Bronel Hebert v. Quinten Adcock

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

10-887

BRONEL HEBERT

VERSUS

QUINTEN ADCOCK, ADI THAMMAVONG,
AND CITY OF NEW IBERIA THROUGH
ITS MAYOR, RUTH FONTENOT

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 101107-G
HONORABLE CHARLES L. PORTER, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED IN PART; REVERSED IN PART.

Randall B. Keiser
D. Heath Trahan
Keiser Law Firm, P.L.C.
Post Office Box 12358
Alexandria, Louisiana 71315
(318) 443-6168
COUNSEL FOR DEFENDANTS/APPELLANTS:
City of New Iberia, Quinten Adcock, and
Scott Davis

April Petry Defelice
Law Office of April Petry Defelice, L.L.C.
230 West Main Street
New Iberia, Louisiana 70560-3735
(337) 364-1275
COUNSEL FOR PLAINTIFF/APPELLEE:
Bronel Hebert

GENOVESE, Judge.

Plaintiff, Bronel Hebert, filed suit for damages against Defendants, City of New

Iberia, Quinten Adcock, and Scott Davis.1 Mr. Hebert alleges he sustained personal

injury and property damage when New Iberia City Police Officers Adcock and Davis

entered his home to execute a search warrant that he alleges was improvidently

obtained. At trial, at the close of Mr. Hebert’s case, Defendants moved for an

involuntary dismissal. The trial court took no action on the motion, and Defendants

presented their evidence. At the close of trial, the trial court took the matter under

advisement and later rendered a judgment denying Defendants’ motion for

involuntary dismissal and awarding Mr. Hebert a lump sum of $40,000.00 in

damages. Defendants have appealed. For the following reasons, we affirm in part

and reverse in part.

FACTUAL AND PROCEDURAL HISTORY

On August 10, 2002, Officer Davis received information from a confidential

informant (CI) that an individual named Darrel had received a large amount of

marijuana at a residence located at 113 Doris Street, New Iberia, Louisiana. The CI

told Officer Davis that Darrel declared to him that he planned to quickly move the

marijuana from the residence to avoid detection. Officer Davis relayed this

information to Officer Adcock. Officer Adcock prepared an affidavit for a search

warrant, which was presented to and signed by Judge Keith Comeaux.

The search warrant was executed upon the residence located at 113 Doris

Street, New Iberia, Louisiana. Mr. Hebert claims he was injured during the police

officers’ entry into his residence. Mr. Hebert filed suit against the City of New Iberia,

1
Though originally named as a defendant, Adi Thammavong was dismissed from this matter,
and Scott Davis was named as a defendant in Plaintiff’s Second Supplemental and Amending
Petition for Damages filed on October 21, 2008.

Officer Davis, and Officer Adcock for damages to his person and property.

Defendants denied Mr. Hebert’s claims and asserted immunity pursuant to the

provisions of La.R.S. 9:2798.1.

A bench trial was held on April 22, April 24, and May 8, 2009. The trial court

issued written Reasons for Judgment on October 12, 2009, wherein it ruled, in

pertinent part:

[T]his court grants the following relief:

A. Judgment overruling and/or denying Defendants’ motion
for involuntary dismissal;

B. Judgment declaring a reasonably competent police officer,
under similar circumstances, would not apply for a search
warrant, based upon an affidavit containing misleading
statements about the reliability of the confidential
informant, the police officer knew were false or would
have known were false, except for reckless disregard of the
truth;

C. Judgment declaring Defendants, Adcock and Davis,
violated the rights of Bronel Hebert against unreasonable
searches, seizures, and/or invasions of privacy under
federal[2] and state constitutional law and statutory civil law
principles of fault arising from a search of his residence on
or about August 10, 2002;

D. Judgment in favor of Bronel Hebert against Adcock and
Davis, in their official capacities as police officers
employed by the City of New Iberia, Louisiana, in the full
and true sum of FORTY THOUSAND AND NO/100
($40,000.00) DOLLARS for general and special damages,
together with judicial interest from date of judicial demand
and all costs of these proceedings[.]

ISSUES

The following issues are presented by Defendants for review:

(1) [w]hether [Mr. Hebert] introduced any evidence showing that
Officer Davis’ security sweep was unreasonable;

2
No federal claims were proven at trial, and this reference was not included in the trial court’s
Judgment dated January 4, 2010.

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(2) [w]hether [Mr. Hebert] proved that Officer Adcock engaged in
any activity that renders him liable for the foot injury[;]

(3) [w]hether an officer has discretion in the manner in which he
executes a security sweep while executing a search warrant[;]

(4) [w]hether [Mr. Hebert] introduced any evidence showing that
either officer acted in bad faith[; and,]

(5) [w]hether the officers reasonably relied on the warrant.

ASSIGNMENTS OF ERROR

On appeal, Defendants raise the following assignments of error:

(1) Officer Davis Did Not Breach the Duty of Reasonableness, And
Thus Cannot Be Held Liable. The Trial Court Erred In Rendering
Judgment Against Him.

(2) Officer Adcock Cannot Be Held Liable Because the Warrant
Issue Is Irrelevant, And Because the Warrant Was Nevertheless
Supported by Probable Cause. The Trial Court Erred In
Rendering Judgment Against Him.

(3) The Trial Court erred When It Denied the Officers’ Defense of
Policymaking or Discretionary Act or Omission Immunity.

(4) The Trial Court erred When It Denied the Officers’ “Good Faith”
Immunity.

(5) The Trial Court erred When It Denied the Officers’ Defense of
“Warrant Immunity.”

(6) The Award of Costs Must be Reversed if Liability is Reversed.

DISCUSSION

Standard of Review

It is well settled that a court of appeal will ordinarily not set aside
a trial court’s finding of fact unless it is clearly wrong. Arceneaux v.
Domingue, 365 So.2d 1330 (La.1978). Indeed, the Louisiana Supreme
Court has stated, “[a]n appellate court should not disturb a trial court’s
factual findings when there is sufficient evidence in the record to
provide a reasonable basis for those findings.” Goings v. State through
Dept. of Pub. Safety and Corrections, 94-1386, p. 6 (La.1/17/95); 648
So.2d 884, 887. Thus, the appellate court’s function is not to decide
factual issues de novo, but to determine whether the fact finder’s

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conclusions were reasonable. Riley v. Winn-Dixie Louisiana, Inc., 489
So.2d 931 (La.App. 5 Cir.), writ denied, 494 So.2d 329 (La.1986);
Arceneaux, 365 So.2d 1330. That is not to say that Louisiana appellate
courts do not have jurisdiction to review factual findings de novo.
Arceneaux, 365 So.2d 1330. Louisiana courts have jurisdiction over
both law and facts. Riley, 489 So.2d 931. Where a record indicates
conflicting testimony, a trial court’s reasonable evaluation of the
witnesses’ credibility and reasonable inferences of facts, should not be
disturbed. In re Dravo Basic Materials Co., Inc., 604 So.2d 630
(La.App. 1 Cir.1992); Nance v. Nance, 548 So.2d 87 (La.App. 5
Cir.1989).

Saine v. City of Scott, 02-265, p. 2 (La.App. 3 Cir. 6/12/02), 819 So.2d 496, 498.

Search Warrant

Mr. Hebert argues that the search warrant was improvidently obtained. In

brief, he alleges that Officers Davis and Adcock “recklessly disregarded the law by

giving flawed information to a judge, intentionally mischaracterizing the reliability

of an informant in order to obtain a warrant[,] and using that faulty warrant to invade

the property and privacy of an innocent citizen.” Mr. Hebert further asserts that “the

primary issue at trial was whether the officers breached the duty to establish probable

cause for a warrant and whether a reasonably competent police officer would have

applied for a warrant given these circumstances.”

Defendants assert that there was probable cause for the warrant to be issued

based on information from a CI: (1) that he had accompanied an individual to 113

Doris Street, New Iberia, on the day of the incident at issue herein; (2) that the

individual dropped off a large quantity of marijuana to Darrel at that residence; and,

(3) that Darrel said that he planned to move the marijuana from the residence to avoid

detection. Defendants contend that because they were acting upon a valid search

warrant, they are insulated from liability by the immunity provided in

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La.R.S. 9:2798.1.3 Defendants further argue that the trial court erred by failing to

treat this matter as a simple negligence case with the primary issue at trial being

whether the officers breached the duty of care owed by an officer executing a search

warrant.

Citing Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954 (1988), the trial

court found that Defendants were not immune from liability under La.R.S. 9:2798.1

because La.Code Crim.P. art. 1624 specifically prescribed a course of action; thus,

Defendants did not have an element of choice. The trial court found:

Because the police officer requesting the search warrant was mandated
to follow the requirements set forth by article 162, this court determines
that the officer acted at the operational level – a level to which immunity
does not extend. Hence, the defendants may not escape liability for
damages incurred by Mr. Hebert to his person and property.

The trial court concluded that Officers Davis and Adcock hastily procured the search

3
Louisiana Revised Statutes 9:2798.1 provides, in pertinent part:

....

B. Liability shall not be imposed on public entities or their officers or
employees based upon the exercise or performance or the failure to exercise or
perform their policymaking or discretionary acts when such acts are within the course
and scope of their lawful powers and duties.

C. The provisions of Subsection B of this Section are not applicable:

(1) To acts or omissions which are not reasonably related to the legitimate
governmental objective for which the policymaking or discretionary power exists; or

(2) To acts or omissions which constitute criminal, fraudulent, malicious,
intentional, willful, outrageous, reckless, or flagrant misconduct.

4
Louisiana Code of Criminal Procedure Article 162 provides:

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.

A search warrant shall particularly describe the person or place to be
searched, the persons or things to be seized, and the lawful purpose or reason for the
search or seizure.

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warrant; thus, “[t]he actions and omissions of Officers Davis and Adcock constitute

reckless conduct.”

In this case, the evidence shows that Officer Davis obtained a tip from a CI.

Officer Adcock received this information from Officer Davis and prepared an

affidavit in support of a warrant to search the residence at 113 Doris Street, New

Iberia. The affidavit was presented to and signed by Judge Comeaux. The search

warrant was executed; however, no drugs were found, nor was Darrel present at the

residence that was the subject of the search. Instead, while the search was being

conducted, the owner of the residence, Mr. Hebert, claims to have suffered emotional

distress and injury to his toes when a police officer, presumably Officer Davis, either

kicked or stepped on his foot. Though no drugs were found, Mr. Hebert testified at

trial that an individual named Darrel had been at his home earlier that day. According

to Mr. Hebert, Darrel occasionally mowed his lawn and had, on the morning of

August 10, 2002, knocked on his door, asking for water and use of his telephone.

Mr. Hebert initially refused Darrel’s requests, but ultimately relented and gave Darrel

some water and allowed him to use his telephone. However, Mr. Hebert stated that

Darrel had never lived at his residence and that he did not have any knowledge of

Darrel allegedly receiving a delivery at his residence that day.

The trial court relied heavily on the facts and procedure used by the officers in

the procurement of the warrant and found that there was no probable cause for the

issuance of the warrant. However, the legal issue in this case is whether any defects

in the search warrant, curable or otherwise, were the proximate cause of Mr. Hebert’s

injuries. The appropriate question is not whether, in hindsight, the officers could

have investigated more; rather, it is whether the issuance of the search warrant is what

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proximately caused injury to Mr. Hebert. We find that it was not. Though the

issuance of the search warrant was a cause in fact of Mr. Hebert’s injury, the

proximate cause of Mr. Hebert’s injury was the implementation of the search itself.

Having so found, we reverse the trial court’s finding of fault against Officers Davis

and Adcock only as it pertains to their procurement of the search warrant.

Entry of premises

To prevail on a negligence claim, Mr. Hebert must prove that Defendants owed

a duty to him, that Defendants breached the duty, that the breach was the cause of his

injuries, and that he sustained damages. See Rando v. Anco Insulations, Inc.,

08-1163, 08-1169 (La. 5/22/09), 16 So.3d 1065. A police officer owes a duty of

reasonableness when executing a search warrant. See La.Code Crim.P. art. 164;

Coutee v. Am. Druggist Ins. Co. of Cincinnati, 453 So.2d 314 (La.App. 3 Cir.), writ

denied, 458 So.2d 477 (La.1984). Defendants assert that their entry into and search

of Mr. Hebert’s home was reasonable; therefore, they are immune from liability

pursuant to La.R.S. 9:2798.1. Contrarily, Mr. Hebert contends that the forced entry

into his home was unreasonable, and thus, Defendants were negligent and thereby

answerable in damages.

Mr. Hebert testified that he was taking a nap in his bedroom when Defendants

barged into his home without giving him a chance to answer the door. According to

Mr. Hebert, Defendants broke his door frame when they forced his door open and

entered his home with their guns drawn. At some point during the fracas,

Mr. Hebert’s foot was injured.

As held by this court in Saine, 819 So.2d at 500:

“[Louisiana Revised Statutes] 9:2798.1 does not protect against legal
fault or negligent conduct at the operational level, but only confers

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immunity for policy decisions; i.e. decisions based on social, economic,
or political concerns.” Chaney v. Nat. R.R. Passenger Corp., 583 So.2d
926, 929 (La.App. 1 Cir.1991) (emphasis added); Ducote [v. City of
Alexandria, 95-1269 (La.App. 3 Cir. 7/17/96),] 677 So.2d 1118. Thus,
“[t]he exception protects the government from liability only at the policy
making or ministerial level, not at the operational level.” Fowler v.
Roberts, 556 So.2d 1, 15 (La.1989), on rehearing; see also Rick v. State,
Dept. of Transp. and Dev., 93-1776, (La.1/14/94); 630 So.2d 1271,
rehearing denied, (holding that “[d]ecisions at an operational level can
be discretionary if based on policy[]”). Determining whether the
Fowler-exception applies requires a two-step inquiry.

First, a court must determine whether the action is a matter
of choice. If no options are involved, the exception does
not apply. If the option involves selection among
alternatives, the court must determine whether the choice
was policy based.

Rick, 630 So.2d at 1276.

At trial, there was conflicting testimony as to how the search warrant was

executed. Officer Davis testified that he knocked, waited a few seconds, then kicked

the door down when instructed to do so by his supervisor, Major Claude Hills.

According to Officer Davis, Major Hills was standing beside him. Major Hills

testified and categorically denied giving Officer Davis the order to kick down the

door. In fact, Major Hills stated that he witnessed the no-knock entry of Officer

Davis from a vehicle because he had arrived at the scene just moments before.

According to Major Hills, Officer Davis did not knock. Officer Adcock corroborated

Officer Davis’ testimony that he did knock before kicking down the door soon

thereafter.

Louisiana Code of Criminal Procedure Article 224 governs forcible entry when

making an arrest.5 The requirement for knock-and-announce in Louisiana is

enunciated as follows:

5
Louisiana Code of Criminal Procedure Article 164 provides “In order to execute a search
warrant a peace officer may use such means and force as are authorized for arrest by Title V.”

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In order to make an arrest, a peace officer, who has announced his
authority and purpose, may break open an outer or inner door or window
of any vehicle, watercraft, aircraft, dwelling or other structure, movable
or immovable, where the person to be arrested is or is reasonably
believed to be, if he is refused or otherwise obstructed from admittance.
The peace officer need not announce his authority and purpose when to
do so would imperil the arrest.

La.Code Crim.P. art. 224.

There was no evidence presented that Mr. Hebert refused admittance, nor was

there any evidence that announcing the officer’s authority would imperil the search.

It is clear that the trial court relied heavily on Major Hills’ testimony, and the court

was well within its discretion to do so. See Goings v. State of La., through Dep’t of

Pub. Safety and Corrs., 94-1386 (La. 1/17/95), 648 So.2d 884. The trial court also

found that the decision, or choice, to gain entry into Mr. Hebert’s home by kicking

down the door was made unilaterally by Officer Davis. We find no manifest error in

the trial court’s conclusion that there was no justifiable basis for a no-knock entry

into Mr. Hebert’s home; therefore, the conduct of Officer Davis in entering

Mr. Hebert’s home and his subsequent “protective sweep” of Mr. Hebert’s home is

not immune from liability under La.R.S. 9:2798.1 because that statute does not

protect against legal fault or negligent conduct at the operational level. Officer

Davis’ failure to give Mr. Hebert sufficient time to answer the door constitutes

negligence that caused Mr. Hebert’s injuries, thereby entitling him to damages for the

destruction of his property and damages for his personal injury and mental distress.

Accordingly, we affirm the trial court’s finding of negligence against Officer Davis

as it pertains to his negligent entry into Mr. Hebert’s home. However, no evidence

was presented establishing any negligence on the part of Officer Adcock relative to

the entry and search of the premises; therefore, we find Officer Adcock free from

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fault and not legally responsible for the damages sustained by Mr. Hebert. The trial

court’s judgment as to Officer Adcock, and Adcock alone, is reversed.

Damages

A careful review of appellants’ assignments of error and specification of issues

reveals that they only seek a review of the trial court’s judgment relative to liability.

Appellants do not seek a quantum of damage review. Consequently, the issue of

damages, vel non, is not before this court and is, therefore, not considered.6

DISPOSITION

For the reasons stated above, the trial court’s judgment is reversed only with

respect to its finding of liability on the part of Quinten Adcock. In all other respects,

the trial court’s judgment is affirmed. All costs of this proceeding are assessed

against Defendants/Appellants, City of New Iberia and Scott Davis, in accordance

with La.R.S. 13:5112, in the amount of $19,636.80.

AFFIRMED IN PART; REVERSED IN PART.

6
Uniform Rules—Courts of Appeal, Rule 2–12.4, requires that the appellant’s brief state the
alleged errors for review.

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