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Date: 03-16-2017
Case Style:
STATE OF LOUISIANA Vs. AVERY JULIEN
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Case Number: 2016-K-1223
Judge: Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet
Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA
Plaintiff's Attorney: Leon A. Cannizzaro, Jr.
District Attorney
Parish of Orleans
Scott G. Vincent
Assistant District Attorney
Defendant's Attorney: George Blair, III
Description:
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Louisiana Department of Probation and Parole Agent James Bertrand and
Agent Jason Hardy conducted a compliance check at Avery Julien‟s home at 6:00
a.m. on March 8, 2016. Neither Agent Bertrand nor Agent Hardy was assigned to
monitor Mr. Julien, a probationer. Agents Betrand and Hardy were accompanied
by the New Orleans Police Department (“NOPD”) and officers from the U.S.
Marshals‟ Gulf Coast Criminal Fugitive Task Force.1 After knocking on Mr.
Julien‟s door, Agent Bertrand allegedly observed an African-American male peer
from the window located between the living room and kitchen area of the
residence. When no one came to open the door, the officers continued to knock
and announce their presence. Agent Bertrand observed the individual inside look
out at them a second time and heard “a lot of movement . . . going on inside of the
house.” After someone “finally opened” the front door, the officers entered,
secured the residence and were directed to Mr. Julien‟s room, where Agents
Bertrand and Hardy found Mr. Julien in bed with a female companion. There were
seven people in the residence: defendant and a female in his bedroom; three
persons in a second bedroom; and another two people in the living room. The
agents handcuffed Mr. Julien and his female companion and escorted them from
the room. The evidence does not reflect that the other occupants were handcuffed.
While conducting a “protective sweep to make sure that there were no other
individuals in the room,” Agent Bertrand saw a live nine-millimeter round of
ammunition on the windowsill. Upon locating the ammunition, the agents deemed
they possessed the requisite level of cause to conduct a search. Agent Hardy then
firearm and accompanying ammunition. Both weapons were checked through
NCIC, which revealed they were reported stolen. Agents Bertrand and Hardy
reported their discovery of the contraband to a U.S. Marshal on the scene, who
then took over the investigation.
As a result, the State filed a bill of information charging Mr. Julien with
possession of a firearm by a convicted felon and illegal possession of a stolen
firearm. Mr. Julien pled not guilty. Mr. Julien filed Motions to Suppress and for a
Preliminary Examination. Following a hearing, the trial court granted Mr. Julien‟s
Motions to Suppress and found no probable cause. The State noticed its intent to
seek writs, and the trial court stayed the proceedings pending this Court‟s decision.
The State‟s timely filed application for supervisory review followed.
STANDARD OF REVIEW
The Louisiana Supreme Court “restated the general rule that appellate courts
review trial court rulings under a deferential standard with regard to factual and
other trial determinations, while legal findings are subject to a de novo standard of
review.” State v. Wells, 08-2262, p. 4 (La. 7/6/10), 45 So. 3d 577, 580. “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.” Id. “A „trial judge‟s ruling [on a fact question], based on conclusions of
credibility and weight of the testimony, is entitled to great deference and will not
be disturbed on appeal unless there is no evidence to support the ruling.‟” Id., 08
2262, pp. 4-5, 45 So. 3d at 580-81; quoting State v. Bourque, 622 So. 2d 198, 222
(La. 1993).
When reviewing the grant of a motion to suppress, appellate courts must
remember that “a trial court‟s findings on a motion to suppress the evidence are
entitled to great weight, considering the district court‟s opportunity to observe the
witnesses and weigh the credibility of their testimony.” Wells, 08-2262, p. 5, 45
So. 3d at 581. “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.” Id.
MOTION TO SUPPRESS
The Fourth Amendment to the United States Constitution and Article I, § 5
of the Louisiana Constitution protect people against unreasonable searches and
seizures. Ordinarily, when evidence is seized without a warrant, the burden is on
the State to demonstrate that a search is justified by some exception to the warrant
requirement. See La. C.Cr.P. art. 703(D); State v. Bell, 09-0574, p. 4 (La. App. 4
Cir. 12/9/09), 28 So. 3d 502, 506.
Individuals on probation possess a diminished expectation of privacy. State
v. Malone, 403 So. 2d 1234, 1239 (La. 1981); see also State v. Marino, 00-1131, p.
4 (La. App. 4 Cir. 6/27/01), 804 So. 2d 47, 52. “This reduced expectation of
privacy is based on a probationer‟s conviction and agreement to allow a probation
officer to investigate his activities in order to confirm that the probationer is in
compliance with the provisions of his probation.” State v. Fields, 12-0674, p. 9
(La. App. 4 Cir. 6/19/13), 120 So. 3d 309, 317. That reduced expectation of
privacy authorizes “reasonable warrantless searches of their persons and residences
by their probation or parole officer, even though less than probable cause may be
shown.” State v. Jones, 12-0438, p. 8 (La. App. 4 Cir. 3/13/13), 119 So. 3d 9, 15.
“A probationer is not, however, subject to the unrestrained power of the
authorities.” Fields, 12-0674, p. 9, 120 So. 3d at 317. This Court has recognized
that “a search of the probationer may not be a subterfuge for a police
investigation.” Id. However, “a probation officer may conduct a warrantless
search of a probationer‟s property when „the officer believes such a search is
necessary in the performance of his duties, and must be reasonable in light of the
total atmosphere in which it takes place.‟” Id., quoting State v. Thomas, 96-2006,
p. 2 (La. App. 4 Cir. 11/06/96), 683 So. 2d 885, 886. “In order to determine
reasonableness 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.
The trial court focused largely on the absence of participation by the agent
assigned to Mr. Julien and the application of La. C.Cr.P. art 895(A)(13)(a), which
requires as a condition of probation that the defendant:
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 probation is engaged in or has been engaged in criminal activity.
The trial court stated, “[T]he problem is that the agent specifically testified that he
was not assigned to the case. If he would have said that he had been assigned to it
that morning, I would agree with [the state].” The trial court continued, “I‟m
saying that as I read the statute that they can not enter the house and conduct a
warrantless search, be it walk into the house in the first place, unless it is the agent
that is assigned to the case . . . .”
La. C.Cr.P. art. 895 outlines the conditions of probation. Subsection (A)(4)
provides that the probationer shall “[p]ermit the probation officer to visit him at his
home or elsewhere.” La. C.Cr.P. art. 895(A)(13)(a) was amended to provide that a
probationer shall:
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 probation is engaged in or has been engaged in criminal activity. (Emphasis added).
The Legislature specifically included “by the probation officer or the parole officer
assigned to him” in the amendments. This phrase introduced a new limitation on
the search capabilities of probation officers. The Legislature also contemplated the
unavailability of the probation officer assigned to the defendant, as reflected by La.
C.Cr.P. art. 899(B), which provides that a probation officer may authorize a peace
officer to arrest a probationer if an undue risk to the public or probationer exists.
The trial court also noted the absence of evidence introduced at the
suppression hearing demonstrating the presence of any cause for the search. When
ruling, the trial court stated:
While any probation officer could presumably conduct a compliance check,2 in this
case, the agents‟ conduct surpassed that contemplated by law when they entered
Mr. Julien‟s bedroom and handcuffed both him and his female companion and
escorted them out of the room before viewing the ammunition on the windowsill.
The State did not present evidence of a tip of suspected criminal activity or other
facts giving rise to reasonable suspicion prior to assembling the law enforcement
team to conduct the compliance check. The presence of multiple officers from
multiple law enforcement agencies for a compliance check without pre-existing
reasonable suspicion differs from jurisprudential affirmations regarding denials of
motions to suppress.3 These factors go towards the determination of the
unreasonableness of the search based on the scope of the intrusion and the manner
in which it was conducted. See Malone, 403 So. 2d at 1239. Likewise troubling is
the suggestion that the State could make such a show of force outside the residence
and claim that the occupants‟ reaction to it at 6:00 a.m. (looking outside twice and
not immediately opening the door) could provide it with reasonable suspicion to
conduct an otherwise illegal search. As such, the compliance check conducted on
Mr. Julien served as a pretext for a warrantless search with no reasonable suspicion
that Mr. Julien was involved in criminal activity prior to knocking on the door.
Given the totality of the circumstances, the compliance check was
unreasonably pretextual. Agents Bertrand and Hardy should not have been in Mr.
Julien‟s bedroom and thereby able to view the ammunition in plain sight. The
legality of the search conducted thereafter was vitiated by the fact that neither
Agent Bertrand, nor Hardy was assigned as Mr. Julien‟s probation officer, which
triggered La. C.Cr.P. art. 895(13)(a). Once implicated, La. C.Cr.P. art. 895(13)(a)
requires that the warrantless search be conducted by the probation officer assigned
to Mr. Julien. It is undisputed that the probation officer assigned to Mr. Julien was
not present.
The State contends that this Court‟s recent ruling in State v. Brignac, 16
1160 (La. App. 4 Cir. 1/18/17), ___ So. 3d ___, 2017 WL 193157, wherein this
Court upheld the warrantless search of a probationer‟s residence supported by
reasonable suspicion conducted by a probationer officer who was not the probation
officer assigned to the defendant, is controlling. We disagree. Brignac is
distinguishable in that prior to conducting the residence check on the defendant,
the assigned agent received a tip that the defendant was engaged in the sale of
illegal narcotics. Id. The State presented no evidence in the present matter of any
tips, positive drug tests,4 or anything else to establish reasonable suspicion that
criminal activity was occurring prior to deciding to conduct a compliance check on
Mr. Julien‟s residence.
Additionally, the State asserts that La. C.Cr.P. art. 703 and State v. Guidry,
03-1944 (La. 11/21/03), 862 So. 2d 965, permits the inclusion of the weapons
seized even if La. C.Cr.P. art. 895 was violated. We disagree. In Guidry, the
Louisiana Supreme Court found that technical violations or errors in search
warrants did not automatically vitiate the constitutionality of the seized evidence.
Guidry, 03-1944, 862 So. 2d at 965. The present matter does not involve a search
warrant. Moreover, the pretextual compliance check and the violation of La.
C.Cr.P. art. 895(13)(a), which was specifically amended by the Legislature to be
more restrictive, constitutes more than a mere technicality. To regard it as such
would invalidate the amendment and the safeguards in place to protect a citizen‟s
4th Amendment rights. As such, the State‟s argument lacks merit.
Further, the State avers that we should adopt a more nuanced approach and
cites to State v. LeBlanc, 490 F.3d 361 (5th Cir. 2007), a case in which the federal
appellate court found no Fourth Amendment violation following a compliance
check that yielded contraband. In LeBlanc, the court found suspicionless home
visits set out by Louisiana‟s statutory scheme permissible. When discussing home
visits on probationers, the court stated:
Home visits, as defined under Louisiana law, as a condition of LeBlanc‟s probation, and as conducted on these facts, do not constitute as invasive a burden on a probationer‟s expectations of privacy as does a search. A probationer is subject to state supervision as part of the “special needs” doctrine, including verification of where he lives, and cannot expect to be free from “interpersonal contact” at his residence. Were we to impose a requirement that a probation officer show reasonable suspicion of criminal activity before visiting a probationer at his home, supervision would become effectively impossible.
LeBlanc, 490 F.3d at 368-69. Ultimately, the court found that the officer did not
cross the line into a search by asking to look around. Id., 490 F.3d at 370.
Defendant opened the door to his bedroom to show the officer, wherein the
weapon was seen in plain view. Id.
We find LeBlanc distinguishable. Foremost, LeBlanc was decided prior to
the amendment of La. C.Cr.P. art. 895. Further, in the instant case, the probation
agents conducted something more than a “walk-through” when they executed an
abrupt entry into the bedroom where Mr. Julien and his female companion slept,
handcuffed the two, and removed them from the room. Only then did the agents
observe the ammunition, which then provided them with the requisite cause to
conduct a more thorough, warrantless search. However, because we found that the
initial intrusion was an unreasonable subterfuge for a warrantless search, the agents
should not have been in the position to view the ammunition. Therefore, the
subsequent search and seizure of the weapons was illegal. Thus, the trial court did
not err or abuse its discretion by granting Mr. Julien‟s Motions to Suppress. The
writ is denied.
Plaintiff's Experts:
Defendant's Experts:
Comments: