State of Louisiana v. Cedric Charles Edwards AKA Cederic C. Edwards

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-891

STATE OF LOUISIANA

VERSUS

CEDRIC CHARLES EDWARDS
AKA CEDERIC C. EDWARDS

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR125054
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, James T. Genovese, and Shannon J.
Gremillion, Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Michael Harson
District Attorney, 15th JDC
Roger P. Hamilton, Jr.
Assistant District Attorney
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Jermaine D. Williams
J.D. Williams & Asssociates, APLC
1313 Lafayette St.
Lafayette, LA 70501
(337) 235-3989
COUNSEL FOR DEFENDANT-APPELLANT:
Cedric Charles Edwards

PICKETT, Judge.

FACTS

During the search of an apartment where the defendant, Cedric Charles

Edwards AKA Cederic C. Edwards, was staying with his girlfriend, the

defendant‟s parole officer and police found cocaine, marijuana,

methlyenedioxymethamphetamine (MDMA), alprazolam, methamphetamine, and

a firearm.

The defendant was charged by bill of information filed on October 1, 2009,

with the following: 1) possession with intent to distribute cocaine, a violation of

La.R.S. 40:967; 2) possession with intent to distribute marijuana, a violation of

La.R.S. 40:966; 3) possession with intent to distribute MDMA, a violation of

La.R.S. 40:966; 4) possession of alprazolam, a violation of La.R.S. 40:969; 5)

possession of methamphetamine, a violation of La.R.S. 40:967; 6) possession of a

firearm by a convicted felon, a violation of La.R.S. 14:95.1; 7) possession of a

firearm while in possession of a controlled dangerous substance, a violation of

La.R.S. 14:95; and 8) illegal use of controlled dangerous substances in the

presence of persons under seventeen years of age, a violation of La.R.S. 14:91.13.

A written plea of not guilty was filed on November 10, 2009.

An amended bill of information was filed on May 26, 2010. Therein, count

one was amended to a charge of possession of cocaine and count eight was deleted.

A second amended bill of information was filed on June 7, 2010, in which there

were no changes in the offenses charged. The defendant entered a plea of not

guilty to the amended bills on December 6, 2010.

Trial by jury commenced on August 16, 2011. On August 17, 2011, the jury

returned verdicts of guilty as charged on counts one, four, five, six, and seven, and

guilty of the responsive verdict of possession of marijuana on count two and

possession of MDMA on count three.

The defendant filed a “Motion for Post Verdict Judgment of Acquittal, or, in

the Alternative, Motion for New Trial” on August 23, 2011. The motion was

denied on January 13, 2012. The defendant was then sentenced as follows: 1)

possession of cocaine - five years at hard labor; 2) possession of marijuana – six

months in parish jail; 3) possession of MDMA – five years at hard labor; 4)

possession of alprazolam – five years at hard labor; 5) possession of

methamphetamine – five years at hard labor; 6) possession of a firearm by a

convicted felon – fifteen years at hard labor without benefit of probation, parole, or

suspension of sentence; and 7) possession of a firearm while in possession of a

controlled dangerous substance – five years at hard labor without benefit of

probation, parole, or suspension of sentence. All sentences were to run

concurrently but consecutively to any other sentence the defendant was serving.

A motion for appeal was filed on January 17, 2012, and was subsequently

granted. The defendant is now before this court asserting three assignments of

error.

ASSIGNMENTS OF ERROR

1. The Trial Court erred when it did not grant the Defendant‟s Motion
to Suppress due to the fact that an illegal search occurred.

2. The Trial Court erred when it granted the Defendant‟s challenge as
the State of Louisiana systematically excluded potential Black
jurors in direct violation of Batson; however granted no relief to
the Defendant.

3. There was insufficient evidence to support a finding of guilt.

2

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. After reviewing the record,

we find there is one error patent. The record does not indicate that the trial court

advised the defendant of the prescriptive period for filing post-conviction relief as

required by La.Code Crim.P. art. 930.8. Therefore, we remand and instruct the trial

court to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by

sending appropriate written notice to the defendant within thirty days of the

rendition of this opinion and to file written proof of same in the record of these

proceedings.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the defendant contends there was

insufficient evidence to support a finding of guilty of the charges for which he was

convicted. When issues are raised on appeal as to the sufficiency of the evidence

and as to one or more trial errors, a reviewing court must first determine the

sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992).

Accordingly, we will address this assignment of error first.

When a sufficiency of the evidence claim is raised on appeal,
the standard of review is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a
reasonable doubt. State v. Macon, 06-481 (La.6/1/07), 957 So.2d
1280 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979)). Further, the trier of fact is responsible for
determining the weight of the evidence and may accept or reject, in
whole or in part, the testimony of any witness. Id. The appellate
court should not assess credibility or re-weigh the evidence and may
only intrude upon the fact-finding function of the jury to the extent
necessary to satisfy the Jackson standard of review. Id.

State v. Jasper, 11-488, p. 4 (La.App. 3 Cir. 11/2/11), 75 So.3d 984, 987.

3

The defendant contends all narcotics and the gun found by police were

found inside a residence that did not belong to him. Additionally, substantially all

of the evidence was found inside a woman‟s purse and/or inside a woman‟s shoe

box that contained women‟s shoes, which clearly did not belong to him. The

defendant asserts the state failed to produce any evidence that he actually or

constructively possessed any of the contraband found in the residence. Therefore,

there was insufficient evidence to find him guilty of the charges at issue. Because

the defendant challenges only the possessory element of the offenses, we will

determine whether the state presented evidence sufficient to support only that

element of the offenses.

The defendant was convicted of possession of cocaine, marijuana, MDMA,

alprazolam, and methamphetamine.

Possession of narcotic drugs can be established by actual physical
possession or by constructive possession. State v. Trahan, 425 So.2d
1222, 1226 (La.1983). A person can be found to be in constructive
possession of a controlled substance if the State can establish that he
had dominion and control over the contraband, even in the absence of
physical possession. State v. Harris, 94-0970, p. 4 (La.12/8/94), 647
So.2d 337, 338-39.

A determination of whether there is sufficient “possession” of a
drug to convict depends on the particular facts of each case. Trahan,
425 So.2d at 1226. Although mere presence in an area where drugs
are located or mere association with one possessing drugs does not
constitute constructive possession, this court has acknowledged
several factors to be considered in determining whether a defendant
exercised sufficient control and dominion to establish constructive
possession, including: (1) his knowledge that drugs were in the area;
(2) his relationship with the person, if any, found to be in actual
possession; (3) his access to the area where the drugs were found;
(4) evidence of recent drug consumption; and (5) his physical
proximity to drugs. [State v.] Toups, [01-1875,] p. 4 [La. 10/15/02],
833 So.2d [910,] 913.

State v. Major, 03-3522, pp. 7-8 (La.12/1/04), 888 So.2d 798, 802.

4

The defendant was also convicted of possession of a firearm by a convicted

felon and possession of a firearm while in possession of a controlled dangerous

substance.

Actual possession of a firearm is not necessary to satisfy
the possession element of the statute; it is sufficient that
the subject had constructive possession. A person is in
constructive possession of a thing if it is subject to his
dominion and control. A person‟s dominion over a
weapon constitutes constructive possession even if it is
only temporary in nature and even if control is shared.
The jurisprudence additionally requires proof that the
offender was aware that a firearm was in his presence,
and that he had the general criminal intent to possess the
weapon.

State v. Lee, 02-704, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 589,
593, writ denied, 03-535 (La.10/17/03), 855 So.2d 755 (footnotes
omitted).

As for the element of general intent to possess the weapon,
intent is a fact question which “may be inferred from the
circumstances of a transaction.” State v. Johnson, 09-862, p. 3
(La.App. 3 Cir. 2/3/10), 28 So.3d 1263, 1267.

State v. Ceasar, 11-1406, p. 4 (La.App. 3 Cir. 6/6/12), 91 So.3d 1231, 1234.

Probation and Parole Officer Kelly Hardy testified that she was the

defendant‟s parole officer on July 31, 2009. This was a courtesy supervision for

the state of Virginia where he had previously been convicted of first degree

murder. The defendant listed his residence as 813 North Frederick Avenue,

Kaplan, Louisiana. Officer Hardy attempted to conduct an in-home visit with the

defendant at his residence on four separate dates, July 15, 28, 30, and 31, 2009.

In January 2009, Officer Hardy was contacted by detectives from the

Lafayette Police Department who provided her information that the defendant had

been seen in possession of a firearm and told her he was suspected of being

involved in narcotics. They also informed her they wanted to speak to the

defendant regarding an ongoing homicide investigation.

5

Officer Hardy testified that during July, the defendant told her that he stayed

two to three nights a week at an apartment in Lafayette which Officer Hardy

believed was leased by Narcisse O‟Brien, 1 and this occurred on a regular basis

while he was working in Lafayette. On July 31, 2009, when unable to contact him

at his address in Kaplan, Officer Hardy went to an apartment on South Beadle

Road in Lafayette. She knocked on the door, and a juvenile answered and told

her the defendant was asleep. While the juvenile went to get the defendant, Officer

Hardy called Detective Brad Robin of the Lafayette Police Department and

notified him she had located the defendant. The defendant subsequently came to

the door, and she spoke to him inside and outside the apartment about his

supervision fees for ten minutes. Officer Hardy testified that she did not notice

anything unusual or suspicious at that time. Officer Hardy then left and returned

four or five minutes later.

When Officer Hardy returned to the apartment, she was accompanied by

Detective Robin and Detective Benjamin Suire, also of the Lafayette Police

Department. Officer Hardy testified that she went back to the apartment for the

specific purpose of allowing the detectives to speak to the defendant. The

detectives spoke to the defendant while they were seated at a kitchen table, and

Officer Hardy “went . . . down the hallway into the apartment to just . . . see what

the apartment was.” Officer Hardy was asked what had changed between the two

visits, and she explained that she would not search the residence of a parolee unless

accompanied by another officer for safety reasons.

Officer Hardy testified she entered the master bedroom and saw a scale,

which she testified was used to weigh illegal drugs, sitting on the night stand next

1
This witness‟s first and last names were spelled differently in the transcripts of trial and
the motion to suppress. We have used the spelling found in the trial transcript.
6

to the bed. On the second shelf of the night stand, Officer Hardy saw an empty

gun holster. Officer Hardy then looked inside the closet. She testified she picked

up two or three blankets and found a loaded revolver. Officer Hardy testified that

there were male clothes and shoes in the closet.

Officer Hardy subsequently searched a chest of drawers and found the

defendant‟s state issued identification card inside one of the drawers. Officer

Hardy then went into the kitchen and picked up a pack of cigarettes located in front

of the defendant. Inside, she found what she believed was a “marijuana blunt

cigarette.” Officer Hardy testified that the pack of Newport cigarettes was in the

defendant‟s possession. She later testified the package was already on the table,

and she could not recall if she saw the defendant with the cigarette pack in his

hands.

Officer Hardy testified she returned to the bedroom and found that Detective

Suire had taken out the bottom drawer of the chest of drawers. Under the drawer,

he found a black purse and a cellophane bag that contained green vegetable matter,

which Officer Hardy believed was marijuana. Officer Hardy opened the purse and

found four cellophane bags that contained green vegetable matter that she believed

was marijuana, a cellophane bag containing two smaller bags of white powder, and

a cellophane bag that contained numerous green pills. Officer Hardy subsequently

found a cellophane bag that contained orange pills in a bronze baby shoe located

on the night stand. Officer Hardy further testified that Detective Suire found an

open shoe box that contained a pair of women‟s shoes and unspent bullets.

Officer Hardy testified that the defendant had a child with O‟Brien. Officer

Hardy also testified that O‟Brien told her the defendant “stayed” at her residence,

but Officer Hardy did not recall how often he did so. O‟Brien further stated the

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items found by police did not belong to her. Officer Hardy testified that during a

police interview, the defendant admitted the items found in the apartment were his.

Lafayette Police Department Officer William White testified that police

found approximately ninety-five or 105 grams of marijuana, approximately one

gram of cocaine, 172 pills consistent with MDMA, one pill containing alprazolam,

and five pills containing methamphetamine in the apartment.

Officer White interviewed the defendant. During that interview, the

defendant stated the gun found by police belonged to a friend of his girlfriend, and

he admitted handling the gun the night before it was found by police. However, no

fingerprints were found on the gun. The defendant further stated the narcotics

found were his and did not belong to his girlfriend. He further testified that

O‟Brien told him the defendant was living at her apartment.

Detective Suire testified that he was present at the apartment on July 31,

2009. He sat down at the kitchen table with the defendant and Detective Robin,

and Officer Hardy announced she was going to search the apartment. He

subsequently assisted Officer Hardy in conducting a search. He corroborated

Officer Hardy‟s testimony that bullets were found in a shoe box between the night

stand and the closet and marijuana under the bottom dresser drawer. When asked

about the pack of cigarettes on the kitchen table, Detective Suire could not recall if

the cigarette pack was on the table when he entered the kitchen.

O‟Brien testified that in July of 2009 she was romantically involved with the

defendant, and he was the father of her child. O‟Brien was at work on the day in

question, and the defendant was at her apartment watching her two children.

O‟Brien indicated the defendant watched the children four to five times a week so

she could work. She denied that he lived at the apartment. O‟Brien testified that

the defendant did not have any personal items at her apartment, and she did not
8

consider it to be his residence. O‟Brien additionally testified that she smoked

Newport cigarettes.

O‟Brien testified she had not seen drugs in her apartment prior to being

shown the drugs police had seized. Additionally, she had never seen the defendant

with drugs while in her apartment. O‟Brien testified that the gun found by police

belonged to her neighbor, Kenneth Wilder. O‟Brien further testified that Wilder

had been at her apartment the night before the gun was found and had left the gun

there. O‟Brien testified that she told Officer Hardy the drugs did not belong to her.

The defendant testified that he occasionally spent the night at O‟Brien‟s

apartment, and he was there on July 31, 2009, to babysit while O‟Brien was at

work. The defendant agreed that Officer Hardy announced she was going to

search the apartment and that he did not verbally object to the search. The

defendant denied the gun found in the closet was his. The defendant testified the

gun and some bullets were in a shoe box, and he knocked the box over when he

went into the apartment. He further testified that he put the gun back in the box

and told O‟Brien to get rid of it.

The defendant testified that he became aware there were pills and marijuana

inside the apartment when he was questioned by police. He denied stating the

drugs belonged to him. The defendant testified that he had never seen the drugs

prior to July 31, 2009, and never possessed them. The defendant testified that he

placed his identification card on the table on the morning in question and had no

idea how it got into the chest of drawers.

Drugs

In State v. Brown, 04-1194 (La.App. 5 Cir. 4/26/05), 902 So.2d 542, writ

denied, 05-1637 (La. 2/3/06), 922 So.2d 1173, a bag of marijuana was found in a

duffle bag in a cedar chest in the master bedroom of the defendant‟s girlfriend‟s
9

apartment. Police testified that the defendant admitted the bag was his and stressed

that his girlfriend was innocent. The defendant further admitted that he knew who

brought the marijuana to the apartment but refused to divulge that person‟s name.

A defense witness testified the defendant lived in Florida, was in town visiting, and

his girlfriend‟s brother brought a bag of marijuana to the apartment. The

defendant‟s girlfriend also testified that the defendant lived in Florida, and another

man brought a duffle bag to her apartment, but she did not know what was in the

bag.

The fifth circuit noted that police testified that the defendant admitted to

knowledge of the marijuana‟s location and of the person who delivered it to him.

The defendant also told police that his girlfriend had no knowledge of the

marijuana. Police additionally testified that none of the other occupants of the

apartment took responsibility for the marijuana. The fifth circuit also noted it was

apparent that the jury found the police officers‟ testimony more credible. The fifth

circuit then stated:

Regardless of whether defendant was still living at the Celestine
Street address at the time of the offense, he clearly had access to the
area where the marijuana was found. He had an intimate relationship
with Tammy Lagarde, who lived at the house. The evidence showed
he was inside the house shortly before the search warrant was
executed. Detective Boylen testified that he saw defendant leave the
house during his surveillance. By his own admission, defendant had a
history of drug offenses, including a 1987 conviction for possession
with intent to distribute marijuana.

Id. at 547-48. The fifth circuit then affirmed the defendant‟s conviction for

possession of marijuana with intent to distribute.

Officers Hardy and White testified the defendant stated the drugs found in

the apartment were his. This testimony was sufficient to prove the defendant had

constructive possession of the drugs found. The jury clearly chose to believe this

testimony over that of the defendant, and this court will not second guess that
10

credibility determination. Accordingly, the evidence is sufficient to support the

defendant‟s convictions for possession of cocaine, marijuana, MDMA, alprazolam,

and methamphetamine, when reviewed in a light most favorable to the prosecution

in accordance with the Jackson standard.

Firearm

In State v. Goldsmith, 519 So.2d 299 (La.App. 2 Cir. 1988), the defendant

stated he picked up a pistol from a ditch in a residential area were children played

and put it in his back pocket in an attempt to avoid risk to children. The second

circuit noted that temporary possession had been held to constitute possession

proscribed by La.R.S. 14:95.1 and affirmed the defendant‟s conviction for

possession of a firearm by a convicted felon.

In State v. Blackson, 45,525 (La.App. 2 Cir. 8/11/10), 46 So.3d 810, writ

denied, 10-2133 (La. 4/1/11), 60 So.3d 1247, the second circuit found the evidence

was sufficient to establish the defendant exercised dominion or control of a

shotgun found behind a house near where police began to chase the defendant, and

the defendant admitted that he had fired the gun earlier in the day.

In State v. Brokenberry, 41,481 (La.App. 2 Cir. 11/3/06), 942 So.2d 1209,

police stopped a vehicle driven by the defendant and occupied by three passengers.

Upon being questioned, the defendant admitted there were weapons inside the

vehicle. Inside the vehicle, police found a MAC 90 rifle, with its barrel propped

between the front seats and the stock on the backseat floorboard. They also found

a Glock 40 handgun on the front passenger floorboard. Police testified that both

weapons were within the defendant‟s reach. The defendant informed police that he

did not own the weapons, and they had been purchased by his brother and father.

The defendant admitted he knew the weapons were in the vehicle. When

11

confronted with the fact that he was near the weapons, the defendant stated: “Man,

these streets are dangerous; you can‟t blame me for carrying these.” Id. at 1211.

At trial, one of the passengers testified that the weapons were inside the

vehicle because he was moving them from his grandmother‟s home to his father‟s

home. The passenger also testified the weapons were on the backseat floorboard,

beyond the defendant‟s reach, and must have shifted during the stop.

The defendant testified he knew the passenger entered the vehicle with the

weapons but denied telling police the streets were dangerous; thus, he could not be

blamed for carrying weapons. The defendant also denied having possession of or

easy access to the weapons.

The second circuit found the evidence was sufficient to establish the

defendant had constructive possession of the weapons and intended to possess the

weapons so as to support his conviction for possession of firearm by convicted

felon. The second circuit further found the weapons remained subject to the

defendant‟s dominion and control by virtue of his knowledge that the weapons

were in vehicle as well as the proximity of the weapons to the defendant at time of

the stop.

The defendant in the case at bar admitted handling the gun, and the gun

holster was visible on the nightstand in the master bedroom where the defendant‟s

identification card was found in the dresser, and men‟s clothes and shoes were in

the closet. The jury chose to believe the defendant handled the firearm found by

police thus exerting dominion and control over the firearm. When viewing the

evidence in a light most favorable to the prosecution in accordance with the

Jackson standard, the evidence is sufficient to support the defendant‟s convictions

for possession of a firearm by a convicted felon and possession of a firearm while

in possession or a controlled dangerous substance.
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ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant contends the trial court erred

when it did not grant his motion to suppress due to the fact that an illegal search

occurred.

The defendant filed a motion to suppress on April 28, 2010. Therein, the

defendant alleged the search of the apartment located on Beadle Road was

unreasonable because: 1) the address was not the address listed on his parole

paperwork; 2) Officer Hardy had never visited him at that address; 3) Officer

Hardy searched an area that was not clearly identified as his bedroom; 4) Officer

Hardy had no justification for the search; 5) the search was conducted at the home

of another, and that person was not home at the time of the search and did not

consent to the search; 6) no search warrant was obtained, and no exception to the

warrant requirement allowed for a warrantless search. The trial court denied the

motion at a hearing held on August 12, 2010.

“A trial court is afforded great discretion when ruling on a motion to

suppress, and its ruling will not be disturbed absent abuse of that discretion.” State

v. Wilder, 09-2322, p. 2 (La. 12/18/09), 24 So.3d 197, 198. Moreover, when

reviewing the trial court‟s decision on a motion to suppress the evidence, this court

may look to the entire record, including relevant testimony given at trial. State v.

Sherman, 04-1019 (La. 10/29/04), 886 So.2d 1116.

In State v. Malone, 403 So.2d 1234, 1236-37 (La. 1981), the supreme court

discussed warrantless searches stemming from a person‟s probation or parole status

as follows:

As a general constitutional rule, warrantless searches are per se
unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Had defendant
not been on probation, we would have no difficulty holding that the
Fourth Amendment right to be free from unreasonable searches had
13

been violated. However, defendant was on probation and that status
requires that we carefully consider whether and to what extent
defendant, as a probationer, had a reasonable expectation of privacy as
relates to the type of intrusion involved here. In State v. Patrick, 381
So.2d 501 (La.1980), we noted that warrantless searches of a parolee‟s
person and residence by a parole officer have been upheld where the
search was reasonable, even though less than probable cause was
shown, citing cases from the United States Courts of Appeals for the
Second and Ninth Circuits: United States ex rel. Santos v. New York
State Bd. of Par., 441 F.2d 1216, 1218 (2nd Cir. 1971), cert. den. 404
U.S. 1025, 92 S.Ct. 692, 30 L.Ed.2d 676 (1972); Latta v. Fitzharris,
521 F.2d 246 (9th Cir. 1975), cert. den. 423 U.S. 897, 96 S.Ct. 200, 46
L.Ed.2d 130 (1975).

In Santos, supra, the court considered a warrantless
search of a parolee‟s apartment when the parolee was not at home.
The police had received a tip that the parolee was dealing in stolen
property and relayed this information to the parole officer. The parole
officer and the police went to the parolee‟s apartment and were
admitted by his landlady. The policeman did not assist in the search
which resulted in the discovery of stolen goods. In holding that the
evidence need not be suppressed, the court reasoned that a parolee is
released on the assumption that he will meet the conditions of his
parole, one of which is to refrain from violating the law, and that the
parole officer is charged with the duty of enforcing the conditions of
parole. According to the court, “(t)o hold that evidence obtained by a
parole officer in the course of carrying out this duty cannot be utilized
in a subsequent prosecution would unduly immunize parolees from
conviction.” 441 F.2d at 1218.

Malone adopted a four part test to determine whether the search of a

probationer or parolee‟s premises is reasonable:

A probationer has essentially the same status as a parolee; in our view
both must necessarily have a reduced expectation of privacy. The
Fourth Amendment prohibits only unreasonable searches. Carroll v.
United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). As
we said in State v. Patrick, supra: “The test of reasonableness in cases
of this nature depends upon the total atmosphere of each case.” 381
So.2d at 503. The Patrick opinion then quotes Bell v. Wolfish, 441
U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 (1979):

“The test of reasonableness under the Fourth
Amendment is not capable of precise definition or
mechanical application. In each case it requires a
balancing of the need for the particular search against the
invasion of personal rights that the search entails. Courts
must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for

14

initiating it and the place in which it is conducted.” [cites
omitted]

To determine whether the search in the instant case was
reasonable we must therefore examine the total atmosphere in which it
took place. In the words of Bell v. Wolfish, supra, we must consider
(1) the scope of the particular intrusion, (2) the manner in which it was
conducted, (3) the justification for initiating it and (4) the place in
which it was conducted.

Id. at 1238-39.

At the hearing on the motion to suppress, Officer Hardy testified she was the

defendant‟s parole officer. Officer Hardy testified that on July 14, 2009, the

defendant told her he worked a couple of days a week in Lafayette and stayed at

his girlfriend‟s house when he was in Lafayette. His girlfriend‟s address was 169

South Beadle Street, Apartment 268, Lafayette, Louisiana. Officer Hardy testified

that she attempted to contact the defendant at his mother‟s residence on July 15,

28, 30, and 31, 2009. In fact, on July 31, the officer attempted two separate visits

at that residence. The address was 813 North Frederick, Kaplan, Louisiana, and

was the address given by the defendant.

Because Officer Hardy could not contact the defendant at the Kaplan

address, she went to the apartment in Lafayette. On January 5, 2009, Officer

Hardy had been contacted by detectives at the Lafayette Police Department who

gave her information that the defendant had been seen in possession of a firearm

and was involved in narcotics. The detectives also told her they wanted to talk to

the defendant regarding a homicide investigation. Prior to entering the apartment,

Officer Hardy called either Detective Robin or Suire and told him that, if she made

contact with the defendant, she would let him know.

Officer Hardy testified that she attempted to postpone the visit until the

detectives arrived, but they did not show up. Officer Hardy testified that she

knocked on the door of the apartment at approximately 10:30 a.m., and it was
15

opened by a juvenile male who stated the defendant was sleeping, but he would

wake him. She then spoke to the defendant about his supervision fees but did not

conduct any kind of search. The two parted, and she returned to her vehicle and

circled the parking lot until the detectives arrived. Officer Hardy testified that

during her initial visit with the defendant, she saw no suspicious activities in the

apartment. Officer Hardy believed she stayed in the front area of the apartment

during that time.

Officer Hardy, accompanied by the detectives, again knocked on the

apartment door and made contact with the defendant. Officer Hardy told the

defendant the detectives wanted to speak to him about a homicide. There is no

evidence the defendant voiced any objection to talking to the detectives. Detective

Robin then sat down at the kitchen table with the defendant. Officer Hardy was

asked if there was any indication the defendant did not want police to enter the

apartment, and she stated: “He never said that, no, they could not come in.”

Officer Hardy further indicated the defendant never told police the apartment was

not his or they did not have permission to enter. Officer Hardy testified the

apartment was leased by the defendant‟s girlfriend, she was not present at the time,

and she did not consent to the search that was later conducted.

Officer Hardy testified that, once the defendant was seated at the kitchen

table, she entered the master bedroom and looked around. Therein, she saw a

silver scale commonly used to weigh drugs on the nightstand. Officer Hardy next

saw a gun holster on the second shelf of the night stand. She looked in the closet

and noted male clothes and shoes were present. She then looked through the closet

for, and found, a gun after picking up several blankets. Officer Hardy proceeded to

the table and told one of the detectives to handcuff the defendant for safety

reasons, because the defendant was not to be in the presence of a weapon.
16

Officer Hardy returned to the bedroom and continued her search. In the

second or third drawer of the chest of drawers, Officer Hardy found the

defendant‟s wallet with his identification inside it. Detective Suire found a shoe

box containing a pair of women‟s shoes and thirteen bullets. Officer Hardy then

returned to the kitchen and picked up a pack of cigarettes lying on the table next to

the defendant and opened it. Therein, she found a marijuana joint.

Officer Hardy returned to the bedroom, where Detective Robin had removed

the bottom drawer from the chest of drawers and found two or three bags of

marijuana and a black purse. Inside the purse, Officer Hardy found marijuana, two

bags containing cocaine, and numerous pills. Officer Hardy also found a bag that

contained various pills in a copper shoe on the nightstand.

Officer Hardy had never visited the Lafayette address and had been

supervising the defendant since July 11, 2007. Officer Hardy testified she went to

the Lafayette address because it was the last day of the month, and the defendant

was on her mandatory contact list. She had made five attempts to visit him at the

Kaplan address, and he was never there. However, despite having failed to contact

the defendant on five prior occasions that month, she had not tried to contact him

by phone. When asked what right she had to search a residence, Officer Hardy

testified, “Because they‟re under our jurisdiction and supervision.” She further

testified that the right to search extended to a parolee‟s “person, their property,

their vehicle, their residence, [and] any and all effects.” Officer Hardy testified that

a parole officer could search common areas of a residence shared by more than one

person. She was then asked if she had to establish that the bedroom she searched

was that of the defendant before it was searched. In response, Officer Hardy

stated: “I didn‟t begin searching until I found the scale and the empty gun holster.

That‟s when I began searching.”
17

Officer Hardy was asked why she waited to conduct the search, and she

replied: “Because, one, I don‟t normally do searches by myself, and two, if they

were wanting to speak to him regarding an unsolved homicide, my safety, I‟m not

going to do it by myself.”

Officer Hardy was subsequently questioned as follows:

Q: This was a search based upon your parole supervision, and
Officers Robin and Suire were merely assisting you; is that
correct?

A Absolutely, yes.

Q In fact, it‟s not unusual for you to do a search like this for
probation and parole and request that law enforcement come to
help you; is that correct?

A Correct. Well, we normally call law enforcement when
narcotics are found.

Officer White testified that the defendant‟s girlfriend indicated he lived at

the apartment. Officer White also spoke to the defendant regarding the drugs

found, and the defendant claimed ownership of the drugs and admitted he had

handled the gun.

Officer White read the booking paperwork, which indicated the Lafayette

CID and Louisiana Probation and Parole conducted a homicide follow-up

investigation at the apartment. Detective Robin testified that he had obtained

information in January 2009 that the defendant was involved in narcotics and had

been seen with a gun. Detective Robin further testified that he relayed this

information to Officer Hardy. Detective Robin testified that on July 31, 2009,

Officer Hardy called and stated the defendant was at an apartment in Lafayette.

When Detective Robin arrived, Officer Hardy was in her car leaving. Detective

Robin testified that he was going to the apartment to question the defendant about

an ongoing criminal investigation, because the defendant had failed to meet with

18

him on a prior occasion. Detective Robin testified that police did not have a search

warrant when they went to the apartment.

Detective Suire testified that Officer Hardy arrived at the apartment complex

a short time after he and Detective Robin did. The group then knocked on the door

of the apartment. When asked if the defendant told them not to come into the

apartment or that he could not give permission for them to enter, Detective Suire

stated “No, I don‟t believe so.” Detective Suire testified that he did not know who

owned the apartment, and he did not contact the owner about entering the

apartment.

Detective Suire testified that after Officer Hardy found the gun, she asked

him to assist with the search. Officer Suire further testified that he found narcotics

under the bottom drawer of the chest of drawers. Officer Suire testified that he did

not recall what type of clothing was in the chest of drawers. When asked if there

were men‟s clothes in the closet, he responded: “[N]ot that I know of.”

Barbara Edwards, the defendant‟s mother, testified that he began living with

her when he was paroled, and he continued to reside with her until July 2009.

Edwards testified that all of the defendant‟s belongings were at her home. She also

testified that the defendant sometimes babysat at an apartment on Beadle Road.

Joseph Edwards, the defendant‟s father, testified that the defendant lived at his

residence and was home at least five or six nights a week. O‟Brien testified that

the defendant was her boyfriend, and the two had a child together. The defendant

babysat for her on July 31, 2009. O‟Brien testified the defendant babysat when she

worked, and he did not have clothes at her apartment. She indicated the defendant

visited his child four times a week. She denied telling police the defendant lived

with her. O‟Brien testified she was not contacted by police on July 31, 2009, prior

to their entry into her apartment.
19

The defendant testified he was at the apartment on July 31, 2009, watching

his daughter. He indicated he lived in Kaplan at that time. The defendant admitted

that he told Officer Hardy he stayed at the apartment some nights after work.

The defendant testified that in June, Detective Robin told him that if he did

not come in to speak to police, he would get Officer Hardy involved. The

defendant testified that he was asleep when Officer Hardy arrived at the apartment.

He got up, and Officer Hardy looked around, told him he was late on his payments,

and left. The defendant then saw the detectives drive up, and the detectives and

Officer Hardy came to the door. The defendant testified he told them: “[Y]‟all

can‟t come here without no [sic] search warrant.” The three entered, and Officer

Hardy and one of the detectives went straight to the back and started searching.

The defendant testified that he had prior convictions for murder and illegal

use of weapons during the commission of a felony.

After hearing the testimony, the trial court denied the motion to suppress

without setting forth any reasons for the ruling.

The defendant contends that Officer Hardy admitted she knew O‟Brien

leased the apartment, and the defendant did not live there. Additionally, he argues

the state put on no evidence that Officer Hardy had a reasonable suspicion that any

criminal activity was taking place at the apartment.

The defendant addresses the scope of the intrusion and argues the search was

a pretext for allowing detectives to speak to him, there was no evidence of consent

to search, and Officer Hardy acknowledged the apartment was leased to O‟Brien.

The defendant next addresses the manner in which the search was conducted and

argues the search was conducted under false pretenses, and Officer Hardy had no

authority to conduct a search of the home on her second visit. The defendant then

addresses the justification for initiating the search and argues the state offered no
20

justification for initiating the search. Finally, the defendant addresses the place in

which the search was conducted and argues the search was conducted in the home

of a third person without that person‟s consent, and Officer Hardy knew he did not

have control or dominion over the apartment and could not consent to a search.

The state asserts the sweep of the apartment done by Officer Hardy was for

her safety and that of the two detectives. The state additionally asserts the

defendant admitted he allowed Officer Hardy in and gave her consent to search the

apartment.

Officer Hardy testified the defendant was released on parole on June 21,

2007. At that time, La.R.S. 15:574.4(H) set forth the following:2

H. (1) The Board of Parole may make rules for the conduct of persons
heretofore or hereafter granted parole. When a prisoner is released on
parole, the board shall require as a condition of his parole that he
refrain from engaging in criminal conduct.

....

(4) The board may also require, either at the time of his release on
parole or at any time while he remains on parole, that he conform to
any of the following conditions of parole which are appropriate to the
circumstances of the particular case:

....

(m) Will be subject to visits by his parole officer at his home or place
of employment without prior notice.

....

(r) 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 the probation officer or the parole officer assigned to
him, with or without a warrant of arrest or with or without a search
warrant, when the probation officer or the parole officer has
reasonable suspicion to believe that the person who is on parole is
engaged in or has been engaged in criminal activity since his release
on parole.

2
Louisiana parole regulations are applicable to the Defendant pursuant to the Interstate
Compact for Adult Supervision. See www.interstatecompact.org.

21

In Cutler v. McGee, 09-1290, p. 8 (La.App. 3 Cir. 5/5/10), 38 So.3d 481,

487-88, writ denied, 10-1879 (La. 11/19/10), 49 So.3d 393, this court stated the

following:

Pursuant to La.R.S. 15:574.4(H), the Board of Parole has the
authority to make rules and conditions to which parolees must
conform. There is one mandatory condition: parolees must not
engage in criminal conduct, La.R.S. 15:574.4(H)(1), but there are
eighteen additional permissive conditions, which the Board of Parole
“may also require” a parolee to obey, including allowing “searches of
his person, his property, his place of residence, . . . with or without a
search warrant, when the . . . parole officer has reasonable suspicion
to believe that the person . . . is engaged in or has been engaged in
criminal activity.” La.R.S. 15:574.4(H)(4), (H)(4)(r). The conditions
of parole must be explained to a parolee, and he must “agree in
writing to such conditions.” La.R.S. 15:574.4(F).

In the case at bar, Officer Hardy testified she had the right to search a

parolee‟s residence, “Because they‟re under our jurisdiction and supervision.”

She further testified the right to search extended to a parolee‟s “person, their

property, their vehicle, their residence, [and] any and all effects.” Although, there

was no documentation presented that he had agreed to these conditions, her

testimony was unrefuted, and there is sufficient evidence that the defendant‟s

residence was subject to search, as a condition of his parole, when the parole

officer has reasonable a suspicion to believe that the defendant was engaged in or

had been engaged in criminal activity.

In State v. Bolden, 09-33 (La.App. 5 Cir. 5/12/09), 13 So.3d 1168, writ

denied, 09-1317 (La. 2/5/10), 27 So.3d 297, the defendant also argued the evidence

should have been suppressed because the search was conducted at his girlfriend‟s

residence and not the residence listed on his parole plan, and his reduced

expectation of privacy did not extend to his girlfriend‟s residence. The fifth circuit

found the record indicated the defendant was residing at his girlfriend‟s apartment.

The parole officer testified the defendant was never at his mother‟s residence when

22

he went to visit the defendant even though the address was listed as the defendant‟s

residence on his parole plan. The defendant told his parole officer on January 19,

2006, and January 26, 2006, that he was living with his girlfriend at her apartment,

and the officer could visit him there. When the parole officer conducted a

residence check on January 31, 2006, the defendant was at the apartment, and the

parole officer found some of the defendant‟s belongings in the apartment. The

fifth circuit found that because the defendant resided with his girlfriend, his parole

officer had the right to enter the residence and speak to him due to this decreased

expectation of privacy.

During the residence check, the defendant and his parole officer spoke in the

front room. The defendant then said he had to brush his teeth, which the parole

officer thought was odd. The parole officer followed the defendant down the

hallway. “At that time he looked „catty-corner‟ and saw a gun in plain sight on the

bedroom dresser.” Id. at 1170. Because the defendant had violated his parole by

having a gun in his residence, the defendant was handcuffed, and a search of his

apartment was conducted. The fifth circuit noted:

Under the plain view doctrine, if police officers are lawfully in a
position from which they view an object that has an incriminating
nature which is immediately apparent, and if the officers have a lawful
right of access to the object, they may seize it without a warrant. State
v. Manson, [01-159 (La.App. 5 Cir. 6/27/01),] 791 So.2d [749,] 757.
Because the parole officer had the authority to enter defendant‟s
residence due to his status as a parolee, the parole officer had the right
to seize the gun he saw in plain view. Since the parole officer then
had reasonable suspicion of criminal activity, he was authorized to
conduct a thorough search of the apartment. State v. Saulsby, [04-880
(La.App. 5 Cir. 12/28/04),] 892 So.2d [655,] 658.

Id. at 1172.

Although the defendant and O‟Brien denied the defendant lived at the

apartment and the defendant‟s parents testified that he lived with them, the

defendant was not at the home of his parents when Officer Hardy stopped by on
23

five occasions during July. Additionally, the defendant told Officer Hardy that he

spent several nights a week at his girlfriend‟s apartment. Moreover, Officer White

testified that O‟Brien indicated the defendant lived at the apartment. Furthermore,

the defendant‟s identification was found in the chest of drawers in the master

bedroom, and Officer Hardy observed men‟s clothing and a pair of tennis shoes in

the closet. When Officer Hardy arrived at the apartment the first time, the

defendant was obviously sleeping there. Based on this information, we conclude

the defendant resided at the apartment at issue.

Because the defendant was residing at the apartment, the parole officer had

the right to conduct a search. She had been provided information that the

defendant had been seen in possession of a firearm and was involved in narcotics.

The Lafayette detectives wanted to question him in reference to a homicide. She

walked into the master bedroom and saw a narcotics scale and an empty gun

holster sitting in plain view. The subsequent search, which produced the gun and

narcotics was justified in carrying out her duties as a parole officer.

In State v. Hamilton, 02-1344 (La.App. 1 Cir. 2/14/03), 845 So.2d

383, writ denied, 03-1095 (La. 4/30/04), 872 So.2d 480, the defendant was on

parole for a conviction of drug possession. The parole officers and a local

detective received a tip from an anonymous informant that the defendant was

selling cocaine and there was cocaine in a dresser in his bedroom. The detective

contacted one of the parole officers, and the parole officer told the detective he

would be performing a residence check at the home and asked for assistance. Later

that day, parole officers and police conducted a search of the defendant‟s home

which revealed the presence of cocaine.

In concluding the search was not a subterfuge for a criminal investigation,

the first circuit noted the parole officers planned to carry out the residence check
24

from the tip received from the informant before they had contact with the

detectives. There was not an ongoing investigation at the time of the search, and

the detectives were present to assist the parole officers. The first circuit also found

the facts supported a reasonable suspicion that the defendant may have been

violating his parole. The parole officer knew of the defendant‟s previous drug

conviction, and the information received from the informant was consistent with

the same behavior. The first circuit further found the scope of the search was not

unreasonable, stating the following:

When the defendant arrived home, the agents and officers informed
him of the reason for the residence check and the defendant allowed
them to enter the home. Before discovering the substance suspected
to be cocaine, Agent Phelps limited the search to the master bedroom
in accordance with the information received in the tip. Agent Roberts
and Sergeant Swann remained in the front of the home with the
defendant. The defendant was handcuffed as a precautionary
measure. Detective Mistretta and Detective Hover assisted Agent
Phelps with the search of the bedroom. Detective Hover located the
hidden compartment in the dresser of drawers. Agent Phelps opened
the compartment and discovered the substance later determined to be
cocaine. As previously discussed, the parole officers‟ justification for
initiating the search arose from their reasonable suspicion that the
defendant was in violation of his parole. This reasonable suspicion
was based on information received in a tip from a female informant
who told the officers where drugs could be specifically located in the
defendant‟s home.

Id. at 389.

In the matter before us, we find the parole officer‟s search of the premises

was reasonable and in accordance with the performance of her duties as a parole

officer. We do not find the search was a subterfuge for a criminal investigation.

Officer Hardy was required to make a “field” visit to the defendant‟s residence

before the end of the month. She only went to the Lafayette residence after five

failed attempts to visit him over a two week period of time at the address he had

given her in Kaplan. She then went to Lafayette, to the address provided to her by

the defendant, and where evidence supports a finding that he was actually living.
25

She had been provided information that the defendant had been seen with a gun,

which was a crime since he was a convicted felon. She had also been provided

information that he was involved in narcotics. Knowing the Lafayette detectives

wanted to question him in reference to a homicide, she contacted them and told

them she was attempting a visit at the Lafayette address and would notify them if

he was there. When she found him at home, she called them.

Officer Hardy testified that she did not search the apartment the first visit for

safety reasons, stating she does not search a premise alone. After the detectives

arrived, she reentered the apartment, told the defendant the detectives wanted to

talk to him, and then conducted a reasonable search of the area the defendant

occupied. Likewise, the search of the cigarette pack was reasonable in light of the

circumstances and within her authority under the terms of his parole. We find no

error in the trial court‟s denial of the motion to suppress evidence.

ASSIGNMENT OF ERROR NUMBER TWO

In his third assignment of error, the defendant contends the trial court erred

when it granted his Batson challenge but failed to grant him any relief. The

defendant mischaracterizes the trial court‟s ruling. The defendant entered an

objection to the state‟s peremptory challenge of four potential jurors, all of whom

were black.

“In Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986) ], the Supreme Court held that an equal protection
violation occurs if a party exercises a peremptory challenge to exclude
a prospective juror on the basis of a person‟s race.” State v. Anderson,
06-2987, p. 41 (La.9/9/08), 996 So.2d 973, 1004, cert. denied, --- U.S.
----, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009) (footnote omitted); see
also State v. Sarpy, 10-700 (La.App. 3 Cir. 12/8/10), 52 So.3d 1032,
writ denied, 11-46 (La.6/3/11), 63 So.3d 1006.

A defendant‟s Batson challenge to a peremptory
strike requires a three-step inquiry. First, the trial court
must determine whether the defendant has made a prima
facie showing that the prosecutor exercised a peremptory
26

challenge on the basis of race. Second, if the showing is
made, the burden shifts to the prosecutor to present a
race-neutral explanation for striking the juror in question.
Although the prosecutor must present a comprehensible
reason, “[t]he second step of this process does not
demand an explanation that is persuasive, or even
plausible”; so long as the reason is not inherently
discriminatory, it suffices. Third, the court must then
determine whether the defendant has carried his burden
of proving purposeful discrimination. This final step
involves evaluating “the persuasiveness of the
justification” proffered by the prosecutor, but “the
ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the
strike.”

Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 973-974, 163
L.Ed.2d 824 (2006) (citations omitted).

The trial court‟s findings with regard to a Batson
challenge are entitled to great deference on appeal.
When a defendant voices a Batson objection to the
State‟s exercise of a peremptory challenge, the finding of
the absence of discriminatory intent depends upon
whether the trial court finds the prosecutor‟s race-neutral
explanations to be credible. “Credibility can be
measured by, among other factors, the prosecutor‟s
demeanor; by how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale
has some basis in accepted trial strategy.”

Anderson, 996 So.2d at 1004 (citations omitted).

State v. Bivens, 11-156, pp. 18-19 (La.App. 3 Cir. 10/5/11), 74 So.3d 782, 796-97,

writ denied, 11-2494 (La. 3/30/12), 85 So.3d 115.

In this case, the trial court determined that the defendant had established a

systematic exclusion of black veniremen from the jury, the first step in the Batson

inquiry. It further found that the state gave credible race neutral reasons for

exercising challenges as to each potential juror. Therefore, there was no finding of

a Batson violation. The trial court‟s findings with regard to a Batson challenge are

entitled to great deference on appeal. This assignment of error lacks merit.

27

CONCLUSION

The defendant‟s convictions and sentences are affirmed. The case is

remanded for the trial court to inform the defendant of the delays for seeking post-

conviction relief as instructed herein.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

28