State Of Louisiana v. Rudolph Lurding ( 2021 )


Menu:
  •                                      STATE OF LOUISIANA
    COURT OF APPEAL
    FIRST CIRCUIT
    2021 KA 0430
    STATE OF LOUISIANA
    VERSUS
    61                                    RUDOLPH LURDING
    N
    C
    Judgment Rendered:
    DEC 2 2 2021
    Appealed from the
    Twenty-first Judicial District Court
    In and for the Parish of Tangipahoa
    State of Louisiana
    Docket Number 1802624
    Honorable Erika Sledge, Judge Presiding1
    Scott M. Perilloux                                 Counsel for Appellee,
    Brett Sommer                                       State of Louisiana
    Amite, LA
    Bertha M. Hillman                                  Counsel for Defendant/Appellant,
    Covington, LA                                      Rudolph Lurding
    BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.
    While Judge Sledge is currently the trial court judge presiding over this matter, Judge
    Robert H. Morrison, III presided over the suppression hearing, and Judge Don Fendlason
    presided ad hoc over the trial court sentencing of the defendant.
    WHIPPLE, C.J.
    The defendant, Rudolph Lurding, was charged by bill of information with
    three counts of promotion, advertisement, or production of pornography involving
    juveniles under the age of thirteen ( counts I — III), violations of LSA-R.S.
    14: 81. 1( A)( 1) and ( E)( 5)( b); molestation of a juvenile under the age of thirteen
    C. M.') ( count IV), a violation of LSA-R.S. 14: 81. 2( A)( 1) and ( D)( 1);                and two
    counts of sexual battery of a juvenile under the age of thirteen ( C.M.) (counts V
    and VI), violations of LSA-R.S. 14: 43. 1( A)(2) and ( C)( 2).              He pled not guilty on
    all counts.    He moved to suppress the evidence.              Following a hearing, the motion
    was denied.      The defendant applied to this court for supervisory relief from the
    ruling, but his writ application was denied. See State v. Lurdin , 2020- 0178 ( La.
    App. 1st Cir. 5/ 12/ 20), 
    2020 WL 2461528
     ( unpublished writ action).'
    Following a jury trial, the defendant was found guilty as charged by
    unanimous verdicts on all counts. On counts I —VI, he was sentenced on each count
    to thirty years at hard labor, with twenty-five years without probation, parole, or
    suspension of sentence, and the sentences to be served consecutively.                        He now
    appeals, assigning error to the denial of his motion to suppress. For the following
    reasons, we affirm the defendant' s convictions and sentences.
    In October of 2017, following an investigation by the Mississippi Attorney
    General' s Office ( MAG), Anika Moore Bruner confessed to the manufacture and
    distribution of child pornography. She identified the defendant as " a recipient and a
    requester of these images."             Bruner indicated she had been in an intimate
    2This victim is referenced herein only by her initials. See LSA-R.S. 46: 1844( W).
    3Although a pretrial determination does not absolutely preclude a different decision on
    appeal, judicial efficiency demands that this court accord great deference to its pretrial decisions
    on admissibility unless it is apparent, in light of a subsequent trial record, that the determination
    was patently erroneous and produced an unjust result. State v. Burgess, 2019- 1603 ( La. App. 1st
    Cir. 9/ 22/ 20), 
    315 So. 3d 279
    , 282 n. 1, writ denied, 2020- 01189 ( La. 2/ 17/ 21), 
    310 So. 3d 1148
    .
    relationship with the defendant, and during that relationship, he had confided his
    affinity for child pornography. She indicated the defendant had child pornography
    in his possession.    She also alleged she and the defendant shared child pornography.
    MAG used information from Bruner to locate the defendant and obtain a
    search warrant for his cabin. The defendant' s Whone was recovered pursuant to the
    search warrant.      Forensic analysis of the Whone identified a forensic artifact to a
    Dropbox account on which Bruner possessed child exploitation images. Pursuant to
    another     search   warrant,   approximately eleven images and three videos of the
    defendant sexually abusing C.M., the             eight-year-old daughter of his present
    girlfriend, were recovered.
    C.M. testified at trial that the defendant used to date her mother.      C.M
    identified herself as the naked person depicted in five photographs collected
    pursuant to the Dropbox search warrant.      According to C.M., the defendant took the
    pictures in the living room of their house in Ponchatoula. She indicated she was
    s] even, probably just turning eight" when the pictures were taken.      She claimed
    the defendant would " sometimes make [ C.M.] take [ her] clothes off after taking a
    shower so he could take pictures."
    C.M. also identified herself as the person depicted in three videos presented
    to the jury. According to C.M., the defendant filmed the videos. She indicated that
    in the first two videos, the defendant was telling her to do the "[ d]oggie style"
    position correctly so he could "[ try] to make it feel good for [C.M.]". According to
    C.M., the third video depicted the defendant' s hand " rubbing ... on [ C.M.' s] private
    parts."    C.M. indicated she was " seven, probably just turning eight" when the videos
    were filmed.      C.M. testified the defendant also forced her to watch videos of her
    mother in "those same positions."
    The defendant denied any involvement in the production of the pictures or the
    3
    videos presented to the jury. In regard to videos, the defendant agreed he was in the
    videos,   but denied that they depicted an eight-year-old girl.          According to the
    defendant, the videos depicted " Cassandra East or Eastwood or Eastman,"                 an
    eighteen to nineteen -year-old, and her boyfriend, B.C.        The defendant claimed he
    was training Cassandra and B.C. in the " fetish" lifestyle. The defendant denied ever
    touching C.M. sexually or doing anything sexual to her.
    MOTION TO SUPPRESS
    In his sole assignment of error, the defendant contends the trial court erred in
    denying his motion to suppress evidence. He argues that under the totality of the
    circumstances,   Bruner was not a reliable informant and there was insufficient
    corroborating information to provide probable cause for a search warrant.               He
    claims Bruner provided information that gave her a " good bargaining tool" on her
    life sentence.    He further claims Bruner " did not implicate herself in criminal
    activity that would expose her to more jail time, rather by implicating [ the
    defendant] she saw an opportunity to decrease her jail time."
    When a search and seizure of evidence is conducted pursuant to a search
    warrant, the defendant has the burden to prove the grounds of his motion to
    suppress.   LSA-C.Cr.P. art. 703( D). When a trial court denies a motion to suppress,
    factual and credibility determinations should not be reversed in the absence of an
    abuse of the trial court' s discretion, i.e., unless such ruling is not supported by the
    evidence.   However, a trial court' s legal findings are subject to a de novo standard of
    review.
    State v. Friday, 2010- 2309 ( La. App. 1st Cir. 6/ 17/ 11),   
    73 So. 3d 913
    , 919,
    writ denied, 2011- 1456 (La. 4/ 20/ 12), 
    85 So. 3d 1258
    .
    Article 1, §   5 of the Louisiana Constitution requires that a search warrant
    issue only upon an affidavit establishing probable cause to the satisfaction of an
    impartial magistrate.   See also LSA-C.Cr.P. art. 162.       Probable cause exists when
    Cl
    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.   The facts establishing the existence of probable cause for the
    warrant must be contained within the four corners of the affidavit. Friday, 
    73 So. 3d at 920
    .
    An issuing magistrate must make          a   practical,   common-sense    decision
    whether,   given all the circumstances set forth in the affidavit, there is a " fair
    probability" that evidence of a crime will be found in a particular place. Illinois v.
    Gates, 
    462 U.S. 213
    , 238, 
    103 S. Ct. 2317
    , 2332, 
    76 L. Ed. 2d 527
     ( 1983); State v.
    Byrd, 
    568 So. 2d 554
    , 559 ( La. 1990).    The process of determining probable cause
    for the issuance of a search warrant does not involve certainties or proof beyond a
    reasonable doubt, or even a prima facie showing, but rather involves probabilities of
    human behavior, as understood by persons trained in law enforcement and as based
    on the totality of circumstances.        The process 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. Friday, 
    73 So. 3d at 920
    .
    The review of a magistrate' s determination of probable cause prior to issuing
    a warrant is entitled to significant deference by reviewing courts. "[ A]fter-the- fact
    scrutiny by courts of the sufficiency of an affidavit should not take the form of de
    novo review."   Gates, 
    462 U.S. at 236
    , 
    103 S. Ct. at 2331
    .      Further, because of the
    preference to be accorded to warrants, marginal cases should be resolved in favor of
    a finding that the issuing magistrate' s judgment was reasonable. Friday, 
    73 So. 3d at 920
    .
    It is well settled that even when a search warrant is found to be deficient, the
    5
    seized evidence may nevertheless be admissible under the good -faith exception of
    United States v. Leon, 
    468 U.S. 897
    , 919- 20, 
    104 S. Ct. 3405
    , 3418- 19, 
    82 L. Ed. 2d 677
     ( 1984), wherein the United States Supreme Court held that the exclusionary rule
    should not be applied so as to bar the use in the prosecution' s case -in -chief of
    evidence obtained by officers acting in an objectively reasonable good -faith reliance
    on a search warrant issued by a detached and neutral magistrate but ultimately found
    to be invalid. Friday, 
    73 So. 3d at 923
    .
    Under Leon, 
    468 U.S. at
    9231 
    104 S. Ct. at 3421
    , four instances in which
    suppression remains an appropriate remedy are: ( 1)           where the issuing magistrate
    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— in failing to particularize the place to be searched or the things to be
    seizedthat the executing officers cannot reasonably presume it to be valid. Friday,
    
    73 So. 3d at 923
    .
    The    instances    in   which     suppression   remains   an   appropriate
    remedy
    enunciated in Leon clearly reflect that suppression of evidence seized pursuant to an
    invalid warrant is not a remedy to be lightly considered.                  Furthermore, the
    jurisprudence presumes good faith on the part of the executing officer, and the
    defendant bears the burden of demonstrating the necessity for suppression of
    evidence by establishing a lack of good faith. Friday, 
    73 So. 3d at 923
    .
    On July 16, 2018, Jack Lilley,' MAG, Division of Cyber Crime, Assistant
    4The record contains different spellings of Agent Lilley' s name. We use the spelling set
    forth in Agent Lilley' s affidavit for search warrant.
    Director of Investigations, applied for and obtained a search warrant for computers,
    cellular devices, and other related media located in Cabin 145 at 1400 Audubon
    Point   Drive,      Horn     Lake,     Mississippi.      He   listed    the       following facts     and
    circumstances in support of the warrant:
    On July 12, 2018, during an investigation into the transmission
    of child pornographic imagery discovered to have been created during
    the course of a sexual assault of a three year old female child, a
    confession letter and follow-up statement was made to investigators by
    Anika Bruner. Anika Bruner stated the assault and subsequent images
    detailing it had been made at the request of a person known to her as
    Rudolph Lurding, also known as Rudy or Mojo. The letter consisted of
    a  handwritten statement detailing a relationship with Lurding,
    including her allegation of him confiding in her his sexual attraction to
    children.     She stated that she sent him images of her abuse of two
    different     children    on    multiple      occasions   via       electronic      means,
    e] specially Kik messenger, a mobile device based chat application.
    Anika stated that Lurding currently was in a dating relationship
    with a girlfriend named Amber who had an 8 year old daughter named
    C[ remainder of name redacted]. Anika stated that Lurding had shared
    with her that he was sexually abusing C[ remainder of name redacted]
    and has shared pictures of the abuse. She stated that he currently
    resides around Southaven, MS.                   Anika provided a former home
    address,      work    location,    social   media     identifiers,     and      a   vehicle
    description for Lurding.
    Public records searches and examination of publically available
    social    media      information     revealed     Lurding      to    be    in
    dating    a
    PI
    relationship with Amber..                   Public posts showed Lurding and
    Amber] to currently be at Yogi Bear' s Jellystone Park in Horn Lake.
    Photographs posted by [ Amber] show a young female child named
    C[ remainder of name redacted]. Photographs posted by Lurding show
    a vehicle matching the description provided by Bruner, a white
    Chevrolet Camaro.
    151[,]
    On July          at  approximately 9: OOpm, I conducted
    surveillance of the parking areas of Yogi Bear' s Jellystone Park and
    located a white Chevrolet Camaro registered to Rudolph Lurding
    parked outside of Cabin 145. On July 16%] at approximately 2: 00 pm,
    I observed a white female matching the social media photographs of
    Amber enter Cabin 145.
    On September 3, 2019, the defendant moved to suppress evidence recovered
    5W have omitted Amber' s surname to protect the privacy of C.M.                     See LSA-R.S.
    46: 1844( W).
    7
    pursuant to the July 16, 2018 warrant and subsequent warrants involving a Google
    account, the defendant' s car, and the defendant' s cell phone.
    Agent Lilley testified at the suppression hearing. In October of 2017, MAG
    received information from the National Center for Missing and Exploited Children
    that child exploitation images had been shared in and around Gulfport, Mississippi.
    Following an investigation, Bruner confessed to the manufacture and distribution of
    the child pornography. She confessed to two productions of child pornography and
    to molesting three children.          She confessed to being an accomplice in the
    distribution of child pornography with the defendant. Additionally, she confessed to
    an offense " separate and apart" from the charges against the defendant.
    In a letter and in interviews, Bruner identified the defendant as " a recipient
    and a requester of these images."      Bruner stated she had shared the images with the
    defendant.   She provided information identifying the defendant and had knowledge
    of his recent move to the Southaven area of Mississippi. Bruner also gave MAG the
    defendant' s social media identifiers.
    In Bruner' s letter, she stated, "[ b] y the time you get this, I' ll be long gone."
    She identified the defendant as her former boyfriend and sexual partner.            During
    their relationship, the defendant confided to Bruner that he had an affinity for child
    pornography and showed her images of child exploitation.             Specifically, Bruner
    stated after giving her " a pill, Ecstasy, Molly," the defendant showed her a picture of
    a skinny, white girl[,) no tits."    He told her " this is what I like."   Bruner told the
    defendant " yeah, I know, skinny white girls." The defendant said " no" and showed
    Bruner a picture of "a child."       Bruner alleged she and the defendant shared child
    exploitation images with each other.
    According to Bruner, the defendant was " in the process of molestation of
    and had " already touched" the eight-year old daughter of Amber, his present
    0
    girlfriend.   Bruner claimed Amber was aware of the abuse, but the defendant " keeps
    her drugged and blindfolded and is working his way to controlling her 100%."
    Bruner alleged Amber was raped as a child by her grandfather, and her father killed
    himself "because he couldn' t handle the guilt."
    Agent Lilley started to corroborate Bruner' s statements and information. He
    used public records searches and Facebook and Instagram posts.        He was able to
    corroborate the defendant' s social media profiles, his former address, 102 South
    Southgate, Ponchatoula, and identified his present location - Jellystone Park in
    DeSoto County, Mississippi.      Agent Lilley went to Jellystone Park and saw the
    vehicle Bruner indicated the defendant owned, which was registered to the
    defendant, parked outside of Cabin 145.      Agent Lilley also saw the defendant' s
    present girlfriend, as described by Bruner, Amber, enter Cabin 145.     Amber is the
    mother of victim C.M.
    Agent Lilley obtained a search warrant for Cabin 145.         The defendant' s
    iPhone and Amber' s Samsung cell phone were recovered pursuant to the search
    warrant.   Forensic analysis of the iPhone identified a " Dropbox token." A Dropbox
    token is a forensic artifact whereby Dropbox remembers a phone and password as
    well as a Dropbox link saved in the notes section of the phone. Pursuant to a grand
    jury subpoena, the Dropbox link was subsequently identified as the same account on
    which Bruner possessed child exploitation images.      Agent Lilley also discovered
    log -on credentials to a Dropbox account associated with sluttyniggr@gmail.com
    and log -on credentials for emogir167.     Pursuant to another search warrant, that
    Dropbox was searched and found to contain images and video of the defendant
    sexually abusing C.M.
    The iPhone also had Kik Messenger chat between the defendant and a profile
    associated with Bruner, which, according to Agent Lilley, stated, " I got my dick in C
    last night." C.M. was depicted in media posts as " C."
    The Louisiana Attorney General' s Office subsequently obtained an arrest
    warrant for the defendant and a search warrant for his address at 851 Accomack
    Cove, Southaven, Mississippi.          Sexual aids depicted in the video of the abuse of
    C.M. were recovered from that location.
    The trial court denied the motion to suppress evidence. The court found the
    issue was whether law enforcement had exhibited sufficient probable cause to obtain
    a   series   of   search   warrants,   which culminated in the seizure of video and
    photographic evidence from the defendant. The court noted MAG had conducted an
    investigation which led to the arrest of Bruner for sexual activity involving
    juveniles.   Bruner subsequently provided MAG with a written letter that implicated
    the defendant. Bruner also told MAG the defendant was still engaged in activities
    which included the sexual exploitation of minors and provided his contact and
    internet information.
    The court further noted MAG performed public records and social media
    searches as to the whereabouts of the defendant.            MAG located a vehicle matching
    the description of the defendant' s vehicle at an RV park in Mississippi. MAG was
    also able to corroborate claims made in Bruner' s letter after observing the
    defendant' s present girlfriend and her minor child. MAG obtained a search warrant
    and subsequently seized a cell phone from the defendant. MAG also discovered a
    drop box account" linking the defendant and Bruner. Additionally, the court noted
    the defendant challenged the probable cause to obtain the first warrant and
    challenged the subsequent warrants as fruit of the poisonous tree. 6 The defendant
    6See Wong Sun v. United States, 
    371 U.S. 471
    , 487- 88, 
    83 S. Ct. 407
    , 417, 
    9 L. Ed. 2d 441
     ( 1963) ("[ w]e need not hold that all evidence is `` fruit of the poisonous tree' simply because
    it would not have come to light but for the illegal actions of the police.     Rather, the more apt
    question in such a case is `` whether, granting establishment of the primary illegality, the evidence
    to which instant objection is made has been come at by exploitation of that illegality or instead
    by means sufficiently distinguishable to be purged of the primary taint (citation omitted)."').
    1n
    argued Bruner was not a known reliable informant, that the police did not perform
    sufficient follow up investigation to confirm her claims, and that the " suicidal
    statement" contained in Bruner' s letter made her even less reliable.
    The court applied the totality of the circumstances test under Gates.          The
    court noted that Gates and its progeny required that much weight be given to the
    reliability of the informant and the corroborating circumstances.         The court also
    found, however, the reliability of a statement could be bolstered by the informant
    implicating himself, such as when he indicates he is an accomplice.          See State v.
    Huff, 
    392 So. 2d 1046
    , 1053 ( La. 1980) ("[ b] oth informants were named, and the
    reliability of their own information was clearly established by the fact that they were
    participants in the alleged crime and spoke from first hand [ sic] knowledge. Also,
    the fact that each defendant made statements against their interests and which
    incriminated them,        lends credibility to this source of information." ( citations
    omitted)).    The court found the letter provided by Bruner " certainly contains such
    implications."
    Lastly, the court noted that in Friday, 
    73 So. 3d at 919-21
    , a case involving
    sexual activity and child pornography, probable cause was based on the statement of
    the defendant' s ex-girlfriend, whose reliability had not otherwise been established,
    which gave specific details coupled with a statement " given in the other case to a
    different law enforcement officer as to the defendant' s seeking treatment for
    addiction to pornography."
    There was no error or abuse of discretion in the denial of the motion to
    suppress.    The defendant fails to establish the trial court' s ruling was unsupported
    by the evidence.       See LSA-C. Cr.P. art. 703( D); Frida , 
    73 So. 3d at 919
    . Given all
    the circumstances set forth in the affidavit, there was a " fair probability" that
    evidence     of   a   crime,   specifically child pornography, would be    found in the
    11
    defendant' s cabin in Mississippi.
    Bruner confessed to the manufacture and distribution of child pornography.
    She identified the defendant as " a recipient and a requester of these images."       She
    also indicated that she had been in an intimate relationship with the defendant and
    that during that relationship, he had confided his affinity for child pornography. She
    indicated the defendant had child pornography in his possession.        She also alleged
    she and the defendant shared child pornography.          Bruner had detailed information
    concerning the defendant' s location, his vehicle, and his social media identifiers.
    She   also    provided   detailed   information    concerning the defendant' s present
    girlfriend, including highly personal information concerning her rape and suicide in
    her family.
    The trial court recognized that Bruner was not a proven informant, but
    correctly noted that the reliability of a statement can be bolstered by information
    which includes the informant implicating herself as an accomplice, and the
    jurisprudence recognizes that statements           against interest are afforded greater
    credibility. See State v. Mena, 
    399 So. 2d 149
    , 152 ( La. 198 1) ("   In the instant case,
    Woodard stated that he was scoring his cocaine from Mena. This admission was a
    declaration against penal interest because it supplied evidence against him of guilty
    knowledge, an essential element of the crime of the possession of a controlled
    dangerous substance.      Admissions of crime carry their own indicia of credibility
    sufficient at least to support a fording of probable cause to search." ( citations
    omitted)).
    The record fails to support the defendant' s claims that Bruner' s reliability was
    compromised because she was attempting to obtain " a good bargaining tool on her
    life sentence[,]"   and that she " did   not implicate herself in criminal activity that
    would expose her to more jail time, rather by implicating [the defendant] she saw an
    1?,
    opportunity to decrease her jail time."
    Indeed, the testimonial evidence supports the trial court' s finding that the
    search warrant affidavit established probable cause.    At the suppression hearing, the
    defense asked Agent Lilley whether Bruner' s " providing information to [ his] agency
    would]      have any impact on diminishing the potential sentence that Ms. Bruner
    might have[.]"     He answered, "[ a]bsolutely not.   We never made that available to
    Bruner]."      The defense also questioned whether Bruner' s claim that the defendant
    had requested and directed the production of pictures of her molesting a three-year-
    old child was "
    merely an attempt by her to try to diminish her culpability for an
    awful, terrible act by blaming it on someone else[.]"        Agent Lilley rejected that
    argument, noting Bruner " also confesse[ d] to the molestation of a three-year-old
    child, which we [ had]     no pictures o£"    Lastly, when Agent Lilley was asked if
    Bruner had told him that " everything she did[,] she did because of [the defendant],"
    he answered " No. [     Bruner] didn' t blame it entirely on [ the defendant].   She just
    state[ d]   that he was knowledgeable about it, that they discussed it, they shared
    images of it."    See State v. Clay, 2010- 0450 ( La. App. 1st Cir. 10/ 29/ 10), 
    2010 WL 42729869
     * 8 ( unpublished).
    Even had the initial search warrant been based on less than probable cause,
    under the Leon good -faith exception, the evidence seized pursuant to the warrant
    would not be suppressed. The defendant did not establish a lack of good faith on
    the part of the executing officer. There were no misleading statements contained in
    the affidavit.    There was no evidence that the issuing magistrate, abandoned his
    neutral role in his issuance of the search warrant, nor was there anything on the face
    of the warrant that would make it so deficient that it could not be presumed valid.
    Agent Lilley provided the judge with information he had gathered during the
    investigation of Bruner, the defendant' s former girlfriend and sexual partner, for
    1I
    transmission of child pornographic imagery and molestation of a three-year-old
    child.   Agent Lilley was not unreasonable in believing he provided the judge with
    sufficient information to issue a search warrant.      Accordingly, suppression of the
    evidence would be inappropriate considering the Leon good -faith exception to the
    exclusionary rule. See Friday, 
    73 So. 3d at
    923- 24.
    This assignment of error is without merit.
    CONVICTIONS AND SENTENCES AFFMMED.
    14
    

Document Info

Docket Number: 2021KA0430

Filed Date: 12/22/2021

Precedential Status: Precedential

Modified Date: 10/22/2024