State of Louisiana v. Sharnell D. Johnson

STATE OF LOUISIANA * NO. 2021-KA-0239

VERSUS * COURT OF APPEAL

SHARNELL D. JOHNSON * FOURTH CIRCUIT

* STATE OF LOUISIANA

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RBWBARTHOLOMEW-WOODS, J., DISSENTS AND ASSIGNS REASONS

I respectfully dissent from the majority’s decision to affirm the district

court’s judgment, which denied Sharnell Johnson’s (“Ms. Johnson”) motion to

suppress evidence.

The majority finds that the search incident to arrest exception to the warrant

requirement applies in this case. I respectfully disagree. However, before

addressing the search incident to arrest exception, I first address the State’s main

argument at the hearing on the motion to suppress. The State’s main argument was

that the police had probable cause to search Ms. Johnson’s purse under the

automobile exception to the warrant requirement.

The State asserted that the police officers had probable cause to believe a

narcotics violation was occurring inside the vehicle because they could smell

marijuana emanating from the vehicle’s window, which authorized them to make

the traffic stop. The State argued that because the police officers had probable

cause to believe narcotics would be located inside the vehicle, the automobile

exception to the warrant requirement permitted them to conduct a warrantless

search of the vehicle and any containers therein capable of concealing the source of

the suspected narcotic. The majority adopts the State’s argument and concludes

that independent of the search incident to arrest exception, the warrantless search

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of Ms. Johnson’s purse was permissible under the automobile exception.1 I find

the automobile exception does not apply.

Orleans Parish Municipal Code §54-28(1), which was enacted on June 19,

2008, directs police officers to issue only a summons for possession of marijuana,

rather than arrest, unless certain exceptions apply. Municipal Code §54-28(1)

provides:

(1) An officer shall issue a written summons and may not
make a custodial arrest when citing a person solely
for a violation of this chapter, except when one of the
following circumstances exists:

a. The person does not possess identification
issued by any municipal, state, territorial,
federal, or other governmental authority
within the United States; or
b. The person makes a statement that
indicates an intent to disregard the
summons or refuses to sign the
summons; or
c. The person acts in a violent or destructive
manner or makes a statement indicating
that he or she intends to inflict injury to
self or another or damage to property; or
d. The person is a habitual offender, defined
as any individual with a criminal history
of two or more felony convictions or five
or more felony or municipal arrests for
any offense; or
e. Based on the circumstances, an officer
determines that it is absolutely necessary
to make an arrest.

Based on the aforementioned, a possessor of marijuana is no longer subject to

arrest if none of the exceptions apply.

In the instant case, Officer Devezin suspected Mr. Billizon, the driver of the

vehicle, had committed an infraction when he detected the odor of marijuana

emanating from the vehicle. After stopping the vehicle, Officer Devezin explained

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The majority states that “Officer Devezin stopped the vehicle in which [Ms. Johnson] was a
passenger because of the dark-tinted windows, thus, the stop itself was reasonable.” However,
the officer’s testimony at the suppression hearing reflects he was alerted to the vehicle, not
because of the dark-tinted windows, but because he detected the odor of marijuana emanating
from the vehicle.
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that he smelled a strong odor of marijuana and asked Mr. Billizon and Ms. Johnson

to exit the vehicle. Mr. Billizon admitted that he had smoked marijuana, an

infraction for which no more than a summons should have been issued as

contemplated by the enactment of Municipal Code §54-28(1). Yet, Mr. Billizon

was neither issued a summons, nor otherwise arrested, and the vehicle was not

seized. Upon Mr. Billizon’s admission that he had indeed smoked marijuana, there

was no basis for a search of the vehicle or any closed containers inside the vehicle,

namely Ms. Johnson’s purse and the contents contained therein, because none of

the exceptions in the Municipal Code applied to the situation. Accordingly, I find

the automobile exception to the warrant requirement did not justify the warrantless

search in this case.

Furthermore, I find the search incident to arrest exception to the warrant

requirement, likewise, does not apply. In Arizona v. Gant, 556 U.S. 332, 129 S.Ct.

1710, 173 L.Ed.2d 485 (2009), the U.S. Supreme Court noted that the search

incident to arrest exception “derives from interests in officer safety and evidence

preservation that are typically implicated in arrest situations.” Id., 556 U.S. at 338,

129 S.Ct. at 1716 (citations omitted). The U.S. Supreme Court clarified the scope

of a search incident to arrest exception, holding:

Police may search a vehicle incident to a recent
occupant’s arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the
search or it is reasonable to believe the vehicle contains
evidence of the offense of arrest. When these
justifications are absent, a search of an arrestee's vehicle
will be unreasonable unless police obtain a warrant or
show that another exception to the warrant requirement
applies.

Id., 556 U.S. at 351, 129 S.Ct. at 1723-24 (emphasis added). Consequently, the

search of a car incident to arrest is only permissible in two situations: “if the

arrestee is within reaching distance of the passenger compartment at the time of the

search” or “it is reasonable to believe the vehicle contains evidence of the offense

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of the arrest.” Id.

This case does not involve a passenger compartment, but rather a purse, to

which Officer Devezin did not believe contained anything that was a threat to his

safety. In fact, Officer Devezin repeatedly asked Ms. Johnson if she wanted the

purse, despite having told Officer Devezin no and that he could give the purse to

Mr. Billizon. Officer Devezin did not even reach into the vehicle to remove Ms.

Johnson’s purse himself; rather, Mr. Billizon, after being released from his

handcuffs, removed the purse from the passenger side and handed it to him. Had

Officer Devezin believed the purse contained anything that posed a threat to police

safety, he would not have continually asked Ms. Johnson if she wanted to bring the

purse with her much less allowed Mr. Billizon to reach inside the vehicle to

remove the purse before handing it to him. Moreover, the exchange of the purse

did not take place until nearly forty (40) minutes after the police officers

effectuated the stop. At that point in the interaction, Ms. Johnson was handcuffed

and standing on the sidewalk and out of reaching distance from the floor of the

passenger compartment, where her purse remained until Officer Devezin seized it.

Moreover, Ms. Johnson was arrested for outstanding warrants. It would be

unreasonable to conclude that her purse contained evidence of the offense for

which Ms. Johnson was arrested. The justifications for search incident to arrest

exception are absent here; and therefore, the facts of this case do not fall within the

narrow scope of the search incident to arrest exception.

Finally, Municipal Code §54-28(1) establishes that unless certain exceptions

apply, which do not exist in this case, possession of marijuana is no longer an

arrestable offense. In that possession of marijuana is akin to a municipal infraction

for which a summons is issued, there was no basis under the search incident to

arrest exception to search Ms. Johnson’s purse and the contents therein.

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For these reasons, I respectfully dissent from the majority. Accordingly, I

would reverse the trial court’s ruling, which denied Ms. Johnson’s motion to

suppress.

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