State of Louisiana v. Tremaine Moses

STATE OF LOUISIANA * NO. 2023-K-0195

VERSUS *
COURT OF APPEAL
TREMAINE MOSES *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 554-138, SECTION “I”
Honorable Raymond C. Bigelow, Judge
******
Judge Rosemary Ledet
******
(Court composed of Chief Judge Terri F. Love, Judge Rosemary Ledet, Judge
Sandra Cabrina Jenkins)
LOVE, C.J., DISSENTS AND ASSIGNS REASONS

Mark Balfe
ORLEANS PUBLIC DEFENDERS
2601 Tulane Avenue
Seventh Floor
New Orleans, LA 70119

COUNSEL FOR RELATOR

Jason R. Williams
Brad Scott
Mithun B. Kamath
ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR RESPONDENT

WRIT GRANTED;
JUDGMENT REVERSED
APRIL 10, 2023

RML
TFL
SCJ

In this application for supervisory writ, the Relator, Tremaine Moses, seeks

review of the district court’s February 16, 2023 ruling denying his motion to

suppress evidence. For the following reasons, we grant Mr. Moses’ writ

application, reverse the district court’s ruling denying his motion to suppress

evidence, and grant Mr. Moses’ motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND1

On March 4, 2022, the New Orleans Police Department received reports of

aggravated assault and homicide at two nearby locations. The aggravated assault

was reported at 7252 Bunker Hill Road. Several minutes later, the homicide was

reported at 8811 Bunker Hill Road. The two locations are within a few hundred

feet of each other, and 8811 Bunker Hill Road is visible from 7252 Bunker Hill

Road.

Officer Zachary Stevenson responded to the homicide call. When he arrived

at the scene, his supervisor informed him that the homicide suspect had been

1 Due to the pretrial posture of this case, the factual recitation is taken from Officer Zachary

Stevenson’s testimony at the hearing on Mr. Moses’ motion to suppress.

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described as wearing a dark hoodie and dark jeans, but he was given no further

information, such as the direction of the suspect’s flight after the homicide. While

surveying the homicide scene, Officer Stevenson recalled the aggravated assault

reported nearby and noticed that the clothing worn by the homicide victim matched

the description of the aggravated assault suspect. Given this coincidence coupled

with the proximity of the two locations, Officer Stevenson decided to investigate

whether anyone at 7252 Bunker Hill Road had information about the homicide.

Upon his arrival, several people standing in the driveway approached Officer

Stevenson to inform him that they were relatives of the homicide victim.

While in the driveway, Officer Stevenson noticed Mr. Moses standing in the

rear of the carport attached to the residence. Mr. Moses’ clothing—a black hoodie

and dark jeans—matched the description of the homicide suspect given by Officer

Stevenson’s supervisor.2 Officer Stevenson approached Mr. Moses underneath the

carport and asked for his name. Mr. Moses refused to provide his name and

walked into the doorway of the residence.3 As Mr. Moses entered the residence,

Officer Stevenson followed him, grabbed him by his arms to restrain him, and

pulled him out of the house.4 During this struggle, Mr. Moses’ arms were raised,

2 During the motion to suppress hearing, Officer Stevenson was questioned about a Premier One

report—a report that includes all information relayed to various 911 dispatchers about a reported
incident. The description offered by Officer Steven’s supervisor did not appear in the Premier
One report; rather, the report states that one witness described the suspect as wearing a blue
hoodie and jeans and another reported that the victim was shot by his ex-girlfriend.
3 Mr. Moses first responded to Officer Stevenson that he did not have a name.
When Officer
Stevenson again asked his name, Mr. Moses did not answer and walked into the doorway of the
residence.
4 The record is ambiguous as to whether Officer Stevenson entered the residence. Defense
counsel asked, “at the time that you are following [Mr. Moses] into the house and—and grabbing

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revealing a handgun tucked into his waistband. After other police officers

removed the handgun from Mr. Moses’ waistband, Officer Stevenson handcuffed

him and searched his person incident to his arrest. During the search he discovered

amphetamine. After running a background search, Officer Stevenson discovered

that Mr. Moses had a previous felony conviction that prevented him from

possessing a firearm.

Mr. Moses was charged with possession of a firearm by a felon and

possession of a firearm while in possession of methamphetamine, in violation of

La. R.S. 14:95.1 and 14:95(E), respectively. Mr. Moses filed a motion to suppress

evidence, arguing that Officer Stevenson violated his Fourth Amendment rights

under the United States Constitution and requesting that all evidence seized

pursuant to the arrest be excluded from trial. The district court denied the motion.

Mr. Moses’ writ application followed.

DISCUSSION

Mr. Moses argues that Officer Stevens’ warrantless entry into the residence

and subsequent arrest were illegal and that all evidence seized during the arrest and

the search incident to arrest—including the handgun and narcotics—must be

suppressed. Although the record is unclear whether Officer Stevens entered the

him to detain him, you have witnessed him commit no crimes, correct?” Officer Stevenson
responded that Mr. Moses had not committed any crimes at that time and offered no dispute that
he entered the residence. However, Officer Stevenson later testified that “[he] had to grab [Mr.
Moses’] arms to keep him from going inside the residence[,]” suggesting that Officer Stevenson
never entered the residence. Regardless, it is undisputed that Mr. Moses had entered the
doorway of the residence at the time he was arrested; Officer Stevenson admitted on cross-
examination that “[he] grabbed [Mr. Moses] from the doorway.”

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residence, we agree that his detention and arrest of Mr. Moses from a private

residence was unreasonable.5

The Fourth Amendment to the United States Constitution and Article I, § 5

of the Louisiana Constitution prohibit unreasonable searches and seizures. “‘If

evidence is derived from an unreasonable search or seizure, the proper remedy is

exclusion of the evidence from trial.’” State in Interest of T.H., 12-0223, p. 4 (La.

App. 4 Cir. 12/12/12), 106 So.3d 703, 706 (quoting State v. Benjamin, 97-3065, p.

3 (La.12/1/98), 722 So.2d 988, 989). Warrantless searches and seizures are

presumed unreasonable unless justified by one of the few well-delineated

exceptions to the warrant requirement. State v. Lala, 08-0484, p. 5 (La. App. 4 Cir.

12/3/08), 1 So.3d 606, 609. When the constitutionality of a warrantless search or

seizure is placed at issue by a motion to suppress the evidence, the State bears the

burden of proving that the search and seizure was justified pursuant to one of the

exceptions to the warrant requirement. State v. Warren, 05-2248, p. 13 (La.

2/22/07), 949 So.2d 1215, 1226.

In Lala, this court addressed a very similar set of facts and synthesized the

law pertinent to warrantless entry, as follows:

In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63
L.Ed.2d 639 (1980), the United States Supreme Court recognized that
a physical entry into a home is the chief evil against which the Fourth
Amendment is directed and held that the Fourth Amendment prohibits
police from making a nonconsensual entry into a suspect’s home to
make a warrantless arrest. Under Payton, it is well established that

5 Mr. Moses also argues that Officer Stevenson lacked the requisite reasonable suspicion to

detain and question him. Because we find that Officer Stevenson’s arrest of Mr. Moses from
within the private residence was illegal, we pretermit any discussion of whether Officer
Stevenson possessed the requisite reasonable suspicion to detain and question him.

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nonconsensual, warrantless searches and seizures in a home are
presumptively unreasonable absent a government showing of probable
cause and exigent circumstances. See Minnesota v. Olson, 495 U.S.
91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); New York v. Harris, 495
U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990); Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Steagald v.
U.S., 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).

However, the United States Supreme Court has also recognized
that a person may not thwart an otherwise lawful arrest based on
probable cause which the police are entitled to make in a public place
without a warrant simply by stepping across the threshold of his
home. United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410,
49 L.Ed.2d 300 (1976).

Id., 08-0481, p. 5, 1 So.3d at 609.

In Lala, the court found that an officer who entered a residence while in hot

pursuit of a defendant possessed the requisite level of reasonable suspicion to

detain and question the defendant in public under Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed. 2 889 (1968), but lacked probable cause to justify a

warrantless entry into the residence under Santana, 427 U.S. 38, 96 S.Ct. 2406,

2410, 49 L.Ed.2d 300. Lala, 08-0481, p. 15, 1 So.3d at 615. The court in Lala

turned to the same question presented here: whether reasonable suspicion,

permitting an officer to stop and detain a suspect in public, likewise permitted an

officer to detain a suspect in a private residence while in pursuit of a suspect. Id.

The Lala court answered this question in the negative, reasoning that “given

the special protections of the home, the State must present a strong interest in

conducting a warrantless entry into the home.” Id.6 The Lala court found that

once the defendant retreated into the home, the State’s interest in public safety was

6 The court in Lala left open the possibility that different circumstances might permit an officer’s

warrantless entry into a private residence without probable cause. Id, 08-048, p. 15, 1 So.3d at
615.

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alleviated. Id. Moreover, in discussing the absence of other potential justifications

for an officer’s warrantless entry into the home, the Lala court quoted the Utah

Court of Appeals’ sound reasoning in State v. Beavers, 859 P.2d 9 (Utah App.,

1993), as follows:

Warrantless entries are justified with probable cause and
exigent circumstances because in such circumstances, the delay to
obtain a search warrant would risk physical harm to the officers or
other persons, the destruction of relevant evidence, [or] the escape of
the suspect. In contrast, a Terry stop is justified on the basis that
police should be able to briefly stop citizens to investigate
circumstances which lead an officer reasonably to conclude in light of
his experience that criminal activity may be afoot. Thus, the only risk
that exists if an investigatory stop is not effected is the risk that
investigation of potential criminal activity might be delayed or, at
worst, thwarted altogether. That risk is diminished in the residential
setting because the person police wish to question is located in a
dwelling that can generally be staked out until the person emerges, if a
polite knock at the door fails to produce a suspect willing to
voluntarily answer police inquiries.

Lala, 08-0484, p. 11, 1 So.3d at 612 (quoting State v. Beavers, 859 P.2d 9, 17

(Utah App., 1993) (internal quotations and citations omitted)).

We find the reasoning underlying Lala and Beavers equally applicable here.

Whether Officer Stevenson entered the residence to detain Mr. Moses or merely

pulled him from the residence presents a distinction without a difference. Once

Mr. Moses retreated to the private residence, the State must present a strong

interest in forcibly removing Mr. Moses from the residence. Here, the State did

not meet this burden.

Officer Stevenson conceded that he did not have probable cause to believe

Mr. Moses committed a crime when he entered the residence. Nor did Officer

Stevenson’s testimony demonstrate a valid exception to the warrant requirement

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justifying his warrantless intrusion into the residence. There was no threat to

public safety or officer safety in permitting Mr. Moses to remain in the residence.

The only risk of not continuing the investigatory stop of Mr. Moses was the risk

that investigation of potential criminal activity might be delayed or thwarted. But,

inconvenience is not a recognized exception to the warrant requirement. Further,

as the court in Beavers reasoned, any risk that the investigation might be thwarted

was diminished because Mr. Moses was located in a residence that could generally

be staked out until he emerged or until sufficient evidence was gathered to support

issuance of a warrant.

We conclude that the State failed to rebut the presumption that Officer

Stevenson’s warrantless intrusion into the residence and arrest of Mr. Moses was

unreasonable. Accordingly, we find the district court erred in denying the motion

to suppress evidence.

DECREE

For the foregoing reasons, we grant Mr. Moses’ writ, reverse the district

court’s February 16, 2023 ruling denying his motion to suppress evidence, and

grant Mr. Moses’ motion to suppress evidence.

WRIT GRANTED;
JUDGMENT REVERSED

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