANTED
In this writ application, defendant/relator, Eric James, seeks review of the
trial court’s March 9, 2023 denial of his motion to suppress evidence. For the
following reasons, we grant the writ application, grant the motion to suppress
evidence, and remand for further proceedings.
Facts and Procedural History
On August 11, 2022, defendant was charged with possession of a firearm by
a convicted felon in violation of La. R.S. 14:95.1 and possession of Oxycodone in
violation of La. R.S. 40:967(C). He pled not guilty. On March 9, 2023, a
suppression hearing was conducted.1 At the hearing, defendant argued that a
1
The record before us does not show that defendant filed a written motion to suppress evidence. A motion to
suppress should be in writing. State v. Simmons, 08-269 (La. App. 5 Cir. 10/28/08), 996 So.2d 1177, 1182 n.1, writ
denied, 09-15 (La. 9/25/09), 18 So.3d 81. However, in State v. Richardson, 18-401 (La. App. 5 Cir. 2/6/19), 265
So.3d 1006, 1010 n.3, this Court found that even though the defendant did not file a written motion to suppress, this
Court could review the ruling where the State did not object to the procedural deficiency and the trial court held a
suppression hearing. Accordingly, in the present case, we will review the denial of defendant’s motion to suppress.
search warrant issued on July 7, 2022 was invalid and that all of the evidence
recovered as a result of this warrant should be suppressed.
At the suppression hearing on March 9, 2023, Detective Frank Alvarenga of
the Kenner Police Department testified as to his involvement in the investigation
that led to defendant’s July 7, 2022 arrest and the subsequent search and seizure of
evidence. Also, Detective Alvarenga’s affidavit in support of the July 7, 2022
search warrant, which sets forth the circumstances leading up to defendant’s arrest,
was admitted into evidence.
According to the testimony and affidavit, on November 22, 2021, Detective
Alvarenga obtained a search warrant for 2730 Jasper Street in Kenner, after
officers had attempted to stop a vehicle and the occupants ran inside this residence.
During a protective sweep and prior to obtaining the search warrant, officers
located defendant in the living room, and he identified his bedroom within the
residence. Defendant was instructed to wait outside of the residence, but upon
completing the sweep, it was discovered that defendant had left the scene.
During the execution of the search warrant, nine grams of cocaine was
located in the bedroom belonging to defendant. On December 22, 2021, Detective
Alvarenga obtained an arrest warrant for defendant for a violation of “L.R.S.
40:967 A/03-B-Possession with Intent to Distribute a Schedule II Controlled
Dangerous Substance, cocaine (9 grams).”
Over six months later, on July 7, 2022, detectives were conducting
surveillance at 2730 Jasper Street and saw defendant exit the residence and drive
away in a vehicle. In order to arrest defendant on the outstanding warrant,
defendant was pulled over a short time later. No narcotics were found on
defendant or in the vehicle. Detective Alvarenga testified that there was nothing to
suggest that defendant had committed a crime that day, and he was being arrested
solely based on the arrest warrant.
During the stop, defendant provided an address in Geismar, LA and denied
that he had ever lived at 2730 Jasper Street in Kenner. Due to the inconsistencies
in defendant’s story as to where he resided, Detective Alvarenga sought a search
warrant for documents to show that defendant lived at 2730 Jasper Street.
Detective Alvarenga testified that he believed defendant lived there because in
November of 2021, defendant identified his bedroom in the residence and the
officers located an Entergy bill in defendant’s name inside this bedroom.
Although the affidavit provided that the officers were looking for documentation in
connection with the November 2021 offense of distribution or possession with
intent to distribute cocaine, Detective Alvarenga testified that he sought a search
warrant for documentation which could prove defendant still resided at 2720 Jasper
Street.
During the execution of the search warrant on July 7, 2022, officers found
paraphernalia, marijuana, money, and a loaded firearm. The marijuana was located
in the living room, and the loaded weapon and money were found in a box in
defendant’s bedroom closet. Upon locating these items, the search was stopped
while Detective Alvarenga obtained a second search warrant for narcotics.
During the suppression hearing, the State introduced both of the search
warrants signed on July 7, 2022. The State argued the evidence was properly
seized because the police officer was in good faith due to his knowledge that
defendant was dealing drugs out of his home. Defendant responded that Detective
Alvarenga already had evidence that defendant lived at 2730 Jasper Street, so the
search warrant to look for documents was clearly a subterfuge to look for drugs.
The trial court denied the motion to suppress evidence, finding that the first
July 7, 2022 search warrant was valid. The court noted that the affidavit for the
search warrant set forth Detective Alvarenga’s prior dealings with defendant,
showing there had been an ongoing investigation since November 2021. The court
further noted that defendant was trying to “distance himself from the residence”
and that documents can be found in a shoe box.
Law and Discussion
In this writ application, defendant argues that the trial court erred in denying
his motion to suppress evidence, because there was no probable cause to issue the
first July 7, 2022 search warrant. He asserts that the request to search for
documents was “pretextual” in order to get officers inside the house when they had
no probable cause to enter. He argues that misleading the police about his address
was not a crime and did not create probable cause to believe he committed a crime.
Finally, he contends that all evidence stemming from the first July 7, 2022 search
warrant is “fruit of the poisonous tree” and must be suppressed.
The Fourth Amendment to the United States Constitution and Article I, § 5
of the Louisiana Constitution prohibit unreasonable searches and seizures. State v.
Thomas, 08-390 (La. App. 5 Cir. 1/27/09), 8 So.3d 80, 83, writ denied, 09-626 (L.
11/25/09), 22 So.3d 170. If evidence is derived from an unreasonable search or
seizure, the proper remedy is exclusion of the evidence from trial. Id.; 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.
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. 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 that an
offense has been committed and that evidence or contraband may be found at the
place to be searched.” State v. Lee, 05-2098 (La. 1/16/08), 976 So.2d 109, 122,
cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008).
Probable cause to arrest does not necessarily provide probable cause to
search, and the critical element in a reasonable search is not that the owner of the
property is suspected of crime but that there is reasonable cause to believe that the
specific things to be searched for and seized are located on the property to which
entry is sought. State v. Varnado, 95-3127 (La. 5/31/96), 675 So.2d 268, 269-70.
Therefore, a search warrant must establish a probable continuing nexus between
the place sought to be searched and the property sought to be seized. State v.
Casey, 99-23 (La. 1/26/00), 775 So.2d 1022, 1027, cert. denied, 531 U.S. 840, 121
S.Ct. 104, 148 L.Ed.2d 62 (2000).
“The process [of determining probable cause] simply requires that enough
information be presented to the issuing magistrate to enable him to determine that
the charges are not capricious and are sufficiently supported to justify bringing into
play the further steps of the criminal justice system.” State v. Rodrigue, 437 So.2d
830, 833 (La. 1983); State v. Mitchell, 15-524 (La. App. 5 Cir. 12/9/15), 182 So.3d
365, 375. The task for a reviewing court is simply to ensure that under the totality
of the circumstances the magistrate had a “substantial basis” for concluding that
probable cause existed. Lee, 976 So.2d at 122, citing Illinois v. Gates, 462 U.S.
213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983).
The facts establishing probable cause for the warrant must be contained
within the four corners of the affidavit. State v. Green, 02-1022 (La.12/4/02), 831
So.2d 962, 969; State v. Clement, 11-1150 (La. App. 5 Cir. 9/11/12), 101 So.3d
460, 468, writ denied, 12-2214 (La. 4/1/13), 110 So. 3d 139. Under La. C.Cr.P.
art. 162, “[a] search warrant may issue only upon probable cause established to the
satisfaction of the judge, by the affidavit of a credible person, reciting facts
establishing the cause for issuance of the warrant.” La. C.Cr.P. art. 162 requires
the facts establishing probable cause to be recited in the affidavit because it is the
judge, not the affiant, who must be satisfied as to the existence of probable cause.
Clement, 101 So.3d at 468, citing State v. Wells, 253 La. 925, 221 So.2d 50, 53
(1969).
In the instant case, defendant argues there was no probable cause for the
issuance of the first July 7, 2022 search warrant. We agree.
In reviewing the four corners, Detective Alvarenga’s affidavit stated that on
November 22, 2021,2 defendant was at 2730 Jasper Street and fled the scene during
the execution of the search warrant where narcotics were found. It further provides
that in December 2021, narcotics officers received information that occupants of
2730 Jasper Street had been selling illegal narcotics. However, the affidavit does
not indicate that Detective Alvarenga verified this information in order to find it
reliable or trustworthy.3 Detective Alvarenga also indicated that he conducted
surveillance of 2730 Jasper Street in December of 2021 and saw people with
“priors” for narcotics distribution. However, the affidavit did not explain what
these people were seen doing at 2730 Jasper Street. The affidavit did not state if
they were entering and leaving 2730 Jasper Street or if they were seen engaging
with the defendant or conducting hand-to-hand transactions. Further, the affidavit
is silent as to any facts or circumstances indicating there was ongoing criminal
activity from December 2021 to July 7, 2022.
The affidavit provides that on July 7, 2022, Detective Alvarenga saw
defendant leaving 2730 Jasper Street and subsequently arrested him pursuant to an
arrest warrant for drugs. During the stop, defendant denied that he had ever lived
at 2730 Jasper Street, so Detective Alvarenga authored a search warrant for
documents to show that defendant lived at 2730 Jasper Street.
2
The affidavit actually provides that the date was November 22, 2022. However, as noted by the trial court, this
was clearly a typographical error as the date had not yet occurred.
3
In establishing that an informant’s tip is sufficient to provide a basis for a finding of probable cause, the affiant
should include statements about the informant’s reliability and about the manner in which the informant obtained the
information. Clement, 101 So.3d at 469; State v. Barrilleaux, 620 So.2d 1317, 1320 (La. 1993). Such information
assures the magistrate that “he is relying on something more substantial than a casual rumor circulating in the
underworld.” Id.This Court must determine whether, under the totality of the circumstances,
there is a sufficient basis upon which the trial court could have found there was
probable cause to issue the search warrant.
Although the purpose of the requested search was to find documents related
to defendant’s address in connection with possession with intent to distribute
cocaine or distribution of cocaine, the affidavit showed that such evidence had
already been obtained and there was no probable cause to search defendant’s
residence. The affidavit stated that defendant had identified his bedroom in the
residence in November of 2021, that an Entergy utility bill was found in that
bedroom, that defendant was seen leaving the residence on July 7, 2022, and that a
“TLOxp inquiry revealed that James has an address listed as 2730 Jasper Street,
Kenner, LA.” Further, with a time-gap of over six months from December 2021 to
July 7, 2022, the affidavit does not establish a probable continuing nexus between
2730 Jasper Street and the property sought to be seized. Considering the totality of
the circumstances, we find there was no probable cause for the first July 7, 2022
search warrant.
We now consider the good faith exception set forth in United States v. Leon,
468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the Supreme Court
held evidence seized under a constitutionally defective warrant should not be
suppressed where the officers acted in good faith and in objectively reasonable
reliance on the validity of the warrant. The Leon court enumerated four instances
in which suppression remains an appropriate remedy: (1) where the magistrate or
judge was misled by information the affiant knew was false or would have known
was false except for a reckless disregard for the truth; (2) where the issuing
magistrate wholly abandoned his detached and neutral judicial role; (3) where the
warrant was based on an affidavit so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable; and (4) where the
warrant is so facially deficient, i.e., fails to particularize the place to be searched or
the things to be seized, that the executing officers cannot reasonably presume it to
be valid. Leon, 468 U.S. at 914-15, 104 S.Ct. at 3416; State v. Guidry, 03-625 (La.
App. 5 Cir. 1/27/04), 866 So.2d 944, 948.
In the present case, the evidence does not show that the first, second, or
fourth instances in Leon, supra, apply herein. However, the third instance applies,
making suppression of evidence the appropriate remedy. The third instance of
Leon, supra, provides exclusion if the warrant was based on an affidavit so lacking
in indicia of probable cause as to render official belief in its existence entirely
unreasonable.
Detective Alvarenga testified that he had worked for the Kenner Police
Department for 22 years, so it is reasonable to conclude he is well-trained.
However, his affidavit in support of the search warrant clearly lacks the requisite
probable cause for issuance of the warrant. Detective Alvarenga testified that there
was nothing to suggest that defendant had committed a crime in July 2022, and that
the purpose of the warrant was to locate documents related to defendant’s address
in connection with the possession with intent to distribute cocaine or distribution of
cocaine offense. However, at the hearing, Detective Alvaregna testified that he
authored a search warrant for documents to show that defendant still lived at 2730
Jasper Street, which would not be evidence of the November 2021 offense. The
affidavit does not set forth facts supporting a reasonable belief that evidence of the
November 2021 offense was present at 2730 Jasper Street in July of 2022.
After review, we find that the good faith exception in Leon, supra, does not
apply, because the warrant was based on an affidavit so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable.
While defendant does not challenge the second search warrant obtained on
July 7, 2022, he argues that all evidence obtained in this case must be suppressed
as fruit of the poisonous tree because the first search warrant in July 2022 was
obtained unconstitutionally. Citing Wong Sun v. United States, 371 U.S. 471, 83
S.Ct. 407, 9 L.Ed.2d 441 (1963) and United States v. Hernandez, 670 F.3d 616,
620 (5th Cir. 2012), defendant argues that the exclusionary rule prohibits the
introduction of all evidence that is derivative of an illegal search or evidence
known as “fruit of the poisonous tree,” specifically everything that was seized
during and after execution of the first search warrant on July 7, 2022.
Because we find that the first July 7, 2022 search warrant lacks probable
cause, and the good faith exception of Leon, supra, does not apply, all evidence
derived from the execution of the first July 7, 2022 search warrant must be
suppressed.
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 that discretion. State v.
Welch, 11-274 (La. 4/29/11), 60 So.3d 603. In this case, we find that the trial court
abused its discretion by denying defendant’s motion to suppress. Accordingly, we
grant the writ application, grant the motion to suppress, and remand this matter for
further proceedings.
Gretna, Louisiana, this 1st day of June, 2023.
CER
FHW
RAC
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
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400
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Darren A. Allemand (Respondent) Thomas J. Butler (Respondent)
MAILED
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