STATE OF LOUISIANA v. BOBBY HARRIS (2014)

The State seeks review of the trial court's August 5, 2014 ruling granting the defendant's motions to suppress the evidence and statement.

STATEMENT OF THE FACTS

Officer Victor Gant, a member of the Special Operations Tactical Unit, testified that on April 13, 2014, he and his partner Officer Nathanial Joseph were traveling west-bound on North Prieur Street at approximately 12:30 a.m. when they observed a black Acura with darkly tinted front windows traveling in the opposite direction.

The officers decided to conduct a traffic stop, reversed direction, and activated their lights and siren. The vehicle, driven by Bobby Harris, did not come to an immediate stop and made several right turns before stopping in the eighteen hundred block of Music Street.

Officer Joseph exited the patrol car and approached the Acura. He administered verbal commands for the driver to lower the windows. Officer Gant, who was still seated in the patrol vehicle, could see the defendant moving about frantically inside the vehicle.

Mr. Harris then burst from the vehicle and attempted to flee. Officer Joseph grabbed him, and a struggle ensued. Officer Gant observed a clear plastic bag fall to the ground. Mr. Harris was holding a brown paper bag in his right hand which he was able to stuff into his pants. Officer Gant then joined the melee in an attempt to subdue Mr. Harris. Officer Gant's sergeant, who was not identified by name, then arrived and attempted to tase Mr. Harris, but the electronic device malfunctioned, and Mr. Harris fled the scene. The officers caught up to Mr. Harris on the porch of a residence. He was yelling for his mother to come outside and/or to let him in. Officer Joseph then tased Mr. Harris. After the first cycle he started fighting back, but after a few more cycles were administered, he gave up. They searched Mr. Harris and recovered the brown paper bag. Inside they discovered crack cocaine, powder cocaine, and heroin. After returning to the vehicles, the officers recovered the plastic bag which contained marijuana. Mr. Harris was also in possession of two thousand and forty dollars.

Officer Gant used his tint meter to determine that the tint on the two front windows was less than forty-percent and therefore illegal. Mr. Harris was cited for failing to yield, resisting arrest, illegal tint, disregarding an officer's signal, and driving with a suspended license.

During Officer Joseph's testimony he identified seventeen color photographs of a dark colored Acura bearing the same license plate as the vehicle involved in the incident.

Lieutenant Christopher Kalka obtained a statement from the defendant. Lieutenant Kalka is assigned to the Public Integrity Bureau and investigates incidents involving level four uses of force by police officers. Lieutenant Kalka met with Mr. Harris at Interim Charity Hospital following his arrest. Mr. Harris was handcuffed to a chair in a large waiting room where approximately fifteen to twenty people were seated. Because he was there to investigate misconduct, he asked the arresting officers to leave the area. Lieutenant Kalka identified himself and explained his position and purpose, stating that he was there to see if the arresting officers had done anything wrong. He asked Mr. Harris to explain what happened when he came into contact with the officers. Mr. Harris then stated he was driving when officers attempted to pull him over, and he said that because he thought there were drugs in the car, he tried to make it to his mother's or his girlfriend's house. He then explained what happened on the porch of his mother's house.

Lieutenant Kalka acknowledged that he did not administer Miranda warnings prior to speaking with Mr. Harris.

The trial court suppressed the evidence and statement saying:

I am looking at this thing, and I don't see any tint at all, at all, and good cop/bad cop on this statement, you can't do that. He's in custody, and you are going to question him about what took place. “What did the police do?” He's not a Farnham (sic) graduate. He's listening and trying to cooperate. He's cooperating without knowing that he is giving evidence against himself. I'm suppressing the evidence in the case under the Fourth Amendment. I'm suppressing the statement under the Fifth Amendment of the U.S. Constitution. I find no probable cause for the stop at all.

DISCUSSION

The standard of review of a trial court's decision relative to the suppression of evidence is as follows:

Initially, the State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. La. C.Cr.P. art. 703(D). The trial court's ruling on the matter must be afforded great weight and will not be set aside unless there is an abuse of discretion. [State v.] Wells, 2008-2262, p. 5; [ (La. 7/6/10),] 45 So.3d [577] at 581.

The analysis may be further broken down into the component parts of the trial court decision. “When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings.” Wells, 2008-2262, p. 4; 45 So.3d at 580; State v. Hunt, 2009-1589, p. 6 (La. 12/1/09); 25 So.3d 746, 751. Legal findings or conclusions of the trial court are reviewed de novo. Id.; State ex rel. Thibodeaux v. State, 2001-2510, p. 1 (La. 3/8/02); 811 So.2d 875.

State v. Thompson, 2011-0915, pp. 13-14, (La. 5/8/12), 93 So.3d 553, 563

Evidence:

The State contends that the trial court abused its discretion in granting the motion to suppress evidence. Essentially, it is the State's sole argument that the trial court's decision is not entitled to any deference because it was based entirely on inadmissible evidence. The State argues that the color photographs of the Acura vehicle were not properly authenticated and therefore inadmissible. The State notes that there was no testimony suggesting when the photographs were taken, and it was never conclusively established that the vehicle depicted was actually the vehicle in question. Accordingly, under the State's theory, what remains is the testimony of the arresting officers, which was uncontroverted by the defense. The State writes:

Based upon the rule enunciated by this Court in Hunt [2009-1589 (La. 12/1/09), 25 So.3d 746] the trial court's implicit finding that the officers were not credible with regards to the appearance of the defendant's window tint at night is entitled to no weight by this Court. The trial court's credibility determination was based upon photographs that could not possibly be authenticated by the witnesses as depicting the car as it looked on the night in question and should not have been allowed into evidence. Thus, there was no actual evidence to support the trial court's credibility determination. What remains is only the testimony of the arresting officers, which was uncontroverted by the defense.

The difficulty with the State's argument is that the evidence was admitted without objection. The trial court had no alternative but to consider the evidence after the State failed to object to its introduction. Because the evidence was admitted without objection, its use by the trial court is not subject to review by this Court. A similar issue arose in State v. Williams, 2012-0110 (La. App. 4 Cir. 10/10/12), 101 So.3d 533, where the State argued that documents used by the defendant to establish that he lawfully possessed a legend drug were inadmissible hearsay and therefore improperly considered by the trial court. The State, however, did not object to the admissibility of these documents. This Court's discussion of the issue was as follows:

The State also contends that the Walgreens documents submitted by Mr. Williams constitute “inadmissible hearsay.” However, the State did not object to the admissibility of the Walgreens computer printouts at trial. Rather, the State agreed with the trial court that the lack of authenticity should go to the weight of the evidence. Generally, a rule of evidence not invoked is waived, and hence a failure to object to evidence waives the objection to its admissibility. Cross v. Cutter Biological, Div. of Miles Inc., 94-1477, p. 8 (La. App. 4 Cir. 5/29/96), 676 So.2d 131, 139; Combs v. Hartford Ins. Co., 544 So.2d 583, 585-86 (La. App. 1st Cir.1989). “Moreover, a party's failure to object to inadmissible evidence when it is admitted constitutes a waiver of the objection, and the trial court does not err in considering such evidence.” Armand v. Lady of the Sea Gen. Hosp., 11-1083, p. 6 (La. App. 1 Cir. 12/21/11), 80 So.3d 1222, 1226, writ denied, 12-0230 (La.3/30/12), 85 So.3d 121. The State's failure to raise the hearsay objection before the trial court waived its right to assert the objection on appeal.

The trial court judge weighed the credibility of the Walgreens computer printout documents submitted by Mr. Williams and concluded that he possessed a valid prescription to Tramadol.

State v. Williams, p. 6, 101 So.3d at 536-37. See also State v. Rainey, 2014-0523 (La. App. 4 Cir. 9/17/14), --- So.3d ---, 2014 WL 4637242.

Accordingly, the State's position that there was “no evidence” to support the trial court's factual conclusion is without merit.

Statement:

The State argues that the trial court erroneously suppressed the defendant's statement to Lieutenant Kalka. The State contends that Miranda warnings were unnecessary because the questioning occurred in a crowded hospital waiting room rather than a police controlled atmosphere.¹ Accordingly, the State argues that the compelling atmosphere inherent in the process of in-custody interrogation were not present and Miranda's prophylactic measures were unnecessary.

In Miranda v. Arizona, the United States Supreme Court held that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins. Miranda, 384 U.S. at 469–473, 86 S.Ct. at 1625–1627. “The right to counsel established in Miranda was one of a ‘series of recommended ‘procedural safeguards'․ [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected.’ ” Davis v. United States, 512 U.S. at 457, 114 S.Ct. at 2354.

This Court explained its central holding as follows:

Our holding will be spelled out with some specificity in the pages which follow, but, briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Miranda, 384 U.S. at 444, 86 S.Ct. 1602.

As this passage makes clear, Miranda applies if three conditions are met: (1) the defendant is in “custody” or significantly deprived of freedom, (2) there is an “interrogation,” and (3) the interrogation is conducted by a “law enforcement officer.”

Mr. Harris was unquestionably in police custody. He was under arrest and was handcuffed to a chair. His statement was certainly the result of police questioning. Furthermore, despite being assigned to the Public Integrity Bureau, Lieutenant Kalka is nevertheless unquestionably a law enforcement officer. Accordingly, Miranda applies. Mr. Harris should have been apprised of his Miranda rights prior to being questioned.

Accordingly, we find that the trial court properly granted defendant's motion to suppress the statement. Therefore, this writ is denied.

New Orleans, Louisiana this 8th day of December, 2014.

JUDGE JOY COSSICH LOBRANO

JUDGE ROSEMARY LEDET

I respectfully concur in the denial of the writ application insofar as it upholds the trial court's suppression of the defendant's statement to Lieutenant Kalka. However, I dissent from the majority and would grant the writ application and reverse the trial court's suppression of the evidence, which included cocaine, heroin, marijuana and $2,040.00, because I believe the police officers' initial traffic stop of the defendant's vehicle was valid.

“A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” La. R.S. 215.1. In State v. Lampton, 12-1547, p. 4-5 (La. 4/5/13), 110 So. 3d 557, 560-61, 110 So. 3d 557, the Supreme Court stated:

While an arrest requires probable cause, an investigatory stop requires only the less standard of reasonable suspicion enunciated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1969). La. C.Cr.P. art. 215.1. In making a brief investigatory stop, the police ‘ “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” State v. Kalie, 96-2650, p. 3 (La. 9/19/97), 699 So. 2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)). The police must therefore “articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989) (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest. The police need have only ‘ “some minimal level of objective justification. ․’ ” Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585 (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed. 2d 247 (1984)).

Both Officers Gant and Joseph testified at the hearings on the motion to suppress that they decided to stop the defendant's vehicle after observing its dark tinted front windows, a violation of La. R.S. 32:361.1. It is undisputed that the stop occurred at 12:30 a.m., when it was dark outside. Although the state did not object to the introduction of the photographs of the alleged vehicle into evidence by the defense, those photographs depict the vehicle parked in daylight hours. Because the officers articulated specific facts to justify an investigatory stop of the vehicle, in the absence of an expressed finding by the trial court that the police officers' testimony was not credible, I believe the trial court abused its discretion in granting the motion to suppress the evidence based on the photographs which depicted the car in daylight.

FOOTNOTES

1.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

CHIEF JUDGE JAMES F. MCKAY, III