State of Louisiana Versus Emile Lonzo

STATE OF LOUISIANA NO. 21-K-490

VERSUS FIFTH CIRCUIT

EMILE LONZO COURT OF APPEAL

STATE OF LOUISIANA

October 22, 2021

Susan Buchholz
First Deputy Clerk

IN RE EMILE LONZO

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE RAYMOND S.
STEIB, JR., DIVISION "A", NUMBER 19-3091

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and John J. Lee, Jr.

WRIT GRANTED

Defendant, Emile Lonzo, seeks supervisory review of the trial court’s May
6, 2021 denial of his motion to suppress evidence and statements. Defendant
argues that Jefferson Parish Sheriff’s Office detectives did not have reasonable
suspicion to justify an April 4, 2019 investigatory traffic stop. He also contends
that his signature on the two consent to search forms did not purge the taint of the
illegal detention and search. Defendant argues that all evidence and statements
that were fruits of the initial illegal detention should be suppressed. For the
following reasons, this writ application is granted.

In a bill of information filed May 22, 2019, Defendant was charged with
eight counts of possession with intent to distribute eight different types of
narcotics. On September 24, 2020, Defendant filed Motion to Suppress Illegally
Obtained Tangible Evidence. In his motion, he also moved to suppress statements
he made during an investigatory stop.

Detectives Eric Hymel and Carl Marshall of the Jefferson Parish Sheriff’s
Office (JPSO) testified at the March 11, 2021 hearing on Defendant’s motion. Det.
Hymel testified that a confidential informant (CI) told him that Emile Lonzo
(Defendant) had been selling, in Jefferson Parish, “basically any narcotic he could
get his hands on.” He further testified that the CI informed him that Defendant
lived on the second floor of a white house on Houma Boulevard with an exterior
staircase leading to defendant’s residence, and that defendant drove a gray-colored
Nissan Titan. Detective Hymel also testified that the CI’s information had led to
narcotics arrests in three other cases. Detective Hymel subsequently corroborated
the information provided by the CI. Detective Hymel obtained Defendant’s

21-K-490

criminal history from a law enforcement database, DMV information, and a
photograph of Defendant. He asserted that he and other detectives went to Houma
Boulevard where they found a house with a gray-colored Nissan Titan “pulled in”
and noted that the vehicle had a license plate which was registered to defendant at
that address.

On April 4, 2019, during surveillance of that address, Detectives Hymel and
Marshall observed a black male, later identified as Defendant, exit the second floor
of the residence, walk down the exterior staircase, and get into the driver’s seat of
the Nissan Titan. Prior to stopping Defendant, detectives observed him stop at a
Walgreens on Airline Drive, before driving to Hero Drive in Gretna, where a
woman “appeared to go to [Defendant’s vehicle], retrieve something from the
driver, and then go back to her residence” -- something the detectives would
consider to be “a suspicious, you know, act, like a drug transaction.” Detective
Marshall further explained that from his experience and training, “that’s usually
how hand-to-hand narcotics transactions occur.” Detective Hymel testified that the
Nissan Titan subsequently left the area, after which they followed it to the 3900
block of Airline Highway in Metairie and conducted an investigatory stop based on
what they knew and had observed. During Detective Marshall’s testimony, he
identified State’s Exhibit 1, a consent to search form signed by Defendant, which
was admitted into evidence.

Detective Hymel identified State’s Exhibit 3, photographs of the search of
Defendant’s Nissan Titan, which were admitted into evidence. The detectives
found bottles containing various pills, which they identified as Suboxone,
Oxycodone, Alprazolam, Hydrocodone, and Adderall. Defendant was unable to
provide prescriptions for those drugs. Detective Hymel also noted the discovery of
a small rock of crack cocaine inside of the vehicle. Detective Hymel placed
Defendant under arrest for possession of narcotics and read him his rights.
Detective Hymel testified that Defendant understood his rights and waived them,
after which he recalled Defendant saying that “he was getting too old for this sh*t
and tired of the lifestyle he was living.”

After the suppression hearing, the State and the defense filed memoranda.
On May 6, 2021, the district court denied Defendant’s motion to suppress evidence
and statements. In the instant writ application, Defendant argues the CI’s
information did not provide the detectives with reasonable suspicion to justify the
investigatory stop. He also contends that his voluntary consent to the searches did
not purge the taint of the illegal detention and searches. Defendant maintains that
all evidence and statements that were fruit of the initial illegal detention should be
suppressed.

Law enforcement officers are authorized by LSA–C.Cr.P. art. 215.1, as well
as state and federal jurisprudence, to conduct investigatory stops which allow
officers to stop and interrogate a person reasonably suspected of criminal activity.
State v. Tovar (La. App. 5 Cir. 10/15/03); 860 So.2d 51, citing Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The test for “reasonable suspicion”
is whether the police officer had sufficient knowledge of the facts and
circumstances to justify an infringement upon the individual’s right to be free from
governmental interference. See, e.g., State v. Melancon, 03-514 (La. App. 5 Cir.
10/28/03), 860 So.2d 225, 228, writ denied, 03-3505 (La. 4/23/04), 870 So.2d 297.

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Whether an informant's tip establishes reasonable suspicion to conduct an
investigatory stop is determined by analyzing the totality of the circumstances. See
State v. Barker, 19-223 (La. App. 5 Cir. 12/11/19); 285 So.3d 581, 588, citing
Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317, 2320, 76 L.Ed.2d 527 (1983);
State v. Nelson, 02–65 (La. App. 5 Cir. 6/26/02), 822 So.2d 796, 801, writ denied,
02–2090 (La. 2/21/03), 837 So.2d 627. The anonymous tip's sufficiency
under Terry is determined by the reliability of its illegality assertion, not merely its
tendency to identify a determinate person. State v. Francois, 04-1147 (La. App. 5
Cir. 3/29/05); 900 So.2d 1005, 1010. This Court has held that a tip by an
informant can supply reasonable suspicion if it accurately predicts future conduct
in sufficient detail to support a reasonable belief that the informant had reliable
information regarding the illegal activity. State v. Murphy, 14-437 (La. App. 5 Cir.
10/15/14); 181 So.3d 1. The informant's ability to predict the person's future
behavior goes to the informant's reliability because it demonstrates inside
information and a special familiarity with the person's affairs. Id.

Upon review of the testimony given by the detectives at the hearing on the
motion to suppress, the tip provided by the, albeit trustworthy and proven, CI did
not provide enough predictive information about Defendant’s illegal activity to
support a finding of reasonable suspicion. One detective testified that the CI made
no controlled buys from Defendant. Prior to stopping Defendant, detectives
observed him stop at a Walgreens on Airline Drive, before driving to Hero Drive in
Gretna, where a woman “appeared to go to [Defendant’s vehicle], retrieve
something from the driver, and then go back to her residence.” Defendant likely
used the vehicle for non-illegal activity also. According to the suppression hearing
transcript, the detectives did not receive information about Defendant conducting
drug transactions at a particular time on April 9, 2019, or about drug activity at or
near the Hero Drive address, or about the woman participating in the suspected
drug transaction from the CI, or other sources. The CI’s tip “failed to predict the
specific time period in which defendant would be engaged in illegal activity." See
State v. Robertson, 97-2960 (La. 10/20/98); 721 So.2d 1268, 1270. Thus, we find
the officers did not have reasonable suspicion to stop Defendant at that time.

If the police officer did not have reasonable suspicion to conduct the
investigatory stop, the stop is illegal and the evidence seized from it must be
suppressed. State v. McMillan, 09-415, (La. App. 5 Cir. 12/8/09); 30 So.3d
36, writ denied, 09-2831 (La. 6/18/10); 38 So.3d 321, citing Brown v. Illinois, 422
U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
Consent to search after an illegal detention is nonetheless
valid under circumstances showing no exploitation of
the illegality. The validity of a search pursuant to a
defendant's consent hinges on the voluntariness of the consent,
which is a question of fact to be determined by the court under
the facts and circumstances of each case. Factors to be
considered are whether the officers adequately informed the
person that he need not comply with the request, the temporal
proximity of the illegality, the presence of intervening
circumstances, and the purpose and flagrancy of the official
misconduct.
State v. Davis, 564 So.2d 342, 345 (La. App. 5th Cir. 1990), writ denied, 569 So.2d
964 (La. 1990). (Citations omitted.) The trial court's decision to deny a motion
to suppress is afforded great weight and will not be set aside unless the

3

preponderance of the evidence clearly favors suppression. State in Interest of J.H.,
11-324 (La. App. 5 Cir. 12/28/11); 83 So.3d 1100, 1104.

Defendant signed the consent forms after giving Detective Hymel verbal
consent and Detective Marshall reviewed the forms, which included an advisement
of the right to refuse the search, with Defendant. Also, both detectives testified
that Defendant was not handcuffed at the time he consented to the search.
However, the search was in close temporal proximity to the illegal detention,
Detective Hymel testified Defendant gave him his driver’s license and Defendant’s
demeanor “became very nervous, [and] shaky” after the detective patted him down
to make sure he had no weapons and asked him if he had any illegal narcotics in
the vehicle. Detective Hymel also mentioned that his was the lead vehicle during
the stop, which indicates additional officers were present, and described
coordinating efforts with other detectives “to travel back to the residence and do
surveillance on the house” while Detective Marshall completed the consent forms
with Defendant. Under the circumstances, we find that Defendant’s consent was
involuntary and not “the product of a free will [. . .but] the result of an exploitation
of the previous illegality.” State v. Raheem, 464 So.2d 293, 297 (La. 1985).

Considering the foregoing, the writ application is granted. The district
court’s May 6, 2021 ruling on Defendant’s Motion to Suppress Evidence and
Statements is reversed.

Gretna, Louisiana, this 22nd day of October, 2021.

MEJ
RAC

4

STATE OF LOUISIANA NO. 21-K-490

VERSUS FIFTH CIRCUIT

EMILE LONZO COURT OF APPEAL

STATE OF LOUISIANA

LEE, J., DISSENTS WITH REASONS
Defendant seeks review of the trial court’s denial of his motion to suppress
evidence and statements. I believe that the trial court did not abuse its discretion in
denying the motion, and therefore, I respectfully dissent from the majority
disposition for the following reasons.

On March 11, 2021, Detectives Eric Hymel and Carl Marshall of the
Jefferson Parish Sheriff’s Office testified at the suppression hearing. Detective
Hymel testified that he obtained information from a confidential informant (CI)
that Emile Lonzo (defendant) had been selling, in Jefferson Parish, “basically any
narcotic he could get his hands on.” He further testified that the CI informed him
that defendant lived on the second floor of a white house on Houma Boulevard,
that the house had an exterior staircase leading to defendant’s residence, and that
defendant drove a gray-colored Nissan Titan. Detective Hymel testified that they
had used the CI previously and that the CI’s information had led to narcotics
arrests in three other cases.

Detective Hymel explained that he subsequently corroborated the
information from the CI by researching his law enforcement database and
obtaining a criminal history, DMV information, and a photograph of defendant.
He asserted that he and other detectives went to Houma Boulevard where they
found a house with a gray-colored Nissan Titan “pulled in.” He noted that the
vehicle had a license plate which was registered to defendant at that address.

Detective Hymel testified that during surveillance of that address, they
observed a black male, later identified as defendant, exit the second floor of the
residence, walk down the exterior staircase, and get into the driver’s seat of the
Nissan Titan. He explained that they followed defendant to an address off of the
Westbank Expressway in Gretna. Detective Hymel asserted that a female exited
the house for a brief period of time, retrieved something from defendant, then went
back to the residence. He explained that what he observed was something they
would consider to be “a suspicious, you know, act, like a drug transaction.”
Detective Mitchell further explained that from his experience and training, “that’s
usually how hand-to-hand narcotics transactions occur.”

Detective Hymel testified that the Nissan Titan subsequently left the area,
after which they followed it to the 3900 block of Airline Highway in Metairie and
conducted an investigatory stop. Defendant consented to a search of his vehicle
and his residence, where narcotics were located and seized. Detective Hymel
testified that after he placed defendant under arrest and advised him of his rights,
defendant waived them and stated that “he was getting too old for this sh*t and
tired of the lifestyle he was living.”

21-K-490

An informant’s tip may provide reasonable suspicion for an investigatory
stop if the tip accurately predicts the suspect’s future conduct in sufficient detail to
support a reasonable belief that the informant possessed reliable information
regarding the suspect’s illegal activity. State v. Francois, 04-1147 (La. App. 5 Cir.
3/29/05), 900 So.2d 1005, 1010. The tip must also be corroborated by the police.
State v. Holmes, 08-719 (La. App. 5 Cir. 3/10/09), 10 So.3d 274, 279, writ denied,
09-816 (La. 1/8/10), 24 So.3d 857 (citing Alabama v. White, 496 U.S. 325, 110
S.Ct. 2412, 110 L.Ed.2d 301 (1990)). If an informer’s tip accurately predicts the
offender’s future behavior it gains an additional modicum of reliability. Id.

Predictive ability is not always necessary; a non-predictive tip coupled with
police corroboration or independent police observation of suspicious activity can
provide the police with the requisite reasonable suspicion to detain a suspect.
Francois, supra. An informant’s past record for accuracy and reliability is another
factor taken into account when determining the reliability of the tip in question.
State v. Austin, 04-993 (La. App. 5 Cir. 3/1/05), 900 So.2d 867, 879, writ denied,
05-830 (La. 11/28/05), 916 So.2d 143.

The United States Supreme Court has applied a “totality of the
circumstances approach,” which considers an informant’s veracity, reliability, and
basis of knowledge as highly relevant in determining the value of an informant’s
tip. Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317, 2320, 76 L.Ed.2d 527
(1983); State v. Nelson, 02-65 (La. App. 5 Cir. 6/26/02), 822 So.2d 796, 801, writ
denied, 02-2090 (La. 2/21/03), 837 So.2d 627. “If a tip has a relatively low degree
of reliability, more information will be required to establish the requisite quantum
of suspicion than would be required if the tip were more reliable.” Alabama v.
White, 496 U.S. at 330, 110 S.Ct. at 2416.

Further, a trial court is afforded great discretion when ruling on a motion to
suppress, and its ruling will not be disturbed absent an abuse of that discretion.
State v. Lee, 05-2098 (La. 1/16/08), 976 So.2d 109, 122, cert. denied, 555 U.S.
824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008); State v. Rogers, 09-13 (La. App. 5 Cir.
6/23/09), 19 So.3d 487, 493, writ denied, 09-1688 (La. 4/9/10), 31 So.3d 382.

In the instant case, under the totality of the circumstances, I find that the
detective had the requisite reasonable suspicion to conduct the investigatory stop.
The CI, who had previously provided information that led to narcotics arrests,
provided defendant’s name, the location and description of his residence, and a
specific description of his vehicle. The CI’s tip was sufficiently corroborated by
the information gained by the detectives during their law enforcement database
research and their surveillance. The detectives were told by the CI that defendant
sold narcotics in Jefferson Parish. Afterward, during their surveillance, and based
upon their training and experience, the detectives observed what they believed to
be defendant involved in a drug transaction in Jefferson Parish. Following the
investigatory stop, defendant consented to a search of his vehicle and his residence,
where narcotics were located and lawfully seized. He also made statements after
being advised of his rights.

Although the majority finds that the CI did not provide enough predictive
information about defendant’s illegal activity, predictive information is not always
necessary. As was stated above, a non-predictive tip coupled with police
corroboration or independent police observation of suspicious activity can provide

2

the police with the requisite reasonable suspicion to detain a suspect. Francois,
supra. Here, I find that there was reasonable suspicion for the investigatory stop
based on the CI’s tip that defendant sold drugs in Jefferson Parish coupled with the
detectives’ observations of defendant involved in a drug transaction in Jefferson
Parish, as well as the CI’s past record for accuracy and reliability.

For the foregoing reasons, I respectfully dissent from the majority
disposition.

JJL

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
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STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
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