State of Louisiana Versus Jeremy Simmons

STATE OF LOUISIANA NO. 22-K-232

VERSUS FIFTH CIRCUIT

JEREMY SIMMONS COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 20-4700, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

July 06, 2022

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois

WRIT DENIED
FHW
SMC
JGG

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA
Thomas J. Butler

COUNSEL FOR DEFENDANT/RELATOR,
JEREMY SIMMONS
C. Gary Wainwright

WICKER, J.,

Relator-defendant, Jeremy Simmons, seeks review of the trial court’s April
4, 2022 denial of his motion to suppress evidence. For the following reasons, we
deny the writ.

On September 10, 2020, the Jefferson Parish District Attorney filed a bill of
information charging defendant with possession with intent to distribute cocaine
weighing 28 grams or greater in violation of La. R.S. 40:967(A) (count 1);
possession with intent to distribute methamphetamine weighing 28 grams or
greater in violation of La. R.S. 40:967(A) (count 2); possession of a firearm by a
convicted felon in violation of La. R.S. 14:95.1 (count 3); possession with intent to
distribute marijuana weighing less than 2.5 pounds in violation of La. R.S.
40:966(A) (count 5); possession of heroin weighing less than 2 grams in violation
of La. R.S. 40:966(C) (count 6); possession of oxycodone weighing less than 2
grams in violation of La. R.S. 40:967(C) (count 7); and possession of
buprenorphine in violation of La. R.S. 40:968(C) (count 8).1 Defendant pled not
guilty on September 11, 2020.

Following the filing of a motion to suppress, the trial court conducted
hearings on November 21, 2021 and April 4, 2022. At the November 21, 2021
suppression hearing, Trooper Katherine Stegall testified that on the date of
defendant’s arrest, August 3, 2020, she was employed as a patrol officer with the
Louisiana State Police. She was stopped on I-10 East in Jefferson Parish between
the Clearview Pkwy. and Causeway Blvd. interstate exits “running radar” when
she noticed a vehicle approaching at a high rate of speed. She testified that her
radar reflected that the vehicle was traveling 93 miles-per-hour in a 60 miles-per-
hour speed zone. She initiated a traffic stop. The body camera video recording of
the entire stop was admitted into evidence at the suppression hearing and viewed
by the trial judge.

The recording reflects that Trooper Stegall instructed defendant to exit the
vehicle and walk to the back of his vehicle. Trooper Stegall exited her police unit
and approached defendant. She informed defendant of the reason for the traffic
stop, speeding, to which defendant appeared to agree and indicated that he was in a
hurry to get home. Trooper Stegall then engaged in conversation with defendant
about where “home” is, where he was coming from, and who was traveling with
him. When asked about his travel plans, defendant stated that he was traveling
from “over there,” pointing to the westbound interstate. He then told Trooper
Stegall that he was traveling home from Baton Rouge, just “riding” around with
friends. Trooper Stegall asked for defendant’s driver’s license, and he handed her
a Louisiana State ID and told her that he had the LA Wallet app on his phone,
which was not on his person. Trooper Stegall returned to her police unit to run
defendant’s name and determined that there were “no wants or active warrants” for
defendant.

After verifying defendant’s identity, Trooper Stegall engaged in
conversation with defendant about the vehicle that he was driving, which was a
rental car. When questioned, defendant stated that the car was rented in his aunt’s
name and that he had the car for “like a day” but could not recall what day it was
or exactly when he took possession of the vehicle. Trooper Stegall testified that
defendant’s demeanor was “nervous and abnormal.” She testified that, because of

1
The bill of information also charged co-defendants, Robert Garrett and Tamike Dauphine, with various crimes.

the other two occupants in the vehicle and the fact that she was stopped on the side
of the interstate at nearly 2:00 a.m., she decided to detain defendant for her safety.
At that point, unprompted, defendant changed his story concerning his travel plans
and told Trooper Stegall that he was actually traveling home from Texas. Trooper
Stegall testified that defendant’s responses and statements concerning his travel
plans were inconsistent and vague and that she suspected criminal activity. Trooper
Stegall advised defendant of his Miranda rights, but continued to advise him that
he was not under arrest at that time.

Shortly thereafter, within three minutes, another officer arrived at the scene.
Trooper Stegall testified that the officers asked the other two occupants of
defendant’s vehicle to exit the vehicle and, upon making contact with the
passenger in the back seat of the car, she smelled the odor of fresh marijuana.
Trooper Stegall detained the female passenger and advised her of her Miranda
rights. The female passenger told Trooper Stegall that they had left New Orleans
on Friday and were traveling home from visiting her child’s father in prison in
Franklin Parish, Louisiana, but explained that they drove through Jackson,
Mississippi to get there. Upon conferring with her fellow officer, Sergeant
Zimmerman, concerning the inconsistent statements and, after advising defendant
that she “smelled weed” in the vehicle, Trooper Stegall elected to search the
vehicle.

Concerning the evidence recovered pursuant to the search, Trooper Stegall
testified as follows:

[We recovered] [t]hree clear plastic vacuum sealed bags
containing a compressed white powder believed to be cocaine was
approximately two point nine three pounds.

* * *

The next items found were a peach backpack in the rear cargo
area claimed by Miss Dalphine. That backpack contained RAW, that’s
the brand name, rolling papers. One clear plastic bag containing
approximately one hundred multicolored tablets believed to be MDMA
and/or ecstasy. One black and silver scale. One pistol light attachment.

Next was a black backpack with a red zipper in the third seat of
the van. That backpack contained one loaded black Glock 22
Generation Four pistol. It’s a 40 caliber with the serial number of
BKRW045. Two 40 caliber magazines with live rounds. One black
leather trifold wallet which contained twenty-three sealed Suboxone
sublingual strips.

* * *

Next located was a black and blue cinch top backpack also in the
third seat. That backpack contained plastic Raising Cane’s cup with red
top containing one clear plastic bag containing a brown powder, which
we believe to be heroin. One clear plastic bag containing a white
powder believed to be cocaine. A clear plastic bag containing a gray
powder of an unknown substance. The brown bags were determined to
weigh a total of approximately point four grams. One Marriott key,
Marriott Hotel key. One black scale.
2

Next located was a navy Lacoste backpack also in the third seat.
That backpack contained one white plastic quarter baggie containing a
green leafy substance believed to be marijuana, which weighed
approximately point five grams. One white and pink Android cell
phone. Keys with a silver twist top key chain cylinder containing about
twelve multi-colored tablets believed to be MDMA and/or ecstasy. I
have it noted that is a common appearance with the tablets located in
the peach backpack. Also located in that backpack was a Blunt Air
Freshener spray bottle full of liquid. Cash separated and wrapped in
rubber bands containing multiple denominations in unknown amount.

Next located was a black and gray checkered cinch style
backpack also in the third row. Inside that backpack was one plastic
vacuum sealed styled bag containing a green leafy substance weighing
a total of approximately fifteen grams. Three loose ammunition, 38
caliber. One brown Mason jar containing approximately twenty grams
of a green leafy substance believed to be marijuana. Medical paperwork
with the name Jeremy Simmons listed as the patient. A box of American
Gunner Hornady 40 cal -- excuse me 40 caliber ammunition with four
live rounds inside. A box of Remington 9 millimeter ammunition with
fifty live rounds inside. A prescription bottle for Tramadol with the
patient name scratched off of the label.

Next located in the center console under the cup holder, one clear
plastic bag containing several small plastic bags. A One-A-Day bottle
containing approximately six hundred multicolored tablets believed to
be MDMA and/or ecstasy, some of which were loose in the bottle and
some in a clear plastic bag. The tablets are common in appearance with
the tablets found in the peach backpack, as well as the key chain
cylinder in the Lacoste backpack. One clear plastic bag containing a
green leafy substance believed to be marijuana, determined to weigh
approximately point five grams.

Next located in the drawer on the back side of the second seat of
the center console, a clear Mason jar containing approximately ten
grams of a green leafy substance believed to be marijuana. A grocery
style back excuse me. A grocery style bag containing four packs of []
Easy Touch Syringes. One black scale. A brown paper bag with two
bottles of Supreme Inositol E6H1206 powder substance which is
known to be a cutting agent.

On the floorboard under the front passenger seat, one loaded
black Smith & Wesson 40 caliber handgun semiautomatic with the
serial number –I’m sorry, the model number is SW990L, and the serial
number is SAJ9464 with one magazine containing live rounds. That
weapon was determined to be stolen.

In the rear cargo area, one red Puma shoe box containing
Hornady 9 millimeter ammunition, box containing four live rounds.
One clear plastic bag containing white -- one white oblong tablet with
the inscription M523 10/325 identified as oxycodone. One clear plastic
bag containing a brown powder substance believed to be heroin and
weighing approximately point two grams. One white plastic bag
3

containing one black extended magazine. A total of six cell phones
were located during the search and separated as follows. Jeremy
Simmons was determined to have two black iPhones. Tameka
Dalphine, one red iPhone and one pink and white Android phone.
Robert Garrett, Jr., one small iPhone in an orange and black case and
one large iPhone in a black case.

On April 4, 2022, the trial court continued addressing the suppression issue.
After considering the testimony and the video evidence admitted, the trial judge
denied the motion to suppress in open court. This timely writ application followed.

In his writ application to this Court, defendant first challenges the traffic
stop, asserting that the record contains no evidence that defendant was in fact
speeding. Defendant was never issued a citation for speeding and defense counsel
points out that the body camera footage does not show Trooper Stegall’s radar gun
reflecting the alleged 93 miles-per-hour speed of defendant’s vehicle. Next,
defendant argues that the detention was unreasonably long in duration, asserting
that the traffic stop was prolonged beyond the time necessary to complete the
traffic stop, i.e., to verify that defendant’s license and insurance information were
valid and to verify that no active warrants existed for defendant’s arrest.

The Fourth Amendment to the United States Constitution and Article I, § 5,
of the Louisiana Constitution protect people against unreasonable searches and
seizures. A defendant may move to suppress any evidence from use at trial on the
basis that it was unconstitutionally obtained. La. Code Crim. Pro. art. 703(A). A
search and seizure conducted without a warrant issued on probable cause is per
se unreasonable unless the State can affirmatively show that the warrantless search
and seizure was justified by one of the narrowly drawn exceptions to the warrant
requirement. See La. Code Crim. Pro. art. 703(D); State v. Surtain, 09-1835 (La.
3/16/10), 31 So.3d 1037, 1043. The trial court’s ruling on the matter must be
afforded great weight and will not be set aside unless there is an abuse of
discretion. State v. Thompson, 11-0915 (La. 5/8/12), 93 So.3d 553, 563; State v.
Wells, 08-2262 (La. 7/6/10), 45 So.3d 577, 581. When a trial court makes findings
of fact based on the credibility of the witnesses, a reviewing court owes those
findings great deference, and may not overturn those findings unless there is no
evidence to support those findings. Thompson, 93 So.3d at 563; State v. Carter,
20-01193 (La. 1/26/21), 309 So.3d 333, 336 (quotations omitted).

As a general matter, “the decision to stop an automobile is reasonable where
the police have probable cause to believe that a traffic violation has occurred.”
State v. Carter, 309 So.3d at 336–37, quoting Whren v. United States, 517 U.S.
806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). Although they may serve
as the prelude to the investigation of much more serious offenses, even relatively
minor traffic violations provide an objective basis for lawfully detaining the
vehicle and its occupants. Id., citing State v. Waters, 00-0356 (La. 3/12/01), 780
So.2d 1053, 1056 (per curiam).

Concerning the duration of a valid traffic stop, the Louisiana Supreme Court
has recently stated:

Louisiana Code of Criminal Procedure article 215.1(D) provides
that in conducting a traffic stop “an officer may not detain a motorist
for a period of time longer than reasonably necessary to complete the
investigation of the violation and issuance of a citation for the violation,
4

absent reasonable suspicion of additional criminal activity.” During the
stop, the officer has the right to conduct a routine license and
registration check and, while doing so, may engage in conversation
with the driver and any passenger. See State v. Lopez, 2000-0562, p. 3
(La. 10/30/00), 772 So. 2d 90, 92-93 (per curiam). If the officer
develops reasonable suspicion of criminal activity, he may further
detain the individual while he diligently pursues a means of
investigation likely to quickly confirm or dispel the particular
suspicion. United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568,
1575, 84 L.Ed.2d 605 (1985). In determining whether the officer has a
reasonable suspicion of some separate illegal activity that justifies
further detention, the totality of the circumstances must be taken into
account. State v. Kalie, 1996-2650, p. 3 (La. 9/19/97), 699 So. 2d 879,
881(per curiam).

State v. Carter, 20-01193 (La. 1/26/21), 309 So.3d 333, 336-37.

Louisiana and federal jurisprudence recognize that traffic stops are
“especially fraught with danger to police officers,” so an officer may need to take
certain negligibly burdensome precautions in order to complete his mission safely.
Rodriguez v. United States, 575 U.S. 348, 356, 135 S. Ct. 1609, 1616, 191 L. Ed.
2d 492 (2015), quoting Arizona v. Johnson, 555 U.S. 323, 330, 129 S.Ct. 781, 172
L. Ed. 2d 694 (2009). An officer has the authority to order the driver and other
occupants out of the vehicle for officer safety. State v. Duhe, 12-2677 (La.
12/10/13), 130 So.3d 880, 886, citing State v. Landry, 588 So.2d 345, 347 (La.
1991) (police may order passengers to exit a car in a routine traffic stop for reasons
of the officers’ safety); see also Maryland v. Wilson, 519 U.S. 408, 413, 117 S.Ct.
882, 886, 137 L.Ed.2d 41 (1997) (when a vehicle is stopped, even for a traffic
violation, officers may lawfully order its passengers to exit the vehicle).

Concerning the subsequent search of the vehicle, Louisiana courts have
consistently held that the odor of marijuana provides an officer with probable
cause to conduct warrantless searches of vehicles. State v. Landor, 20-0336 (La.
App. 1 Cir. 2/19/21), 318 So.3d 225, 229, citing State v. Cooks, 12-237 (La. App. 5
Cir. 1/30/13), 108 So.3d 1257, 1268-70, writ denied, 13-0454 (La. 9/20/13), 123
So.3d 164; State v. Lewis, 07-1183 (La. App. 3 Cir. 4/2/08), 980 So.2d 251; State
v. Waters, 00-0356 (La. 3/12/01), 780 So.2d 1053, 1058 (per curiam); see
also State v. Allen, 10-1016 (La. 5/7/10), 55 So.3d 756 (per curiam); State v.
Turner, 12-855 (La. App. 5 Cir. 5/16/13), 118 So.3d 1186, 1193.

This Court recently explained:

In Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485,
2487, 135 L.Ed.2d 1031 (1996) (per curiam), the United States
Supreme Court held that if a car is readily mobile and probable cause
exists to believe it contains contraband, the Fourth Amendment permits
the police to search the vehicle. In Maryland v. Dyson, 527 U.S. 465,
466–67, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999) (per curiam),
the Supreme Court explained that the “automobile” exception has no
separate exigency requirement. This Court has also recognized that the
“automobile” exception does not have an independent exigency
requirement, and if probable cause exists for the search of the vehicle
that is sufficient. The exigency is supplied by the inherent mobility of
the vehicle and the citizen's lesser expectation of privacy. State v.
5

Mitchell, 10-334 (La. App. 5 Cir. 10/26/10), 52 So.3d 155,
160 (citing [State v.] Joseph, [02-717] [ (La. App. 5 Cir. 6/27/03),] 850
So.2d [1049,] at 1054).

In addition, the Louisiana Supreme Court has recognized that
there is no constitutional distinction between seizing and holding a car
before presenting the probable cause issue to a magistrate and
immediately searching the vehicle without a
warrant. Mitchell, supra; Joseph, supra. Given probable cause to
search, either course is reasonable under the Fourth Amendment and
the Louisiana Constitution. State v. Tatum, 466 So.2d 29, 31 (La. 1985).

Probable cause means “a fair probability that contraband ... will
be found.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332,
76 L.Ed.2d 527 (1983); Mitchell, supra. Whether probable cause exists
must be judged by the probabilities and practical considerations of
everyday life on which average people, and particularly average police
officers, can be expected to act. State v. Jones, 09-688 (La. App. 5 Cir.
2/9/10), 33 So.3d 306, 317.

Additionally, courts, including this Court, have consistently held
that the odor of marijuana provided the officers with sufficient probable
cause to conduct warrantless searches of vehicles. State v. Turner, 12-
855 (La. App. 5 Cir. 5/16/13), 118 So.3d 1186, 1193; State v. Allen, 10-
1016 (La. 5/7/10), 55 So.3d 756 (per curiam); Mitchell, supra.

State v. Lacrosse, 19-599 (La. App. 5 Cir. 1/7/20), reh'g denied (3/9/20), ---
So.3d---, 2020 WL 88838, quoting State v. Brown, 17-420 (La. App. 5 Cir.
2/21/18), 239 So.3d 455, 461-62, writ denied, 18-480 (La. 1/18/19), 262 So.3d
281.

At the suppression hearing, Trooper Stegall testified that her radar reflected
defendant was traveling 93 miles-per-hour in a 60 miles-per-hour speed zone. The
video footage introduced into evidence reflects Trooper Stegall informing
defendant of the reason for the stop, and defendant appears to acknowledge that he
had been speeding because he was in a hurry to get home. The fact that an officer
does not issue a traffic citation is irrelevant to the constitutionality of the stop.
State v. Williams, 13-732 (La. App. 5 Cir. 3/26/14), 138 So. 3d 727, 732. We find
that the initial traffic stop was lawful based on defendant’s traffic violation of
traveling 93 miles-per-hour in a 60 miles-per-hour speed zone.

Trooper Stegall testified at the suppression hearing that defendant’s behavior
became “abnormal” and “nervous” when questioned concerning his travel. She
further testified that he gave inconsistent and “vague” responses, stating first that
he was traveling from Kenner, then Baton Rouge, and then Texas, which gave her
reasonable suspicion to enlarge the scope of her investigation. See State v. Lopez,
00-0562 (La. 10/30/00), 772 So.2d 90, 93. However, Trooper Stegall additionally
testified that, based on defendant’s nervous demeanor, she felt it necessary and
appropriate to detain the other occupants in the vehicle for her safety while she
continued her investigation and completed the stop. She testified that she was
uncomfortable, as a woman of a small stature, handling three occupants of a
vehicle during a traffic stop in the dark at 2:00 a.m., so she requested backup to
detain the occupants. In assisting the female passenger in exiting the vehicle,
Trooper Stegall testified that she immediately smelled “fresh marijuana” coming
6

from the vehicle. Once Trooper Stegall smelled the presence of fresh marijuana in
the vehicle during the lawful stop, the officers had probable cause to search the
vehicle.

The trial judge, upon considering the video evidence and the testimony of
the investigating officer, found Trooper Stegall’s testimony credible. When a trial
court makes findings of fact based on the credibility of the witnesses, a reviewing
court owes those findings great deference, and may not overturn those findings
unless there is no evidence to support those findings. State v. Carter, 309 So.3d at
336. Upon review of the evidence and testimony submitted in connection with the
motion to suppress, and considering the jurisprudence interpreting La. C.Cr.P. art.
215, we cannot say that the trial judge abused her discretion in denying defendant’s
motion to suppress. This writ is denied.

WRIT DENIED

7

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM 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 JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JULY 6, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-K-232
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
THOMAS J. BUTLER (RESPONDENT) C. GARY WAINWRIGHT (RELATOR)

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