State of Louisiana v. Montreal Davis

STATE OF LOUISIANA * NO. 2023-K-0210

VERSUS *
COURT OF APPEAL
MONTREAL DAVIS *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 554-321, SECTION “B”
Honorable Tracey Flemings-Davillier, Judge
******
Judge Karen K. Herman
******
(Court composed of Judge Paula A. Brown, Judge Rachael D. Johnson, Judge
Karen K. Herman)

Jason R. Williams
District Attorney
Brad Scott
Assistant District Attorney
Chief of Appeals
Mithun B. Kamath
Assistant District Attorney
Parish of Orleans
619 South White St.
New Orleans, LA 70119

COUNSEL FOR STATE OF LOUISIANA

Drew Lafontant
Orleans Public Defenders
2601 Tulane Avenue, Suite 700
New Orleans, LA 70119

COUNSEL FOR DEFENDANT/RELATOR

WRIT GRANTED; REVERSED AND REMANDED
May 31, 2023

KKH
PAB
RDJ

Defendant-Relator, Montreal Davis, seeks review of the trial court’s

February 28, 2023 ruling which denied his motion to suppress. We grant the writ

application, reverse the trial court’s ruling on the motion to suppress, and remand

the matter for further proceedings.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The state filed a bill of information on May 16, 2022, charging the

defendant, Montreal Davis (“defendant”), with one count of possession of a

firearm by a felon, a violation of La. R.S. 14:95.1. The defendant appeared for

arraignment on July 18, 2022, and entered a plea of not guilty. On August 1, 2022,

the defendant filed an omnibus motion seeking discovery, the preservation of

evidence, a preliminary examination, and the suppression of evidence, statements

and identifications procedures, where applicable.1

1 It is a common practice in the Criminal District Court for Orleans Parish for defense counsel to

file omnibus motions at the very inception of the prosecution in order to expedite the
proceedings. In many cases, these motions are filed even before the prosecution has provided
police reports and other file contents that would acquaint the defendant with the facts on which
the prosecution is based.

1

The defendant’s motions were heard on February 28, 2023. There is no

indication in the record that the state filed any responses to the defendant’s motions

in the seven-month interval between the filing of the motions by the defendant and

the hearing, whether an objection to form or a response on the merits. After taking

testimony on the motion to suppress evidence and the preliminary hearing, the trial

court denied the defendant’s motion to suppress and found probable cause for a

violation of R.S. 14:95.1. The defendant objected to the trial court’s ruling, and

noticed his intent to file a writ. The court set a return date of March 30, 2023, on

which date the defendant timely filed the instant writ application.

On April 3, 2023, this Court ordered the defendant to supplement his writ

application with the motion to suppress; ordered the state to file a response to the

instant writ application by April 17, 2023; and ordered the trial court to file a per

curiam regarding its February 28, 2023 ruling denying the motion to suppress by

April 17, 2023. The defendant supplemented his writ application with his motion

to suppress evidence on April 10, 2023; the trial court filed its per curiam on April

12, 2023; and the state filed its response on April 13, 2023.

The state called New Orleans Police Department Officer Alexandra Paciullo

(“Officer Paciullo”) as its only witness on the motion to suppress and the

preliminary hearing. She testified that she was dispatched to the defendant’s

residence on February 1, 2022 to investigate “a domestic disturbance called in by

[the defendant’s] fiancé at the time.” During her interview of the defendant

regarding the domestic disturbance, the defendant asked her if he could retrieve his

2

cigarettes from inside the residence, leading Officer Paciullo to ask, for purposes

of officer safety, if there were any firearms present in the home. The defendant

responded that there was a firearm in the dresser in the bedroom he and his fiancé

shared. Officer Paciullo testified that it appeared that the defendant lived at that

residence as upon her entry, she observed personal items “that seemed were [the

defendant’s]” when she entered. She stated that she conducted a “criminal history

check” and discovered that the defendant “was a convicted felon for second degree

battery in 2013.”

On cross-examination, Officer Paciullo agreed that “the dispatch was not for

a domestic abuse battery…there was no allegation of aggravated assault… [and] no

mentions of any firearms.” She recalled that she did not arrest the defendant “for

anything related to the domestic disturbance.” She explained that when she arrived

at the residence, the defendant and his fiancé were standing outside on the front

porch. She and the other officers interviewed the defendant and his fiancé

separately. The defendant explained that he had “gotten into a verbal argument”

with his fiancé, and that he would be willing to relocate for the evening. Defense

counsel had Officer Paciullo clarify that when asked about any firearms in the

house, the defendant said that his fiancé had a gun, and that the defendant had to

speak to his fiancé to determine its exact location.

While asking about the retrieval of the defendant’s cigarettes, Officer

Paciullo indicated a lack of memory, whereupon defense counsel had Officer

3

Paciullo refresh her recollection by viewing the recording from the bodycam she

wore that night. 2

The record reflects that a 51 second portion of the video was played and

Officer Paciullo indicated that her recollection had been refreshed. She then

conceded that the defendant’s exact words to his fiancé regarding the location of

the gun were “where’s the gun in the drawer?" Officer Paciullo testified that she

then asked the defendant where his cigarettes were located, and she entered the

residence to retrieve them, “and exited right away.” She stated that she did not

observe any weapons or contraband in plain view while she was in the residence.

Officer Paciullo testified that another officer conducted a criminal history

search and discovered a “misdemeanor warrant” for the defendant’s arrest,

whereupon he was secured in handcuffs. In the search incident to his arrest, no

weapon or contraband was found and the defendant was placed in the backseat of

the police vehicle. Officer Paciullo testified that she then re-entered the residence

and walked through the living room and two bedrooms, and then seized the firearm

from the top dresser drawer located in the second bedroom. She admitted that

neither the defendant nor his fiancé had given her permission to enter the residence

a second time. Officer Paciullo also stated that the defendant’s fiancé claimed

ownership of the firearm and denied that any other weapons were located inside

the home.

When asked about further investigation, Officer Paciullo stated that she did

not ask the defendant’s fiancé whether the defendant had ever used or held the gun,

nor did she test the gun for DNA or fingerprints, nor did she ask whether anyone

2 As will be discussed below, apparently the bodycam recording was displayed in such a manner

that it was visible to the trial court. The recording was not offered into evidence by either party.

4

else lived at the residence. She also said that she could have applied for a search

warrant “via CloudGavel,” but “chose not to.”

On redirect examination, Officer Paciullo testified that she had asked for,

and received, the defendant’s permission to enter the residence to retrieve his

cigarettes, and clarified that she had not re-entered the home to seize the firearm

until after she learned that the defendant was a convicted felon. She also stated that

the domestic disturbance claim was “nonviolent in nature,” although she could not

recall the specific allegations.

The trial court heard oral argument prior to ruling on the motion to suppress

and preliminary hearing. Counsel for the defendant argued first and contended that

the motion to suppress should be granted and the gun excluded because the police

had no search warrant and none of the exceptions to the warrant requirement

applied.3 In its rebuttal, the state mentioned that the defendant had given consent to

enter the house for purposes of retrieving his cigarettes, but did not explain how

that justified the search. The state also contended that the inevitable discovery

doctrine applied to these facts such that the motion to suppress should be denied.

The trial court denied the motion and found probable cause for a violation of R.S.

14:95.1.

THE TRIAL COURT’S PER CURIAM

Because the trial court simply denied the motion to suppress evidence

without elaboration, this Court ordered that it provide a per curiam. The trial court

complied and furnished an eight-page judgment expressing its view of the facts

and the rationale for its ruling. The trial court summarized the facts as follows:

3 Defense counsel also argued that the state had not established that the defendant had either

actual or constructive possession of the gun, and that the trial court should also conclude that
there was no probable cause for the arrest on the charge of R.S. 14:95.1.

5

I. STATEMENT OF THE CASE

During the February 28, 2023 hearing, Officer Alexandra Paciullo
testified about the circumstances surrounding the arrest. Specifically,
according to Officer Paciullo, she and another officer responded to a
call via dispatch by Mr. Montreal Davis’ fiance, Brittany Domino,
regarding a domestic disturbance, and upon arrival found Mr. Davis
and Ms. Domino at the residence. Officer Paciullo stated that she
spoke to Mr. Davis about the disturbance, at which point he requested
to go inside to grab his cigarettes. Before allowing him to enter the
residence, for purposes of officer safety, Officer Paciullo asked Mr.
Davis if she could come with him and whether there was a firearm in
the house. Mr. Davis advised that the house was his fiance’s house
and that there was a firearm in the house. Upon being asked where the
firearm was located, Mr. Davis asked Ms. Domino where the: firearm
was located and if it was in the drawer. She in turn indicated that it
was in the dresser drawer in the bedroom. The Officer then asked Mr.
Davis if she could retrieve his cigarettes for him. Mr. Davis pointed
inside the house and said “they’re right there.” On cross examination.
Officer Paciullo was unable to recall the exact point at which she
entered the house, so Defense Counsel played a portion of Officer
Paciullo’s body camera video from the night of the incident to refresh
her memory. Officer Paciullo’s body camera shows that she then
walked through the front two rooms of the shotgun style house and
retrieved the cigarettes from a table just inside the third room.
The body camera shows that after she retrieved the cigarettes
and verified that Mr. Davis lived in the residence, Officer Paciullo
further discussed the domestic dispute with Ms. Domino, who asked
the Officer to get her phone from the front room of the house so that
she could call her brother to arrange to stay with him. Following her
conversation with Ms. Domino, Officer Paciullo returned to speak to
Mr. Davis, asking him if he would also leave the property and
advising that they would both be free to go after the officers complete
their paperwork because Ms. Domino indicated that they just needed
some space. Another officer then approached Mr. Davis and placed
him in handcuffs informing him that he had an active warrant for his
arrest. Based on the officer’s body camera Mr. Davis said he just
completed parole for a conviction of a felon in possession of a
firearm. According to the testimony, after the officers secured Mr.
Davis in handcuffs and placed him in the back of the police cruiser,
they entered the home a second time. The body camera shows that
following Mr. Davis’ arrest, Officer Paciullo left the other officers,
reentered the house and asked Ms. Domino where the firearm was
located and whether they could retrieve it, and Ms. Domino responds
in the affirmative. Ms. Domino then shows the officers where the
firearm is located, and when asked about taking the firearm, Ms.
Domino advised that the officers could take the firearm. Officer
Paciullo retrieved the firearm from the open top drawer of the dresser,
which was located against the wall across from the bed. Officer

6

Paciullo removed the magazine from the firearm. The officers told
Ms. Domino that they had to take the firearm outside, and Ms.
Domino responded that she had no issue with the officers taking her
firearm. Following the Officer’s testimony, the State offered the
certified conviction packet of Mr. Davis, evidencing that Mr. Davis
had a previous conviction for Second Degree Battery.

The trial court then proceeded to discuss the current Fourth Circuit

jurisprudence on constructive possession and consent searches. The per curiam

concluded with the trial court’s reasoning that proper consent had been obtained

by Officer Paciullo to justify the retrieval of the weapon, and that the state

established probable cause for the constructive possession of the gun by the

defendant.

DISCUSSION

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

under a clearly erroneous standard and the district court’s ultimate determination

of Fourth Amendment reasonableness is reviewed de novo.” State v. Anderson,

2006-1031, p. 2 (La. App. 4 Cir. 1/17/07), 949 So. 2d 544, 546 (quoting State v.

Pham, 2001-2199, p. 3 (La. App. 4 Cir. 1/22/03), 839 So.2d 214, 218.)

“Accordingly, on mixed questions of law and fact, the appellate court reviews the

underlying facts on an abuse of discretion standard, but reviews conclusions to be

drawn from those facts de novo.” Id.

Problematic with the trial court’s per curiam in the instant case, is that it

appears to be based almost entirely on facts not in evidence. Throughout the trial

court’s analysis, it references the police-worn body camera footage used to refresh

Officer Paciullo’s memory while testifying at the hearing on the defendant’s

motion to suppress, which was not introduced into evidence at any time.

This Court noted in Talamo v. Shad, 619 So.2d 699, 701 (La. App. 4 Cir.

1993) that writings or recordings used to refresh a witness’s memory while

testifying at trial are not automatically introduced as evidence into the record.

7

La. C.E. art. 612 allows a witness to use any writing [or recording] to refresh

his memory while testifying. However, Authors’ Note (1) to C.E. art. 612

states:

When the witness has been permitted to consult the source, a writing,
for example, and it has not refreshed his memory to the extent that he
now has an independent recollection of the event in question, [C.E.
art. 612] does not authorize the witness to read the writing into
evidence, nor does it authorize the introduction of the writing, itself....
The purpose of [C.E. art. 612] is to give a witness an opportunity to
jog his memory so that he may testify from memory.

See also State v. Runnels, 2012-167, p. 12 (La. App. 3 Cir. 11/7/12), 101 So.3d

1046, 1055-56; State v. Johnson, 2001-0842, p. 12 (La. App. 5 Cir. 2/13/02), 812

So.2d 106, 115 (“when a writing is used to refresh a witness’ memory, it is the

testimony and not the writing which is the evidence.”)

In the per curiam, the trial court explains that it denied the defendant’s

motion to suppress based on its factual finding that the officers were given consent

to enter the house and retrieve the firearm; however this is not supported by the

evidence that is in the record. This is illustrated by the following exchange

between Officer Paciullo and defense counsel on cross-examination:

Q. After Mr. Davis was handcuffed and placed in the back of a squad
car, you entered the house another time?
A. Yes.
Q. And Mr. Davis did not give you permission to enter the house that
time?
A. No.
Q. And Ms. Domino did not give you permission to enter the house
that time?
A. I don’t recall that.
Q. Would it refresh your recollection to watch your body cam?
A. Sure.

Following her review of the video, Officer Paciullo’s testimony continued:

Q. Is your memory refreshed?
A. Yes, ma’am.

8

Q. So when you entered the residence the second time, you did not get
permission from Mr. Davis?
A. Correct.
Q. And you did not get permission from Ms. Domino?
A. Correct.
Q. So you just walked in through the door?
A. Yes.
Q. And you walked through the living room?
A. Yes.
Q. And you walked into the first bedroom?
A. Yes.
Q. And you told Ms. Domino that you had to ask her about her gun?
A. Yes.
Q. And Ms. Domino told you that the gun was in her bedroom?
A. Yes.
Q. And Ms. Domino told you that the gun was hers?
A. Yes.
Q. Ms. Domino told you that there were no other firearms in the
house?
A. Yes.
Q. And you recovered the gun from the dresser in the second
bedroom; is that right?
A. Yes.

“It is well established that an appellate court may not consider evidence

which is outside the record.” State v. Bentley, 2012-1106, p. 6 (La. App. 4 Cir.

5/15/13), 116 So.3d 891, 895 (citing State v. Johnson, 09-0259, p. 10 (La. App. 4

Cir. 9/16/09), 22 So.3d 205, 212.) In this case, because the trial court’s ruling

relied on evidence that was not introduced at the hearing, and this Court cannot

consider evidence that is not included in the record, it does not appear that the trial

court’s ruling is supported by the facts contained in the record before this Court.

Accordingly, a de novo review follows.

In argument following the hearing and in his writ application, the defendant

asserts that the trial court erred in denying his motion to suppress the firearm

recovered from the defendant’s residence because it was unconstitutionally seized.

Specifically, the defendant contends that Officer Paciullo entered his residence and

conducted a search without a warrant, and without consent from either the

9

defendant or his fiancé, and that no exception to the warrant requirement is

applicable in these circumstances. Therefore, the defendant argues the evidence

should be excluded.

In its response to the defendant’s writ application, the state first asserts that

the defendant filed only a general motion to suppress evidence contained in an

omnibus motion, which consisted entirely of boilerplate language, and failed to

allege specific facts that would require the granting of relief in this case. Thus, the

state argues, the defendant’s pleading was insufficient and a hearing should never

have been held to determine the issue, and the trial court did not err in denying the

motion on those grounds.

At the outset, it does not appear that the trial court even considered the

factual allegations (or lack thereof) contained in the defendant’s motion to suppress

evidence. In any event, La. C.Cr.P. art. 703(A) provides that any “defendant

adversely affected may move to suppress any evidence from use at the trial on the

merits on the ground that it was unconstitutionally obtained.” La. C.Cr.P. Art.

703(D) and (E) further provide pertinently:

D. On the trial of a motion to suppress filed under the
provisions of this Article, the burden of proof is on the
defendant to prove the ground of his motion, except that
the state shall have the burden of proving the
admissibility of a purported confession or statement by
the defendant or of any evidence seized without a
warrant.

E. (1) An evidentiary hearing on a motion to suppress
shall be held only when the defendant alleges facts that
would require the granting of relief. The state may file an
answer to the motion.

As observed earlier, the argument in its opposition to the writ application is

the first instance the state has complained about the sufficiency of the allegations

10

in the motion to suppress. Approximately seven months elapsed between the filing

of the motion to suppress and the hearing on that motion. No written objection to

the sufficiency of the defendant’s motion was placed in the record, nor was an

answer to the motion filed. Likewise, at the hearing on February 28, 2023, the

assistant district attorney representing the state said nothing about a lack of factual

allegations in the motion; she simply called Officer Paciullo to the witness stand.

Regardless of the facts alleged (or not) in the defendant’s motion, he was able to

show at the motion hearing that the police entered the residence and seized the

firearm in this case without a warrant. Thus, it was the state’s burden to prove the

admissibility of the evidence seized without a warrant. The state failed to carry that

burden.

The Fourth Amendment prohibits unreasonable searches and seizures and

protects both houses and effects. U.S. Const. Amend. IV. Similarly, the Louisiana

Constitution Article 1, § 5 provides pertinently:

Every person shall be secure in his person, property,
communications, houses, papers, and effects against
unreasonable searches, seizures, or invasions of privacy.
No warrant shall issue without probable cause supported
by oath or affirmation, and particularly describing the
place to be searched, the persons or things to be seized,
and the lawful purpose or reason for the search.

“[T]he Fourth Amendment has drawn a firm line at the entrance to the

house.” Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d

639 (1980). “The ‘physical entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed,’ and accordingly, warrantless

entries are considered presumptively unreasonable.” State v. Warren, 2005-2248,

p. 11 (La. 2/22/07), 949 So.2d 1215, 1225, (quoting United States v. Saadeh, 61

F.3d 510, 516 (7th Cir. 1995)). While exceptions to the warrant requirement apply

11

in some circumstances, the United States Supreme Court has held that, “in the

absence of consent or exigent circumstances…the entry into a home to conduct a

search or make an arrest is unreasonable under the Fourth Amendment unless done

pursuant to a warrant.” Steagald v. United States, 451 U.S. 204, 211, 101 S.Ct.

1642, 1647, 68 L.Ed.2d 38 (1981).

For example, “[p]olice generally need a warrant to enter a home, but

‘warrantless searches will be allowed when police have a reasonable belief

that exigent circumstances require immediate action and there is no time to secure

a warrant.’” Warren, 2005-2248, p. 9, 949 So.2d at 1224 (quoting United States v.

Lenoir, 318 F.3d 725, 730 (7th Cir.2003)). See also Kentucky v. King, 563 U.S.

452, 131 S.Ct. 1849, 1852, 179 L.Ed.2d 865 (2011) (The presumption of

unreasonableness of a warrantless search and seizure may be overcome when “the

exigencies of the situation make the needs of law enforcement so compelling that

[a] warrantless search is objectively reasonable under the Fourth Amendment.”).4

A warrantless search incident to a valid arrest may also be conducted on the person

of, and an area only within the immediate control of the arrestee. State v. Anthony,

98-0406, pp. 19-20 (La. 4/11/00), 776 So.2d 376, 389, (citing Chimel v. California,

395 U.S. 752, 768; 89 S.Ct. 2034, 2043, 23 L.Ed.2d 685 (1969)).

In this case, the state did not assert admissibility of the firearm based on

either of these exceptions to the warrant requirement, nor does it appear that either

exception applies. First, the circumstances were not so exigent that the officers had

no time to apply for a warrant. Officer Paciullo testified that the defendant was

4 The exigent circumstances exception “encompasses several common situations where resort to

a magistrate for a search warrant is not feasible or advisable, including: danger of flight or
escape, loss or destruction of evidence, risk of harm to the public or the police, mobility of a
vehicle, and hot pursuit.” United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002).

12

secured in handcuffs in the backseat of the police vehicle, his fiancé was outside

with the officers, and nobody else was present at the scene when she made the

warrantless entry into the residence. She also testified that she could have applied

for a warrant through CloudGavel if she had so chosen, but did not explain why

she declined. Secondly, the defendant was outside of the residence when he was

arrested, thus any area within his immediate control would not have included any

of the rooms inside the house, and certainly not his fiancé’s dresser drawer.

“Consent is [also] a well-recognized exception to the warrant requirement.”

State v. Strange, 2004-0273, p. 6 (La. 5/14/04), 876 So.2d 39, 42 (citing State v.

Owen, 453 So.2d 1202, 1206 (La.1984)). As discussed above, the trial court found

that the officers received consent to enter the residence, conduct the search, and

seize the firearm, albeit based on facts not introduced into evidence. However, the

state also appears to argue that the defendant’s acquiescence to Officer Paciullo’s

entry into the residence for the sole purpose of retrieving his cigarettes constituted

consent to a subsequent warrantless entry into the residence, and consent to a

search of his fiancé’s dresser drawer.

During argument at the motions hearing, it stated to the trial court, “[a]s far

as the warrantless entry into the home, officers did have permission to go into the

home to retrieve his cigarettes.” The state also asserts in its writ response that the

defendant consented to Officer Paciullo’s entry into the house to get his cigarettes

and never revoked or withdrew his consent, thus any subsequent entry and search

would have been authorized, citing State v. Johnson, 08-268, p. 9 (La. App. 5 Cir.

10/28/08), 996 So.2d 1151, 1156 (“Once voluntary consent to search is given, it

continues until it is revoked or withdrawn.”). The state also asserts that “the typical

reasonable person would have understood the exchange between [defendant] and

13

Officer Paciullo to entail a wide scope of consent, especially after the officers

unearthed [defendant]’s criminal history.” These arguments are unavailing.

For a search to be constitutional based on consent, the consent must have

been “voluntarily given, and not the result of duress or coercion, express or

implied.” Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2028, 2059

(1973). “When a prosecutor seeks to rely upon consent to justify the lawfulness of

a search, he has the burden of proving that the consent was, in fact, freely and

voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788,

1792 (1968). “[T]he scope of a suspect’s consent under the Fourth Amendment is

measured under a standard of ‘objective’ reasonableness—what would the typical

reasonable person have understood by the exchange between the officer and the

suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114

L.Ed.2d 297 (1991) (citing Illinois v. Rodriguez, 497 U.S. 177, 183-189, 110 S.Ct.

2793, 2798-2802, 111 L.Ed.2d 148 (1990)).

The scope of a search is generally defined by its expressed object. United

States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The Fourth

Amendment expressly provides that no warrant may issue except those

“particularly describing the place to be searched, and the persons or things to be

seized.” U.S. Const. Amend. IV. See also La. C.Cr.P. art. 162(C).

When an official search is properly authorized—whether
by consent or by the issuance of a valid warrant—the
scope of the search is limited by the terms of its
authorization. Consent to search a garage would not
implicitly authorize a search of an adjoining house; a
warrant to search for a stolen refrigerator would not
authorize the opening of desk drawers. Because
“indiscriminate searches and seizures conducted under
the authority of ‘general warrants’ were the immediate
evils that motivated the framing and adoption of the
Fourth Amendment,” Payton v. New York, 445 U.S. 573,

14

583, 100 S.Ct. 1371, 1378, 63 L.Ed.2d 639, that
Amendment requires that the scope of every authorized
search be particularly described.

Walter v. United States, 447 U.S. 649, 656-57, 100 S.Ct. 2395, 2401-02, 65

L.Ed.2d 410 (1980).

In the instant case, as the defendant asserts in his writ application, the

defendant authorized Officer Paciullo’s entry into the residence for the limited

purpose of retrieving his cigarettes from a specific location. Thus, the defendant’s

“consent” to enter particularly described the location of the object he sought

“seized,” and the scope of his authorization did not extend beyond that,

notwithstanding the state’s argument that the defendant never revoked or withdrew

his consent. Once Officer Paciullo went outside and brought the defendant his

cigarettes, Officer Paciullo was no longer authorized to enter the residence, and

any subsequent entry into the residence, especially a search of the defendant’s

fiancé’s dresser drawer located in the bedroom, was outside the scope of whatever

authorization the defendant initially provided. See State v. Malone, 39,996, p. 6

(La. App. 2 Cir. 9/23/05), 912 So.2d 394, 398 (“any search beyond the permitted

intrusion invalidates the voluntariness of the consent given to the extent that the

search exceeds the parameters for which the permission was granted.”).5

For these reasons, the state’s argument that the defendant’s consent for Officer

Paciullo to enter the residence to retrieve his cigarettes constituted valid consent

for her subsequent entry into the residence, search of the dresser drawer, and

seizure of the firearm, is without factual and legal support.

5 Considering the above discussion, it does not seem that an objectively reasonable person would

understand that defendant’s consent to Officer Paciullo’s request to get his cigarettes for him
“would entail a wide scope of consent,” to subsequently enter any room inside the residence at
any time and look through dresser drawers, notwithstanding the state’s assertion to the contrary.

15

The state also argued at the hearing that even if the firearm were

unconstitutionally seized, the evidence should not be suppressed as a consequence

of the illegal search and seizure because the officers would have inevitably

discovered the evidence by lawful means. Notably, the inevitable discovery

doctrine is not an exception to the warrant requirement and does not justify a

warrantless search or seizure; rather, it is an exception to the exclusionary rule,

which pre-supposes a Fourth Amendment violation for which the suppression of

evidence is a contemplated remedy. See Nix v. Williams, 467 U.S. 431, 104 S.Ct.

2501, 81 L.Ed.2d 377 (1984).

The “core rationale” for excluding evidence that is the fruit of unlawful

police conduct is “to deter police from violations of constitutional and statutory

protections.” Nix, 467 U.S. at 442-43. However, “[i]f the prosecution can establish

by a preponderance of the evidence that the information ultimately or inevitably

would have been discovered by lawful means…then the deterrence rationale has so

little basis that the evidence should be received.” Id., 467 U.S. at 444, 104 S.Ct. at

2509.

The inevitable discovery doctrine “is in reality an
extrapolation from the independent source doctrine:
Because the tainted evidence would be admissible if in
fact discovered through an independent source, it should
be admissible if it inevitably would have been
discovered.” Murray v. United States, 487 U.S. 533, 539,
108 S.Ct. 2529, 2534, 101 L.Ed.2d 472 (1988). A
functional similarity exists between the independent
source and inevitable discovery doctrines because both
seek to avoid excluding evidence the police “would have
obtained ... if no misconduct had taken place.” Nix v.
Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81
L.Ed.2d 377 (1984). The State therefore bears the burden
of proving by a preponderance of the evidence that “the
information ultimately or inevitably would have been
discovered by lawful means....” Id.; State v. Vigne, 01–
2940 (La. 6/21/02), 820 So.2d 533, 539. Application of

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the inevitable discovery doctrine thus “involves no
speculative elements but focuses on demonstrated
historical facts capable of ready verification or
impeachment....” Nix v. Williams, 467 U.S. at 444, 104
S.Ct. at 2509 n. 5; State v. Vigne, 820 So.2d at 539.

State v. Lee, 2005-2098, pp. 22-23 (La. 1/16/08), 976 So.2d 109, 127.

For example, in Nix, the defendant, having already obtained counsel, was

being transported by police to another jurisdiction and they were driving by an area

the police suspected he had disposed of his victim’s body. Without asking

questions per se, the officers convinced the defendant to lead them to the body.

This led the police to call off the massive community search that was underway,

when the searchers had been relatively close to the body’s location. 467 U.S. at

435-36, 104 S.Ct. at 2504-05. While the Court found that the police had illegally

elicited the inculpatory information from the defendant because he had not waived

his right to silence and did not have counsel present, the Court held that absent any

unlawful police activity, the search party would not have been called off and would

have inevitably found the body by lawful means. Id. 449-50.

In State v. Flores, 2010-0960, pp. 1-2 (La. 6/18/10), 37 So.3d 997, 998,

police entered a residence without a warrant or consent to conduct a security sweep

and secure the premises while obtaining a search warrant. In the process, defendant

consented to the search, and so the police halted the warrant application process.

Id. While the defendant’s consent to search was apparently found to have been

“tainted by its close temporal proximity to the entry of the officers,” the Supreme

Court nevertheless held the evidence admissible notwithstanding the initial illegal

entry, as “the warrant process was well underway, and the application was ‘pretty

much typed and…ready to print,’” when the process was terminated by

defendant’s consent. Id. at p. 2, 37 So.3d at 998. Further, “nothing the officers

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observed on the premises after their initial entry affected the decision to obtain a

warrant, and [] the probable cause basis for the warrant application derived not

from their observations on the scene but from [a confidential informant].” Id. Thus,

the record was clear that the officers would have obtained a valid warrant and have

inevitably discovered the contraband by lawful means. Id.

The Louisiana Supreme Court discussed the inevitable discovery doctrine in

Lee, supra, at pp. 23-24, 976 So.2d at 127-28:

Integral to the proper application of the inevitable
discovery doctrine is a finding that law
enforcement would have inevitably secured the evidence
by lawful means, not simply that they could have. Thus, a
mere showing that the police had probable cause for a
search and could have secured a warrant from a neutral
magistrate does not satisfy the doctrine, because it would
effectively obviate the Fourth Amendment preference for
warrants and reduce the exclusionary rule to cases in
which the police lack probable cause. See United States
v. Elder, 466 F.3d 1090, 1091 (7th Cir.2006) (“The usual
understanding of that doctrine is that the exclusionary
rule should not be applied when all the steps required to
obtain a valid warrant have been taken before the
premature search occurs [citing Murray v. United
States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472
(1988)].... If probable cause alone—without putting in
train the process of applying for a warrant—were enough
to invoke the inevitable-discovery doctrine, that would
have the same effect as limiting the exclusionary rule to
searches conducted without probable cause.”); see also 6
LaFave, Search and Seizure, § 11.4, at 278–79 (Fourth
Ed.) (“Circumstances justifying application of the
‘inevitable discovery’ rule are most likely to be present if
these [independent] investigative procedures were
already in progress prior to the discovery via illegal
means, as in Nix v. Williams, or where the
circumstances are such that, pursuant to some
standardized procedures or established routine a certain
evidence-revealing event would definitely have occurred
later.”).

(Emphasis in original.)

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In the instant case, the state failed to point to any alternative lawful means

that had been set in motion that would have made the discovery (and seizure) of

the firearm “inevitable,” nor were any discussed in Officer Paciullo’s testimony. At

no point did the officers apply for a warrant, nor begin to apply for a warrant; in

fact, Officer Paciullo testified that she could have, but chose not to. Nothing in the

record before this Court supports the theory that the police would have inevitably

accessed the firearm by lawful means. As discussed above, that the police could

have obtained a search warrant is insufficient for the state to meet its burden of

proving admissibility under the inevitable discovery doctrine. Consequently, we

find that the prosecution failed to carry its burden in establishing the admissibility

of the firearm that was unconstitutionally seized in this case.

CONCLUSION

For the reasons aforementioned, we find that the trial court erred when it

denied the defendant’s motion to suppress evidence. Accordingly, the defendant’s

writ is GRANTED, the judgment of the trial court is REVERSED, the motion to

suppress is GRANTED, and the matter is REMANDED for further proceedings.

WRIT GRANTED; REVERSED AND REMANDED

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