State of Louisiana Versus Terrell Michael Williams And Rico Jones

STATE OF LOUISIANA NO. 21-K-152

VERSUS FIFTH CIRCUIT

TERRELL MICHAEL WILLIAMS COURT OF APPEAL

AND RICO JONES STATE OF LOUISIANA

May 13, 2021

Susan Buchholz
First Deputy Clerk

IN RE STATE OF LOUISIANA

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH
OF ST, JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE VERCELL
FIFFIE, DIVISION "A", NUMBER 19,248

Panel composed of Judges Susan M. Chehardy,
Robert A. Chaisson, and Hans J. Liljeberg

WRIT GRANTED, JUDGMENT REVERSED,
MOTIONS TO SUPPRESS DENIED

On September 12, 2019, the St. John the Baptist Parish District Attorney
filed a bill of information charging defendant, Terrell Michael Williams, with
possession with intent to distribute marijuana under two-and-a-half pounds, in
violation of La. R.S. 40:966(A)(1) (count one); “illegal use/possession/control of
weapons – crime of violence/CDS”, in violation of La. R.S. 14:95(E) (count two);
possession with intent to distribute marijuana under two-and-a-half pounds, in
violation of La. R.S. 40:966(A)(1) (count three); possession with intent to
distribute oxycodone less than twenty-eight grams, in violation of La. R.S.
40:967(A)(1) (count four); and possession with intent to distribute amphetamine
less than twenty-eight grams, in violation of La. R.S. 40:967(A)(1) (count five).
Counts one and two allegedly occurred on or about May 26, 2019; counts three,
four, and five allegedly occurred on or about June 10, 2019.

In the same bill of information, the District Attorney charged defendant,
Rico Jermaine Jones, with possession with intent to distribute marijuana under
two-and-a-half pounds, in violation of La. R.S. 40:966(A)(1) (count one); “illegal
use/possession/control of weapons – crime of violence/CDS,” in violation of La.
R.S. 14:95(E) (count two); and possession of a firearm by a convicted felon, in
violation of La. R.S. 14:95.1 (count six). All counts allegedly occurring on or
about May 26, 2019.

21-K-152

Both defendants filed motions to suppress the evidence that the St. John the
Baptist Parish Sheriff’s Office obtained as a result of a vehicular search conducted
on May 26, 2019, pursuant to La. C.Cr.P. art. 703 (A).1 Defendant Williams argued
that the evidence was inadmissible because it was obtained through a search
warrant alleging misinformation, and that the seizing officers conducted a search
without sufficient legal cause. Defendant Jones argued that the evidence should be
suppressed because it was unlawfully and illegally obtained.

St. John the Baptist Parish Sheriff’s Office (SJPSO) Deputy Daniel Materne,
Lieutenant Jason Raborn, and Deputy Jenny Estreca testified at the March 10, 2021
suppression hearing. Deputy Materne stated that on May 26, 2019, he went to the
Daiquiri Shop at 640 West Airline after receiving a report of loitering in the
parking lot. Business management asked Deputy Materne and his supervisor,
Lieutenant Raborn, to clear the lot, and at approximately 8:45 p.m., they made
everybody either go inside the building or go home. Deputy Materne and
Lieutenant Raborn then walked back out to the lot.

According to Deputy Materne, as he and Lieutenant Raborn walked around
outside, they could smell the odor of fresh marijuana coming from the west side of
the business by the dumpster. Lieutenant Raborn looked into the front passenger-
side window of a Nissan Altima with his flashlight and observed a clear cellophane
baggie containing marijuana by the “gearshifter.” Deputy Materne also observed
the clear cellophane plastic baggie containing a green vegetable-like substance,
which he said was marijuana, when Lieutenant Raborn showed it to him. Deputy
Materne recalled that he was approximately two feet away from the marijuana
when he saw it and that he had also used his flashlight to look in the vehicle’s
windows. Deputy Materne then walked around to the driver’s side of the vehicle
and observed a rifle lying on the floorboard, pointed toward the gas pedal. No one
was in the vehicle.

Lieutenant Raborn’s testimony corroborated Deputy Materne’s testimony.
Lieutenant Raborn explained that he used a “high limit flashlight” to see through
the tinted windows when he observed the marijuana and that the light “pushed
through the dimness of the tint,” and he could see the marijuana clearly. He
asserted that the marijuana was in plain view in a clear cellophane bag and that it
was a little smaller than the shape of an egg. Lieutenant Raborn said that he was
two-and-a-half to three feet from the object when he saw it and that there appeared
to be green matter inside of the bag. He noted that he was the first officer to see
marijuana inside the vehicle. Lieutenant Raborn stated that he walked around to the
driver’s side and saw the rifle.

Deputy Materne recalled that they “held” the vehicle, had it towed to patrol
headquarters, and applied for a search warrant, identified as State’s Exhibit 1.2
Both Deputy Materne and Lieutenant Raborn later helped execute the search
warrant on the vehicle. Deputy Materne testified that the following evidence was
seized from the vehicle:

1
La. C.Cr.P. art. 703 (A) provides: “A 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.”
2
The affidavit for search warrant and the search warrant itself, State’s Exhibit 1, were identified
at the hearing and were attached to the State’s writ application, but the State did not formally
offer it into evidence.
2

It was the rifle that was on the floorboard, the marijuana
sitting by a Auntie Anne’s cup, - - it’s a blue cellophane
cup by the gearshifter, that weighed approximately 3.4
grams, and also in - - we also located two handguns.

I believe one was in the glove box. And we also located a
black backpack that was located in the trunk of the
vehicle. And inside the backpack were scales - - digital
scales and also approximately a pound of marijuana.

Deputy Materne also identified photographs taken of the vehicle; in one of
the photographs, he indicated the marijuana was located next to the gearshift. He
stated that the “white substance here” was marijuana and that it weighed 3.4 grams.
After looking at the photographs, he stated that it did not appear that the windows
were tinted. Deputy Materne could not see the marijuana in the three photographs
that defense counsel showed him.3

Lieutenant Raborn testified that Deputy Estreca was the first person to enter
the vehicle after they obtained the warrant; before anyone else entered the vehicle,
she took photographs of it. Lieutenant Raborn believed that it was Deputy Estreca
who recovered the marijuana from the center console. Lieutenant Raborn identified
the rifle in one photograph and in another photograph, he identified the location of
the suspected marijuana, noting that it was placed next to two black iPhones in
front of the gearshift.

Lieutenant Raborn explained that the “fuzzy” object in the photograph was
the marijuana but that it was clear and not “fuzzy” when he saw it that night. He
was “right on the window” when he saw the marijuana. He looked at Defense
Exhibit 2, three photographs, and testified that they did not show the baggie that he
saw in State’s Exhibit 2, but that it did show the location of the baggie, explaining
that State’s Exhibit 2 may have been a close-up view. Lieutenant Raborn noted that
they requested the search warrant based on the marijuana and the rifle, and that it
was not illegal to have a rifle in a vehicle by itself. He also noted that he could not
see the marijuana from the driver’s side, and his face was touching the window
when he looked inside.

SJPSO Deputy Estreca testified that she helped execute the search warrant
on May 26, 2019. She took photographs of the vehicle before she retrieved the
evidence. Deputy Estreca stated that she recovered three weapons, several DNA
swabs, a paper cup, some narcotics, and rental paperwork for the vehicle. She also
stated that with respect to the narcotics, there was an ashtray and two rolled cigars
inside the armrest console between the driver and passenger seats. She noted that
there was a small bag of green vegetable material located on the center pocket area
in front of the gearshift and underneath the USB plugs for a cellular device. Deputy
Estreca acknowledged that she took the photographs in State’s Exhibit 2—the
“first” photograph was of the rifle, and the “second” photograph showed the center
pocket area located in front of the “gearshifter.”

Deputy Estreca testified that she personally took the small bag of marijuana
located in front of the gearshift out of the vehicle. The officers did not tell her what
3
According to defense counsel, Defense Exhibit 1 in globo consisted of three photographs of the
outside of the vehicle and the windows on the vehicle, and Defense Exhibit 2 in globo was three
photographs of the inside of the vehicle from the passenger side.
3

to photograph; she used her own judgment. She also asserted that the officers told
her that they saw marijuana and a rifle inside the vehicle, but they did not tell her
where they saw it. Deputy Estreca testified that there were four photographs of the
marijuana in the baggie by the “gearshifter” taken from different distances. She
explained that the marijuana was directly under the white USB cord but that in the
photographs the marijuana appeared “blurry.” She stated that it was a “little clear
green circular area.”

Deputy Estreca testified that she did not know that the photographs she had
taken were unclear until she uploaded them into the computer system. There was a
screen that “flipped out” on the camera that she could have used while taking the
photographs, but she did not use it; she did not have any training to use the camera.
She also noted that she did not take any photographs of the marijuana with the door
closed, as photographing through a closed window would either create a
“flashback” or, if the window was tinted, she would not see inside the vehicle.
Deputy Estreca asserted that when she took the photographs in State’s Exhibit 2,
she was standing outside the passenger door and leaning into the vehicle. She
stated that she was not leaning into the vehicle when she took the three
photographs in Defense Exhibit 2.

Defendants argued that the officers lacked probable cause to apply for the
search warrant—that the officers were lying and that the facts in the search
warrant, such as observing the marijuana in plain view, were not true. Defense
counsel claimed the officers applied for the search warrant hoping they would find
narcotics in the vehicle. Furthermore, the defense argued that the photographs were
unclear and did not show that there was marijuana in plain view. The defendants
contended that the officers could not have seen the marijuana through tinted
windows in the dark.

The State responded that there was no material misrepresentation shown in
the affidavit for the search warrant, and it is improbable that the officers would
have correctly guessed that marijuana and a rifle were in the vehicle. The fact that
the State’s photograph of the marijuana was “blurry” did not mean the officers’
vision was blurry the night they saw the evidence. The State noted that a clear
photograph of the marijuana was not a requirement, and an unclear photo is not
grounds for suppression, as the presence of marijuana by the gearshift was
corroborated by the three officers who testified at the hearing.

Following arguments of counsel, the trial court granted defendants’ motions
to suppress evidence, stating in pertinent part:

… After listening to the facts that represented the
testimony and the photos that were presented to me, the
Court was not convinced that the contraband was in plain
view and that it was easily identified as contraband. In
fact, it was said to be white at one point and at another
point it was said to be green. It was also indicated that
having the Kel-Tec in the car was not illegal.

4

The Court does not think it meets the qualifications in
Gordon v. California4 to be justified as plain view.
Additionally, in this instance the plain view doctrine as
delineated in Arizona v. Hicks5 was not there. In order for
something to be in plain view there has to be prior
justification of the intrusion into the protected area, being
the car, in the course of which the evidence was
inadvertently discovered.

That is an aspect that is no longer required under Texas v.
Brown6 because they said it was a little too technical, it
was too high of a burden that was set in Texas v. Brown.
However, it must be immediately apparent without closer
inspection that the items or evidence are contraband.

In this case the officer testified that he leaned onto the
window to look into the car that he had to use his flashlight
to burst through the tint to be able to see into the car. It
was also indicated that no one was in the car, meaning that
the officers had no reasons to be searching in the car and
he did say it was a search, that they were searching in cars,
that was the officers[’] words. And if you have to use your
flashlight and put it to the window and put your face to the
glass to burst through the tint is not plain view.

Additionally, from the photos that were placed into the
Record you can’t see anything in the cupholder. Now, it is
understood that a plain view seizure of property does not
raise [sic] to an invasion of privacy and is presumptively
reasonable, assuming that there is a probable cause to
associate the property to criminal activity. The car was in
a parking lot at a daiquiri shop that was open so no one
was in there.

The officers did not indicate that there were any reasons
for them to be looking through windows of cars. So
therefore, the Court will grant the Motion to Suppress of
all evidence that was obtained in this matter. [Internal
footnotes added.]

The State argues that the trial court erred in granting defendants’ motions to
suppress the evidence on the basis that the marijuana and the rifle were not in plain
view. The State argues that the officers could look through the car windows with
their faces pressed against the glass because an individual does not have a
reasonable expectation of privacy in the areas of his car that are visible to the

4
The trial court may have been referring to Horton v. California, 496 U.S. 128, 133, 110 S.Ct.
2301, 110 L.Ed.2d 112 (1990) (“If an article is already in plain view, neither its observation nor
its seizure would involve any invasion of privacy.”).
5
See Arizona v. Hicks, 480 U.S. 321, 327, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (“However, if
police lack probable cause to believe that an object in plain view is contraband without
conducting some further search of the object, i.e., if the incriminating character of the object is
not immediately apparent, the plain view doctrine cannot justify the seizure.”)
6
See Texas v. Brown, 460 U.S. 730, 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).
5

outside world. It further argues that the nature of the suspected marijuana was
immediately apparent without closer inspection. The State notes that courts have
found that the use of flashlights to illuminate a darkened area does not constitute a
search and thus does not trigger Fourth Amendment protection.

The State also contends that the trial court erred in finding that defendants
met their burden of showing an intentional misrepresentation in the affidavit for
the search warrant, apparently on the basis that the marijuana was not visible in
certain crime scene photographs. According to the State, it strains credulity that
two officers lied about seeing marijuana in the center console and then,
coincidentally, marijuana was recovered by a third officer in that exact location.
The State notes that in the crime scene photographs introduced at the suppression
hearing, all three officers pointed out where the marijuana was visible in the center
console. The fact that the marijuana was not visible at certain camera angles in the
photographs does not mean that the officers lied.

Defendant Williams contends that the State’s evidence introduced at the
motion for preliminary examination is inconsistent with its evidence offered at the
suppression hearing, bringing the veracity of the witnesses’ testimony into
question. Defendant argues that the affidavit for the search warrant did not mention
that the officers used a flashlight when looking into the vehicle’s windows, which
were tinted, nor that the vehicle was towed before the warrant was obtained. In
addition, it is not “immediately apparent” that the fuzzy white spot on one picture
was a baggie of marijuana, because the photograph does not show green vegetable
matter but instead shows an innocuous object, possibly the reflection of a camera
flash. Moreover, no photographs were taken of the vehicle while at its original
location in the parking lot; it was seized and towed, likely disturbing the original
condition of the items in the car.

DISCUSSION

In a hearing on a motion to suppress, the State shall have the burden of proof
in establishing the admissibility of any evidence seized without a warrant. State v.
Favors, 09-1034 (La. App. 5 Cir. 6/29/10), 43 So.3d 253, 258, writ denied, 10-
1761 (La. 2/4/11), 57 So.3d 309. When evidence is seized pursuant to a search
warrant, the defendant bears the burden of proof at the hearing on his motion to
suppress that evidence. La. C.Cr.P. art. 703(D); State v. Falcon, 13-849 (La. App.
5 Cir. 3/12/14), 138 So.3d 79, 88, writ denied, 14-769 (La. 11/14/14), 152 So.3d
877. The trial court is afforded vast discretion in ruling on a motion to suppress,
and its ruling will not be disturbed unless the preponderance of the evidence
clearly favors suppression. State v. Every, 19-40 (La. App. 5 Cir. 5/23/19), 274
So.3d 770, 777, writ denied, 19-1048 (La. 10/1/19), 280 So.3d 159; see also State
v. Long, 03-2592 (La. 9/9/04), 884 So.2d 1176, 1179, cert. denied, 544 U.S. 977,
125 S.Ct. 1860, 161 L.Ed.2d 728 (2005). As a general rule, trial court rulings are
reviewed under a deferential standard, but legal findings are subject to a de novo
standard of review. State v. Hunt, 09-1589 (La. 12/1/09), 25 So.3d 746, 751.

Both the Fourth Amendment to the Constitution of the United States and
Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable
searches and seizures. State v. Roche, 05-237 (La. App. 5 Cir. 4/25/06), 928 So.2d
761, 765, writ denied, 06-1566 (La. 1/8/07), 948 So.2d 120. Evidence recovered as
a result of an unconstitutional search and seizure may not be used in a resulting
prosecution against the citizen. State v. Harris, 00-1930 (La. App. 5 Cir. 4/11/01),

6

786 So.2d 798, 801-02. The exclusionary rule bars, as illegal fruit, physical and
verbal evidence obtained either during, or as a direct result of, an unlawful
invasion. State v. Hollimon, 04-1195 (La. App. 5 Cir. 3/29/05), 900 So.2d 999,
1003. But evidence collected pursuant to a valid search warrant is patently not an
unlawful invasion and is not considered an illegality or fruit of the poisonous tree.
See State v. Holmes, 08-719 (La. App. 5 Cir. 3/10/09), 10 So.3d 274, 278, writ
denied, 09-816 (La. 1/8/10), 24 So.3d 857.

The task for a reviewing court addressing evidence seized pursuant to a
search warrant is to ensure that under the totality of the circumstances, the
magistrate had a substantial basis for concluding that probable cause existed. State
v. Gaubert, 14-396 (La. App. 5 Cir. 12/16/14), 167 So.3d 110, 114. If the
magistrate finds that the affidavit is sufficiently detailed and reliable to show
probable cause, the reviewing court should interpret the affidavit in a realistic and
common-sense fashion, being aware that it is normally prepared by non-lawyer
police officers in the midst and haste of a criminal investigation. Id. Within these
guidelines, courts should strive to uphold warrants to encourage their use by police
officers. Id.

An affidavit supporting a search warrant is presumed to be valid, and the
defendant has the burden of proving that the representations made in the affidavit
are false. State v. Shiell, 16-447 (La. App. 5 Cir. 12/7/16), 204 So.3d 1213, 1217,
writ denied, 17-41 (La. 9/15/17), 225 So.3d 477; State v. Dee, 09-712 (La. App. 5
Cir. 2/23/10), 34 So.3d 892, 899, writ denied, 10-705 (La. 10/29/10), 48 So.3d
1097. That burden requires the defendant to prove by a preponderance of the
evidence that the affidavit contains intentional misrepresentations. Shiell, supra. A
material and intentional misrepresentation made in an affidavit presented to a
magistrate constitutes a fraud upon the court and will result in the invalidation of
the warrant and suppression of the items seized. Shiell, supra (citing State v. Byrd,
568 So.2d 554, 559 (La. 1990); State v. Williams, 448 So.2d 659, 663 (La. 1984)).
However, if the misrepresentations or omissions are inadvertent, negligent, or are
included without an intent to deceive, the correct procedure is for the warrant to be
retested for probable cause after supplying that which was omitted or striking that
which was misrepresented. Id. (citing State v. Casey, 99-23 (La. 1/26/00), 775
So.2d 1022, 1029, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62
(2000)).

In State v. Schmidt, 359 So.2d 133 (La. 1978), the State relied on the plain
view and inventory exceptions to the warrant requirement to justify the seizure of
the marijuana found after an officer shined his light into the vehicle. The Court
held that the officer did not have a legitimate reason to shine his light into the
vehicle, noting that the vehicle had been surrounded by police officers, the
vehicle’s occupants had been removed, and the search was not done to determine if
there was a person concealed in the vehicle. The Court concluded that the
flashlight check was done as a prelude or as part of an inventory search and held
that the seizure of the evidence was unlawful because the search was not a true
inventory search. Id. at 135-36.

But five years after Schmidt, in Texas v. Brown, 460 U.S. 730, 739-44, 103
S.Ct. 1535, 1542-44, 75 L.Ed.2d 502 (1983), the United States Supreme Court held
that the police lawfully seized evidence in plain view that was discovered when the
officer shined his flashlight into the defendant’s car after it was stopped at a
routine driver’s license checkpoint. The Supreme Court recognized that the

7

plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29
L.Ed.2d 564 (1971), provided that the plain view doctrine allowed the warrantless
seizure of items when three circumstances were met: First, the “initial intrusion”
must be lawful or the officer must otherwise properly be in a position from which
he can view a particular area. Second, the officer must discover incriminating
evidence “inadvertently.” Third, it must be “immediately apparent” to the police
that the items they observe may be evidence of a crime, contraband, or otherwise
subject to seizure. Texas v. Brown, 460 U.S. at 736-37, 103 S.Ct. at 1540-41
(quoting Coolidge). Applying those precepts to the facts, the Court in Brown found
that the officer properly seized the green balloon from the vehicle:

…[The officer’s] action in shining his flashlight to
illuminate the interior of [the defendant’s] car trenched
upon no right secured to the latter by the Fourth
Amendment. The Court said in United States v. Lee, 274
U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202 (1927),
that “use of a searchlight is comparable to the use of a
marine glass or a field glass. It is not prohibited by the
Constitution.” Numerous other courts have agreed that the
use of artificial means to illuminate a darkened area simply
does not constitute a search, and thus triggers no Fourth
Amendment protection.

Id., 460 U.S. at 739-40, 103 S.Ct. at 1542.

In Horton v. California, 496 U.S. 128, 130, 110 S.Ct. 2301, 2304, 110
L.Ed.2d 112 (1990), the Supreme Court revisited Coolidge, holding that the Fourth
Amendment does not prohibit the warrantless seizure of evidence of crimes in
plain view, even if the discovery was not inadvertent. The Louisiana Supreme
Court has implicitly recognized that Horton removed the inadvertence
requirement. See State v. Leger, 05-11 (La. 7/10/06), 936 So.2d 108, 155, cert.
denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Horton v.
California, 496 U.S. at 136-37, 110 S.Ct. at 2308, “Under the plain view doctrine,
if police are lawfully in a position from which they view an object that has an
incriminating nature that is immediately apparent, and if the officers have a lawful
right of access to the object, they may seize it without a warrant.”).

In more recent cases, the Louisiana Supreme Court and this Court have
rejected claims that officers looking inside vehicles with flashlights conducted
unlawful searches. See, e.g., State v. Hunt, 09-1589 (La. 12/1/09), 25 So.3d 746,
754 (holding that whatever is discovered by shining a flashlight into a vehicle is
considered to be in “plain view,” if there is prior justification for the intrusion and
it is immediately apparent that the discovery is contraband); State v. Smith, 07-815
(La. App. 5 Cir. 3/11/08), 982 So.2d 821, 825-26, writ denied, 08-927 (La.
11/14/08), 996 So.2d 1088 (holding that the plain view exception justified the
seizure of a plastic baggie containing at least one white rock in a cupholder
between the driver and the defendant, even though the officer saw the items with
the aid of a flashlight); State v. Curtis, 98-1283 (La. App. 5 Cir. 6/1/99), 738 So.2d
657, 659-60, writs denied, 99-1950 (La. 12/17/99), 751 So.2d 873 and 99-2679
(La. 3/31/00), 758 So.2d 810) (finding that use of a flashlight to illuminate interior
of defendant’s vehicle as a safety precaution after a lawful stop, because the
passenger did not get out of the car, did not constitute a search within the meaning
of the Fourth Amendment, and it was immediately apparent that the items observed

8

“may be evidence of a crime, contraband, or otherwise subject to seizure.”); State
v. Bailey, 97-493 (La. App. 5 Cir. 11/12/97), 703 So.2d 1325, 1329 (finding that
after a valid stop, officer had not conducted an illegal search of the vehicle when
shining flashlight on passenger seat where defendant had been sitting; the cocaine
was in plain view); State v. Young, 13-536 (La. App. 5 Cir. 7/25/13), 2013 WL
10301207 (unpub.), writ denied, 13-2057 (La. 11/15/13), 125 So.3d 1111 (finding
that “the use of artificial means to illuminate a dark area simply does not constitute
a search, and thus triggers no Fourth Amendment protection.”).

In State v. Reyes, 16-K-95 (La. App. 5 Cir. 3/17/16) (unpub.), the State
sought review of the trial court’s ruling granting the defendant’s motion to
suppress evidence. This Court granted the writ application and reversed, citing
Texas v. Brown, Horton v. California, Hunt, Curtis, and Bailey:

… [T]he officers were conducting proactive patrols due to
prior vehicle burglaries in the area. Respondent’s vehicle
was parked in a public area and the officer had the right to
look into the vehicle just as any other member of the
public. During that patrol, the officer saw a bag which he
thought to contain crack cocaine rocks in plain view in
respondent’s vehicle. Any passerby could have peered into
respondent’s vehicle and viewed the bag as the officer did
in this case. We do not find the officer’s actions, peering
inside respondent’s vehicle with a flashlight, to be a search
within the meaning of the Fourth Amendment.
Respondent did not possess a reasonable expectation of
privacy under these circumstances.

In the present case, the trial court stated that “if you have to use your
flashlight and put it to the window and put your face to the glass to burst through
the tint [the evidence] is not plain view.” Although trial court rulings ordinarily are
reviewed under a deferential standard, legal findings are subject to a de novo
standard of review. Hunt, 25 So.3d at 751. We find the trial court misapplied the
law and erred in granting defendants’ motions to suppress the evidence seized from
the vehicle. Since Texas v. Brown and Horton v. California, using a flashlight to
look into the vehicle’s window or putting one’s face to the glass does not exceed
the bounds of “plain view.” See Hunt, 25 So.3d at 754. “[I]f a vehicle is parked on
a public street, an officer may stand beside it and look into the vehicle as may any
member of the public.” Bailey, 703 So.2d at 1329.

Deputy Materne and Lieutenant Raborn both testified that they used
flashlights to look through the passenger-side window and that they observed
marijuana in a plastic baggie in front of the “gearshifter” in plain view. Lieutenant
Raborn also testified that his face was “right on the window” when he observed it.
Deputy Estreca, who was the first person to enter the vehicle during the execution
of the search warrant, corroborated this testimony when she stated that she found
the marijuana next to the “gearshifter” during the execution of the search warrant,
even though the other officers did not tell her where they had seen it.

The trial court also abused its discretion in finding that “the officers did not
indicate that there were any reasons for them to be looking through windows of
cars.” To the contrary, Deputy Materne and Lieutenant Raborn explained that they
had been called to clear out the parking lot and when doing so, they smelled

9

marijuana in the lot near the dumpsters, causing them to investigate further.
Likewise, the court’s statement—that the photographs admitted into evidence do
not explicitly show the marijuana—is explained by Deputy Estreca, who said that
she had not received any training for the camera she used but that some of the
photos did show the marijuana, and is contradicted by Deputy Materne and
Lieutenant Raborn, who testified that they saw the baggie in the center console
area in pictures that the State introduced at the hearing. The absence of a clear
photograph of the marijuana on the center console does not in and of itself render
the officers’ testimony invalid.

Based on Deputy Materne’s and Lieutenant Raborn’s testimony, they were
lawfully in a position from which they viewed an object that had an incriminating
nature that was immediately apparent. See Horton v. California, supra; Leger,
supra. The officers immediately recognized the object to be contraband. The plain
view exception does not require a police officer to be certain that the object in
plain view is contraband; it simply requires that the officer have probable cause to
believe the item in question is either evidence and/or contraband. See Texas v.
Brown, 460 U.S. at 742, 103 S.Ct. at 1543; Smith, 982 So.2d at 825.

As in Reyes, the vehicle was parked in a public area. The officers could look
into the vehicle, as could any other member of the public. Peering inside the
vehicle with a flashlight was not a search within the meaning of the Fourth
Amendment, and defendants had no reasonable expectation of privacy under these
circumstances. “[N]o legitimate expectation of privacy … shield[s] that portion of
the interior of an automobile which may be viewed from outside the vehicle by
either inquisitive passersby or diligent police officers.” Texas v. Brown, 460 U.S. at
740, 103 S.Ct. at 1542.

Lastly, defendant Williams has failed to meet his burden of proving by a
preponderance of the evidence that the affidavit for the search warrant contained
material misrepresentations. The affidavit indicates that the officers observed the
marijuana in plain view on the center console near the “gearshifter.” Defendant
argues that it omitted the facts that the officers used their flashlights or that the
windows were tinted. If misrepresentations or omissions are inadvertent, negligent,
or are included without an intent to deceive, the correct procedure is for the
warrant to be retested for probable cause after supplying that which was omitted or
striking that which was misrepresented. State v. Williams, 448 So.2d at 663.
Defendant has failed to show that these omissions were intentional; and under
Williams, including the “omitted” information does not render the warrant invalid
or illegally obtained, because use of a flashlight or putting one’s face to the
window does not remove an otherwise observable object from “plain view.”

Once the alleged contraband was identified in plain view, it was appropriate
for the officers to seize the vehicle while applying for the search warrant. “No
constitutional distinction exists ‘between on the one hand seizing and holding a car
before presenting the probable cause issue to a magistrate and on the other hand
carrying out an immediate search without a warrant.’ ” State v. Thompson, 02-333
(La. 4/9/03), 842 So.2d 330, 337-38 (quoting State v. Guzman, 362 So.2d 744, 749
(La. 1978)). Either course is reasonable under the Fourth Amendment. Thompson,
842 So.2d at 338; see also State v. Causey, 12-1485 (La. 10/26/12), 108 So.3d
1163, 1164 (“Given the totality of circumstances, the officer’s observation of the
marijuana gleanings on the center console gave him probable cause to conduct a

10

warrantless search of the vehicle’s interior as broad as a magistrate could have
authorized.”).

For these reasons, we grant the State’s writ application and reverse the trial
court’s judgment. Defendants’ motions to suppress evidence are denied.

Gretna, Louisiana, this 13th day of May, 2021.

SMC
RAC
HJL

11

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 05/13/2021 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

21-K-152
E-NOTIFIED
40th District Court (Clerk)
Honorable Vercell Fiffie (DISTRICT JUDGE)
Randy J. Dukes (Respondent) Honorable Bridget A. Dinvaut (Relator)
Lisa M. Parker (Respondent)
Justin B. LaCour (Relator)

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