State of Louisiana Versus Eric James

STATE OF LOUISIANA NO. 23-K-186

VERSUS FIFTH CIRCUIT

ERIC JAMES COURT OF APPEAL

STATE OF LOUISIANA

June 01, 2023

Linda Wiseman
First Deputy Clerk

IN RE ERIC JAMES

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE SCOTT U.
SCHLEGEL, DIVISION "D", NUMBER 22-3831

Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and Cornelius E. Regan, Pro Tempore

WRIT GRANTED

In this writ application, defendant/relator, Eric James, seeks review of the

trial court’s March 9, 2023 denial of his motion to suppress evidence. For the

following reasons, we grant the writ application, grant the motion to suppress

evidence, and remand for further proceedings.

Facts and Procedural History

On August 11, 2022, defendant was charged with possession of a firearm by

a convicted felon in violation of La. R.S. 14:95.1 and possession of Oxycodone in

violation of La. R.S. 40:967(C). He pled not guilty. On March 9, 2023, a

suppression hearing was conducted.1 At the hearing, defendant argued that a

1
The record before us does not show that defendant filed a written motion to suppress evidence. A motion to
suppress should be in writing. State v. Simmons, 08-269 (La. App. 5 Cir. 10/28/08), 996 So.2d 1177, 1182 n.1, writ
denied, 09-15 (La. 9/25/09), 18 So.3d 81. However, in State v. Richardson, 18-401 (La. App. 5 Cir. 2/6/19), 265
So.3d 1006, 1010 n.3, this Court found that even though the defendant did not file a written motion to suppress, this
Court could review the ruling where the State did not object to the procedural deficiency and the trial court held a
suppression hearing. Accordingly, in the present case, we will review the denial of defendant’s motion to suppress.

search warrant issued on July 7, 2022 was invalid and that all of the evidence

recovered as a result of this warrant should be suppressed.

At the suppression hearing on March 9, 2023, Detective Frank Alvarenga of

the Kenner Police Department testified as to his involvement in the investigation

that led to defendant’s July 7, 2022 arrest and the subsequent search and seizure of

evidence. Also, Detective Alvarenga’s affidavit in support of the July 7, 2022

search warrant, which sets forth the circumstances leading up to defendant’s arrest,

was admitted into evidence.

According to the testimony and affidavit, on November 22, 2021, Detective

Alvarenga obtained a search warrant for 2730 Jasper Street in Kenner, after

officers had attempted to stop a vehicle and the occupants ran inside this residence.

During a protective sweep and prior to obtaining the search warrant, officers

located defendant in the living room, and he identified his bedroom within the

residence. Defendant was instructed to wait outside of the residence, but upon

completing the sweep, it was discovered that defendant had left the scene.

During the execution of the search warrant, nine grams of cocaine was

located in the bedroom belonging to defendant. On December 22, 2021, Detective

Alvarenga obtained an arrest warrant for defendant for a violation of “L.R.S.

40:967 A/03-B-Possession with Intent to Distribute a Schedule II Controlled

Dangerous Substance, cocaine (9 grams).”

Over six months later, on July 7, 2022, detectives were conducting

surveillance at 2730 Jasper Street and saw defendant exit the residence and drive

away in a vehicle. In order to arrest defendant on the outstanding warrant,

defendant was pulled over a short time later. No narcotics were found on

defendant or in the vehicle. Detective Alvarenga testified that there was nothing to

suggest that defendant had committed a crime that day, and he was being arrested

solely based on the arrest warrant.

During the stop, defendant provided an address in Geismar, LA and denied

that he had ever lived at 2730 Jasper Street in Kenner. Due to the inconsistencies

in defendant’s story as to where he resided, Detective Alvarenga sought a search

warrant for documents to show that defendant lived at 2730 Jasper Street.

Detective Alvarenga testified that he believed defendant lived there because in

November of 2021, defendant identified his bedroom in the residence and the

officers located an Entergy bill in defendant’s name inside this bedroom.

Although the affidavit provided that the officers were looking for documentation in

connection with the November 2021 offense of distribution or possession with

intent to distribute cocaine, Detective Alvarenga testified that he sought a search

warrant for documentation which could prove defendant still resided at 2720 Jasper

Street.

During the execution of the search warrant on July 7, 2022, officers found

paraphernalia, marijuana, money, and a loaded firearm. The marijuana was located

in the living room, and the loaded weapon and money were found in a box in

defendant’s bedroom closet. Upon locating these items, the search was stopped

while Detective Alvarenga obtained a second search warrant for narcotics.

During the suppression hearing, the State introduced both of the search

warrants signed on July 7, 2022. The State argued the evidence was properly

seized because the police officer was in good faith due to his knowledge that

defendant was dealing drugs out of his home. Defendant responded that Detective

Alvarenga already had evidence that defendant lived at 2730 Jasper Street, so the

search warrant to look for documents was clearly a subterfuge to look for drugs.

The trial court denied the motion to suppress evidence, finding that the first

July 7, 2022 search warrant was valid. The court noted that the affidavit for the

search warrant set forth Detective Alvarenga’s prior dealings with defendant,

showing there had been an ongoing investigation since November 2021. The court

further noted that defendant was trying to “distance himself from the residence”

and that documents can be found in a shoe box.

Law and Discussion

In this writ application, defendant argues that the trial court erred in denying

his motion to suppress evidence, because there was no probable cause to issue the

first July 7, 2022 search warrant. He asserts that the request to search for

documents was “pretextual” in order to get officers inside the house when they had

no probable cause to enter. He argues that misleading the police about his address

was not a crime and did not create probable cause to believe he committed a crime.

Finally, he contends that all evidence stemming from the first July 7, 2022 search

warrant is “fruit of the poisonous tree” and must be suppressed.

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

of the Louisiana Constitution prohibit unreasonable searches and seizures. State v.

Thomas, 08-390 (La. App. 5 Cir. 1/27/09), 8 So.3d 80, 83, writ denied, 09-626 (L.

11/25/09), 22 So.3d 170. If evidence is derived from an unreasonable search or

seizure, the proper remedy is exclusion of the evidence from trial. Id.; State v.

Aston, 12-955 (La. App. 5 Cir. 9/4/13), 125 So.3d 1148, 1156, writ denied, 13-

2374 (La. 3/21/14), 135 So.3d 618.

As a general rule, searches and seizures must be conducted pursuant to a

validly executed search warrant or arrest warrant. 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. Probable cause for the issuance of a search warrant “exists when the facts and

circumstances within the affiant’s knowledge and of which he has reasonably

trustworthy information, are sufficient to support a reasonable belief that an

offense has been committed and that evidence or contraband may be found at the

place to be searched.” 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).

Probable cause to arrest does not necessarily provide probable cause to

search, and the critical element in a reasonable search is not that the owner of the

property is suspected of crime but that there is reasonable cause to believe that the

specific things to be searched for and seized are located on the property to which

entry is sought. State v. Varnado, 95-3127 (La. 5/31/96), 675 So.2d 268, 269-70.

Therefore, a search warrant must establish a probable continuing nexus between

the place sought to be searched and the property sought to be seized. State v.

Casey, 99-23 (La. 1/26/00), 775 So.2d 1022, 1027, cert. denied, 531 U.S. 840, 121

S.Ct. 104, 148 L.Ed.2d 62 (2000).

“The process [of determining probable cause] simply requires that enough

information be presented to the issuing magistrate to enable him to determine that

the charges are not capricious and are sufficiently supported to justify bringing into

play the further steps of the criminal justice system.” State v. Rodrigue, 437 So.2d

830, 833 (La. 1983); State v. Mitchell, 15-524 (La. App. 5 Cir. 12/9/15), 182 So.3d

365, 375. The task for a reviewing court is simply to ensure that under the totality

of the circumstances the magistrate had a “substantial basis” for concluding that

probable cause existed. Lee, 976 So.2d at 122, citing Illinois v. Gates, 462 U.S.

213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983).

The facts establishing probable cause for the warrant must be contained

within the four corners of the affidavit. State v. Green, 02-1022 (La.12/4/02), 831

So.2d 962, 969; State v. Clement, 11-1150 (La. App. 5 Cir. 9/11/12), 101 So.3d

460, 468, writ denied, 12-2214 (La. 4/1/13), 110 So. 3d 139. Under La. C.Cr.P.

art. 162, “[a] search warrant may issue only upon probable cause established to the

satisfaction of the judge, by the affidavit of a credible person, reciting facts

establishing the cause for issuance of the warrant.” La. C.Cr.P. art. 162 requires

the facts establishing probable cause to be recited in the affidavit because it is the

judge, not the affiant, who must be satisfied as to the existence of probable cause.

Clement, 101 So.3d at 468, citing State v. Wells, 253 La. 925, 221 So.2d 50, 53

(1969).

In the instant case, defendant argues there was no probable cause for the

issuance of the first July 7, 2022 search warrant. We agree.

In reviewing the four corners, Detective Alvarenga’s affidavit stated that on

November 22, 2021,2 defendant was at 2730 Jasper Street and fled the scene during

the execution of the search warrant where narcotics were found. It further provides

that in December 2021, narcotics officers received information that occupants of

2730 Jasper Street had been selling illegal narcotics. However, the affidavit does

not indicate that Detective Alvarenga verified this information in order to find it

reliable or trustworthy.3 Detective Alvarenga also indicated that he conducted

surveillance of 2730 Jasper Street in December of 2021 and saw people with

“priors” for narcotics distribution. However, the affidavit did not explain what

these people were seen doing at 2730 Jasper Street. The affidavit did not state if

they were entering and leaving 2730 Jasper Street or if they were seen engaging

with the defendant or conducting hand-to-hand transactions. Further, the affidavit

is silent as to any facts or circumstances indicating there was ongoing criminal

activity from December 2021 to July 7, 2022.

The affidavit provides that on July 7, 2022, Detective Alvarenga saw

defendant leaving 2730 Jasper Street and subsequently arrested him pursuant to an

arrest warrant for drugs. During the stop, defendant denied that he had ever lived

at 2730 Jasper Street, so Detective Alvarenga authored a search warrant for

documents to show that defendant lived at 2730 Jasper Street.

2
The affidavit actually provides that the date was November 22, 2022. However, as noted by the trial court, this
was clearly a typographical error as the date had not yet occurred.
3
In establishing that an informant’s tip is sufficient to provide a basis for a finding of probable cause, the affiant
should include statements about the informant’s reliability and about the manner in which the informant obtained the
information. Clement, 101 So.3d at 469; State v. Barrilleaux, 620 So.2d 1317, 1320 (La. 1993). Such information
assures the magistrate that “he is relying on something more substantial than a casual rumor circulating in the
underworld.” Id.

This Court must determine whether, under the totality of the circumstances,

there is a sufficient basis upon which the trial court could have found there was

probable cause to issue the search warrant.

Although the purpose of the requested search was to find documents related

to defendant’s address in connection with possession with intent to distribute

cocaine or distribution of cocaine, the affidavit showed that such evidence had

already been obtained and there was no probable cause to search defendant’s

residence. The affidavit stated that defendant had identified his bedroom in the

residence in November of 2021, that an Entergy utility bill was found in that

bedroom, that defendant was seen leaving the residence on July 7, 2022, and that a

“TLOxp inquiry revealed that James has an address listed as 2730 Jasper Street,

Kenner, LA.” Further, with a time-gap of over six months from December 2021 to

July 7, 2022, the affidavit does not establish a probable continuing nexus between

2730 Jasper Street and the property sought to be seized. Considering the totality of

the circumstances, we find there was no probable cause for the first July 7, 2022

search warrant.

We now consider the good faith exception set forth in United States v. Leon,

468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the Supreme Court

held evidence seized under a constitutionally defective warrant should not be

suppressed where the officers acted in good faith and in objectively reasonable

reliance on the validity of the warrant. The Leon court enumerated four instances

in which suppression remains an appropriate remedy: (1) where the magistrate or

judge was misled by information the affiant knew was false or would have known

was false except for a reckless disregard for the truth; (2) where the issuing

magistrate wholly abandoned his detached and neutral judicial role; (3) where the

warrant was based on an affidavit so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable; and (4) where the

warrant is so facially deficient, i.e., fails to particularize the place to be searched or

the things to be seized, that the executing officers cannot reasonably presume it to

be valid. Leon, 468 U.S. at 914-15, 104 S.Ct. at 3416; State v. Guidry, 03-625 (La.

App. 5 Cir. 1/27/04), 866 So.2d 944, 948.

In the present case, the evidence does not show that the first, second, or

fourth instances in Leon, supra, apply herein. However, the third instance applies,

making suppression of evidence the appropriate remedy. The third instance of

Leon, supra, provides exclusion if the warrant was based on an affidavit so lacking

in indicia of probable cause as to render official belief in its existence entirely

unreasonable.

Detective Alvarenga testified that he had worked for the Kenner Police

Department for 22 years, so it is reasonable to conclude he is well-trained.

However, his affidavit in support of the search warrant clearly lacks the requisite

probable cause for issuance of the warrant. Detective Alvarenga testified that there

was nothing to suggest that defendant had committed a crime in July 2022, and that

the purpose of the warrant was to locate documents related to defendant’s address

in connection with the possession with intent to distribute cocaine or distribution of

cocaine offense. However, at the hearing, Detective Alvaregna testified that he

authored a search warrant for documents to show that defendant still lived at 2730

Jasper Street, which would not be evidence of the November 2021 offense. The

affidavit does not set forth facts supporting a reasonable belief that evidence of the

November 2021 offense was present at 2730 Jasper Street in July of 2022.

After review, we find that the good faith exception in Leon, supra, does not

apply, because the warrant was based on an affidavit so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable.

While defendant does not challenge the second search warrant obtained on

July 7, 2022, he argues that all evidence obtained in this case must be suppressed

as fruit of the poisonous tree because the first search warrant in July 2022 was

obtained unconstitutionally. Citing Wong Sun v. United States, 371 U.S. 471, 83

S.Ct. 407, 9 L.Ed.2d 441 (1963) and United States v. Hernandez, 670 F.3d 616,

620 (5th Cir. 2012), defendant argues that the exclusionary rule prohibits the

introduction of all evidence that is derivative of an illegal search or evidence

known as “fruit of the poisonous tree,” specifically everything that was seized

during and after execution of the first search warrant on July 7, 2022.

Because we find that the first July 7, 2022 search warrant lacks probable

cause, and the good faith exception of Leon, supra, does not apply, all evidence

derived from the execution of the first July 7, 2022 search warrant must be

suppressed.

The trial court is afforded great discretion in ruling on a motion to suppress,

and its ruling will not be disturbed absent an abuse of that discretion. State v.

Welch, 11-274 (La. 4/29/11), 60 So.3d 603. In this case, we find that the trial court

abused its discretion by denying defendant’s motion to suppress. Accordingly, we

grant the writ application, grant the motion to suppress, and remand this matter for

further proceedings.

Gretna, Louisiana, this 1st day of June, 2023.

CER
FHW
RAC

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM 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

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COUNSEL, AS LISTED BELOW:

23-K-186
E-NOTIFIED
24th Judicial District Court (Clerk)
Hon. Scott U. Schlegel (DISTRICT JUDGE)
Darren A. Allemand (Respondent) Thomas J. Butler (Respondent)

MAILED
Jeffrey Hufft (Relator) James A. Williams (Relator) Honorable Paul D. Connick, Jr.
Attorney at Law Kathrine E. Ellis (Relator) (Respondent)
3500 North Causeway Boulevard Attorney at Law District Attorney
Suite 185 706 Derbigny Street Twenty-Fourth Judicial District
Metairie, LA 70002 Gretna, LA 70053 200 Derbigny Street
Gretna, LA 70053

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1. Article Addressed to:
Jeffrey Hufft
Attorney at Law
3500 North Causeway Boulevard
Suite 185
Metairie, LA 70002
23-K-186 06-01-23

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