State of Louisiana v. Calvin Smith

STATE OF LOUISIANA * NO. 2020-K-0039

VERSUS *
COURT OF APPEAL
CALVIN SMITH *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 546-919, SECTION “K”
Honorable Arthur Hunter, Judge
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Judge Regina Bartholomew-Woods
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(Court composed of Judge Terri F. Love, Judge Roland L. Belsome,
Judge Regina Bartholomew-Woods)

BELSOME, J., DISSENTS

Leon Cannizzaro
District Attorney
Scott G. Vincent
Assistant District Attorney
ORLEANS PARISH
619 S. White Street
New Orleans, Louisiana 70119

COUNSEL FOR THE STATE/RELATOR

Sarah Mae Jennings
2601 Tulane Avenue, Suite 700
New Orleans, Louisiana 70119

Giacomo Castrogiovanni
935 Gravier Street, Suite 840
New Orleans, Louisiana 70112

COUNSEL FOR DEFENDANT/RESPONDENT

WRIT GRANTED
APRIL 8, 2020

RBW

TFL

Relator, the State of Louisiana, seeks supervisory review of the district

court’s January 3, 2020 ruling finding probable cause and granting Defendant’s

motion to suppress evidence. For the foregoing reasons, we grant the writ and

reverse the district court.

PROCEDURAL AND FACTUAL BACKGROUND

On December 9, 2019, the district court conducted a preliminary hearing, as

well as a hearing on Defendant’s motion to suppress evidence. Thereafter, on

January 3, 2020, the district court found no probable cause and granted

Defendant’s motion to suppress evidence.

On August 21, 2019, the Third District of the New Orleans Police

Department (“NOPD”) conducted a traffic enforcement assignment to check for

vehicles with dark-tinted windows, brake tags, and cracked windshields. NOPD

Officer Ramon Negrete (“Officer Negrete”) stopped Defendant’s vehicle due to the

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dark-tinted windows, and asked Defendant to produce his driver’s license,

registration, and proof of insurance. Initially, Defendant rummaged through his

center console, but then began reaching behind the passenger seat. Officer Negrete

repeatedly instructed Defendant to stop; however, Defendant repeatedly failed to

comply. As a result, Defendant was removed from his vehicle and handcuffed.

After removing Defendant’s vehicle from the travel lane, Officer Negrete opened

the rear passenger door of Defendant’s vehicle and retrieved a firearm from the

pocket on the back of the seat. At the hearing, Officer Negrete testified that he

feared that Defendant was reaching for a weapon, and he only searched exactly

where he believed Defendant had been reaching. After locating the weapon, NOPD

Officers conducted an inventory search of Defendant’s vehicle, because Defendant

was to be arrested and his vehicle towed. During the inventory search, an NOPD

Officer recovered a clear plastic bag containing three (3) Percocet pills. As a result,

Defendant was charged with possession of a firearm or weapon by a felon, in

violation of La. R.S. 14:95.1, and illegal carrying of a weapon with a controlled

dangerous substance, in violation of La. R.S. 14:95(E).

DISCUSSION

Both the United States and Louisiana Constitutions protect individuals from

unreasonable searches and seizures. U.S. Const. Amend. IV; La. Const. art. 1, § 5.

Moreover, “[a] warrantless search is, per se, unreasonable unless it falls within

certain limited, well-delineated exceptions to the warrant requirement.” State v.

Hunt, 2009-1589 (La. 12/1/09, 6); 25 So.3d 746, 752; Schneckloth v.

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Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State

v. Lee, 2005-2098, p. 14 (La.1/16/08), 976 So.2d 109, 122. The Louisiana Supreme

Court, in State v. Hunt, reasoned that “[f]or a traffic stop to be justified at its

inception, an officer must have an objectively reasonable suspicion that some sort

of illegal activity occurred or is about to occur, before stopping the vehicle. When

an officer observes what he objectively believes is a traffic offense, the decision to

stop the vehicle is reasonable, regardless of the officer’s subjective motivation.”

2009-1589, pp. 8-9 (La. 12/1/09); 25 So.3d 746, 753 (internal citations omitted).

Here, like in Hunt, Officer Negrete stopped Defendant’s vehicle because of the

dark-tinted windows, a traffic offense, thus, the stop itself was reasonable at the

outset.1

The Louisiana Supreme Court, in State v. Cure, looked to the United States

Supreme Court’s reasoning in Pennsylvania v. Mimms, 434 U.S. 106, 110; 98 S.Ct.

330, 333; 54 L.Ed.2d 331 (1977),

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Vehicle window tint is regulated by La. R.S. 32.361(B)-(C)(1), and provides:

B. Except as provided by R.S. 32:361.1(C), no person may operate a motor
vehicle with any object or material placed on or affixed to the front windshield or
to front side windows of the vehicle so as to obstruct or reduce the driver's clear
view through the front windshield or front side windows, nor place on or affix to
the front windshield or the front side windows of a motor vehicle, any transparent
material if the material alters the color or reduces the light transmission of the
windshield or front side windows.

C. The provisions of this Section do not apply to any of the following:

(1) A sun screening device when used in conjunction with automotive safety
glazing materials on the front side window, with a light transmission of at least
forty percent, all tolerances included, side window behind the driver with a light
transmission of at least twenty-five percent, all tolerances included, and rearmost
windows with a light transmission of at least twelve percent, all tolerances
included. All sun screening devices shall not have a luminous reflectance of more
than twenty percent.

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[W]e have specifically recognized the inordinate risk
confronting an officer as he approaches a person seated
in an automobile.... Against this important interest, we
are asked to weigh the intrusion into the driver’s personal
liberty occasioned not by the initial stop of the vehicle,
which was admittedly justified, but by the order to get
out of the car. We think this additional intrusion can only
be described as de minimis.”

2011-2238, p. 5 (La. 7/2/12); 93 So.3d 1268, 1271. Further, the United States

Supreme Court has recognized that because of the inherent mobility of vehicles

and if probable cause exists, officers are permitted to search vehicles without a

warrant. Maryland v. Dyson, 527 U.S. 465, 467; 119 S.Ct. 2013, 2014; 144

L.Ed.2d 442 (1999). In State v. Dillion, pursuant to traffic violations, police

officers stopped the defendant’s vehicle and noticed that the defendant appeared to

reach and hide something. 1998-0861, p. 12 (La. App. 4 Cir. 6/24/98); 719 So.2d

1064, 1070. Subsequently, the officers removed the defendant from the vehicle,

handcuffed him, and placed him in the patrol car prior to searching the vehicle. Id.

In State v. Lockett, an NOPD officer noticed a vehicle traveling in the far-left lane

at a “very, very slow pace,” which caused other vehicles to have to change lanes to

avoid a collision; upon noticing the cracked windshield, the officer executed a

traffic stop. 2012-1561, p. 2 (La. App. 4 Cir. 7/24/13); 120 So.3d 886, 888. As the

driver prepared to stop his vehicle, the officer noticed the driver make furtive

movements toward the back seat. Id. at p. 3; 120 So.3d at 888. With concern for

officer safety, assisted by other officers, the driver, as well as the passenger, were

removed from the vehicle; the officer then looked in the backseat where the driver

had been reaching and discovered a firearm. Id. In consideration of the search,

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“this [C]ourt consistently has held that an officer’s observation of furtive

movements during a traffic stop provides a sufficient basis for a protective Terry

sweep of the vehicle.” Id. at p. 14; 120 So.3d at 895. In the instant matter, Officer

Negrete observed Defendant repeatedly reaching behind his passenger seat; Officer

Negrete ordered Defendant to stop. When Defendant failed to comply with Officer

Negrete’s command, Defendant was removed from his vehicle out of concern for

Officer Negrete’s safety. Here, Defendant’s continual actions of reaching behind

his passenger seat despite Officer Negrete’s commands to cease justified the

protective sweep of Defendant’s vehicle, which yielded the concealed firearm and

pills.2

For the aforementioned reasons, we reverse the district court’s January 3,

2020 ruling finding no probable cause and granting Defendant’s motion to

suppress the evidence. The writ is GRANTED and the motion to suppress the

evidence is hereby reversed.

2
Pursuant to La. R.S. 14:95(1), the illegal carrying of weapons is defined, in pertinent part, as
“[t]he intentional concealment of any firearm, or other instrumentality customarily used or
intended for probable use as a dangerous weapon, on one's person…”.

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