THE STATE OF LOUISIANA v. JOE YARBER (2023)

Writ application denied.

Defendant seeks to suppress the firearm found in his bag, arguing that the officers lacked reasonable suspicion for the stop and probable cause for the search and seizure. The Fourth Amendment of the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. ․” Article 1, Section 5 of the Louisiana Constitution provides broader protection, stating that “[e]very person shall be secure in his person against unreasonable searches, seizures, or invasions of privacy.” “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. C.Cr.P. 215.1(A). “An individual's presence, in an area of expected crime, standing alone, is of course insufficient to support a reasonable, particularized suspicion that a person is involved in criminal activity.” State v. Francis, 10-1149, p. 3 (La. App. 4 Cir. 2/16/11), 60 So.3d 703, 707, writ denied, 11-0571 (La. 10/7/11), 71 So.3d 311 (citing Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673 (2000); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637 (1979)). In making an investigatory stop on less than probable cause to arrest, an officer must be able to “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 (1989)(quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883 (1968)).

In the instant case, during surveillance through the Real Time Crime Center Technology (“RTCC”), which monitors the city of New Orleans, Detective Chad Cockerham of the New Orleans Police Department (“NOPD”) observed, on August 18, 2023, a black male, with a dark complexion, a medium build, with long dreadlocks and wearing glasses, selling out of his backpack, what the detective believed to be narcotics. As a result, the detective called several ground units to the scene. When the officers approached the suspect, he fled and was not apprehended. While the suspect was fleeing, he dropped his backpack, which contained a firearm and narcotics.

Ten days later, the detective, once again while conducting RTCC surveillance near the August 18th location, believed he spotted the August 18th suspect passing through the intersection. This suspect, Defendant, was riding a bicycle, he was not wearing glasses, and he was not observed selling anything out of his backpack. Detective Cockerham believed that Defendant resembled the individual from ten days prior who had fled because Defendant was a black man, with a dark complexion, had a medium build, and dreadlocks. Consider how many persons fit that description. Is an officer legally allowed to stop and search every black male with a dark complexion, medium build, and dreadlocks? There is no probable cause, much less reasonable suspicion in this case. There is no allegation that Defendant was observed conducting hand to hand transactions, wearing glasses, carrying a firearm, or doing anything illegal. Based on Detective Cockerham's observations that Defendant resembled the August 18th suspect, a NOPD officer effectuated a stop of Defendant several blocks from the August 18th location. Defendant was immediately handcuffed, and his bag was searched. A firearm was found in the bag and seized. Defendant was arrested and later charged with Felon in Possession of a Firearm (violation of La. R.S. 14:95.1). Following the stop, an officer sent Detective Cockerham a photograph of Defendant, and Detective Cockerham was unable to confirm that Defendant was the person who was observed on August 18th.

Viewing the known facts objectively and applying the proper approach to the determination of whether the facts demonstrate reasonable suspicion to justify a stop and probable cause for the search, I would find the district court abused its discretion in denying Defendant's motion to suppress evidence.¹ Defendant did not match the description of the August 18th suspect; he was on a bicycle, not wearing glasses, and several blocks from the original location; and, before and after the initial stop, Defendant was not observed committing a crime or about to commit a crime. The detective merely observed a black male resembling the August 18th suspect. As a result, the State failed to prove the officers had reasonable suspicion for the stop and probable cause for the subsequent search, and Defendant's constitutional rights were violated by the action of the officers. Consequently, I would reverse the lower courts and grant the defendant's motion to suppress.

FOOTNOTES

1.   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). A trial court's decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. State v. Wells, 08-2262, p. 5 (La. 7/6/10), 45 So.3d 577, 581(citation omitted).

Hughes, J., would grant. Genovese, J., would grant and assigns reasons. Griffin, J., would grant for reasons assigned by Genovese, J.