State of Louisiana v. Thomas Riles

STATE OF LOUISIANA * NO. 2021-K-0738

VERSUS *
COURT OF APPEAL
THOMAS RILES *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 549-941, SECTION “J”
Honorable Darryl A. Derbigny, Judge
******
Judge Joy Cossich Lobrano
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(Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge
Rosemary Ledet)

LOMBARD, J., DISSENTS WITH REASONS.

Jason R. Williams
DISTRICT ATTORNEY FOR ORLEANS PARISH
G. Ben Cohen
Chief of Appeals
619 South White Street
New Orleans, LA 70119

COUNSEL FOR STATE OF LOUISIANA/RELATOR

Diana Yu
ORLEANS PUBLIC DEFENDERS
2601 Tulane Avenue, Seventh Floor
New Orleans, LA 70119

COUNSEL FOR DEFENDANT/RESPONDENT

WRIT GRANTED;
JUDGMENT REVERSED
MARCH 30, 2022

JCL Relator, the State of Louisiana, seeks review of the district court’s
RML
November 10, 2021 ruling, wherein the district court granted the motion to

suppress the evidence and statement filed by Thomas Riles (“Defendant”) and

found no probable cause. For the reasons discussed below, we grant the writ and

reverse the district court’s ruling.

At the hearing on Defendant’s motion to suppress, the State offered the

testimony of Officer David DeSalvo, which the video footage from his body

camera corroborated. Before the arrest, Officer DeSalvo and his superior officer

were driving a marked police vehicle down Saint Mary Street to get lunch, with

several other officers following in police vehicles.1 Defendant was walking on the

adjacent sidewalk in the same direction as the officers. When Defendant noticed

the police approaching him from behind, Defendant immediately turned around,

walking toward the approaching police before turning down a driveway on the side

of a residence he had just passed. Down the driveway, Defendant approached a

door and feigned a knocking motion on the door. Officer DeSalvo stopped to

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Officer DeSalvo testified that at least six other officers followed in police units.

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watch Defendant, at which point Defendant made “the lightest knock possible” on

the door, such that “no one would have heard it.” Officer DeSalvo noted this

behavior was odd and also noticed a bulge in Defendant’s waistband, which he

believed was a firearm.2 Defendant then stepped over the railing of the porch

where he stood and walked toward a fence at the rear of the residence as if he was

preparing to jump the fence into the backyard.

Officer DeSalvo did not believe Defendant “belonged at that address” and

elected to make a suspicious person stop. Officer DeSalvo requested the other

officers to assist with the stop. Officer DeSalvo drove around the corner to the rear

of the residence while the other officers followed Defendant from the front of the

residence as Defendant jumped over the fence. One of the assisting officers

reported seeing Defendant discard an object as he fled from the police.

Officer DeSalvo found Defendant behind an adjacent residence lying on the

ground next to a fence doing pushups, at which point he placed Defendant in

handcuffs and immediately read him his Miranda rights. A handgun was found on

the ground in the area where it had been reported Defendant discarded an object.

The district court’s findings of fact on a motion to suppress are reviewed

under a clearly erroneous standard, and its ultimate determination of Fourth

Amendment reasonableness is reviewed de novo. State v. Polkey, 20-0482, pp. 3-4

(La. App. 4 Cir. 11/25/20), 310 So.3d 605, 608 (citing State v. Pham, 01-2199, p. 3

(La. App. 4 Cir. 1/22/03), 839 So.2d 214, 218; U.S. v. Seals, 987 F.2d 1102, 1106

2
Officer DeSalvo testified he had eleven years of experience dealing with concealed weapons,
and had been involved in over one hundred cases involving concealed weapons.

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(5th Cir. 1993)). Accordingly, on mixed questions of law and fact, the appellate

court reviews the underlying facts on an abuse of discretion standard, but reviews

conclusions drawn from those facts de novo. Polkey, 20-0482, p. 4, 310 So.3d at

608 (citing Pham, 01-2199, p. 3, 839 So.2d at 218). Where the facts are not in

dispute, the reviewing court must consider whether the district court came to the

proper legal determination under the undisputed facts. Id. The parties in this case

do not dispute the facts and the video footage from the officer’s body camera

corroborated the testimony; thus, we must review de novo whether the officers had

a reasonable, particularized, and objective basis to suspect criminal activity. See

State v. Morgan, 09-2352, p. 5 (La. 3/15/11), 59 So.3d 403, 406.

In State v. Fisher, 97-1133 (La. 9/9/98), 720 So.2d 1179, the Louisiana

Supreme Court recognized a useful three-tiered analysis of interactions between

citizens and the police, which the court reiterated in State v. Hamilton, 09-2005

(La. 5/11/10), 36 So.3d 209, as follows:

In the first tier, there is no seizure or Fourth Amendment
concern during mere communication with police officers and citizens
where there is no coercion or detention. State v. Fisher, 97-1133
(La.9/9/98), 720 So.2d 1179, 1183. The second tier consists of brief
seizures of a person, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968), if the officer has an objectively reasonable
suspicion, supported by specific and articulable facts, that the person
is, or is about to be, engaged in criminal activity. Fisher, 720 So.2d at
1183. The third tier is custodial arrest where an officer needs probable
cause to believe that the person has committed a crime. Id.

Within the first tier, officers have “the right to engage anyone in
conversation, even without reasonable grounds to believe that they
have committed a crime.” Dobard, 824 So.2d at 1130 (quoting State
v. Johnson, 01-2436, p. 3 (La. 1/25/02), 806 So.2d 647, 648). Further,
the police do not need probable cause to arrest or reasonable suspicion
to detain an individual each time they approach a citizen. Dobard, 824

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So.2d at 1130. As long as the person approached by the officers
remains free to disregard the encounter and walk away, there are no
constitutional implications. Id. In State v. Dobard, this court stated, “It
is settled that ‘law enforcement officers’ do not violate the Fourth
Amendment by merely approaching an individual on the street or in
another public place, by asking him if he is willing to answer some
questions, by putting questions to him if the person is willing to listen
....” 01-2629, p. 8 (La.6/21/02), 824 So.2d 1127, 1132 (quoting
Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75
L.Ed.2d 229 (1983)).

Hamilton, 09-2005, p. 4, 36 So.3d at 212-13.

We find that the investigatory stop of Defendant was lawful. “[C]ourts

reviewing the legality of an investigatory stop must consider the totality of the

circumstances of each case to see whether the detaining officers had a

particularized and objective basis for suspecting the particular person stopped of

criminal activity.” State v. Morgan, 09-2352, p. 5 (La. 3/15/11), 59 So.3d 403, 406

(citations omitted).

Our court and the Supreme Court have found reasonable suspicion sufficient

to justify an investigatory stop in cases presenting similar suspicious and

unprovoked flight behavior to those presented in the case sub judice. See e.g. State

v. Frosch, 816 So.2d 269, 270 (La. 3/22/02) (the defendant looked into a truck and

jiggled the door handle and attempted to flee upon noticing police in a

neighborhood having many vehicle thefts in the past3); State v. Devore, 00-0201

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We find it immaterial in our reasonable suspicion analysis in the case sub judice as to whether
the area of the arrest was a high-crime neighborhood or whether New Orleans is a high-crime
city. Defendant’s odd and evasive flight behavior at the sight of the police coupled with the
reasonable suspicion that Defendant was carrying a concealed firearm was sufficient for a
finding that the investigatory stop did not infringe on Defendant’s Fourth Amendment
constitutional right, which protects people from unreasonable searches and seizures by the
government. Moreover, Defendant’s flight onto private property under the circumstances was a
crucial factor in our reasonable suspicion analysis. Our totality of the circumstances balancing
analysis is based on all available information rather than bright-line rules. This analytical
framework allows courts to be free to consider a range of evidence when making Fourth
Amendment reasonableness determinations. In Florida v. Harris, 568 U.S. 237, 244, 133 S.Ct.
1050, 1055, 185 L.Ed.2d 61 (2013), the United States Supreme Court affirmed that judges must

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(La. App. 4 Cir. 12/13/00), 776 So.2d 597 (the defendant concealed himself in a

vehicle upon seeing police officers); State v. Keller, 98-0502 (La. App. 4 Cir.

3/10/99), 732 So.2d 77 (the defendant hastily walked away from police officers

and removed a white object from his pants pocket and shoved the object into his

mouth while walking away). See also State v. Moultrie, 14-1535 (La. App. 1 Cir.

10/23/15), 182 So.3d 1017, rev’d on other grounds, 15-2144 (La. 6/29/17), 224

So.3d 349.4

The totality of the circumstances—Defendant’s odd and evasive behavior,

the visible bulge in Defendant’s waistband, and Defendant’s unprovoked flight5

over a fence and into the backyard of a private residence he could not access—

gave the police a reasonable basis to stop Defendant. Consequently, we find that

evidence obtained in the ensuing investigation—the gun discovered near the site of

Defendant’s arrest and statements made to police after Defendant was arrested and

read his Miranda rights—was obtained lawfully. Likewise, we find probable cause

for Defendant’s arrest.

In light of the foregoing facts and law, we find the district court erred in

granting the motion to suppress and finding no probable cause for Defendant’s

“reject[] rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-
things-considered approach.”
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The Supreme Court reversed the appellate court’s ruling that the search of a barbecue grill
exceeded the permissible scope of a protective search for weapons but did not disturb the
appellate court’s ruling that the officers had reasonable suspicion to stop and detain the
defendant. The defendant quickly walked away upon recognizing police officers in a high-crime
area. When the officers, just seconds later, arrived at the driveway where the defendant had
disappeared, the defendant reappeared, walking back toward them.
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In Morgan, the Louisiana Supreme Court observed that, “although flight, alone, is insufficient
to support a finding of reasonable suspicion, . . . a defendant’s flight, especially when
unprovoked, appears to be the crucial factor in the reasonable suspicion analysis.” 09-2352, p. 9,
59 So.3d at 408-09.

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arrest. Accordingly, we grant the State’s writ application and reverse the district

court’s November 10, 2021 judgment.

WRIT GRANTED; JUDGMENT REVERSED.

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