State of Louisiana v. Kelvin Atkins

STATE OF LOUISIANA * NO. 2025-K-0186

VERSUS *
COURT OF APPEAL
KELVIN ATKINS *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

ON SUPERVISORY WRIT FROM THE
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 560-698, SECTION “A”
Honorable Calvin Johnson, Judge
******
Judge Karen K. Herman
******
(Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Karen
K. Herman)

JASON R. WILLIAMS
District Attorney
Parish of Orleans
BRAD SCOTT
Assistant District Attorney
619 South White Street
New Orleans, LA 70119

COUNSEL FOR RELATOR, THE STATE OF LOUISIANA

JESSICA F. HAWKINS
PO Box 5072
Baton Rouge, LA 70802

COUNSEL FOR RESPONDENT, KELVIN ATKINS

WRIT GRANTED AND REVERSED
MAY 21, 2025

KKH
RML
PAB
Relator, the State of Louisiana (“the State”), seeks supervisory review of the

trial court’s March 14, 2025 ruling, which partially granted the motion to suppress

statements filed by Defendant, Kelvin Atkins. For the following reasons, we grant

the writ application and reverse the trial court’s granting of the motion to suppress

in part.

STATEMENT OF THE CASE

On January 26, 2024, the State filed an indictment charging Defendant,

Kelvin Atkins, with multiple offenses, including the domestic abuse battery and

second degree murder of Johnshane Powell, as well as several counts of felon in

possession of a firearm, several counts of theft (including two counts of theft of a

firearm), obstruction of justice, and violation of a protective order, violations of

La. R.S. 14:35.3, 14:30.1, 14:95.1, 14:67(B)(4), 14:67.15, 14:130.1, and

14:79(C)(1), respectively.

Defendant appeared for arraignment on February 6, 2024 and entered pleas

of not guilty.

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On March 14, 2025, the trial court1 held a hearing on a motion to suppress

statement, wherein it denied the motion in part and granted the motion in part.2

Specifically, the trial court denied the motion to suppress with regard to statements

made by Defendant “while in custody at the First District” and the statements

Defendant made “pre-Miranda until he is made to sit down.” The trial court,

however, granted the motion to suppress with respect to statements Defendant

made “after [Defendant] is told to sit down on the steps.”3

The State thereafter timely filed writs in this Court.

STATEMENT OF THE FACTS

Testimony and Evidence

NOPD Homicide Detective Tanisha Sykes-Smith testified that she was

assigned as the lead investigator in this case and that she conducted an audio and

video recorded interview of Defendant on July 6, 2023 in connection with the

homicide of Johnshane Powell after issuing Miranda warnings.4

NOPD Officer Dominique Marie Lawrence (“Off. Lawrence”) testified that

five days earlier, on July 1, 2023, she responded “to a call for a domestic incident,”

that involved Defendant. She testified that she was wearing a body camera at the

1 Judge Calvin Johnson presided over the hearing. Judge Johnson was appointed by the Supreme
Court ad hoc as all of the judges in the criminal district court recused themselves due to a
familial relationship between the victim and a sitting judge.

2 The docket master does not reflect that the defense actually filed a motion to suppress.

However, the record reflects a hearing and ruling on the motion. Moreover, the State does not
complain in its writ application that the trial court erred in holding a suppression hearing.

3 The State notes in its writ that the trial court granted the motion to suppress statements

occurring after 1:50:40 a.m. on July 1, 2023, but denied it with respect to statements that
occurred prior to 1:50.40 a.m. and those made during Defendant’s interrogation on July 6, 2023.

4 The State introduced Defendant’s recorded interview and played it for the court. However, the

admissibility of these statements is not at issue in this case and the exhibit was not included with
the instant writ application.

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time which captured the events at the scene. The State introduced the body camera

footage and played it for the court.

The video depicts Off. Lawrence’s arrival at the scene, and the victim

reporting that Defendant stole her purse, which contained her car keys, credit

cards, and firearm. The victim also reported that Defendant had fled the scene with

his cousin in a vehicle. Defendant approached the scene shortly thereafter and

explained that the victim was his girlfriend and they were just “fussing” with each

other. Off. Lawrence asked Defendant if he possessed the victim’s firearm, which

he denied, and Defendant and the victim began arguing with each other. The victim

stated that Defendant had beaten her, bit her leg, and pulled her hair, and that she

wanted to “press charges.” Off. Lawrence then asked Defendant for his side of the

story. He denied injuring the victim, but he admitted that he had taken the victim’s

purse because she refused to return some of his belongings. Defendant continued

arguing with the victim despite the officer’s requests that he leave her alone. The

video then reflects Off. Lawrence asking Defendant what he had done with the

victim’s firearm. He denied having the gun. Off. Lawrence then continued to

interview the victim and Defendant can be seen in the background pacing up and

down the sidewalk speaking on his phone, occasionally walking past the victim

and continuing to engage with her.

Officer Droemann (“Off. Droemann”) arrived at the scene a few minutes

later. Off. Lawrence directed Off. Droemann to tell Defendant, who was still

walking up and down the sidewalk on the phone, sit down or “stay down here.”

Sergeant Patrick (“Sgt. Patrick”), who Off. Lawrence called to the scene,

arrived later. Off. Lawrence explained to Sgt. Patrick that she had been unable to

initiate a substantive investigation because her initial priority was locating the

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firearm the victim alleged Defendant had stolen, and because Defendant and the

victim would not stop “bickering” with each other.

Off. Lawrence testified that when she arrived, the scene was “chaotic” and

the case was “still under investigation.” She claimed that Defendant was free to

leave at that point, stating, “He actually—when I first arrived to speak with the

victim at the time, he jumped into a vehicle and drove away; he came back at a

later time.” Off. Lawrence testified that Defendant was not in custody until he was

secured in handcuffs and issued Miranda warnings. Off. Lawrence authenticated

the body camera footage taken from Off. Droemann’s police-worn body camera

which also recorded the events at the scene and was introduced into evidence.

A review of Off. Droemann’s body camera footage reflects his arrival at the

scene. The footage shows Off. Lawrence and another female officer asking

Defendant on several occasions to stay away from the victim. Defendant continued

to walk up and down the sidewalk while speaking on the phone. Off. Droemann

then told Defendant to “do [him] a favor and have a seat right here,” and offered to

answer any questions Defendant may have. Defendant sat on the front steps of a

nearby residence and proceeded to tell Off. Droemann why he took the victim’s

belongings. Defendant accused the victim of stealing his phone, and Off.

Droemann asked Defendant to describe the phone. Off. Droemann also asked

Defendant what he had taken from the victim, and Defendant responded that he

had already returned the items.

Sgt. Patrick then approached Defendant on the porch steps and asked,

“What’s going on tonight?” Defendant essentially repeated the information he gave

to Off. Droemann. After Sgt. Patrick went to speak to the victim down the street,

Defendant asked another officer walking by if he could speak to him as well,

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although the other officer kept walking. Defendant also called to Sgt. Patrick while

he was speaking with the victim. When Sgt. Patrick returned, Defendant again

related his version of events. After several minutes of discussion, Sgt. Patrick

secured Defendant in handcuffs, and explained that he was being detained for the

duration of the investigation. Thereafter, Off. Droemann searched Defendant’s

pockets and placed him in the back seat of his patrol car.

Off. Lawrence testified that once Defendant was told to sit down on the

steps, he began asking Off. Droemann and Sgt. Patrick if he could speak with

them. She stated once Defendant was secured in handcuffs, he was no longer free

to leave.

On cross-examination, Off. Lawrence clarified that the victim had informed

her that Defendant had departed the scene in a vehicle prior to the arrival of law

enforcement, and upon his return to the scene, he was a suspect in the

investigation. She admitted that victim had advised her that a “battery occurred”

and that there was a “potential theft.” However, Off. Lawrence explained that she

was still conducting her investigation and Defendant was neither detained nor

under arrest at that time, stating, “You have to hear both sides, and I hadn’t

investigated his version because he made accusations that the victim stole his

property as well.” Off. Lawrence stated that had Defendant “attempted to leave and

I—during my investigation, I found that everything she stated was true, a warrant

would have been placed for his arrest, had he left the scene.”

Off. Lawrence stated that following Defendant’s allegations against the

victim, an officer at the scene asked Defendant to sit down to continue the

discussion regarding both his and the victim’s reciprocal criminal accusations.

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Off. Lawrence maintained that Defendant was still free to leave at that time. She

admitted that there were four officers investigating the scene.

Argument and Trial Court’s Ruling

Following the presentation of evidence at the hearing, the State argued that

Defendant was neither detained nor arrested until he was secured in handcuffs;

thus, he was not in custody when he made his statements to police. The State

further asserted that Defendant voluntarily and continuously initiated his

conversations with the officers thus he was not subject to an interrogation.

Accordingly, the State argued that the officers were not required to issue Miranda

warnings and his statements should not be suppressed.

Defendant argued, however, that because he was a suspect in the

investigation even prior to his return to the scene, any statements he made to the

officers at the scene, even in response to Off. Lawrence’s questions regarding the

location of the victim’s firearm, should be suppressed in the absence of Miranda

warnings. Defendant further argued that once Sgt. Patrick approached his location

on the front steps of the residence where Defendant was conversing with Off.

Droemann, he was, at that moment, “surrounded by more than one officer,” and

“would not have believed that he was free to leave at that time;” thus, his

statements to Sgt. Patrick should be suppressed.

The trial court thereafter ruled as follows:

As regards [to] the statements made while he was
in custody at the First District, those statements are
admissible simply because he was informed of his rights
and he waived those rights.

As regards to [the] statements he made pre-
Miranda until he is made to sit down, he was free to
leave. He was absolutely free to leave. In fact, he left and
came back and he left and came back. I see you shaking

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your head Mr. Atkins. He left and came back. He walked
away. He walked away. He came back. He walked away.
He came back. Obviously, he was free to leave. The only
point in this whole conversation when he arguably wasn’t
free to leave is when he was told to sit down on the steps.
Now, whatever he said after he’s told to sit down on the
steps, this court is going to suppress. Everything else he
said, however, is admissible.

DISCUSSION

In its writ application, the State argues that the trial court erred in

suppressing the statements Defendant made after Off. Droemann asked him to sit

down, on the grounds that Defendant “arguably wasn’t free to leave.” The State

asserts that “whether someone is free to leave” is the “incorrect standard” to

determine whether Miranda warnings are required. The State argues that the

evidence presented in the instant case did not demonstrate that Defendant was

subjected to “custodial interrogation triggering the need for Miranda warnings,” as

he had not been subjected to any “significant restraint associated with formal

arrest.”

When a trial court finds facts based on the weight and credibility of

witnesses’ testimony, a reviewing court may not overturn those findings unless

there is no evidence to support them. State v. Wells, 2008-2262, p. 5 (La. 7/6/10),

45 So.3d 577, 581. On the other hand, a trial court’s holdings on questions of law

are reviewed de novo. Id. at p. 4, 45 So.3d at 580.

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966),

provides that:

[T]he prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against
self-incrimination. By custodial interrogation, we mean

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questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his
freedom of action in any significant way.

“Miranda only applies if three conditions are met: (1) the defendant is in

‘custody’ or significantly deprived of freedom, (2) there is an ‘interrogation,’ and

(3) the interrogation is conducted by a ‘law enforcement officer’ or someone acting

as their agent.” State v. Bernard, 2009-1178, p. 5 (La. 3/16/10), 31 So.3d 1025,

1029. “Custody is decided by two distinct inquiries: an objective assessment of the

circumstances surrounding the interrogation to determine whether there is a formal

arrest or restraint on freedom of the degree associated with formal arrest; and,

second, an evaluation of how a reasonable person in the position of the interviewee

would gauge the breadth of his freedom of action.” State v. Hankton, 2012-0466, p.

13 (La. App. 4 Cir. 4/30/14), 140 So.3d 398, 407.

To evaluate how a reasonable person in the defendant’s position would

“gauge the breadth of his freedom of action,” courts review the totality of the

circumstances surrounding the interrogation, “including any circumstance that

would have affected how a reasonable person in the suspect’s position would

perceive his or her freedom to leave, but ignoring the subjective views harbored by

either the interrogating officers or the person being questioned.” State v.

Robertson, 2017-0398 p. 3 (La. App. 4 Cir. 5/12/17), 219 So.3d 1125, 1127-28

quoting J.D.B. v. North Carolina, 564 U.S. 261, 271, 131 S.Ct. 2394, 2402, 180

L.Ed.2d 310 (2011)) (internal quotations omitted).

Relevant factors include the location of the questioning,
see Shatzer, supra, at 130 S.Ct., at 1223–1226, its duration, see
Berkemer v. McCarty, 468 U.S. 420, 437–438, 104 S.Ct. 3138,
82 L.Ed.2d 317 (1984), statements made during the interview,
see Mathiason, supra, at 495, 97 S.Ct. 711; Yarborough v.

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Alvarado, 541 U.S. 652, 665, 124 S.Ct. 2140, 158 L.Ed.2d 938
(2004); Stansbury, supra, at 325, 114 S.Ct. 1526, the presence
or absence of physical restraints during the questioning, see
New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81
L.Ed.2d 550 (1984), and the release of the interviewee at the
end of the questioning, see California v. Beheler, 463 U.S.
1121, 1122-1123, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).

Howes v. Fields, 565 U.S. 499, 509, 132 S.Ct. 1181, 1189 (2012).

The State notes that Defendant was in public, unrestrained, using a cell

phone, and had neither been searched nor surrounded by police at the time he made

the statements. While the State acknowledges that Defendant may have been

detained while police initiated their investigation, it cites to State v. Barabin, 2013-

0334, p. 6 (La. App. 4 Cir. 9/11/13), 124 So.3d 1121, 1124, which recognized that

“a mere detention does not trigger the need for Miranda warnings, and the use of

handcuffs does not necessarily escalate a detention into a state of being ‘in

custody’ for Miranda purposes.”

La. C.Cr.P. art. 215.1(A) provides in pertinent part:

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.

The U.S. Supreme Court has long held that the brief detention and

preliminary questioning of a suspect to determine whether a crime has been

committed is not a custodial interrogation requiring the protections of Miranda:

[A] policeman 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.” United States v. Brignoni–Ponce, 422 U.S.
873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975).

9

“[T]he stop and inquiry must be ‘reasonably related in
scope to the justification for their initiation.’” Ibid.
(quoting Terry v. Ohio, supra, 392 U.S., at 29, 88 S.Ct.,
at 1884.) Typically, this means that the officer may ask
the detainee a moderate number of questions to
determine his identity and to try to obtain information
confirming or dispelling the officer's suspicions... The
comparatively nonthreatening character of detentions of
this sort explains the absence of any suggestion in our
opinions that Terry stops are subject to the dictates of
Miranda. The similarly noncoercive aspect of ordinary
traffic stops prompts us to hold that persons temporarily
detained pursuant to such stops are not “in custody” for
the purposes of Miranda.

Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 3150 (1984); see also

State v. Shirley, 2008-2106, p. 9 (La. 5/5/09), 10 So.3d 224, 230 (noting that

“although…an individual detained in a Terry stop based on reasonable suspicion

has had his freedom of movement curtailed in a significant way, until an arrest

actually occurs, these Fourth Amendment seizures do not constitute custody for

Miranda purposes.”). Thus, a suspect’s responses to public, “on-the-scene and

non-custodial questioning,” are admissible without Miranda warnings. Shirley,

2008-2106, p. 8 (La. 5/5/09), 10 So.3d at 229-30.

In the instant case, in addition to the circumstances mentioned by the State

indicating that Defendant was not subjected to a significant restraint on his

freedom, the State also notes that Defendant had been repeatedly walking past the

victim to argue with her and dispute her allegations to the police, which resulted in

frequent requests from the officers at the scene that he stay away from the victim.

Notably, the victim was alleging that Defendant had been physically violent

toward her and had just stolen her firearm, which had not yet been located.

In New York v. Quarles, the U.S. Supreme Court held that “concern for

public safety must be paramount to adherence to the literal language of the

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prophylactic rules enunciated in Miranda.” 467 U.S. 649, 653, 104 S.Ct. 2626,

2630 (1984). The need for police officers to locate a dangerous weapon which may

be accessible to children or the general public permits the officers to question a

suspect as to the weapon’s location to secure it without concern that the suspect’s

statements would be suppressed in the absence of Miranda warnings. Id. at 655-

60, 104 S.Ct. at 2631-33.

Here, Off. Lawrence asked Defendant where the firearm was located

numerous times. The body camera video shows Defendant lift his shirt to show

Off. Lawrence that he was not concealing the victim’s firearm in his waistband.

Defendant also denied having a gun. However, it remained unknown whether

Defendant had hidden the firearm in an accessible location nearby, or whether

Defendant posed a physical threat to the victim. Indeed, the trial court

acknowledged in its ruling that Defendant repeatedly “walked away” and “came

back,” which the officers could have considered a safety issue had Defendant

returned with the weapon.

Moreover, as shown in the body camera footage, Off. Lawrence explained to

Sgt. Patrick upon his arrival at the scene that she had been unable to conduct a

substantive investigation due to her concern about locating the gun and Defendant

and victim’s consistent arguing. In fact, moments before Off. Droemann asked

Defendant to sit down on the steps, Off. Lawrence had again asked Defendant

about the location of the firearm to no avail, and had again instructed Defendant to

stay away from the victim. The video footage reflected that during that time,

Defendant was pacing up and down the sidewalk past the victim, and would

continue to engage with the victim, sparking an argument between the parties.

After ignoring multiple requests from the officers to stay away from the victim,

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Off. Lawrence told Off. Droemann to “tell [Defendant] to stay down here.” Off.

Droemann then asked Defendant to “do [him] a favor and have a seat right here.”

Defendant was not secured in handcuffs or physically restrained, he was not

searched or surrounded by the officers and he continued to use his cell phone.

In the totality of these circumstances, it does not appear that the officers’

intent in asking Defendant to have a seat was to affect an extended or significant

restraint on Defendant’s freedom, but to prevent him from potentially accessing a

hidden firearm, as well as preventing his continued harassment of the victim.

Accordingly, Defendant was separated from the victim so the investigation could

continue, and for the safety of the victim and the officers at the scene. As noted

above, temporary detentions that fall short of circumstances associated with a

formal arrest are not considered “custody” for Miranda purposes, and statements

made during such a temporary detention are not rendered inadmissible based on

the absence of Miranda warnings.

Accordingly, the circumstances do not demonstrate that Defendant was

subject to a custodial interrogation when he was asked to stay away from the

victim’s location, triggering the immediate necessity of Miranda warnings. Thus,

the trial court erred in suppressing Defendant’s statements based on its finding that

Defendant “arguably wasn’t free to leave” the steps of the residence upon which he

was asked to sit. Therefore, we grant the State’s writ application and reverse the

trial court’s ruling on this basis.

DECREE

For the above stated reasons, we grant the writ application and reverse the

trial court’s decision to grant Defendant’s motion to suppress with regard to the

statements Defendant made after he was asked to sit down.

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WRIT GRANTED AND REVERSED

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