STATE OF LOUISIANA Vs. WENDELL GARCIA

Case Number: 2016-K-1308

Judge: Chief Judge James F. McKay III, Judge Joy Cossich Lobrano, Judge Marion F. Edwards

Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney:

LEON A. CANNIZZARO, JR.
DISTRICT ATTORNEY OF ORLEANS PARISH
KYLE DALY
ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH

Defendant's Attorney:

Hannah Lommers-Johnson
Orleans Public Defenders

Description:

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Agent Favorite testified that on August 23, 2016, he, defendant‟s probation
agent, Dominique Batiste, and other assisting agents and police officers conducted
a probation and warrant check at defendant‟s registered address. Defendant had an
outstanding arrest warrant at the time. Agent Favorite explained the address
contained two structures: a single family dwelling facing the street and a detached
one-room living area in the rear. Upon arrival, Agent Batiste conducted a search
of the main residence while Agent Favorite went to the rear structure and knocked
on the door. The door was not opened right away. Agent Favorite heard someone
“rumbling” inside and saw someone looking out of the window. When defendant
opened the door about a minute later, Agent Favorite smelled burning marijuana
coming from inside. Agent Favorite informed defendant who the agents were and
why they were there. He then searched the one room structure, which contained a
single bed and a night stand, atop of which rested defendant‟s identification card
and cell phone. A black female was present with defendant. Agent Favorite saw a
hole in the wall. When he looked in the hole, he saw a gun. On cross examination,
Agent Favorite stated the gun was in plain sight when he looked into the hole in
the wall. Defendant was placed under arrest when the gun was found. Following a
review of his report, Agent Favorite confirmed that Agent Batiste had informed
him that defendant‟s brother Damon resided in the back structure where defendant
was found.

Following argument by the state and defendant, the trial court issued the
following ruling with reasons:
Obviously the Court has some issues with the way Probation and Parole is utilizing Probation Status for what the Court has previously determined in other cases to be ends around the search warrant requirement. I agree with the State that Probation and Parole has the ability to go to addresses in order to check in and do a compliance check. There is no question. The first question that needs to be addressed is this a compliance check or is this a search? The testimony of the officer in this case was that four separate detectives along with multiple probation agents showed up in order to search for any and all evidence that Mr. Garcia was engaged in criminal activity. I‟m not sure if you can really call that a compliance check. That by definition seems to be a search. Setting that aside, the next question is does the fact that the agent assigned to the case, the fact that she is there, does that meet the first criteria laid forth in 895A, 13 A, when other agents are assigned to the case? Again, I agree with the State. I think that the fact that she‟s there arguably meets that requirement so long as the second set of eight, thirteen A, as it relates to searches is also met. The problem comes in when we address whether or not there was probable cause to enter the house. Again, when you show up with multiple detectives and you show up with multiple agents, and you testify that you are there to look for any evidence of criminal activity, that is a search. So, I think that 813A (sic) applies. It may be that the detectives and the agents were voluntarily let into the property. I don‟t know. The testimony that was adduced is silent to that fact. If they were voluntarily let into the property, then they would have every right to go to the back structure and knock on the door. And, the testimony was that the door was voluntarily opened. And, at
that point, when they smelled marijuana, they would have had justification to enter and search. I think at that point 813A (sic) would be addressed. The problem for me at this point is how do they get to the back structure in the first place? I don‟t know. There wasn‟t testimony that was adduced relative to how the police got into the property in the first place. Whether or not there was probable cause to get in based on something that they had witnessed when they arrived, or whether or not somebody voluntarily let them into the property. But, when specifically asked whether or not they had any reason to believe that Mr. Garcia was engaged in criminal activity prior to arriving at the address, the answer was no. That‟s where my concern comes in as it relates to the search. The only evidence that would lead to either reasonable suspicion or probable cause that Mr. Garcia was engaged in criminal activity based on the testimony that was adduced at the hearing was that the marijuana, but in light of the fact that the back address was not a separate property and in light of the fact that the back apartment was part of the overall structure, I think the State has failed to establish the reasonable suspicion prong of 895A, 13A. I don‟t‟ know how they got on the property. I don‟t. So, in light of the silence in the record on that point, I will grant the motion to suppress.

DISCUSSION
The Fourth Amendment to the United States Constitution and Article I, § 5
of the Louisiana Constitution protect people against unreasonable searches and
seizures. 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. 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 (citation omitted).
Individuals on probation possess a diminished expectation of privacy. State
v. Malone, 403 So.2d 1234, 1238 (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 (citing State v. Thomas, 96-2006, p.
2 (La .App. 4 Cir. 11/06/96), 683 So.2d 885, 886). 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
(citing Malone, 403 So.2d at 1238). However, this Court has recognized that a
person on probation or parole is not subject to the unrestrained power of the
authorities, and “a search of the probationer may not be a subterfuge for a police
investigation.” Fields, 12-0674, p. 9, 120 So.3d at 317 (quoting Thomas, 96-2006,
p. 2, 683 So.2d at 886) . “[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. “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.

Louisiana Code of Criminal Procedure article 895(A) provides in relative
part:
A. When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall:

(1) Make a full and truthful report at the end of each month;
(2) Meet his specified family responsibilities, including any obligations imposed in a court order of child support;
(3) Report to the probation officer as directed; (4) Permit the probation officer to visit him at his home or elsewhere; (5) Devote himself to an approved employment or occupation; (6) Refrain from owning or possessing firearms or other dangerous weapons; (7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court; (8) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons; (9) Remain within the jurisdiction of the court and get the permission of the probation officer before making any change in his address or his employment; and (10) Devote himself to an approved reading program at his cost if he is unable to read the English language. (11) Perform community service work. (12) Submit himself to available medical, psychiatric, mental health, or substance abuse examination or treatment or both when deemed appropriate and ordered to do so by the probation and parole officer. (13)(a) 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.

This Court reviews a trial court's findings of fact on a motion to suppress
under a clearly erroneous standard, and its ultimate determination of Fourth
Amendment reasonableness de novo. On mixed questions of law and fact, this
Court reviews the underlying facts on an abuse of discretion standard, but reviews
conclusions to be drawn from those facts de novo. Where the facts are not in
dispute, the reviewing court must consider whether the trial court came to the
proper legal determination under the undisputed facts. Fields, 12-0674 p. 9, 120
So.3d, at 317.
The trial court found that the probation and parole officer conducted a search
when he walked to the rear apartment and knocked on the door. The trial court is
correct that there was no testimony as to whether anyone at the main house had
given consent to proceed to the separate apartment where defendant was located.
There is also a lack of testimony as to whether there was a fence with a gate, which
the agents needed to open prior to proceeding to the apartment. Agent Favorite
stated that Agent Batiste was located at the main house when he knocked on the
door of the rear structure. He further explained that he was aware there was a
fugitive attachment for defendant and the female found in the apartment with him.
In the case sub judice, defendant‟s probation agent went to the defendant‟s
house and brought other agents and police officers to assist her. The defendant
listed as his home address a property upon which there are two residential
structures. In Fields, this Court stated:
A probationer is, however, nonetheless obliged to permit the probation officer to visit him at his home or elsewhere. Unquestionably, a probationer, … , has a reduced expectation of privacy which allows a probation officer to conduct unannounced visits to verify that the probationer is in compliance with the provisions of his probation. A “walk-through” inspection of a probationer's residence to verify his current residence does not constitute a search. Probation officers are authorized to conduct a walk through inspection of a probationer's home to verify his residence. On rehearing, we reaffirmed that the probation officers were justified in entering the defendant's bedroom to confirm that the defendant actually resided there.

Since defendant was on probation at the time Agent Favorite arrived at his
residence, the agents were within their rights to conduct a “walk-through” of both
structures without any suspicion of criminal activity whatsoever. Agent Favorite
knocked on the door of the rear structure and waited until defendant opened the
door. Once Agent Favorite smelled marijuana inside the rear structure, he was
permitted to conduct a search. See State v. Grace, 11-1128 (La. 6/3/11), 63 So.3d
1025 (finding probation officer lawfully searched parolee‟s residence after
smelling marijuana through opened door).

Outcome: