State of Louisiana v. James Cody McMahon

Judgment rendered September 21, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,740-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

JAMES CODY MCMAHON Appellant

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 19-CR4712

Honorable Hamilton Stephens Winters, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Edward Kelly Bauman

ROBERT STEPHEN TEW Counsel for Appellee
District Attorney

JUSTIN A. WOOLEY
Assistant District Attorney

*****

Before MOORE, PITMAN, and COX, JJ.

COX, J.

This case arises out of the Fourth Judicial District Court, Ouachita

Parish, Louisiana. James Cody McMahon was charged and unanimously

convicted in violation of La. R.S. 14:91.5, unlawful use of a social

networking site. McMahon appealed, and this Court vacated his sentence

and remanded for resentencing. On remand, McMahon was sentenced to his

original sentence of three years at hard labor without probation, parole, or

suspension of sentence. He now argues La. R.S. 14:91.5 is unconstitutional

and his Fourth and Fourteenth Amendment rights were violated. For the

following reasons, we affirm.

FACTS

McMahon was charged by amended bill of information of one count

of unlawful use of a social networking site in violation of La. R.S. 14:91.5.

At the time of his charge, he was on supervised probation for an indecent

behavior with a juvenile conviction. During a visit with his probation

officer, Amanda Peoples, he was asked to submit to a random drug test.

Before the drug test, he was asked to submit his cell phone for a search.

Officers found applications for Facebook, Snapchat, Twitter, and Instagram

on his cell phone. Officers then requested a search warrant to search

McMahon’s phone, including social media accounts, emails, and chats on

any social media accounts.

On February 10, 2020, McMahon filed a motion to suppress prior to

the start of voir dire. He argued his phone “was seized and searched without

a warrant and without probable cause or reasonable suspicion in violation of

the Fourth Amendment” and his consent to search the phone was coerced.

The parties agreed that the motion would be heard on the merits.

During trial, Deputy Peoples testified that as a condition of

McMahon’s probation, he could not have social media accounts. She stated

that she reminded him of this when she would visit his home but did not

personally review this condition with him in 2016 when he was convicted.

Deputy Peoples testified that on August 6, 2019, she decided to give

McMahon a random drug screen. She stated that when he was going

through the metal detector, he had to place his cell phone on the counter.

She testified that when he set his cell phone down, she told him she would

like to look at it. She stated that she asked him if there was anything on it he

was not supposed to have, he said no, and she had him unlock the passcode

on the cell phone. She stated that he did not hesitate to put the passcode into

the phone.

Deputy Peoples testified that after McMahon typed the passcode, he

handed her his cell phone, she looked at the phone, and it was “quite

obvious” that he had Facebook and Snapchat icons. She testified that when

she asked McMahon if he knew he was not supposed to have social media

accounts, he said he did know that.

Deputy Stacy Morrison testified that she is in charge of sex offender

registrations for Ouachita Parish. She stated that individuals who come

through her office are required to fill out a sex offender contract, which

outlines rules and prohibits the use of social media. She stated that when an

offender first comes to her office, she explains the rules. Deputy Morrison

was shown a copy of McMahon’s sex offender contract and verified that he

initialed the bottom of every page, signifying that he understood all the

rules.

2

Officer Corey Bennett testified that he is a supervisor for probation

and parole for the State of Louisiana. He stated that he originally set up

McMahon’s case in 2016 and supervised him from May of 2017 until

sometime in 2019. He testified that he reviewed the rules of probation with

McMahon. He stated that the rules include a prohibition on social media use

and provide for an inspection of computers and electronic devices. He

testified that in sex offender cases, cell phones are randomly checked.

Officer Bennett stated that McMahon could have refused the search and put

his cell phone in his vehicle.

On February 11, 2020, while the jury deliberated, the trial court

denied McMahon’s motion to suppress. McMahon was found guilty by a

unanimous jury of unlawful use of a social networking site. He was

sentenced to three years at hard labor. McMahon appealed. His sentence

was vacated, and his case was remanded on July 21, 2021.1 In that per

curiam opinion, McMahon’s sentence was vacated and the matter remanded

for further proceedings because the trial court failed to rule on his motion for

post-verdict judgment of acquittal and motion in arrest of judgment prior to

sentencing. On July 28, 2021, the trial court held a hearing to correct the

minutes. The trial court stated that McMahon’s motion for post-verdict

judgment of acquittal and motion in arrest of judgment had been ruled on.

The trial court supplemented the record with transcripts of the sentencing

where both motions were addressed and ordered the minutes be corrected to

reflect the disposition of the motions.

1
State v. McMahon, 54,172, (La. App. 2 Cir. 7/21/21) 2021 WL 3073069.
3

McMahon’s resentencing hearing was held on December 30, 2021.

At that hearing, the trial court discussed the remand from this Court. The

trial court stated and defense counsel agreed that the motions had been ruled

upon or waived at the prior sentencing. McMahon agreed on the record that

his motion for post-verdict judgment of acquittal had been ruled upon. He

then waived his motion in arrest of judgment and motion for new trial.

McMahon stated he believed these motions were taken care of prior to his

original sentencing. The trial court sentenced McMahon to his original

sentence of three years. McMahon now appeals.

DISCUSSION

Constitutionality of La. R.S. 14:91.5

McMahon argues that the trial court erred in denying his pro se

motion in arrest of judgment and in ruling La. R.S. 14:91.5 is constitutional.

He points out that in Packingham v. North Carolina, -- U.S. --, 137 S. Ct.

1730, 198 L. Ed. 2d 273 (2017), the Supreme Court held that a similar North

Carolina statute was unconstitutional.

McMahon argues that La. R.S. 14:91.5 is unconstitutional because it

infringes on his First Amendment right to freedom of speech. He asserts

that an absolute restriction on his internet access may derail his chances of

seeking gainful employment or maintaining networking capabilities to keep

employment. He argues that the statute, as written, is not narrowly written

to prevent illicit communications between sex offenders and minors but is a

blanket restriction on First Amendment rights. He requests the trial court be

reversed and La. R.S. 14:91.5 be declared unconstitutional.

The State argues that the trial court was correct in its ruling regarding

the constitutionality of La. R.S. 14:91.5. It argues that the Louisiana statute
4

is not a broad statute like the statute discussed in Packingham v. North

Carolina, supra, which had broad language to not only bar social media sites

but also websites like Amazon and Webmd. Additionally, Louisiana’s

statute applies onlyto those who are required to register as a sex offender.

For these reasons, the State asserts that Louisiana’s statute can be

distinguished from the North Carolina statute.

Legislation is deemed a solemn expression of legislative will. La.

C.C. art. 2. Statutes are presumed to be constitutional and their

constitutionality will be preserved when it is reasonable to do so. Pesnell v.

Sessions, 51,871 (La. App. 2 Cir. 2/28/18), 246 So. 3d 686. Since statutes

are presumed to be constitutional, “the party challenging the validity of a

statute generally has the burden of proving unconstitutionality.” Moore v.

RLCC Techs., Inc., 95-2621 (La. 2/28/96), 668 So. 2d 1135; Pesnell v.

Sessions, supra. To satisfy this burden, the challenging party must cite the

specific constitutional provision that prohibits the legislative action. Pesnell

v. Sessions, supra.

In order to survive intermediate scrutiny, a law must be “narrowly

tailored to serve a significant governmental interest.” In other words, the

law must not “burden substantially more speech than is necessary to further

the government's legitimate interests.” Packingham v. North Carolina,

supra.

In Packingham v. North Carolina, supra, the Supreme Court held that

the North Carolina statute impermissibly restricted lawful speech, in

5

violation of the First Amendment. The North Carolina statute provided, in

pertinent part:2

(a) Offense.--It is unlawful for a sex offender who is registered
in accordance with Article 27A of Chapter 14 of the General
Statutes to access a commercial social networking Web site
where the sex offender knows that the site permits minor
children to become members or to create or maintain personal
Web pages on the commercial social networking Web site.

(b) For the purposes of this section, a “commercial social
networking Web site” is an Internet Web site that meets all of
the following requirements:

(1) Is operated by a person who derives revenue from
membership fees, advertising, or other sources related to the
operation of the Web site.

(2) Facilitates the social introduction between two or more
persons for the purposes of friendship, meeting other persons,
or information exchanges.

(3) Allows users to create Web pages or personal profiles that
contain information such as the name or nickname of the user,
photographs placed on the personal Web page by the user, other
personal information about the user, and links to other personal
Web pages on the commercial social networking Web site of
friends or associates of the user that may be accessed by other
users or visitors to the Web site.

(4) Provides users or visitors to the commercial social
networking Web site mechanisms to communicate with other
users, such as a message board, chat room, electronic mail, or
instant messenger.

(c) A commercial social networking Web site does not include
an Internet Web site that either:

(1) Provides only one of the following discrete services: photo-
sharing, electronic mail, instant messenger, or chat room or
message board platform; or

(2) Has as its primary purpose the facilitation of commercial
transactions involving goods or services between its members
or visitors.

2
N.C.G.S. § 14-202.5.
6

The prior version of La. R.S. 14:91.5 was held to be unconstitutional

by a federal district court in February 2012,3 and the statute was revised in

August 2012. The current version of the statute provides, in pertinent part:

A. The following shall constitute unlawful use of a social
networking website:

(1) The intentional use of a social networking website by a
person who is required to register as a sex offender and who
was convicted of R.S. 14:81 (indecent behavior with juveniles),
R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.3
(computer-aided solicitation of a minor), or R.S. 14:283 (video
voyeurism) or was convicted of a sex offense as defined in R.S.
15:541 in which the victim of the sex offense was a minor.

(2) The provisions of this Section shall also apply to any person
convicted for an offense under the laws of another state, or
military, territorial, foreign, tribal, or federal law which is
equivalent to the offenses provided for in Paragraph (1) of this
Subsection, unless the tribal court or foreign conviction was not
obtained with sufficient safeguards for fundamental fairness
and due process for the accused as provided by the federal
guidelines adopted pursuant to the Adam Walsh Child
Protection and Safety Act of 2006.1

B. For purposes of this Section:

(1) “Minor” means a person under the age of eighteen years.

(2)(a) “Social networking website” means an Internet website,
the primary purpose of which is facilitating social interaction
with other users of the website and has all of the following
capabilities:

(i) Allows users to create web pages or profiles about
themselves that are available to the general public or to any
other users.

(ii) Offers a mechanism for communication among users.

(b) “Social networking website” shall not include any of the
following:

(i) An Internet website that provides only one of the following
services: photo-sharing, electronic mail, or instant messaging.

3
Doe v. Jindal, 853 F. Supp. 2d 596 (M.D. La. 2012).
7

(ii) An Internet website the primary purpose of which is the
facilitation of commercial transactions involving goods or
services between its members or visitors.

(iii) An Internet website the primary purpose of which is the
dissemination of news.

(iv) An Internet website of a governmental entity.

(3) “Use” shall mean to create a profile on a social networking
website or to contact or attempt to contact other users of the
social networking website.

The Supreme Court stated in Packingham v. North Carolina, supra,

“[T]his opinion should not be interpreted as barring a State from enacting

more specific laws than the one at issue. Specific criminal acts are not

protected speech even if speech is the means for their commission.” We

find the current Louisiana statute to be more narrowly tailored than the

unconstitutional North Carolina statute.

A comparison of the Louisiana and North Carolina statutes reveals

that Louisiana’s statute is directed toward a narrower group of registered sex

offenders. North Carolina’s statute applied to all registered sex offenders

under its “Sex Offender and Public Protection Registration Programs.” See

N.C.G.S. § 14-208.5, et seq. Louisiana’s statute applies to those required to

register as a sex offender and have been convicted of certain enumerated

crimes. La. R.S. 15:542 governs which offenses require sex offender

registration for both adults and juveniles and states, in pertinent part:

(1) Any adult residing in this state who has pled guilty to, has
been convicted of, or where adjudication has been deferred or
withheld for the perpetration or attempted perpetration of, or
any conspiracy to commit either of the following:

(a) A sex offense as defined in R.S. 15:541, with the exception
of those convicted of felony carnal knowledge of a juvenile as
provided in Subsection F of this Section.

8

(b) A criminal offense against a victim who is a minor as
defined in R.S. 15:541.

There are over 25 offenses listed as sex offenses in La. R.S.

15:541(24) and over 10 offenses listed as criminal offenses against a minor

victim in La. R.S. 15:541(12). 4 All of these offenses require the offender to

register. However, La. R.S. 14:91.5 applies only to those registered sex

offenders who are convicted of R.S. 14:81 (indecent behavior with

juveniles), R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.3

(computer-aided solicitation of a minor), R.S. 14:283 (video voyeurism), or

a sex offense as defined in R.S. 15:541 in which the victim of the sex

offense was a minor. This list of required convictions has the effect of

narrowing the statute so that the prohibition on social networking sites does

not apply to every registered sex offender as the North Carolina statute did.

By tailoring the statute, the Louisiana legislature has targeted those

offenders who “often pose a high risk of engaging in … crimes against

victims who are minors even after being released from incarceration” which

is “of paramount governmental interest.” La. R.S. 15:540(A).

The Louisiana and North Carolina statutes have additional

distinctions. Louisiana has two additional exclusions to the definition of

social networking website: “An Internet website the primary purpose of

which is the dissemination of news”; and “An Internet website of a

governmental entity.” The North Carolina statute prevented access to social

networking websites. The Louisiana statute is distinguishable from the

North Carolina statute because it does not prevent access to social

4
Only those offenses which require an adult to register as a sex offender are
discussed in this opinion. This list is not meant to encompass all possibilities of
registration but is used for illustrative purposes.
9

networking websites, it only prevents use of the websites. “Use” is defined

in the Louisiana statute as “to create a profile on a social networking website

or to contact or attempt to contact other users of the social networking

website.”

These distinctions between the two statutes speak directly to the

concerns of the Supreme Court that offenders would not have access to

sources for current events, checking employment ads, and “exploring the

vast realms of human thought and knowledge.” Packingham v. North

Carolina, supra. The Louisiana statute specifically allows accounts to be

created on news and government websites. It also allows access to any

website; it simply prevents a personal account from being created, which

prevents contact with minors. For example, registered sex offenders can still

access public social media pages to view announcements, news, and job

postings.

For these reasons, we find that La. R.S. 14:91.5 does not violate the

First Amendment rights of those registered sex offenders who are prevented

from using social networking sites. This assignment of error lacks merit.

Attorney General not properly served

McMahon argues the Louisiana Attorney General (“AG”) was not

sufficiently notified via service of process that he made a constitutional

challenge to La. R.S. 14:91.5. He asserts that there is no record of the AG

being served. He therefore argues, according to State v. Broussard, 18-0616

(La. App. 1 Cir. 12/21/18), 268 So. 3d 307, the trial court’s ruling on the

constitutionality of La. R.S. 14:91.5 should be vacated and remanded for a

new trial in which the AG has an opportunity to participate.

10

The State asserts that the AG was adequately served but chose not to

respond. It argues that AG service via certified mail is only required of the

courts of appeal and Louisiana Supreme Court, but it is not required of trial

courts. It notes that the AG is required to be served, but the method of

service is not specified.

If the statute, ordinance, or franchise is alleged to be unconstitutional,

the attorney general of the state shall also be served with a copy of the

proceeding and be entitled to be heard. La. C.C.P. art. 1880. “Prior to

adjudicating the constitutionality of a statute of the state of Louisiana, the

courts of appeal and the Supreme Court of Louisiana shall notify the

attorney general of the proceeding and afford him an opportunity to be

heard. The notice shall be made by certified mail.” La. R.S. 13:4448

(emphasis added).

The record reveals that the AG was served via domiciliary service on

July 9, 2020. La. R.S. 13:4448 requires service via certified mail by the

courts of appeal and Supreme Court. There is no requirement that the trial

court serve the AG by a particular method. Therefore, the domiciliary

service of the AG is compliant with La. C.C.P. art. 1880. This assignment

of error lacks merit.

Unreasonable search and seizure

McMahon argues the trial court erred in denying his motion to

suppress. He argues he was deprived of his right to be free from

unreasonable searches and seizures, as guaranteed by the Fourth and

Fourteenth Amendments to the United States Constitution and Article 1,

Section 5 of the Louisiana Constitution of 1974. He asserts that his rights

were violated when his probation officer searched his cell phone without
11

reasonable suspicion. McMahon asserts that typing in his passcode and

handing the phone to his probation officer was not voluntary consent to

search his phone. He argues that the probation form, which allows for the

search of electronics and he signed, attempts to trump the conditions of his

probation judgment and La. C. Cr. P. art. 895(A)(13)(b).5 For these reasons,

he requests this Court reverse the trial court’s ruling denying the motion to

suppress and remand for further proceedings.

The State argues the trial court was correct in denying McMahon’s

motion to suppress. The State highlights the trial court’s finding that

McMahon gave consent to search the phone; therefore, a warrant was not

required. The State requests this Court affirm the trial court.

When the defendant files a motion to suppress evidence that was

obtained without a warrant, the State has the burden of proving that the

evidence was lawfully seized. La. C. Cr. P. art. 703(D). Great weight is

given to the trial court’s ruling on a motion to suppress in regard to the

finding of facts because it had the opportunity to observe the witnesses and

weigh the credibility of their testimony. Accordingly, this Court reviews the

district court’s ruling on a motion to suppress under the manifest error

standard for factual determinations, while applying a de novo review to its

findings of law. State v. Bates, 51,890 (La. App. 2 Cir. 2/28/18), 246 So. 3d

672.

5
For those persons who have been convicted of a “sex offense” as defined in R.S.
15:541, [the defendant shall] agree to searches of his person, his property, his place of
residence, his vehicle, or his personal effects, or any or all of them, at any time, by a law
enforcement officer, duly commissioned in the parish or municipality where the sex
offender resides or is domiciled, designated by his agency to supervise sex offenders,
with or without a warrant of arrest or with or without a search warrant, when the officer
has reasonable suspicion to believe that the person who is on probation is engaged in or
has been engaged in criminal activity for which the person has not been charged or
arrested while on probation. La. C. Cr. P. art. 895(A)(13)(b).
12

The Fourth Amendment to the United States Constitution and Article

1, Section 5, of the Louisiana Constitution protect people against

unreasonable searches and seizures. It is well settled that a search and

seizure conducted without a warrant issued on probable cause is per se

unreasonable unless the warrantless search and seizure can be justified by

one of the narrowly drawn exceptions to the warrant. State v. Simmons,

54,026 (La. App. 2 Cir. 10/6/21), 328 So. 3d 580, writ denied, 21-01636 (La.

1/12/22), 330 So. 3d 631; State v. Bates, supra.

The prohibition against warrantless searches does not apply to a

search that is conducted pursuant to consent. Schneckloth v. Bustamonte,

412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Hill, 53,286

(La. App. 2 Cir. 3/4/20), 293 So. 3d 104. To be valid, consent must be (1)

free and voluntary, in circumstances that indicate the consent was not the

product of coercion, threat, promise, pressure, or duress that would negate

the voluntariness; and (2) given by someone with apparent authority to grant

consent, such that the police officer reasonably believes the person has the

authority to grant consent to search. State v. Hill, supra.

Based on the facts of this case, we do not find that the trial court was

manifestly erroneous in determining McMahon gave valid consent to search

his phone. Deputy Peoples testified that she told McMahon she would like

to view his cell phone and asked him to type in the password. She stated

that he typed in the passcode and handed her the phone. She testified that he

did not hesitate to type in the passcode. McMahon did not present any

evidence or testimony to rebut Deputy Peoples’ version of events.

Additionally, Officer Bennett testified that McMahon could have refused

and/or placed his phone back in his vehicle.
13

McMahon failed to show that his consent was not free and voluntary.

Additionally, he did not present evidence of coercion, threat, promise,

pressure, or duress. By typing in his passcode and handing his phone to

Deputy Peoples, McMahon consented to the search of his phone. This

assignment of error lacks merit.

ERROR PATENT

A review of the record indicates McMahon’s sentence is not correctly

recorded in the minutes as required by La. C. Cr. P. art. 871. When there is

a discrepancy between the minutes and the transcript, the transcript prevails.

State v. Lynn, 52,125 (La. App. 2 Cir. 8/15/18), 251 So. 3d 1262, writ

denied, 18-1529 (La. 4/15/19), 267 So. 3d 1129. The transcript reveals that

at his resentencing hearing, McMahon was sentenced to three years at hard

labor without benefit of probation, parole, or suspension of sentence and a

fine of $500, which the trial court stated was the same sentence previously

imposed. The December 20, 2021, minute entry leaves out a portion of the

sentence and provides, “[D]efendant was by the Court sentenced to the

originally sentence imposed. Defendant to pay $500.00 or default 30 days

without probation, parole or suspension of sentence with credit for time

served.” Accordingly, we order that the December 20, 2021, minute entry

be amended to include that McMahon was sentenced to three years at hard

labor.

CONCLUSION

For the reasons stated above, we affirm McMahon’s conviction and

sentence. We order that the minutes be corrected to include McMahon’s

sentence.

AFFIRMED.
14