Bryson Bowman Versus State of Louisiana

BRYSON BOWMAN NO. 23-K-405

VERSUS FIFTH CIRCUIT

STATE OF LOUISIANA COURT OF APPEAL

STATE OF LOUISIANA

October 02, 2023

Linda Wiseman
First Deputy Clerk

IN RE BRYSON BOWMAN

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B.
DARENSBURG, DIVISION "C", NUMBER 23-104

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Marc E. Johnson

WRIT GRANTED FOR LIMITED PURPOSE; JUDGMENT
VACATED; REMANDED FOR FURTHER PROCEEDINGS

Relator, Bryson Bowman, seeks review of the trial court’s May 25, 2023

ruling that denied his motion to suppress evidence.

In his writ application, Defendant contends that there was no testimony

presented at the hearing to demonstrate that a protective sweep of the residence—

which led to the discovery of the evidence at issue—was necessary. He asserts that

he was arrested approximately ten minutes away from the residence.1 He mentions

that the State did not call Detective Di Giovanni or any of the other arresting officers

to testify. Further, Defendant avers that he was in custody before they entered the

residence, displacing any argument that exigent circumstances may have existed.

He asks that all the evidence gathered against him during that search, as well as any

1
The State posits that this is a typographical error since defense counsel also claims that Defendant was arrested at
his front door. The State asserts that the record “bears out” Defendant was arrested at the front door of his
apartment. However, neither party cites to the record in support of its assertions as to the physical location of
Defendant at the time of his arrest. The evidence presented at the suppression hearing only shows that Defendant
was arrested at “2300 Edenborn Avenue, Building 1, Apartment 358, in Metairie, Louisiana.”

evidence obtained as a result of information obtained during that search, be

suppressed.

The State responds that the trial court did not err in denying the motion to

suppress the evidence. The State provides that the crux of Defendant’s argument is

that the police allegedly had no lawful reason to conduct the protective sweep that

led to the discovery of narcotics and paraphernalia inside the residence. The State

contends that this argument is meritless because protective sweeps are routine for

officer safety. Alternatively, even if the protective sweep was improper, the State

argues that the inevitable discovery doctrine dictates that suppression is

inappropriate. The State avers the officers would have inevitably secured a search

warrant to find evidence of Defendant’s firearm offenses for which he was arrested.

At the May 25, 2023 suppression hearing, the State called Detective Cody

Foret with the narcotics division of the Jefferson Parish Sheriff’s Office to testify.

Detective Foret provided that in November 2022, he was contacted by Detective Pat

Di Giovanni of the Marshal’s Task Force who notified him that he was serving an

Orleans Parish arrest warrant for Defendant, and suspected narcotics were

discovered. Detective Foret then responded to the scene at Edenborn Avenue.

Detective Foret testified that he spoke with Detective Di Giovanni, who explained

why the members of the task force were present and showed him the arrest warrant.

Afterwards, Detective Di Giovanni showed him the suspected cocaine and

marijuana, which was located on the bathroom floor.

Detective Foret then applied for a search warrant of the apartment located at

2300 Edenborn, Building One, Apartment 358. He confirmed that a “judge and/or

commissioner” signed the warrant. When asked what items were seized as a result

of that warrant, Detective Foret answered “Cocaine, marijuana, crack cocaine,

United States currency, as well as some paraphernalia, and digital scale.” He

provided that at the scene, Detective Di Giovanni only told him about the “drugs on

the floor in the bathroom in plain view.” The prosecutor asked, “When you

conducted the search of this home, where else did you find drugs in this house?”

Detective Foret specified “narcotics” were found on the nightstand, inside of the

kitchen drawer, and inside of a microwave, which was located inside of a closet.

Detective Foret explained on cross-examination that he did not participate

with Detective Di Giovanni in the execution of the arrest warrant and was not present

at the time of the protective sweep. He confirmed that members of the task force

located suspected narcotics when they conducted a protective sweep of the

residence, and he was subsequently contacted. Defense counsel asked whether

Detective Foret was “aware of the fact that when Detective Di Giovanni executed

this arrest warrant, that Mr. Bowman answered the door? Did he tell you that?”

Detective Foret replied that he was not aware. Defense counsel further asked, “So,

if I told you that Detective Di Giovanni arrested him. He was taken into custody

outside of the house, you wouldn’t be able to dispute that, would you?” Detective

Foret denied he could answer as to what happened before his arrival. He confirmed

he knew the nature of a protective sweep when an individual was arrested in a

residence. He explained that the purpose of the protective sweep was to make

contact with other occupants and for officers’ safety.

Detective Foret testified that he knew the officers “made contact” with

Defendant’s girlfriend, Daron Singleton, and her infant son inside the apartment. He

agreed that he could not inform the court of specific facts which would have led

Detective Di Giovanni to conduct a “protective search.” He further agreed he would

be speculating as to whether there was any danger posed to Detective Di Giovanni

and members of the task force at the time of Defendant’s arrest. He asserted that

only a protective sweep was conducted to his knowledge and that drugs were

discovered in “plain view” on the bathroom floor.

Detective Di Giovanni was not present at the hearing to testify.

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.

When evidence is seized pursuant to a search warrant, the defendant bears the burden

of proof at a hearing on his motion to suppress that evidence. La. C.Cr.P. art. 703(D);

State v. Williams, 20-46 (La. App. 5 Cir. 12/30/20), 308 So.3d 791, 825, writ denied,

21-316 (La. 5/25/21), 316 So.3d 2. Conversely, the State bears the burden in

establishing the admissibility of the evidence seized without a warrant. La. C.Cr.P.

art. 703(D); State v. Salinas, 17-485 (La. App. 5 Cir. 7/6/18), 251 So.3d 1166, 1174.

When the constitutionality of a warrantless search or seizure is placed at issue by a

motion to suppress the evidence, the State bears the burden of proving that the search

and seizure was justified pursuant to one of the exceptions to the warrant

requirement. La. C.Cr.P. art. 703(D); Williams, supra; State v. Joseph, 02-717 (La.

App. 5 Cir. 6/27/03), 850 So.2d 1049, 1052, writ denied sub nom. State ex rel. Joseph

v. State, 04-2404 (La. 6/17/05), 904 So.2d 686. Here, Defendant asserts that all of

the evidence seized by the officers should be suppressed because the protective

sweep that led to the discovery of the narcotics in plain view was an unlawful search.

After review, based upon the evidence presented at the hearing, we find that

the record before us is insufficient to review the totality of the circumstances. There

were limited details surrounding Defendant’s arrest and the initial entry into the

residence presented to the trial court. The writ application does not disclose

Defendant’s physical location at the apartment at the time of his arrest, the layout or

size of the apartment, and the location of the bathroom where the narcotics were

found. Additionally, Detective Foret’s testimony and the search warrant do not

specifically disclose when and where the items listed in the return were recovered.

Furthermore, the trial judge did not specifically address the issue of whether the

protective sweep was lawful. As such, we find that full consideration of this matter

requires more information to determine whether the evidence should be suppressed.

In regards to the State’s argument that the evidence would have been

inevitably discovered, at this point, there is no evidence in the record that the officers

executing the arrest warrant intended to obtain a search warrant for the apartment to

attempt to uncover evidence of the alleged crimes committed in Orleans Parish.

Accordingly, we vacate the denial of Defendant’s motion to suppress and

remand this matter to the trial court with the instruction to re-open the suppression

hearing to receive testimony and evidence from further witnesses, including but not

limited to Detective Di Giovanni. See, State v. Schenayder, 14-479 (La. App. 5 Cir.

12/30/14), 167 So.3d 832, 836.

Gretna, Louisiana, this 2nd day of October, 2023.

MEJ
FHW
JGG

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.
SCOTT U. SCHLEGEL 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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TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 10/02/2023 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:

23-K-405
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable June B. Darensburg (DISTRICT JUDGE)
Thomas J. Butler (Respondent) Kathrine E. Ellis (Relator)
Darren A. Allemand (Respondent)

MAILED
James A. Williams (Relator) Honorable Paul D. Connick, Jr.
Attorney at Law (Respondent)
706 Derbigny Street District Attorney
Gretna, LA 70053 Twenty-Fourth Judicial District
200 Derbigny Street
Gretna, LA 70053

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23-K-405

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