Bryson Bowman Versus State of Louisiana ( 2023 )

BRYSON BOWMAN NO. 23-K-405
VERSUS FIFTH CIRCUIT
STATE OF LOUISIANA COURT OF APPEAL
STATE OF LOUISIANA
October 02, 2023
Linda Wiseman
First Deputy Clerk
IN RE BRYSON BOWMAN
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B.
DARENSBURG, DIVISION "C", NUMBER 23-104
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Marc E. Johnson
WRIT GRANTED FOR LIMITED PURPOSE; JUDGMENT
VACATED; REMANDED FOR FURTHER PROCEEDINGS
Relator, Bryson Bowman, seeks review of the trial court’s May 25, 2023
ruling that denied his motion to suppress evidence.
In his writ application, Defendant contends that there was no testimony
presented at the hearing to demonstrate that a protective sweep of the residence—
which led to the discovery of the evidence at issue—was necessary. He asserts that
he was arrested approximately ten minutes away from the residence.1 He mentions
that the State did not call Detective Di Giovanni or any of the other arresting officers
to testify. Further, Defendant avers that he was in custody before they entered the
residence, displacing any argument that exigent circumstances may have existed.
He asks that all the evidence gathered against him during that search, as well as any
1
The State posits that this is a typographical error since defense counsel also claims that Defendant was arrested at
his front door. The State asserts that the record “bears out” Defendant was arrested at the front door of his
apartment. However, neither party cites to the record in support of its assertions as to the physical location of
Defendant at the time of his arrest. The evidence presented at the suppression hearing only shows that Defendant
was arrested at “2300 Edenborn Avenue, Building 1, Apartment 358, in Metairie, Louisiana.”
evidence obtained as a result of information obtained during that search, be
suppressed.
The State responds that the trial court did not err in denying the motion to
suppress the evidence. The State provides that the crux of Defendant’s argument is
that the police allegedly had no lawful reason to conduct the protective sweep that
led to the discovery of narcotics and paraphernalia inside the residence. The State
contends that this argument is meritless because protective sweeps are routine for
officer safety. Alternatively, even if the protective sweep was improper, the State
argues that the inevitable discovery doctrine dictates that suppression is
inappropriate. The State avers the officers would have inevitably secured a search
warrant to find evidence of Defendant’s firearm offenses for which he was arrested.
At the May 25, 2023 suppression hearing, the State called Detective Cody
Foret with the narcotics division of the Jefferson Parish Sheriff’s Office to testify.
Detective Foret provided that in November 2022, he was contacted by Detective Pat
Di Giovanni of the Marshal’s Task Force who notified him that he was serving an
Orleans Parish arrest warrant for Defendant, and suspected narcotics were
discovered. Detective Foret then responded to the scene at Edenborn Avenue.
Detective Foret testified that he spoke with Detective Di Giovanni, who explained
why the members of the task force were present and showed him the arrest warrant.
Afterwards, Detective Di Giovanni showed him the suspected cocaine and
marijuana, which was located on the bathroom floor.
Detective Foret then applied for a search warrant of the apartment located at
2300 Edenborn, Building One, Apartment 358. He confirmed that a “judge and/or
commissioner” signed the warrant. When asked what items were seized as a result
of that warrant, Detective Foret answered “Cocaine, marijuana, crack cocaine,
United States currency, as well as some paraphernalia, and digital scale.” He
provided that at the scene, Detective Di Giovanni only told him about the “drugs on
the floor in the bathroom in plain view.” The prosecutor asked, “When you
conducted the search of this home, where else did you find drugs in this house?”
Detective Foret specified “narcotics” were found on the nightstand, inside of the
kitchen drawer, and inside of a microwave, which was located inside of a closet.
Detective Foret explained on cross-examination that he did not participate
with Detective Di Giovanni in the execution of the arrest warrant and was not present
at the time of the protective sweep. He confirmed that members of the task force
located suspected narcotics when they conducted a protective sweep of the
residence, and he was subsequently contacted. Defense counsel asked whether
Detective Foret was “aware of the fact that when Detective Di Giovanni executed
this arrest warrant, that Mr. Bowman answered the door? Did he tell you that?”
Detective Foret replied that he was not aware. Defense counsel further asked, “So,
if I told you that Detective Di Giovanni arrested him. He was taken into custody
outside of the house, you wouldn’t be able to dispute that, would you?” Detective
Foret denied he could answer as to what happened before his arrival. He confirmed
he knew the nature of a protective sweep when an individual was arrested in a
residence. He explained that the purpose of the protective sweep was to make
contact with other occupants and for officers’ safety.
Detective Foret testified that he knew the officers “made contact” with
Defendant’s girlfriend, Daron Singleton, and her infant son inside the apartment. He
agreed that he could not inform the court of specific facts which would have led
Detective Di Giovanni to conduct a “protective search.” He further agreed he would
be speculating as to whether there was any danger posed to Detective Di Giovanni
and members of the task force at the time of Defendant’s arrest. He asserted that
only a protective sweep was conducted to his knowledge and that drugs were
discovered in “plain view” on the bathroom floor.
Detective Di Giovanni was not present at the hearing to testify.
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.
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. Williams, 20-46 (La. App. 5 Cir. 12/30/20), 308 So.3d 791, 825, writ denied,
21-316 (La. 5/25/21), 316 So.3d 2. Conversely, the State bears the burden in
establishing the admissibility of the evidence seized without a warrant. La. C.Cr.P.
art. 703(D); State v. Salinas, 17-485 (La. App. 5 Cir. 7/6/18), 251 So.3d 1166, 1174.
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); Williams, supra; State v. Joseph, 02-717 (La.
App. 5 Cir. 6/27/03), 850 So.2d 1049, 1052, writ denied sub nom. State ex rel. Joseph
v. State, 04-2404 (La. 6/17/05), 904 So.2d 686. Here, Defendant asserts that all of
the evidence seized by the officers should be suppressed because the protective
sweep that led to the discovery of the narcotics in plain view was an unlawful search.
After review, based upon the evidence presented at the hearing, we find that
the record before us is insufficient to review the totality of the circumstances. There
were limited details surrounding Defendant’s arrest and the initial entry into the
residence presented to the trial court. The writ application does not disclose
Defendant’s physical location at the apartment at the time of his arrest, the layout or
size of the apartment, and the location of the bathroom where the narcotics were
found. Additionally, Detective Foret’s testimony and the search warrant do not
specifically disclose when and where the items listed in the return were recovered.
Furthermore, the trial judge did not specifically address the issue of whether the
protective sweep was lawful. As such, we find that full consideration of this matter
requires more information to determine whether the evidence should be suppressed.
In regards to the State’s argument that the evidence would have been
inevitably discovered, at this point, there is no evidence in the record that the officers
executing the arrest warrant intended to obtain a search warrant for the apartment to
attempt to uncover evidence of the alleged crimes committed in Orleans Parish.
Accordingly, we vacate the denial of Defendant’s motion to suppress and
remand this matter to the trial court with the instruction to re-open the suppression
hearing to receive testimony and evidence from further witnesses, including but not
limited to Detective Di Giovanni. See, State v. Schenayder, 14-479 (La. App. 5 Cir.
12/30/14), 167 So.3d 832, 836.
Gretna, Louisiana, this 2nd day of October, 2023.
MEJ
FHW
JGG
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.
SCOTT U. SCHLEGEL 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
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23-K-405
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24th Judicial District Court (Clerk)
Honorable June B. Darensburg (DISTRICT JUDGE)
Thomas J. Butler (Respondent) Kathrine E. Ellis (Relator)
Darren A. Allemand (Respondent)
MAILED
James A. Williams (Relator) Honorable Paul D. Connick, Jr.
Attorney at Law (Respondent)
706 Derbigny Street District Attorney
Gretna, LA 70053 Twenty-Fourth Judicial District
200 Derbigny Street
Gretna, LA 70053
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