State of Louisiana v. Christopher Rousset

STATE OF LOUISIANA * NO. 2020-K-0202

VERSUS * COURT OF APPEAL

CHRISTOPHER ROUSSET * FOURTH CIRCUIT

* STATE OF LOUISIANA

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TFL LOVE, J., CONCURS IN PART, DISSENTS IN PART, AND
ASSIGNS REASONS

I agree with the majority that the district court erred in finding no probable

cause and in suppressing Defendant’s statement that he owned the cell phone.

However, I respectfully dissent from the majority’s finding that the district court

erred in suppressing the evidence seized from the warrantless search of

Defendant’s cell phone. The majority reasons the district court did not consider the

validity of the search warrant that was ultimately obtained to search Defendant’s

cell phone; and accordingly, improperly relied on Riley v. California, 573 U.S.

373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), in granting the motion to suppress.

I disagree.

In Riley v. California, the United States Supreme Court stated:

The Fourth Amendment provides:

“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized.”

As the text makes clear, “the ultimate touchstone of the Fourth
Amendment is ‘reasonableness.’ ” Brigham City v. Stuart, 547 U.S.
398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Our cases have
determined that “[w]here a search is undertaken by law enforcement

officials to discover evidence of criminal wrongdoing, ...
reasonableness generally requires the obtaining of a judicial warrant.”
Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct.
2386, 132 L.Ed.2d 564 (1995). Such a warrant ensures that the
inferences to support a search are “drawn by a neutral and detached
magistrate instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime.” Johnson v. United
States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). In the
absence of a warrant, a search is reasonable only if it falls within a
specific exception to the warrant requirement. See Kentucky v. King,
563 U.S. ––––, ––––, 131 S.Ct. 1849, 1856–1857, 179 L.Ed.2d 865
(2011).

Id., 573 U.S. 373, 381–82, 134 S. Ct. 2473, 2482, 189 L. Ed. 2d 430 (2014).

Further, the Riley Court held:

We cannot deny that our decision today will have an impact on
the ability of law enforcement to combat crime. Cell phones have
become important tools in facilitating coordination and
communication among members of criminal enterprises, and can
provide valuable incriminating information about dangerous
criminals. Privacy comes at a cost.
Our holding, of course, is not that the information on a cell
phone is immune from search; it is instead that a warrant is generally
required before such a search, even when a cell phone is seized
incident to arrest. Our cases have historically recognized that the
warrant requirement is “an important working part of our machinery
of government,” not merely “an inconvenience to be somehow
‘weighed’ against the claims of police efficiency.” Coolidge v. New
Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

Id., 573 U.S. 373, 401, 134 S. Ct. 2473, 2493, 189 L. Ed. 2d 430 (2014).

In the present matter, notwithstanding that a search warrant was issued, the

record is clear that the police searched Defendant’s cell phone prior to obtaining a

warrant and discovering the child pornography. In its per curiam, the district court

opined:

The state, in its own post hearing brief to the trial court admitted that
the search of Mr. Roussett’s phone was warrantless and unlawful.
(State’s Writ, Exhibit G, p. 3). Riley v. California, 573 U.S. 373, 401
(2014) holds that law enforcement must obtain a warrant prior to
searching the contents of a cellular phone, even when such a phone is
lawfully obtained by police incident to arrest. The Supreme Court
recognized that cellular telephones are afforded heightened Fourth
Amendment protections due to the large amount of private
information often contained therein. There is no dispute that the
investigating officer did not obtain or apply for a search warrant prior
to the unlawful search that ultimately led to Mr. Roussett’s arrest. As

a result of that warrantless search, this Court suppressed the
unlawfully obtained evidence and found no probable cause for Mr.
Roussett’s arrest.

The State contends the evidence would have eventually been discovered and

that the evidence should be admissible because it would have been discovered

when a warrant was obtained. This contention is in error. When Detective Fournier

applied for the search warrant in this case, she recited as substantiating evidence

(pornographic images) acquired from the initial (illegal) search of the phone by

Officer Adams. The illegal search by Officer Adams cannot be cured by

subsequently obtaining a search warrant for the cell phone based on information

derivative of the illegality.

I find the district court did not err in its determination that Officer Adams

searched Defendant’s cell phone without a warrant. Therefore, the district court

properly granted the motion to suppress as it pertained to the evidence seized from

the unlawful search of Defendant’s cell phone.

For these reasons, I respectfully concur in part and dissent in part.