STATE OF LOUISIANA v. THOMAS BOURQUE SR (2026)

The defendant, Thomas K. Bourque, Sr., was indicted by a grand jury with seven counts of molestation of a juvenile, in violation of La. R.S. 14:81.2(A)(1); five counts of possession of pornography involving juveniles under the age of thirteen, in violation of La. R. S. 14:81.1(A); and fifteen counts of production of pornography involving juveniles under the age of thirteen, in violation of La. R.S. 14:81.1(A).¹ The defendant entered a plea of not guilty and, following a jury trial, was found guilty as charged on the five counts of possession of pornography involving juveniles under the age of thirteen and fifteen counts of production of pornography involving juveniles under the age of thirteen.

The defendant filed a motion for new trial, which was denied. The defendant was sentenced to forty years at hard labor without the benefit of probation, parole, or suspension of sentence on each of the five counts of possession of child pornography and to ninety-nine years at hard labor without the benefit of probation, parole, or suspension of sentence on each of the fifteen counts of production of child pornography. These sentences were to run concurrently. The defendant now appeals, raising one counseled assignment of error and one pro se assignment of error. In his counseled assignment of error, the defendant argues his concurrent sentences are unconstitutionally excessive. In his pro se assignment of error, the defendant argues the trial court erred in denying his motion to suppress the evidence.

FACTS

On or about June 22, 2020, R.R.² reported to the Iberville Parish Sheriff's Office (“IPSO”) that his five-year-old daughter, R.W.R., said “Paw-Paw” had taken a picture of her “tee-tee” with his cellphone while she was riding with him on his tractor at a friend's home in Saint Gabriel. R.W.R. identified “Paw-Paw” as the defendant. The defendant is not related to R.W.R. Following R.W.R.’s interview with the Children's Advocacy Counsel wherein she confirmed the incident, IPSO detective, Captain James Snelson, obtained a warrant to search the defendant's residence for his cellphone. Captain Snelson then applied for and obtained a second warrant to search the contents of the defendant's phone. A search of the defendant's phone was conducted by forensic investigators at the Louisiana Attorney General's Cyber Crime Unit. The search did not yield any pictures of R.W.R. However, investigators found ten to fifteen pornographic images that appeared to depict children. The images showed portions of the victims’ faces, breasts, and vaginal areas. The victims were identified as the defendant's granddaughters, Ad.B. and Av.B.

During the trial, Ad.B. testified that she was born in 2010 and was thirteen years old at the time of trial. Ad.B. testified that she knew the defendant because he is her grandfather. According to Ad.B., during the summer of 2020, she and her twin sister, Av.B., would go to the defendant's house every day. Ad.B. testified that the defendant lived with their grandmother, L.B. Ad.B. testified that she had a distinguishing birthmark located on her left thigh, which she displayed to the jury. Ad.B. identified herself in multiple photographs found on the defendant's phone and testified that the defendant took the photographs.

Av.B. testified that she was also born in 2010 and was thirteen years old at the time of trial. Av.B. testified that the defendant is her grandfather, and she went to the defendant's home almost every day during the summer of 2020 and after school. Av.B. identified herself in photographs, explaining that she was heavier than her sister. Av.B. identified herself in multiple photographs found on the defendant's phone and testified that the defendant took the photographs.

T.B., the defendant's son, testified that he found a damaged hard drive under a seat while cleaning the defendant's truck, and later saw the defendant hit the hard drive with a hammer. The defendant claimed he did this to all of his hard drives.

Dr. Anne Troy testified as an expert in child sexual abuse, forensic nursing, and determining the approximate age of a child from an objective standard. Dr. Troy applied the Tanner Stages analysis to the photographs found on the defendant's phone. Dr. Troy explained that the Tanner Stages are used to determine the age range of a child based on their growth and development. According to Dr. Troy, of the twenty-five photographs she viewed, none of the images appeared to be over Tanner Stage two, which she described as “under eleven years old.” Dr. Troy testified that she saw Ad.B. and Av.B. in her clinic when they were twelve years old, though she did not remember what date she met the victims. Dr. Troy explained that, by then, both victims were at Tanner Stage four.

COUNSELED ASSIGNMENT OF ERROR

In his sole counseled assignment of error, the defendant argues that his sentence is unconstitutionally excessive. The defendant notes that he had no prior criminal history, was cooperative with investigators, and the sentence makes it likely he will spend the rest of his life in prison. The defendant did not file a motion to reconsider his sentence but generally objected to the sentences imposed.³

Both the United States and Louisiana Constitutions prohibit the imposition of cruel or excessive punishment. U.S. Const, amend. VIII; La. Const. art. I, § 20. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is unconstitutionally excessive if it is grossly disproportionate to the severity of the offense or constitutes nothing more than a needless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one's sense of justice. State v. Livous, 2018-0016 (La. App. 1st Cir. 9/24/18), 259 So.3d 1036, 1044, writ denied, 2018-1788 (La. 4/15/19), 267 So.3d 1130.

The trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of discretion by the trial court. State v. Fruge, 2014-1172 (La. 10/14/15), 179 So.3d 579, 584. On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Grigsby, 2016-1213 (La. App. 1st Cir. 2/17/17), 2017 WL 658783, *2 (unpublished), writ denied, 2017-00670 (La. 5/18/18), 242 So.3d 572, cert. denied, 586 U.S. 1162, 139 S.Ct. 1202, 203 L.Ed.2d 229 (2019).

Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. The goal of La. Code Crim. P. art. 894.1 is to have the sentencing court articulate a factual basis for the sentence, not rigid or mechanical compliance with the article's provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. Code Crim. P. art. 894.1. See State v. Lanclos, 419 So.2d 475, 478 (La. 1982); State v. Burks, 2018-1735 (La. App. 1st Cir. 5/31/19), 278 So.3d 390, 395, writ denied, 2019-01186 (La. 3/9/20), 294 So.3d 478. The trial court should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. Grigsby, 2017 WL 658783 at *2.

At the time of the commission of the offenses, the penalty for possession of pornography involving juveniles under the age of thirteen was imprisonment at hard labor for not less than one-half of the longest term nor more than twice the longest term of imprisonment in Paragraph (1), (2), and (3) of the statute, to be served without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:81.1(E)(1)(a) and (5)(a). The penalty for production of pornography involving juveniles under the age of thirteen was imprisonment at hard labor for not less than 25 years nor more than 99 years, at least 25 years shall be served without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:81.1(E)(5)(b).

As such, the defendant received the maximum term of imprisonment on each count. Maximum sentences may be imposed only for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety in light of his past repeated criminality. State v. Parker, 2012-1550 (La. App. 1st Cir. 4/26/13), 116 So.3d 744, 754, writ denied, 2013-1200 (La. 11/22/13), 126 So.3d 478.

Prior to imposing the sentences, the trial court considered whether the defendant needed correctional treatment or a custodial environment that could be provided most effectively by his commitment to an institution, and whether a lesser sentence would depreciate the seriousness of the crimes. See La. Code Crim. P. art. 894.1(A). (R. 1368-69). The trial court recognized the defendant's lack of criminal history. Regarding the seriousness of the instant offenses, the trial court detailed the lasting emotional impact that the defendant inflicted on his family members. The court found the lengthy sentence on each count was justified, reasoning:

Okay. Well, considering the sentence guidelines under Article 894.1 ․ of the Code of Criminal Procedure - those that are applicable in this particular case - although, Mr. Bourque, you may not have had any prior history of criminal activity, it appears that your lustful disposition towards prepubescent girls was present prior to the five-year-old little girl exposing you for who you really are. But for her courageous act in telling her father: “Paw-Paw touched my tee-tee” ․ what was presented at trial may have never come to light of day. You are in need of correctional treatment as any lesser sentence would deprecate the seriousness of your crimes.

You knew that your granddaughters were particularly vulnerable because of their age and the love and affection that they had for you as their caregiver whom your son and daughter-in-law trusted you with to take care of the grandkids while they were at work. You took advantage of this relationship to subject your granddaughters to these indignities and the loss of their innocence and their sense of trust and security around people that are supposed to love them.

․

What you've revealed, Mr. Bourque, was that you're selfish - your selfish, uninhibited desire to satisfy your own depraved and despicable sexual desires.

The defendant presented no evidence in mitigation. The record demonstrates that the trial court adequately considered the defendant's personal history and the nature of the offenses. When considering the circumstances of this case, we find the sentences are not grossly disproportionate to the seriousness of the offenses committed, nor shocking to the sentence of justice. The trial court determined that the defendant had a lustful disposition towards children, abused his relationship as a caregiver for his grandchildren, and subjected his grandchildren to loss of innocence and trust. The trial court determined that a lesser sentence would deprecate the seriousness of the defendant's crimes. Therefore, we find the trial court did not manifestly abuse its wide discretion in sentencing the defendant to the maximum sentence on each count.

Accordingly, this assignment of error is meritless.

PRO SE ASSIGNMENT OF ERROR

In his sole pro se assignment of error, the defendant argues the affidavit and search warrants for his residence and the contents of his phone were lacking in particularity, overly broad, and vague. Thus, he contends the trial court erred in denying his motion to suppress the evidence.

Prior to trial, the defendant filed a motion to suppress the evidence seized from his cell phone on the grounds that the search warrants were lacking in probable cause and particularity. Specifically, the defendant argued there was nothing to establish he owned a cell phone at the time, no description of the phone, and no way to determine that the phone seized was his phone. With respect to the warrant to search the contents of the phone, the defendant argued it was vague and overbroad. At the pretrial hearing, the trial court rejected the defendant's arguments, ruling that sufficient probable cause existed to seize the phone and the warrant to search the phone was not overly broad because “items of [child pornography] can be stored in other sections other than just in the photo albums located on the telephone.”

The Fourth Amendment of the United States Constitution prohibits general warrants. State v. Maxwell, 2009-13 59 (La. App. 1st Cir. 5/10/10), 3 8 So.3d 1086, 1089, writ denied, 2010-1284 (La. 9/17/10), 45 So.3d 1056; State v. Shannon, 472 So.2d 286, 289 (La. App. 1st Cir.), writ denied, 476 So.2d 349 (La. 1985). Pursuant to (La. Code Crim. P. art. 162(C),) a search warrant shall particularly describe the person or place to be searched, the things to be seized, and the lawful purpose or reason for the search or seizure. See La. Const. art. 1, § 5. To determine whether the particularity requirement has been satisfied, a search warrant should be tested in a “common sense and realistic manner without technical requirements of elaborate specificity.” Maxwell, 38 So.2d at 1089.

An issuing magistrate must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a “fair probability” that evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); State v. Byrd, 568 So.2d 554, 559 (La. 1990). The process of determining probable cause for the issuance of a search warrant does not involve certainties or proof beyond a reasonable doubt, or even a prima facie showing, but rather involves probabilities of human behavior, as understood by persons trained in law enforcement and as based on the totality of circumstances. The process simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system. State v. Friday, 2010-2309 (La. App. 1st Cir. 6/17/11), 73 So.3d 913, 920, writ denied, 2011-1456 (La. 4/20/12), 85 So.3d 1258.

On appeal, the defendant argues the first search warrant was defective because the phone was not described by color, marking, or any other distinctive feature. Without these details, he opines there was no way for the officers to determine if the correct phone was seized.

On June 29, 2020, Captain Snelson presented the trial court with an affidavit for a search warrant seeking permission to search the defendant's residence, identified by address, for a “cellular telephone belonging to Thomas K. Bourque, W/M, DOB: 07/15/1951.” The affidavit at issue set out the following pertinent information:

• On June 21, 2020, the father of five-year-old R.W.R. reported that his daughter alleged a man she knew as Paw-Paw had touched her on her “tee tee” and took a picture of her “tee tee” with his phone, while she was riding with him on his tractor between June 18-19, 2020.

• The man she knows as Paw-Paw was later identified as the defendant.

• On June 26, 2020, R.W.R. restated her allegations during her interview at the CAC.

• R.W.R. clarified that her “tee-tee” was her private area and she indicated that Paw-Paw touches her “tee-tee” “all the time on the lawn mower.”

Based on that information, Captain Snelson represented the phone might contain evidence of indecent behavior with juveniles and pornography involving juveniles.

At trial, Captain Snelson testified that he and IPSO Detective Mark Graves executed the warrant on the morning of Monday, June 29, 2020. The detectives knocked on the door of the defendant's residence and the defendant answered. He was the only one home. They advised the defendant that they had a search warrant to seize his cell phone and asked him where it was. The defendant retrieved his phone from a table where it was charging and handed it to Captain Snelson. Captain Snelson said once he had the cell phone, he applied for a second warrant to search the contents of that phone. Once the second warrant was signed, Captain Snelson gave the phone to the forensics analysis team at the A.G.’s office.

We disagree with the defendant's argument that the first search warrant lacked particularity. Captain Snelson's search warrant is tested in a common sense and realistic manner without technical requirements of elaborate specificity. Shannon, 472 So.2d at 289. The warrant clearly identifies that the defendant's home is being searched for the cellular telephone belonging to the defendant. The defendant's conduct during the execution of the warrant further indicates he understood precisely what the detectives sought to seize, and he provided them with that phone, without incident.

With respect to the second search warrant, the defendant argues that it was overly broad to search the entire contents of the phone for one suspected photograph. The second search warrant was prepared on July 2, 2020, and sought permission to search the Samsung Galaxy S6 phone seized from the defendant's residence. It included the model and IMEI number of that phone. We note the defendant does not cite any support for his claims pertaining to the search of the contents of his cellphone.

In Riley v. California, 573 U.S. 373, 394, 134 S.Ct. 2473, 2489, 189 L.Ed.2d 430 (2014), the United States Supreme Court noted the constitutionally-protected privacy interests that are presented when the government wishes to search a cell phone that has been seized incidental to an arrest. The Supreme Court noted that “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Id. at 393, 134 S.Ct. at 2488-89. A cell phone may contain “[t]he sum of an individual's private life[.]” Id. at 394, 134 S.Ct. at 2489. As such, a warrant is now generally required before a search of a cell phone can be conducted, even when a cell phone is seized incident to arrest. Id. at 401, 134 S.Ct. at 2493.

Captain Snelson authored the search warrant and included an in-depth explanation justifying the scope of the search. The warrant notes “a suspect may try to conceal criminal evidence; he might store it in random order with deceptive file names[,] [t]his may require searching authorities to examine all the stored data to determine which particular files are evidence or instrumentalities of crime.” As mentioned by the United States Supreme Court, the search of a phone implicates privacy concerns far beyond that of physical objects.⁴ In the warrant, Captain Snelson acknowledged a cell phone can store thousands of pages of information and, based on his experience, many systems require particular devices to read the data.

On May 5, 2021, the trial court held a hearing on relator's motion to suppress two search warrants. The trial court denied the defendant's motion to suppress, finding:

As to the breadth and scope of the warrant to search the cellphone, I understand counsel's argument and position in that regard in terms of the breadth of the scope, but the court is also aware in such situations that what can be contained on the cellular telephone is not just limited to what's been located in the photos – and this court isn't that knowledgeable about contents on a phone and what can be contained or placed in different sections of it – but I am aware that items of – can be stored in other sections other than just in the photo albums located on the telephone. And the court does believe, based on that, that the judge in this instance had probable cause to issue the warrant for the search of the telephone, not limited solely just to the photos. And for that reason, the court will also deny your motion to suppress.

The trial judge ultimately ruled that the second search warrant was not overly broad based on Captain Snelson's explanation in the search warrant. We agree. The search of stored data on a cell phone is complex and may require multiple experts. Officers note that deceptive techniques are frequently used to conceal incriminating files from digital investigators, further necessitating expansive searches. Based on the record, we believe the search warrant for the defendant's phone was not overly broad.

Accordingly, this assignment of error is meritless.

CONCLUSION

For the above and foregoing reasons, the defendant's convictions and sentences are affirmed.⁵

CONVICTIONS AND SENTENCES AFFIRMED.

FOOTNOTES

1.   The State later amended the indictment to charge the defendant with three counts of first degree rape. Prior to trial, the court severed the first degree rape charges from the counts in the original indictment. At trial, the State did not pursue the seven counts of molestation of a juvenile.Louisiana Revised Statutes 14:81.1 was amended by Acts 2025, No. 261 § 1, in which all references to “pornography involving juveniles” were replaced with “child sexual abuse material.” For consistency with the record below, we utilize the terms as they appear in the version of the statute in effect at the time of the commission of the offenses, which was prior to the 2025 amendment.

2.   We use the victims’ initials and their relatives’ initials to protect their identity. See La. R.S.46:1844(W).

3.   The trial court denied the defendant's motion to reconsider sentence, however, no motion appears in the record.

4.   The gravity of such a search was not lost on Justice Weimer, who, in his dissent in Folse, notes that a cell phone contains “ ‘[t]he sum of an individual's private life,’ with details such as bank statements, addresses, messages, notes, prescriptions, photographs, and videos[,] ․ [and] medical records.” State v. Folse, 2018-1518 (La. 6/26/19), 284 So.3d 627, 629 (citing Riley, 573 U.S. at 394, 134 S.Ct. at 2473).

5.   Pursuant to La. Code Crim. P. art. 920(2), this court routinely conducts a review of all appeals for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. State v. Anthony, 2023-0117 (La. App. 1st Cir. 11/3/23), 378 So.3d 766, 775, writ denied, 2024-00027 (La. 5/21/24), 385 So.3d 242. We note a defendant generally has two years “after the judgment of conviction and sentence has become final” to seek post-conviction relief. La. Code Crim. P. art. 930.8(A) (emphasis added). The trial court failed to adequately advise the defendant of the prescriptive period for seeking post-conviction relief. However, the trial court's failure to properly advise the defendant has no bearing on the sentence and is not grounds to reverse the sentence. State v. LeBoeuf, 2006-0153 (La. App. 1st Cir. 9/15/06), 943 So.2d 1134, 1142-43, writ denied, 2006-2621 (La. 8/15/07), 961 So.2d 1158. Accordingly, this error is not reversible, and we decline to remand for resentencing.

HESTER, J.