STATE v. SKIPPER (2020)

Writ application denied.

Mr. Skipper, a Black man, was detained and searched on Bourbon Street in New Orleans by Detective Samuel Senter and Detective Jason Collins of the New Orleans Police Department. Det. Senter allegedly observed Mr. Skipper holding an amount of marijuana that would only constitute a misdemeanor offense. The City of New Orleans Municipal Code forbids an individual being arrested for such an amount. N.O. Mun. Code § 54-28(1). Nevertheless, the detectives detained and searched Mr. Skipper. A three-judge panel of the Orleans Parish Criminal District Court Appellate Division suppressed the fruits of the search, finding that, because the arrest itself for such a small amount of marijuana was prohibited, “any search incidental to arrest was illegal.” However the Fourth Circuit Court of Appeal granted the State's writ, reversed the Criminal District Court, and sent it back to give the State another opportunity to justify the search.

Detectives Senter and Collins are now under criminal investigation and have lately been removed from their posts in response to recently-revealed body camera footage of another incident in which they were involved in detaining and searching a Black man in the French Quarter and were caught on camera getting their stories straight afterwards.¹ In announcing the criminal investigation into the detectives just three weeks ago, the New Orleans Police Department Superintendent, Shaun Ferguson cautioned that the public should be just as disturbed as he was by the revelations about these officers' conduct.²

The arrest and search were clearly prohibited by law and conducted by police officers now under criminal investigation for concocting an after-the-fact justification for searching another Black man in the French Quarter. This Court has also viewed that same bodycam footage in State v. Radon Ray, 20-0041 (La. 3/16/20), 294 So.3d 1053. Yet in denying the defendant's writ, the majority is allowing the District Attorney one more chance to justify these same officers’ actions and the patently illegal search of Mr. Skipper in this case. I would grant the writ and reinstate the ruling of the Appellate Division of the Orleans Parish Criminal District Court.

I disagree with the majority's denial of the defendant's writ application, as I find defendant's Motion to Suppress should have been granted. Despite it being unclear whether the State is entitled to the relief it received from the Fourth Circuit Court of Appeal in the form of an additional opportunity to file a brief in opposition to the suppression hearing, based upon the information provided to this Court, in my view, there was a violation of § 54-28(1) of the New Orleans Municipal Code.¹ Importantly, there was testimony elicited at the hearing on defendant's motion that none of the exceptions to § 54-28(1) applied, and thus, the officers inappropriately disregarded the policy to issue a summons under these circumstances. Thus, the firearm retrieved as a result of the arrest is a fruit of an illegal search. As a result, I would grant the writ, reverse the Fourth Circuit Court of Appeal's ruling, and reinstate the ruling of the Criminal District Court Appellate Division Judges ² Herman, Derbigny, and Flemings-Devillier.

FOOTNOTES

1.   State v. Radon Ray, 544-524, per curiam, p. 2, Derbigny J. “[T]he discussion between Detectives Senter and Knowles, which in the view of this court was an attempt to fabricate the report of the Detectives involved, gave this court serious pause.”)

2.   Ramon Antonio Vargas, 5 NOPD officers under criminal investigation, and public should be ‘disturbed,’ Shaun Ferguson Says, The Times Picayune/Nola.com, May 22, 2020. https://www.nola.com/news/crime_police/article_2651897c-9c45-11ea-b0254b2d18649cbf.html.

1.   This section provides, in pertinent part:Sec. 54-28. - Summons by officer instead of arrest and booking.(1) An officer shall issue a written summons and may not make a custodial arrest when citing a person solely for a violation of this chapter, except when one of the following circumstances exists:a. The person does not possess identification issued by any municipal, state, territorial, federal, or other governmental authority within the United States; orb. The person makes a statement that indicates an intent to disregard the summons or refuses to sign the summons; orc. The person acts in a violent or destructive manner or makes a statement indicating that he or she intends to inflict injury to self or another or damage to property; ord. The person is a habitual offender, defined as any individual with a criminal history of two or more felony convictions or five or more felony or municipal arrests for any offense; ore. Based on the circumstances, an officer determines that it is absolutely necessary to make an arrest.

2.   The Appellate Division of the Criminal District Court for the Parish of Orleans is created by La. R.S. 13:1337 (A), which provides, in pertinent part:The Criminal District Court for the Parish of Orleans shall have appellate jurisdiction of all cases tried before the Municipal Court of New Orleans and the Traffic Court of New Orleans. Appeals from the municipal and traffic courts shall be on the law and the facts and shall be tried upon the records made and the evidence offered in said courts by the judge to whom the appeal shall be allotted. In all cases tried before the judges of the criminal district court in which an appeal does not lie to the supreme court, an appeal shall lie on questions of law and fact to two or more of the judges of the criminal district court, as prescribed by said court. The criminal district court shall adopt rules regulating the manner of taking and hearing and deciding such appeals.(Emphasis added).

Johnson, C.J., would grant and assigns reasons. Crichton, J., would grant and assigns reasons. Genovese, J., would grant for reasons assigned by Chief Justice Johnson and Justice Crichton.