State of Louisiana Versus Dominic Delay

STATE OF LOUISIANA NO. 24-K-575

VERSUS FIFTH CIRCUIT

DOMINIC DELAY COURT OF APPEAL

STATE OF LOUISIANA

December 05, 2024

Linda Wiseman
First Deputy Clerk

IN RE DOMINIC DELAY

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JACQUELINE F.
MALONEY, DIVISION "D", NUMBER 24-4314

Panel composed of Judges Susan M. Chehardy,
Stephen J. Windhorst, and Timothy S. Marcel

WRIT DENIED

Defendant-relator, Dominic Delay, seeks review of the trial court’s denial of

his motion to suppress evidence. For the reasons that follow, we deny relator’s writ

application.

On August 23, 2024, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Dominic Delay, with possession of a firearm

while in possession of a controlled dangerous substance, a violation of La. R.S.

14:95(E). On October 30, 2024, defense counsel filed a “Motion to Suppress All

Evidence from the Unconstitutional Warrantless Search” of defendant’s

automobile and black backpack, arguing that the search violated the Fourth

Amendment. According to counsel, the search of a backpack that had been

observed in defendant’s possession revealed a large silver Ziplock-style bag

containing green vegetable matter and a Ruger Security 9 mm firearm.

24-K-575

At the suppression hearing, the State informed the trial court that narcotics

officers received a tip from a reliable source alleging that defendant was trafficking

marijuana, transporting it in a black bag that contained marijuana and a pistol.

Officers conducted surveillance, observed defendant entering a vehicle with the

bag, and arrested him on outstanding traffic attachments. The State claimed the

odor of marijuana emanated from the vehicle and was traced to the bag, which

contained marijuana, a pistol, and a prescription bottle bearing defendant’s name.

Defense counsel argued that the search of the bag was unlawful,

emphasizing that defendant was outside the vehicle at the time of arrest and

asserting that the automobile exception did not apply, because the vehicle was

parked. Defense counsel further stated that the body-camera footage did not

capture the search and argued that the search was unrelated to the 2002 traffic

attachment justifying the arrest.

At the suppression hearing, Detective Gex, a narcotics detective with the

Jefferson Parish Sheriff’s Office (JPSO), confirmed that he investigated defendant

in July 2024 and identified him in open court. Detective Gex began investigating

defendant after receiving information from a reliable confidential informant (CI)

who had proven reliable in the past. The CI indicated that defendant was packaging

marijuana at the location on Lake Avenue, which served as the base of his

operation. Detective Gex testified that the CI provided very specific information

about defendant’s address, apartment number, and vehicle, and stated that

defendant typically carried a black backpack in which he kept marijuana and a gun.

Detective Gex testified that he initiated surveillance after observing

defendant’s vehicle, which matched the informant’s description. He confirmed that

the location given by the informant was defendant’s address, verified through a law

enforcement database and the fact that the vehicle, a Nissan Rogue, was parked at

the address. Detective Gex testified that surveillance began around 11:00 a.m.,

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with the encounter and arrest of defendant occurring at 1:50 p.m. on the same day.

The detective stated that defendant, who exited the residence carrying a black bag

and entered a black Nissan Rogue, matched the CI’s description. Based on this

information and the outstanding attachments, the officers conducted an

investigatory stop and arrested defendant.

Detective Gex further testified that the officers approached defendant while

he was getting into his vehicle. Detective Gex believed that defendant was seated

in the vehicle at the time. He stated that as the officers approached, they detected

the odor of marijuana, which appeared to be coming from the black bag. The

officers removed defendant from the car and apprehended him. Detective Gex said

that a search of the bag revealed marijuana, a gun, and personal property bearing

defendant’s name. Detective Gex confirmed that multiple officers were involved,

and he was present at the scene as events unfolded, but he was not part of the

group that approached defendant as he entered the vehicle; he was there to observe.

He stated that he walked up as defendant was taken into custody. Detective Gex

testified that he smelled the odor of marijuana emanating from the vehicle but

clarified that he was not the first officer to detect it. According to Detective Gex,

other officers, including the apprehension team, also smelled the odor of marijuana

coming from the car.1

Detective Gex testified that the totality of circumstances, including the smell

of marijuana and the specific information provided by the CI, led to the search of

the bag. He stated that Detective Billiot conducted the search of the bag and

referred to the presence of marijuana in it. He explained that he approached the

vehicle from the passenger side, looked inside the bag, and at some point removed

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Detective Gex stated that the driver-side car door was open when he approached the vehicle,
and the odor of marijuana was emanating from it. He further stated that after defendant was
removed, he walked to the vehicle and detected the odor coming from the passenger side. He
explained that the apprehension team determined the odor was coming from the black bag, which
initiated the search.
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it from the vehicle. He also confirmed that the bag he removed was the same one

he observed defendant carrying to the car.

Detective Gex testified that 108 grams of marijuana were found inside of the

bag. He testified that the application for the search warrant for the apartment was

granted based on the items found in the bag and the vehicle, but that no drugs were

discovered inside the apartment. He also confirmed that defendant did not make

any statements.

On cross-examination, Detective Gex confirmed that he had spoken to the

CI but denied witnessing or knowing of any agent witnessing defendant purchase

or sell narcotics. He confirmed that defendant had outstanding attachments in the

system related to a traffic violation, but agreed that defendant’s vehicle had not

moved and defendant had not committed any traffic violations at the time of his

arrest.

Detective Gex identified a video from the apartment complex that showed

the agents conducting the stop. An officer’s body-camera footage was then

admitted into evidence and played in court. Detective Gex identified Agent Ashley

Sheron in the video pointing a firearm and instructing defendant to exit the vehicle.

Detective Gex identified himself and Detective Billiot as the individuals in the

background near the passenger side of the vehicle in the video. He testified that it

was at this point that he detected the odor of marijuana from the passenger side. He

explained that he was unsure if the passenger door was open but stated that he

could smell the marijuana from outside the vehicle.

Detective Gex testified that he believed defendant’s back pocket was also

searched incident to the arrest. As the video continued, he denied observing any

other passengers in the vehicle and confirmed that the door was open, though he

could not recall how it had been opened. Detective Gex stated that Detective

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Billiot could be seen searching the bag in the video before the footage was cut off.2

The detective further testified that he was unsure if any video showed the inside of

the bag containing the gun and marijuana, and he did not recall taking any

photographs. He denied performing DNA testing on the bag and indicated there

might have been testing on the gun.

Defense counsel argued that the search was unlawful because the automobile

exception applies only in cases involving a traffic violation, which was not present

here. He emphasized that defendant’s vehicle was parked in the apartment complex

parking lot and that no traffic violation had occurred that would justify the search.

Citing Arizona v. Gant, supra, counsel further argued that the officers were not

searching for anything related to the traffic attachment, and at the time the bag was

searched, defendant was not in the vehicle, there were no other passengers, and

officer safety was not a concern. Counsel argued that defendant was arrested for a

traffic attachment and not a violation, and counsel questioned the purpose of the

passenger-side search, arguing that a warrant was required under these

circumstances. Because no warrant had issued at the time the bag was searched,

counsel claims the search was unlawful and requested suppression of the evidence

obtained from the bag.

The trial court noted that the odor of marijuana provides officers with

sufficient probable cause to conduct warrantless vehicle searches pursuant to

relevant case law. In response, defense counsel argued that this principle applies

only within the automobile exception, which requires an initial traffic violation to

justify probable cause for a search. Counsel contended that the automobile

exception did not apply here because the bag was not on defendant’s person at the

2
Detective Gex elaborated that body cameras were used primarily for “takedowns” and
apprehensions, to capture situations such as shootings or incidents that escalate beyond normal
operations. He clarified that they were not typically used for evidentiary purposes or in narcotics
investigations, which can involve sensitive circumstances, and that their use was not akin to the
use of body cameras in a patrol capacity.
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time of arrest. He explained that the bag was on the vehicle’s front seat while

defendant was outside, approximately ten feet away, being arrested for a 2002

traffic violation. Counsel asserted that the law does not permit officers to enter the

vehicle and search the bag under these circumstances.

On the other hand, the State argued that the officers acted lawfully based on

the CI’s tip identifying a person with a specific type of bag containing narcotics.

Officers observed defendant with the described bag and approached to make a

lawful arrest pursuant to the attachments. The State argued that the odor of

marijuana, which was strong enough to be detected through the vehicle’s closed

doors, provided probable cause, as it was consistent with the quantity of marijuana

later found in the bag. The State further asserted that the officers could plainly

smell the marijuana emanating from the vehicle and that they had probable cause

to believe a crime was being committed, consistent with the informant’s tip. The

officers’ decision to remove and search the bag, once the smell was determined to

be coming from it, was lawful. The State concluded that the evidence obtained

from the bag should not be suppressed.

The trial court determined that the officers had probable cause to search the

vehicle based on the totality of the circumstances, as testified to by the detective,

and therefore denied the motion to suppress. Defendant timely filed this writ

application seeking review of the trial court’s ruling.

Defendant now contends that the search exceeded the constitutional limits of

the Fourth Amendment, given that he was arrested for 2002 outstanding traffic

attachments; he was handcuffed, standing approximately six feet from his vehicle;

and he was surrounded by officers when the closed black bag on the front

passenger seat was unzipped and searched. He asserts that he could not have

accessed the vehicle or the bag at the time, and the search was unrelated to the

traffic attachments.

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Counsel for defendant further argues that the vehicle was parked within the

curtilage of defendant’s residence, not on a public road, and the officers did not

witness any crimes or traffic violations before the arrest. Defendant argues that the

automobile exception does not apply to a parked, unoccupied vehicle within the

curtilage of defendant’s home, and that the smell of marijuana alone does not

justify a warrantless search. Counsel further highlights Detective Gex’s admission

that Officer Billiot was not searching for evidence related to the 2002 traffic

attachments.

Counsel also contends that the officers searched both the vehicle and

defendant’s apartment before the warrant was approved, and that they lacked

probable cause or a nexus to justify these warrantless searches. Counsel contends

that no testimony or evidence demonstrated exigent circumstances, and neither

probable cause nor the totality of the circumstances justified the search. Counsel

argues that the trial court abused its discretion in denying defendant’s motion to

suppress the evidence.

At the outset, we note that the defense did not raise any argument in the trial

court related to the search of his apartment, nor did the defense argue in the trial

court that the parking lot was within the curtilage of defendant’s home. Thus, we

decline to address these arguments here. See State v. Berroa-Reyes, 12-581 (La.

App. 5 Cir. 1/30/13), 109 So.3d 487, 496 (“Articulating a new basis for the motion

to suppress for the first time on appeal is prohibited under La. C.Cr.P. art. 841,

since the trial court would not be afforded an opportunity to consider the merits of

the particular claim.”); see also State v Landix, 20-K-361 (La. App. 5 Cir.

11/30/20) (unpublished writ disposition) (holding that this tenet applies when

considering a writ application). Rather, the defense focused exclusively on the

argument that the officers were not justified in conducting a warrantless search of

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the vehicle, specifically challenging the search of the black bag on the front

passenger seat.

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

of the Louisiana Constitution prohibit unreasonable searches and seizures. If

evidence is derived from an unreasonable search or seizure, the proper remedy is

exclusion of the evidence from trial. 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.

A defendant who is adversely affected may move to suppress evidence from use at

the trial on the merits on the ground that it was unconstitutionally obtained. La.

C.Cr.P. art. 703(A). The trial court’s decision to deny a motion to suppress is

afforded great weight and will not be set aside 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, 776-77, writ denied, 19-1048 (La. 10/1/19), 280 So.3d

159.

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. Warrantless searches and seizures are per se unreasonable unless justified by

one of the exceptions to the warrant requirement. Id. 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 were

justified pursuant to one of the exceptions to the warrant requirement. La. C.Cr.P.

art. 703(D); 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.

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.

8

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.

Detective Gex testified that in July 2024, a CI provided information that

defendant was packaging and distributing marijuana from a location on Lake

Avenue. He stated that the CI had proven reliable in the past and had provided

specific details, including that defendant carried a black backpack containing

marijuana and a firearm. Detective Gex testified that the CI also identified

defendant’s vehicle and address.

The detective conducted surveillance at the Lake Avenue location and

observed defendant exiting a residence carrying a black backpack and entering a

black Nissan Rogue that matched the informant’s description. He testified that

officers detected the odor of marijuana as they approached the vehicle, which led

to an investigatory stop and defendant’s arrest. Detective Gex stated that a search

of the backpack revealed marijuana, a firearm, and personal property linked to

defendant.

In State v. Lacrosse, 19-599 (La. App. 5 Cir. 1/7/20), 2020 WL 88838, this

Court summarized the law on warrantless searches of vehicles as follows:

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. Mitchell, 10-334 (La. App. 5
Cir. 10/26/10), 52 So.3d 155, 160 (citing Joseph, 850 So.2d at
1054).

In addition, the Louisiana Supreme Court has recognized
that there is no constitutional distinction between seizing and

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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.

Lacrosse, 2020 WL 88838, at *3-4 (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).

In State v. Jackson, 22-K-40 (La. App. 5 Cir. 3/22/22) (unpublished writ

disposition), writ denied, 22-649 (La. 6/8/22), 338 So.3d 1195, the relator argued

in part that that his Fourth Amendment rights against illegal search and seizure

were violated when JPSO personnel, without a warrant, seized items from the

vehicle he was operating. There, a reliable CI reported that the relator had been

selling cocaine, identified him as driving a blue BMW, and provided his exact

address. The informant also claimed to have seen the relator with cocaine and

stated that he carried a firearm. The detective confirmed the address, found that the

relator had traffic attachments, and conducted surveillance. He observed the relator

exit the residence with a blunt behind his ear and a backpack, enter a blue BMW,

and place the backpack on the passenger seat. The detective then conducted an

investigatory stop and seized the blunt. A subsequent search of the relator’s

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backpack revealed four grams of marijuana. The relator had outstanding traffic

attachments and did not challenge his initial stop or arrest. The application for a

search warrant of the relator’s home stated that the detective smelled burning

marijuana emanating from the vehicle upon initiating the stop. This Court held that

the odor of marijuana provided officers with sufficient probable cause to conduct a

warrantless search of the vehicle. Accordingly, the Court found that the JPSO had

reason to suspect contraband would be found inside the car and thus had probable

cause to search the relator’s vehicle and its contents, including the backpack,

without first obtaining a warrant. Id.

Defense counsel does not contest the initial stop of defendant but challenges

the seizure of the backpack found in the vehicle, citing Arizona v. Gant, 556 U.S.

332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Yet the present case is

distinguishable from Gant because here, the State does not rely on the search-

incident-to-arrest exception to justify the seizure of the contraband. Although

defendant was arrested pursuant to outstanding warrants, the search of the vehicle

and backpack was based on the officers’ detection of the odor of marijuana, which

provided probable cause to believe the vehicle contained evidence of criminal

activity.

Further, defendant was lawfully stopped because he had outstanding traffic

attachments. See State v. Leonard, 11-363 (La. App. 5 Cir. 11/15/11), 80 So.3d

535, 545, writ denied sub nom. State ex rel. Leonard v. State, 12-14 (La. 8/22/12),

97 So.3d 356 (“[E]ven if the trial judge had found that the contraband was not

subject to seizure under the ‘plain view’ exception to the warrant requirement, the

detectives discovered during the investigatory stop that defendant had an

outstanding attachment, which provided probable cause for his arrest…”).

Detective Gex testified that a CI indicated that defendant was packaging and

distributing marijuana, identified defendant’s vehicle, and provided his address.
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The CI also stated that defendant carried a backpack. The detectives confirmed

defendant’s address and vehicle through surveillance, and they observed defendant

exiting his residence with the backpack and entering the vehicle. Although they

arrested defendant for outstanding traffic attachments, during the investigatory stop

the officers detected the odor of marijuana emanating from the vehicle and

determined that it was coming from the black backpack. A search of the backpack

revealed 108 grams of marijuana, a firearm, and personal items linking the bag to

defendant.

The odor of marijuana, combined with the circumstances of this case,

provided the officers with sufficient probable cause to search both the vehicle and

the backpack without a warrant. As such, we find no error in the trial court’s

judgment denying the motion to suppress.

Gretna, Louisiana, this 5th day of December, 2024.

SMC
SJW
TSM

12

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
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL 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 12/05/2024 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:

24-K-575
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Jacqueline F. Maloney (DISTRICT JUDGE)
Thomas J. Butler (Respondent)

MAILED
Brandon D. Spann (Relator) Ashton M. Robinson (Respondent)
Attorney at Law Assistant District Attorney
1100 Poydras Street Twenty-Fourth Judicial District
Suite 1475 200 Derbigny Street
New Orleans, LA 70163 Gretna, LA 70053