State Of Louisiana In The Interest of K.B.J.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2023 KJ 0734

STATE OF LOUISIANA IN THE INTEREST OF K.B. J.

Judgment Rendered: JAN 19 2024

Appealed from
The Juvenile Court
Parish of East Baton Rouge, State of Louisiana
No. 117856

The Honorable Curtis A. Calloway, Judge Ad Hoc Presiding'

Hillar C. Moore, III Attorneys for the State of Louisiana
District Attorney
Prisca Zeigler

Assistant District Attorney
Baton Rouge, Louisiana

Lakita Leonard Attorney for Appellant,
Baton Rouge, Louisiana K.B. J.

BEFORE: WELCH, HOLDRIDGE, 2 AND WOLFE, JJ.

Judge Calloway presided over the motion to suppress and adjudication hearings. Judge Adam
J. Haney presided over the disposition hearing.
2
The Honorable Guy Holdridge, retired, is serving as judge pro tempore by special appointment
of the Louisiana Supreme Court.

A jjv%)J, 4. Aa"
- q

WOLFE, J.,

The juvenile, K.B.J.,' was alleged delinquent by petition in juvenile court

rased on one count of illegal use of weapons or dangerous instrumentalities ( count

one), a violation of La. R.S. 14: 94, and one count of illegal possession of a handgun

by a juvenile (count two), a violation of La. R.S. 14: 95. 8. K.B. J. was fifteen years

old at the time of the alleged offenses. He filed a motion to suppress physical

evidence, which was denied. Following an adjudication hearing, the juvenile court

adjudicated K.B.J. not delinquent on count one and delinquent on count two. The

juvenile court imposed a disposition of commitment to the Department of Public

Safety and Corrections, Office of Juvenile Justice, for six months, suspended, and

twelve months supervised probation. K.B. J. now appeals, assigning error to the

juvenile court' s denial of his motion to suppress. For the following reasons, we

affirm the juvenile' s adjudication and disposition.

STATEMENT OF FACTS

On January 25, 2023, at 3: 53 p.m., an anonymous caller reported to the Baker

Police Department that they heard gunshots fired near an apartment complex on

Jefferson Street in Baker, Louisiana. The caller stated that two black male juveniles

wearing backpacks, one of whom was wearing camouflage, were seen leaving the

area. Minutes later, Lieutenant Bryan Holiday, an undercover officer in the area,

observed two black juvenile males wearing backpacks walking down Jefferson

Street. Using the dispatch radio, Lieutenant Holiday informed other officers that one

juvenile, K.B. J., was wearing a white hoodie, and the other juvenile was wearing a

black hoodie. Suspecting that they were the juveniles described in the call,

Lieutenant Holiday advised Officer Brian Thomas, a uniformed patrol officer, of

their location.

3
The initials of the juvenile involved in this matter will be used instead of his name to ensure
his confidentiality. See La. Ch. Code art. 412; Uniform Rules of Louisiana Courts of Appeal, Rule
5- 2.

2

Upon arriving on Jefferson Street, Officer Thomas observed the two juveniles

described by Lieutenant Holiday and conducted an investigatory stop. Officer

Thomas then patted down K.B. J., whereupon he located a firearm concealed inside

of K.B. J.' s pants. The juveniles were advised of their Miranda' rights and

transported to the police station.

MOTION TO SUPPRESS

In his sole assignment of error, K.B.J. argues that the juvenile court abused its

discretion in denying his motion to suppress evidence. Specifically, K.B.J. contends

that the juvenile court erroneously allocated the burden of proof in contravention of

La. Code Crim. P. art. 703( D), and that the firearm warranted suppression because

it was illegally seized.

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

of the Louisiana Constitution protect people against unreasonable searches and

seizures. Subject only to a few well-established exceptions, a search or seizure

conducted without a warrant issued upon probable cause is constitutionally

prohibited. State v. Baker, 2020- 1253 ( La. App. 1st Cir. 1111121), 332 So. 3d 692,

695. A juvenile may move to suppress any evidence on the ground that it was

unconstitutionally obtained. See La. Ch. Code art. 872; La. Code Crim. P. art.

703( A). Once the juvenile makes an initial showing that a warrantless search or

seizure occurred, the burden of proof shifts to the State to affirmatively show it was

justified under one of the narrow exceptions to the rule requiring a search warrant.

See La. Code Crim. P. art. 703( D); State v. Cyprian, 2021- 0287 ( La. App. 1 st Cir.

12122121), 340 So. 3d 271, 251.

4
Prior to any questioning, the person must be warned that he has the right to remain silent, that
any statement he does make may be used as evidence against him, and that he has a right to the
presence of attorney, either retained or appointed. The defendant may waive effectuation of these
rights, provided the waiver is made voluntarily, knowingly, and intelligently. Miranda v.
Arizona, 384 U. S. 436, 444- 45, 86 S. Ct. 1602, 1612, 16 L.Ed.2d 694 ( 1966).

3

A trial court' s ruling on a motion to suppress evidence is entitled to great

weight because the trial court had the opportunity to observe the witnesses and weigh

the credibility of their testimony. A trial court' s legal findings, however, are subject

to a de novo standard of review. State v. Landor, 2020- 0336 ( La. App. 1st Cir.

2/ 19/ 21), 318 So. 3d 225, 228. In determining whether the ruling on the defendant' s

motion to suppress was correct, we are not limited to the evidence adduced at the

hearing on the motion and may consider all pertinent evidence given at the trial of

the case. Id. Therefore, even assuming, arguendo, that the trial court erroneously

allocated the burden of proof to K.B. J., this error was immaterial where thorough

appellate review of the record clearly establishes the reasonableness and thus the

constitutionality of Officer Thomas' s initial stop and subsequent search of K.B.J.

The right of law enforcement officers to stop and interrogate one reasonably

suspected of criminal conduct is recognized by La. Code Crim. P. art. 215. 1, as well

as both federal and state jurisprudence. See Terry v. Ohio, 392 U.S. 1, 30- 31, 88

S. Ct. 1868, 1884- 85, 20 L.Ed.2d 889 ( 1968); 5 Cyprian, 340 So. 3d at 281- 82. A law

enforcement officer may stop a person in a public place whom he reasonably

suspects is committing, has committed, or is about to commit an offense and may

demand of him his name, address, and an explanation of his actions. La. Code Crim.

P. art. 215. 1( A); State v. Hicks, 2022- 0085 ( La. App. 1 st Cir. 9/ 16/ 22), 2022 WL

4286557, * 3 ( unpublished). Reasonable suspicion for an investigatory stop is

something less than probable cause6 and must be determined under the specific facts

5
Pursuant to the Fourth Amendment, a police officer who lacks probable cause but whose
observations lead him reasonably to suspect that a particular person has committed, is committing,
or is about to commit a crime, may detain that person briefly in order to investigate the
circumstances that provoke suspicion. The stop and inquiry must be reasonably related in scope
to the justification for their initiation. Terry, 392 U. S. at 30- 31, 88 S. Ct. at 1884- 85.
6
Probable cause is defined as " reasonable grounds for belief, supported by less than primafacie
proof but more than mere suspicion." State v. Warren, 2005- 2248 ( La. 2/ 22/ 07), 949 So. 2d 1215,
1224. " Probable cause to arrest exists when the facts and circumstances within an officer' s

knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a
person of average caution in the belief that the accused has committed an offense." State v. Wells,
2008- 2262 ( La. 7/ 6110), 45 So. 3d 577, 582- 83.

0

of each case by whether the officer had sufficient knowledge of particular facts and

circumstances to justify the infringement on the individual' s right to be free from

governmental interference. State v. Thompson, 2002- 0333 ( La. 419103), 842 So. 2d

330, 335; Hicks, 2022 WL 4286557 at * 3.

Further, if the law enforcement officer reasonably suspects the person

possesses a dangerous weapon, he may search the person. La. Code Crim. P. art.

215. 1( B). It is not necessary for an investigating officer to establish that a detained

individual was more probably than not armed and dangerous in order to justify a pat -

down for weapons. Rather, it is sufficient if the officer establishes a substantial

possibility of danger by pointing to particular facts that support such a reasonable

inference. State v. Young, 2020- 0412 ( La. App. Ist Cir. 3/ 18121), 322 So. 3d 830,

834, writ denied, 2021- 00524 ( La. 1011121), 324 So. 3d 1055. The reasonableness of

an officer' s suspicion must be measured by what the officer knew before conducting

the search. See Florida v, J.L., 529 U. S. 266, 271, 120 S. Ct. 1375, 1379, 146

L.Ed.2d 254 ( 2000); State v. McDonald, 2008- 0821 ( La. App. 1st Cir. 11114108),

2008 WL 49086551 * 5 ( unpublished), writ denied, 2008- 2905 ( La. 9118109), 17

So. 3d 386.

In determining whether reasonable suspicion exists to temporarily detain a

person, the totality of the circumstances, " the whole picture," must be considered.

The detaining officer must have knowledge of specific, articulable facts which, taken

together with rational inferences from those facts, reasonably warrant the stop.

Hicks, 2022 WL 4286557 at * 3. The officer must therefore articulate something

more than an inchoate and unparticularized suspicion or hunch. Young, 322 So. 3d

at 834.

In the instant case, the anonymous caller provided a general description of two

black male juveniles wearing backpacks, with one wearing camouflage, near an

apartment complex on Jefferson Street. After Lieutenant Holiday advised dispatch

5

that he located two juveniles matching the caller' s description, Officer Thomas

traveled to Jefferson Street, where he immediately observed the two juveniles

walking away from the apartment complex. These two juveniles, including K.B.J.,

were the only people in the area at that time.

Citing Florida v. J.L., K.B.J. contends that Officer Thomas lacked the

reasonable suspicion necessary to conduct an investigatory stop. In J.L., an

anonymous caller reported that a young black male standing at a bus stop and

wearing a plaid shirt was carrying a gun. Acting solely on the anonymous tip,

officers went to the bus stop and saw three black males, one of whom was wearing

a plaid shirt. Officers approached J. L., frisked him, and seized a gun from his pocket.

J.L., 529 U.S. at 268, 120 S. Ct. at 1377. The United States Supreme Court held that

the anonymous tip in J.L. lacked sufficient indicia of reliability to establish

reasonable suspicion for a Terry investigatory stop. J.L., 529 U.S. at 270, 120 S. Ct.

at 1378; see also State v. Lewis, 2018- 0924 ( La. 10/ 29118), 256 So. 3d 978, 979 (per

curiarn).

Whether an anonymous tip establishes reasonable suspicion to conduct an

investigatory stop is considered under the totality of the circumstances. The

sufficiency of an anonymous tip under Terry is determined by the reliability of its

assertion of illegality and not just its tendency to identify a determinate person.

Cyprian, 340 So.3d at 284. The anonymous caller' s ability to predict the suspect' s

future behavior goes toward reliability, as it demonstrates inside information and a

special familiarity with the suspect' s affairs. However, predictive ability is not

always necessary; a non -predictive tip coupled with police corroboration or

independent observation of suspicious activity can provide the police with the

requisite reasonable suspicion to detain a suspect. Id.

In the instant matter, we find no error in the trial court' s finding that Officer

Thomas had the requisite reasonable suspicion to conduct an investigatory stop of

6

K.B.T. and his associate based upon the information provided by the anonymous tip

and corroborated by police investigation. The anonymous caller in question

indicated that she heard gunshots and witnessed two black male juveniles, wearing

backpacks and camo, leaving the area of the apartment complex down Jefferson

Street, on foot. Soon thereafter, Officer Thomas witnessed two black male juveniles,

both wearing backpacks, walking down Jefferson street, away from the residential

area wherein gunshots were reported. While the defendant argues that neither of the

juveniles had on camouflage, we note that the record reflects that both young men

were wearing hooded sweatshirts, one white and one black, both of which contained

some sort of multi -colored graphic which could easily have been mistaken for a

camouflage print. Therefore, weighed against all of the other information accurately

relayed by the anonymous caller, the apparent lack of camouflage is not dispositive

of the caller' s reliability.

Moreover, the juvenile' s reliance on J.L. is misplaced. In J.L. the call was

made from an unknown location by an unknown caller, and reported only that an

individual possessed a gun without explaining how the caller knew this information.

J.L., 529 U.S. at 271, 124 S. Ct. at 1379. Conversely, the record of the anonymous

call made herein was introduced into evidence and reported that a gun had actually

been discharged, the caller heard the gunshot herself, and the call was coming from

the very location where the gun was discharged and where a shell casing matching

the firearm recovered from K.B. J. was later discovered. Finally, the caller accurately

predicted that the individuals who fired the gun would be walking down Jefferson

Street, away from the residential apartment complex from which the anonymous tip

originated and where the shots were initially fired. As several officers testified,

K.B.J. and his friend, both black male juveniles, and both wearing backpacks, were

seen leaving the area where gunshots had been fired, mere minutes after the gunshots

were reported, and were the only individuals on the street at that time. As such, this

7

case is distinguishable from J.L., and given the totality of the circumstances, Officer

Thomas possessed the reasonable suspicion necessary to conduct an investigatory

stop of K.B.J.

We likewise find Officer Thomas' s subsequent search of K.B.J. was valid. It

is not necessary for an investigating officer to establish that a detained person was

more probably than not armed and dangerous in order to justify a pat -down for

weapons. Rather, it is sufficient if the officer establishes a substantial possibility of

danger by pointing to particular facts that support such a reasonable inference.

Young, 322 So. 3d at 834. An individual' s nervous, evasive behavior is a pertinent

factor in determining whether an officer had reasonable suspicion. Illinois v.

Wardlow, 528 U. S. 119, 124, 120 S. Ct, 673, 676, 145 L.Ed.2d 570 ( 2000).

Officer Thomas testified that prior to detaining him, he observed K.B.J.

glancing nervously back and forth and acting as though he might flee. Furthermore,

the information available to Officer Thomas at the time of the detention suggested

that one or both of the individuals was armed with a gun. Moreover, the fact that

gunshots were reported indicates that the gun in question was both loaded and

operable, as it had recently been discharged. Taking into consideration the totality

of the circumstances, including Officer Thomas' s reasonable and ultimately

substantiated belief that K.B.J. was in possession of a handgun, we cannot say that

Officer Thomas' s protective frisk for officer safety was improper. Accordingly, the

trial court did not err in denying the motion to suppress evidence, and these

assignments of error are without merit. See Young, 322 So. 3d at 835.

ADJUDICATION AND DISPOSITION AFFIRMED.

STATE OF LOUISIANA STATE OF LOUISIANA

COURT OF APPEAL
IN THE INTEREST OF
FIRST CIRCUIT

K.B. J. 2023 KJ 0734

Holdridge, J., dissenting.

I respectfully dissent from the majority' s opinion. The Fourth Amendment to

the United States Constitution and Article I, § 5, of the Louisiana Constitution

protect people against unreasonable searches and seizures. Subject only to a few

well- established exceptions, a search or seizure conducted without a warrant issued

upon probable cause is constitutionally prohibited. A juvenile may move to

suppress any evidence on the ground that it was unconstitutionally obtained. See

La. Ch. Code art. 872; La. Code Crim. P. art. 703( A). Once the juvenile makes an

initial showing that a warrantless search or seizure occurred, the burden of proof

shifts to the State to affirmatively show it was justified under one of the narrow

exceptions to the rule requiring a search warrant. See La. Code Crim. P. art.

703( D); State v. Cyprian, 2021- 0287 ( La. App. 1st Cir. 12122121), 340 So. 3d 271,

281.

At the hearing on the motion to suppress, K.B.J. made an initial showing that

a warrantless seizure occurred, thereby meeting his burden of proof under La.

Code Crim. P. art. 703( D). Accordingly, the burden of proof then shifted to the

State to affirmatively show that the evidence seized was admissible. See La. Code

Crim. P. art. 703( D). A thorough review of the record reveals that the State failed

to meet its burden of proof that the warrantless search and seizure fell within a

well -delineated exception to the warrant requirement, and the juvenile' s motion to

suppress should have been granted.

The right of law enforcement officers to stop and interrogate one reasonably

suspected of criminal conduct is recognized by La. Code Crim. P. art. 215. 1, as

well as both federal and state jurisprudence. See Terry v. Ohio, 392 U.S. 1, 88

S. Ct. 1868, 20 L.Ed.2d 889 ( 1968); Cyprian, 340 So. 3d at 281- 82. A law

enforcement officer may briefly stop a person in a public place whom he

reasonably suspects is committing, has committed, or is about to commit an

offense and may demand of him his name, address, and an explanation of his

actions. La. Code Crim. P. art. 215. 1( A); State v. Hicks, 2022- 0085 ( La. App. 1 st

Cir. 9/ 16122), 2022 WL 4286557, * 3 ( unpublished). Reasonable suspicion for an

investigatory stop is something less than probable cause' and must be determined

under the specific facts of each case by whether the officer had sufficient

knowledge of particular facts and circumstances to justify the infringement on the

individual' s right to be free from governmental interference. State v. Thompson,

2002- 0333 ( La. 419103), 842 So.2d 330, 335; Hicks, 2022 WL 4286557 at * 3.

In determining whether or not reasonable cause exists to temporarily detain a

person, the totality of the circumstances, " the whole picture," must be considered.

The detaining officer must have knowledge of specific, articulable facts which,

taken together with rational inferences from those facts, reasonably warrant the

stop. The officer must therefore articulate something more than an inchoate and

unparticularized suspicion or hunch. Hicks, 2022 WL 4286557 at * 3.

When a law enforcement officer has stopped a person for questioning and

reasonably suspects he is in danger, he may frisk the outer clothing of the person to

feel for a dangerous weapon. Further, if the law enforcement officer reasonably

suspects the person possesses a dangerous weapon, he may search the person. La.

Probable cause is defined as " reasonable grounds for belief, supported by less than prima facie
proof but more than mere suspicion." State v. Warren, 2005- 2248 ( La. 2122107), 949 So. 2d
1215, 1224. " Probable cause to arrest exists when the facts and circumstances within an
officer' s knowledge, and of which he has reasonable and trustworthy information, are sufficient
to justify a person of average caution in the belief that the accused has committed an offense."
State v. Wells, 2008- 2262 ( La. 7/ 6! 10), 45 So. 3d 577, 582- 83.

2

Code Crim. P. art. 215. 1( B). It is not necessary for an investigating officer to

establish that a detained individual was more probably than not armed and

dangerous in order to justify a pat -down for weapons. Rather, it is sufficient if the

officer establishes a substantial possibility of danger by pointing to particular facts

that support such a reasonable inference. State v. Young, 2020- 0412 ( La. App. 1 st

Cir. 3118121), 322 So. 3d 830, 834, writ denied, 2021- 00524 ( La. 1011121), 324

So. 3d 1055.

According to Officer Thomas, the dispatch call provided a general

description of two juvenile males wearing backpacks, with one wearing

camouflage, in the area of Jefferson Street. As he drove down Jefferson Street, he

observed K.B. J., who was " kind of looking back and forth nervous[ ly,]" and

another juvenile subject. After Officer Thomas parked his vehicle and activated

the lights, he immediately ordered the two juveniles to place their hands on the

front of his vehicle. He did not identify himself as an officer, nor did he ask the

juveniles for their names or addresses, an explanation for their actions, whether

they had contraband, or whether they consented to a search. Although he did not

observe anything, firearm or otherwise, in the juveniles' hands, Officer Thomas

then conducted a pat -down search of K.B. J. for " officer safety" and subsequently

located the firearm concealed in his pants. Officer Thomas testified that he

stopped the two juveniles primarily because Lieutenant Holiday had already

identified them, and they were leaving the area where gunshots were reported.

Finally, Officer Thomas conceded that his body -cam footage showed K.B.J.

wearing a white hoodie, not a camouflage hoodie.

At the hearing and on appeal, K.B.J. contends the instant case is similar to

Florida v. J.L., 529 U. S. 266, 268- 69, 120 S. Ct. 1375, 1377, 146 L.Ed. 2d 254

2000), wherein an anonymous caller reported that a young black male standing at

a particular bus stop and wearing a plaid shirt was carrying a gun. Acting solely on

3

the anonymous tip, officers went to the bus stop about six minutes later and saw

three black males, one of whom was wearing a plaid shirt. The officers did not see

a firearm, and the defendant made no threatening or otherwise unusual movements.

Apart from the anonymous tip, officers had no reason to suspect any illegal

conduct. Nonetheless, officers approached J.L., frisked him, and seized a gun from

his pocket.

The United States Supreme Court held that the anonymous tip in J.L. lacked

sufficient indicia of reliability to establish reasonable suspicion for a Terry

investigatory stop. Unlike a tip from a known informant whose reputation can be

assessed and who can be held responsible if his allegations turn out to be

fabricated, " an anonymous tip alone seldom demonstrates the informant' s basis of

knowledge or veracity." J.L., 529 U.S. at 270, 120 S. Ct. at 1378 ( quoting

Alabama v. White, 496 U. S. 325, 329, 110 S. Ct. 2412, 24151 110 L.Ed.2d 301

1990)). Finally, the fact that the allegation about the gun turned out to be true did

not indicate that the officers, prior to the frisks, had a reasonable basis for

suspecting J. L. of engaging in unlawful conduct. The court stated:

An accurate description of a subject' s readily observable location and
appearance is of course reliable in this limited sense: It will help the
police correctly identify the person whom the tipster means to accuse.
Such a tip, however, does not show that the tipster has knowledge of
concealed criminal activity. The reasonable suspicion here at issue
requires that a tip be reliable in its assertion of illegality, not just in its
tendency to identify a determinate person.

J.L., 529 U. S. at 272, 120 S. Ct. at 1379.

In White, an anonymous caller reported that a woman was carrying cocaine

and that she would leave an apartment building at a specified time, get into a

particular car, and drive to a named motel. White, 496 U. S. at 327, 110 S. Ct. at

2414. The court held that the anonymous tip, as corroborated by police, exhibited

sufficient indicia of reliability to justify an investigatory stop of White' s car.

Although not every detail mentioned in the tip was verified by police prior to the

4

stop, the court concluded that the informant' s ability to predict White' s future

behavior, and police corroboration of significant aspects of the tip, were sufficient

to furnish reasonable suspicion for the investigatory stop. Emphasizing the insider

quality of predictive information, the court concluded that verification of the

innocent" aspects of the anonymous tip gave police reason to believe that the

allegations of criminal activity were probably true as well. Id. at 331- 32, 110 S. Ct.

at 2416- 17.

The Louisiana Supreme Court has held that an anonymous tip lacking

sufficient indicia of reliability does not provide officers with reasonable suspicion

to detain a defendant, even where officers sufficiently corroborate the defendant' s

identity. See State v. Lewis, 2015-0924 ( La. 10/ 29/ 18), 256 So. 3d 978, 979 ( per

curiam); State v. Robertson, 97- 2960 ( La. 10/ 20198), 721 So. 2d 1268, 1271. In

Robertson, an anonymous caller reported the defendant' s name, appearance, and

location of his vehicle when he " wasn' t dropping off narcotics." After officers

observed the defendant, who matched the caller' s description, enter the described

vehicle at the described location, they confirmed that he was the person identified

in the call. After a canine detected the odor of narcotics, officers searched his

vehicle and found crack cocaine. Robertson, 721 So. 2d at 1268- 69. Although

officers sufficiently corroborated certain aspects of the tip, the tip failed to provide

predictive information for police to sufficiently conclude that the allegation of

criminal activity was reliable. Thus, officers did not have reasonable suspicion to

detain the defendant. Id. at 1270- 71.

Based on the foregoing, I would find that the State failed to prove that the

stop and frisk of K.B. J. was lawful, and the trial court erred in denying K.B. J.' s

motion to suppress evidence. As in J.L. and Robertson, the anonymous tip herein

lacked the sufficient indicia of reliability necessary to provide officers with

reasonable suspicion to detain K.B. J. Contrary to the State' s argument on appeal,

5

the anonymous caller did not provide any predictive information to test her

knowledge or credibility. The caller stated that the juveniles were leaving the area

where gunshots were reportedly fired. These are easily obtained facts existing at

the time of the tip, not future behaviors that demonstrate a special familiarity with

the individual' s personal affairs. See White, 496 U.S. at 332, 110 S. Ct. at 2417.

Moreover, the caller did not state that the juveniles were armed with a gun or

responsible for the gunshots fired. Based on the details provided in the tip, it was

not reasonable for the officers to believe that the caller had access to reliable

information about the juveniles' alleged criminal activity. Accordingly, there was

no predictive information regarding future behavior or criminal activity that police

could have verified upon arrival to justify an investigative stop.

Moreover, the caller demonstrated that she was less reliable by providing an

inaccurate description of the juveniles. Her description —that one of the juveniles

was wearing camouflage — was wholly inconsistent with the testimony of four

officers, including Officer Thomas, as well as Officer Thomas' s body -cam footage,

which clearly depicted K.B.J. wearing a white hoodie and the other juvenile

wearing a black and yellow hoodie. Although the State acknowledges on appeal

that the juveniles were not wearing camouflage, they nevertheless maintain that the

juveniles matched the complainant' s description because their clothing could have

been " easily ... mistaken, from a distance, as camouflage." While that may have

been true for the anonymous caller, officers arriving on Jefferson Street had a

closer view of the two juveniles and could have easily determined that neither

juvenile was wearing camouflage. Thus, the discrepancy between the caller' s

description and the officers' personal observations should have alerted officers to

the unreliability of the anonymous tip.

Finally, officers did not corroborate the anonymous
tip through an

independent investigation. Their suspicion that K.B.J. was carrying a weapon

C

arose not from their own personal observations but solely from the anonymous tip.

Prior to conducting the pat -down search, the only information that officers

possessed was an anonymous report of gunshots fired near the apartment complex

on Jefferson Street and two juvenile males wearing backpacks, one of whom was

wearing camouflage, seen leaving the area. When Officer Thomas spotted the

juveniles, he noticed K.B.J. look around nervously but did not observe a firearm on

him. Only after Officer Thomas frisked K.B.J. did he discover a firearm concealed

in his pants. Thus, prior to frisking K.B.J., there were no readily observable facts

upon which officers could corroborate the information from the anonymous tip.

Rather, because the juveniles were walking away from the apartment

complex on Jefferson Street where gunshots were reportedly fired, officers

assumed that they were the juveniles described in the anonymous tip. The State on

appeal contends that because the juveniles were in the area " as predicted by the

caller," officers had reasonable suspicion to stop the juveniles. However, the fact

that K.B.J. was in that location was reliable only to the extent that it identified the

individuals accused in the anonymous tip. It stopped well short of proof that K.B.J.

was engaged in criminal activity. See J.L., 529 U. S. at 272, 120 S. Ct. at 1379.

Thus, K.B.J.' s presence on Jefferson Street, combined with the unreliability of the

anonymous tip and the lack of corroboration by police, did not provide Officer

Thomas with reasonable suspicion to conduct an investigatory stop. See Lewis,

256 So. 3d at 979; Robertson, 721 So. 2d at 1271.

Accordingly, I find that the State failed to prove that the investigatory stop

of K.B. J. was constitutional. See State v. Herrington, 2007- 0070 ( La. App. 4th

Cir. 6/ 20107), 961 So,2d 1271, 1277- 78, writ denied, 2007- 1528 ( La. 8131107), 962

So. 2d 429 ( where anonymous tip provided reliable information as to name and

description, but provided no predictive information regarding criminal activity,

investigatory stop not justified without suspicious activity or corroboration of

VA

tipster' s information); cf. State in the Interest of A.J., 2013- 2108 ( La. App. 1st

Cir. 3124114), 2014 WL 1203210, * 4 ( unpublished) ( after independently observing

suspects near backyard of complainant' s residence, officers had reasonable

suspicion to briefly detain suspects who matched description provided by known

complainant).

Moreover, even assuming arguendo that the stop was constitutional, the

State likewise failed to prove that the frisk of K.B.J. was lawful. When an officer

has reasonable suspicion that a person has committed a crime, he may stop the

person and ask for their name, address, and an explanation of their actions. La.

Code Crim. P. art. 215. 1( A); Terry, 392 U.S. at 22- 23, 88 S. Ct. at 1880- 81.

Further, if the officer reasonably suspects that he is in danger, he may frisk the

person' s outer clothing for a dangerous weapon. La. Code Crim. P. art. 215. 1( B);

Terry, 392 U.S. at 28, 88 S. Ct. at 1883.

Officer Thomas' s actions were in clear violation of La. Code Crim. P. art.

215. 1( A) and Terry. As soon as Officer Thomas stepped out of his vehicle, he

ordered the juveniles to place their hands on the vehicle and immediately removed

K.B.J.' s backpack and patted him down, which led to the discovery of a firearm.

Thus, Officer Thomas did not conduct any investigative inquiry prior to frisking

K.B.J. for weapons. Furthermore, Officer Thomas failed to articulate particularized

facts upon which to conclude that there was a substantial possibility that K.B. J.

was armed and dangerous prior to frisking him for weapons. Hopefully, the time

has long passed that this court considers legal or acceptable, the " normal practice"

of police officers conducting pat -down searches upon initially making contact with

African American teenagers walking on a public street. See Florida v. J.L., 529

U.S. at 271- 74, 120 S. Ct. at 1379- 80; State v. Sims, 2002- 2208 ( La. 6127103), 851

So. 2d 1039, 1045; State in the Interest of J.H., 2011- 324 ( La. App. 5th Cir.

12128111), 83 So. 3d 1100, 1106; State v. Mulder, 2011- 0424 ( La, App. 4th Cir.

8

10119/ 11), 76 So. 3d 1241, 1246; writ denied, 2011- 2511 ( La. 1211111), 76 So. 3d

1160. Officer Thomas testified that prior to conducting the pat -down, he

categorically did not fear for his safety. According to Officer Thomas, it was a

normal practice" for him to conduct pat -downs when " making contact with

anybody in the public[.]" Although he made generalized statements about officer

safety and how he noticed a " pattern" with " these subjects[,]" he failed to point to

specific facts substantiating the need to pat down K.B. J.

Officer Thomas' s reliance on uncorroborated information from the

anonymous tip and the fact that K.B. J. was in the general area was woefully

insufficient to support a reasonable suspicion that K.B.J. was involved in criminal

activity, let alone armed and dangerous. While we agree with the State that

firearms are dangerous and pose a serious threat to public safety, " the Fourth

Amendment is not so easily satisfied[,]" where Terry frisks are conducted on the

basis of bare -boned tips about guns. See J.L., 529 U.S. at 272- 73, 120 S. Ct. at

1379- 80. Acting only on an anonymous tip, Officer Thomas provided no

articulable facts giving rise to a reasonable belief that such aggressive tactics were

necessary or that such restraint was justified. See State v. Porche, 2006- 0312 ( La.

11129106), 943 So. 2d 335, 339 ( per curiam); cf. State v. Turner, 2013- 0180 ( La.

311113), 108 So. 3d 753, 755. Had the officer complied with the parameters of

Article 215. 1, it is entirely feasible that the juvenile would have been able to

explain his presence on a public road in a residential area in the middle of the

afternoon. Moreover, given that the incident occurred on a Wednesday, shortly

after school dismissal, it is also feasible that he could have explained why he was

carrying a bookbag. Instead, it is clear from the record that the officer in this case

conducted a weapons frisk absent any information beyond what he learned from

the anonymous tip, and in direct contravention of the constitutional and statutory

protections against illegal search and seizures.

Z

Based on the foregoing, I find that the trial court erred as a matter of law in

denying the juvenile' s motion to suppress the illegal search and seizure conducted

in this matter, and I respectfully dissent from the majority' s opinion.

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