State of Louisiana v. Davy C. Harris

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 09-62

STATE OF LOUISIANA

VERSUS

DAVY C. HARRIS

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C14069
HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Shannon J. Gremillion, Judges.

Amy, J., dissents and would affirm the ruling of the trial court.

REVERSED.

Van Hardin Kyzar
District Attorney, 10th JDC
Billy J. Harrington, Assistant District Attorney
P. O. Box 838
Natchitoches, LA 71458
(318) 357-2214
Counsel for Plaintiff/Appellee:
State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457
(318) 572-5693
Counsel for Defendant/Appellant:
Davy C. Harris

GREMILLION, Judge.

The Defendant, Davy C. Harris, was charged by bill of information with

possession of cocaine, a violation of La.R.S. 40:967, after police found cocaine in his

wallet. He was arraigned and entered a plea of not guilty. He filed a Motion to

Suppress which was denied following a hearing.

Defendant entered a guilty plea pursuant to State v. Crosby, 338 So.2d 584

(La.1976), to possession of cocaine and reserved his right to seek review of the denial

of his Motion to Suppress. He was subsequently sentenced to serve three years at

hard labor. The sentence was suspended and Defendant was placed on two years

supervised probation. He was also ordered to pay a fine of $1,000 or serve six

months in jail. He was further ordered to pay fines and fees totaling $2,000.

Defendant is now before this court asserting one assignment of error. He

contends the trial court erred in denying his Motion to Suppress. We agree.

The Fourth Amendment to the United States Constitution protects
“[t]he right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures.” U.S. Const.
amend. IV. Similarly, the Louisiana Constitution provides that “[e]very
person shall be secure in his person, property, communications, houses,
papers, and effects against unreasonable searches, seizures, or invasions
of privacy.” LA. CONST. art. 1, § 5. As a general rule, searches and
seizures must be conducted pursuant to a validly executed search
warrant or arrest warrant. Warrantless searches and seizures are
considered to be per se unreasonable unless they can be justified by one
of the Fourth Amendment’s warrant exceptions. See, e.g., State v.
Freeman, 97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, 634. The
state has the burden of showing that one of the exceptions applies. See,
e.g., State v. McHugh, 92-1852 (La.1/6/94), 630 So.2d 1259, 1262. We
review a trial court[’]s ruling on a motion to suppress under the manifest
error standard. State v. Williams, 08-272, p. 3 (La.App. 5 Cir. 12/16/08),
3 So.3d 526; State v. Higgins, 03-1980, p. 20-21 (La.4/1/05), 898 So.2d
1219, 1233, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187
(2005).

State v. Holmes, 08-719 p. 2 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 278.

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Deputy Roger Henson testified he received information from Lieutenant Brad

Walker “in which he stated that he had received information of narcotics activity

occurring at the boarding house on Berry Avenue . . . .” Deputy Henson was unaware

of the source of the information relayed to him by Lieutenant Walker. Several

deputies with the narcotics task force went to that location, later established as a

“high drug area” by witness testimony. Deputy Henson testified that as the officers

pulled up to the boarding house, there were ten to fifteen people in front of the

building and Defendant, among others, ran inside the boarding house. Deputy

Henson stated that he and two other officers followed Defendant into the boarding

house.

Deputy Henson further testified that Defendant ran into his bedroom. An

officer knocked on the bedroom door. However, Defendant would not respond.

After several “attempts” to get Defendant out of the room, he finally opened the

door. Deputy Henson testified that he then “escorted” Defendant out of the boarding

house into an area where several others had been “detained.” During that time,

Defendant was not handcuffed and was observed trying to give his wallet to someone

else several times. Deputy Henson described the subsequent sequence of events as

follows:

At that time I grabbed the wallet and asked him if there was anything in
it. He said no. I asked him if he minded me looking inside the wallet.
He said that’s okay. So I opened the wallet up and observed one rock
of crack/cocaine inside the wallet.

Deputy Henson further testified that there were suspected crack pipes and

empty wrappers, which were indicative of crack cocaine and marijuana use, on the

ground outside the boarding house when the officers arrived. Deputy Henson

testified that he did not observe Defendant selling drugs or using drugs.

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Corporal Jessie Taitano (one of the other officers on the scene) testified that

he did not observe Defendant committing a crime. However, he observed Defendant

attempt to give his wallet to someone else, but he was not close enough to hear what

was said during that time.

ANALYSIS

The procession of the officers’ conduct began with a tip. However, the State

did not present any evidence regarding the source of that tip to Lieutenant Walker.

Thus, one must presume the information was provided via an anonymous tip. See

State v. Young, 99-2120 (La.App. 4 Cir. 9/6/00), 770 So.2d 7, 10, writ denied, 00-

2798 (La. 9/21/01), 797 So.2d 63. See also State v. Boson, 99-1984 (La.App. 4 Cir.

1/17/01), 778 So.2d 687, writ denied, 01-430 (La. 9/13/02), 824 So.2d 1192.

An anonymous tip is actionable if it bears a “sufficient indicia of reliability”

Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 2415 (1990). This boils down

to two elements. The first is a “tendency to identify a determinate person.” Florida

v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 1379 (2000). The second, and much more

important element, is reliability regarding its “assertion of illegality.” Id. Here, we

have no evidence that the tip at issue provided any information that would tend to

identify Defendant. Furthermore, although Deputy Henson testified there were

suspected crack pipes and wrappers on the ground outside the boarding house that

were indicative of marijuana and crack cocaine use, he did not testify that he saw

Defendant using these items, in possession of these items, or that the items were even

close to where Defendant had been upon the arrival of police. Without more, there

was simply no reason to believe the tip was reliable as to its assertion of illegality.

Upon the officers’ arrival, Defendant fled to his room in the boarding house.

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“Flight, nervousness, or a startled look at the sight of a police officer is, by itself,

insufficient to justify an investigatory stop; however, this type of conduct may be

highly suspicious and, therefore, may be one of the factors leading to a finding of

reasonable suspicion.” State v. Stanfield, 05-839, p. 5 (La.App. 5 Cir. 3/14/06), 925

So.2d 710, 715.

It is the State’s contention that Defendant’s flight to his room was, indeed,

highly suspicious when placed together with the tip, the drug paraphernalia, and the

fact that they were in a “high drug area.” In fact, in State v. Hill, 01-1372, p. 6

(La.App. 5 Cir. 5/15/02), 821 So.2d 79, 83, the fifth circuit stated, “This court has

found that presence in a high crime area, coupled with nervousness, startled behavior,

flight, or suspicious actions upon the approach of officers, is sufficient to justify an

investigatory stop.” See also State v. Jones, 02-1168 (La.App. 4 Cir. 1/29/03), 839

So.2d 377; State v. Johnson, 01-2081 (La. 4/26/02), 815 So.2d 809; State v. Jackson,

26,138 (La.App. 2 Cir. 8/17/94), 641 So.2d 1081; State v. Williams, 613 So.2d 259

(La.App. 1 Cir. 1992); State v. Solomon, 93-1199 (La.App. 3 Cir. 3/2/94), 634 So.2d

1330.

However, in State v. Temple, 02-1895 (La. 9/9/03), 854 So.2d 856, the

supreme court noted that citizens are presumed law abiding, even those in high crime

areas. Further, the case at bar is distinguishable from cases where courts have found

the presence of a defendant in a high crime area coupled with flight provided a basis

for police to conduct an investigatory stop. Defendant lived at the boarding house;

thus, he was at his residence when police arrived and he ran into his own room.

Police followed Defendant into the boarding house. They made several

attempts to get Defendant out of the room and he eventually opened the door. There

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was no testimony regarding what was said to Defendant during that time, and

consequently, no evidence which would allow us to conclude that he willingly left his

room.

Additionally, Defendant was “escorted” out of the boarding house into an area

where several others had been “detained.” Witnesses did not describe what was

meant by the phrase “escort” or if Defendant was free to leave during that time.

Again, it is unclear if Defendant was free to leave at the time he was brought to the

area where he, along with several others, were being detained.

Deputy Henson did testify that Defendant consented to the search of his wallet

after he grabbed it. “[V]oluntary consent is an exception to the warrant requirement.”

State v. Phillips, 04-827, p. 9 (La.App. 3 Cir. 11/10/04), 887 So.2d 670, 677. “If

consent to search is obtained after an illegal detention or entry, the consent is valid

only if it was the product of free will and not the result of exploitation of the previous

illegality.” State v. Veals, 07-605, p. 17 (La.App. 5 Cir. 1/22/08), 977 So.2d 1030,

1039-40, writ denied, 08-571 (La. 11/26/08), 997 So.2d 543. “The burden is on the

state to prove that the consent was given freely and voluntarily.” State v. Cooper,

43,809, p. 9 (La.App. 2 Cir. 1/14/09), 2 So.3d 1172, 1179 (citation omitted).

In State v. Owen, 453 So.2d 1202, 1206 (La.1984) (citations omitted), the

supreme court explained:

[I]f the consent was obtained after an illegal detention or entry, the
consent was valid only if it was the product of a free will and not the
result of an exploitation of the previous illegality. Among the factors
considered in determining whether the consent was sufficiently
attenuated from the unlawful conduct to be a product of a free will are
whether the police officers adequately informed the individual that he
need not comply with the request, the temporal proximity of the
illegality and the consent, the presence of intervening circumstances
and, particularly, the purpose and flagrancy of the official misconduct.

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Although we do not find flagrant misconduct by the police, the fact remains

that we do not know enough about the initial tip to find it sufficiently reliable. We

do not find Defendant’s flight from is own front yard to his own room to be

particularly suspicious even though the yard and his room exist within a high crime

area and the yard contained possible drug paraphernalia. We cannot determine, based

on the record, whether Defendant willingly opened the door to his room. We cannot

know if Defendant consented to be escorted from his room or the temporal proximity

of this escort to the ultimate consent to search. From Deputy Henson’s testimony, it

is clear that Defendant did not willingly give his wallet to the officer. There is also

no testimony regarding whether Defendant was told he did not have to comply with

the officer’s request to search his wallet.

We agree with the trial court that Deputy Henson obtained consent to search

the Defendant’s wallet. However, considering the officers’ conduct, and the many

unknown facts surrounding this incident, we must conclude that the State failed to

meet its burden to prove not only that Defendant gave his consent, but also that the

consent was free and voluntary.

JUDGMENT

The Defendant’s conviction and sentence are set aside. The matter is

remanded to the trial court for further proceedings consistent with this ruling.

REVERSED.

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