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Date: 02-08-2017

Case Style:

State of Louisiana v. Daryl Martise Nelson

Case Number: 51,009-KW

Judge: Michelle Williams

Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney:

ROBERT S. TEW
District Attorney

ELLEN R. EADE
Assistant District Attorney

Defendant's Attorney:

Kevin H. Johnson

Description: The record shows that on the morning of July 22, 2015, a confidential
informant advised Officer Scotty Sadler, of the Monroe Police Department
Metro Narcotics Unit, that defendant was in possession of a large amount of
narcotics. After participating in a previous drug investigation, Officer
Sadler was familiar with defendant and his residence at 117 Selman Drive.
The informant reported that, on the previous night, defendant had displayed
more than 4 ounces of crack cocaine and more than 2 pounds of marijuana
while attempting to make a sale and that the narcotics remained in
defendant’s home. The informant also provided a description of the vehicle
driven by defendant and the name of the other drug dealer to whom the
drugs were offered for sale the night before. Based on this information,
Officer Sadler submitted to the district court an affidavit in support of a
search warrant stating that the house at 117 Selman was identified as
defendant’s residence and had been used to facilitate drug sales.
2

After obtaining the search warrant, Officer Sadler went to the
residence accompanied by Officer Kris Fulmer to conduct surveillance in
preparation for the execution of the warrant. Officer Heckard, another
member of the Monroe Police Department Metro Narcotics Unit, set up
surveillance behind the residence. Shortly after their arrival, the officers
observed a vehicle matching the description provided by the informant pull
into the driveway of 117 Selman. The vehicle remained at the house for a
few minutes, then left. As the car passed Officers Sadler and Fulmer, they
recognized the driver as defendant with an unidentified passenger in the
vehicle. The officers contacted DEA Agents Zordan and Cowan, who were
nearby in a vehicle with lights and a siren, to stop defendant. Agent Zordan
had previously participated in the execution of a search warrant at
defendant’s residence that resulted in his arrest on a narcotics charge.
Officer Sadler wanted to make the stop far enough away from the residence
so that no other possible target would be alerted to the police presence and
impending search. The defendant’s vehicle was stopped approximately one
mile from the residence.
After defendant exited his vehicle, he was detained by Officer Sadler
and advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966). Officer Fulmer moved defendant’s vehicle
from the roadway. The officers detained defendant at the location of the
traffic stop for approximately five to ten minutes to allow the SWAT team
time to secure the house. Defendant was driven to the residence by Agent
Zordan and Officer Fulmer drove defendant’s vehicle to the house. While in
defendant’s car, Officer Fulmer observed a bag on the front floorboard and
3

touched it with his hand. Defendant had not consented to Officer Fulmer’s
operation of his vehicle.
Officer Sadler later testified at the preliminary exam that after
returning to the house he again advised defendant of his Miranda rights,
requested permission to search his vehicle and that defendant consented to
the search. During the search, a bag of marijuana and a handgun were found
in defendant’s vehicle. As a result of the residence search, police seized
marijuana, cocaine, digital scales, Pyrex dishes used to cook crack cocaine,
and approximately $10,000 in cash. Following the search of his residence,
defendant was taken to the Metro Narcotics Unit office, was advised of his
Miranda rights and made a statement to officers. Defendant was then
arrested and charged with possession of marijuana with intent to distribute,
possession of cocaine with intent to distribute, and possession of a firearm
by a convicted felon.
Prior to trial, defendant filed numerous motions, including a motion to
suppress evidence seeking the exclusion of any statements made to officers
and all property seized from his vehicle and residence. Defendant argued in
part that he had not given free and voluntary consent to the search of his
vehicle, and that all evidence seized as a result of that search should be
suppressed. He also moved for a hearing under Franks v. Delaware, 438
U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), on the ground that the
search warrant affidavit included an intentional false statement. The state
opposed the defendant’s motions, alleging that he had voluntarily consented
to the search of his vehicle after being advised of his Miranda rights and that
he failed to show an intentional false statement was made.
4

At the hearing on the motion to suppress, defense counsel argued that
at the time defendant’s vehicle was stopped, he was improperly detained by
officers and his vehicle was not mentioned in the search warrant. The
defense stated that at the time of the alleged consent to the vehicle search
there were approximately 19 to 28 armed officers present. Defendant
testified that while he was being detained, he merely told the officers that
they had already been in his vehicle when he was asked for permission to
conduct a search.
Officer Sadler testified that at the house, he advised defendant of his
Miranda rights and requested permission to search his vehicle. Sadler stated
that defendant was nonchalant and commented that it did not matter what he
said because the officers would get a warrant and search the vehicle anyway.
Another state witness, Agent Cowan, testified that he witnessed Officer
Sadler advise defendant of his rights, heard Officer Sadler request
permission to search the vehicle, and heard defendant’s consent to the
search. Agent Zordan testified that he did not recall Officer Sadler’s
recitation of rights, but that he heard Officer Sadler’s request to search the
vehicle and defendant’s consent. All three officers testified that defendant
was calm and relaxed throughout their contact with him.
After the hearing on the motion to suppress, the district court rendered
an oral decision finding that the search warrant was legally sufficient and
that all evidence seized from the residence was admissible, that the initial
stop of defendant’s vehicle was valid and that the defendant’s statements to
police following the searches of his house and car were admissible.
However, based upon the “totality of the circumstances,” the district court
determined that defendant had not voluntarily given consent to the search of
5

his vehicle and as a result all evidence seized from the car must be
suppressed. The court also granted defendant’s request for a Franks hearing.
The state then filed a writ application seeking review of the trial
court’s decision excluding evidence from the vehicle and granting a Franks
hearing. This court granted the writ, ordering that the issue of suppression
of evidence seized from the defendant’s vehicle be docketed for appeal and
reversing the trial court’s approval of a Franks hearing. State v. Nelson,
51,009 (La. App. 2d Cir. 7/1/16).
DISCUSSION
The state contends the police validly detained defendant at the time of
the traffic stop. The state argues that the detention of defendant was
permissible because he was a target of the search warrant for his house and
police had reasonable suspicion to make the traffic stop.
The right of each individual to be secure in his person, house, papers
and effects against unreasonable searches and seizures is guaranteed by the
Fourth Amendment to the United States Constitution and Art. I, Sec. 5 of the
Louisiana Constitution. Under the Fourth and Fourteenth Amendments, a
search conducted without a warrant issued upon probable cause is per se
unreasonable, subject only to a few specifically established exceptions. Katz
v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One
such exception allows police officers executing a search warrant to detain
the occupants of the premises while a proper search is conducted. Michigan
v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Because
police conducting a search have authority to detain absent a particular
suspicion that a person is involved in criminal activity, a spatial constraint
defined by the immediate vicinity of the premises to be searched is required
6

for detentions incident to the execution of a search warrant. Bailey v. United
States, _ U.S. _, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013).
The factual situation in Bailey, supra, is very similar to that of the
present case. In Bailey, officers conducting surveillance of an apartment in
preparation for a search saw two men leave the building, get in a car and
drive away. The officers stopped the vehicle approximately one mile away.
They found keys during a pat-down search of Bailey. Both men were
handcuffed and driven in a patrol car to the apartment, in which the search
team had found illicit drugs. The men were arrested and police discovered
that the key found on Bailey unlocked the door of the apartment. Bailey
filed a motion to suppress the key and statements that he made to officers at
the stop. The trial court found that the stop was justified as a detention
incident to the execution of a search warrant under Summers. In the
alternative, the court found that the detention was supported by Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
In Bailey, the U.S. Supreme Court found that the Fourth Amendment
exception for detention incident to the execution of a search warrant is
limited to the immediate vicinity of the search premises and did not apply
where Bailey was detained at a point beyond any reasonable understanding
of the immediate vicinity of the premises. The court stated that because
detention is justified by the interests in executing a safe and efficient search,
the decision to detain must be acted upon at the scene of the search and not
at a later time in a more remote place. The court noted that if officers elect
to defer the detention until later, the lawfulness of the detention is controlled
by other standards, including a brief stop for questioning under Terry or an
arrest based on probable cause.
7

Pursuant to Bailey, we find that the police officers in this case did not
have authority to stop defendant based upon the search warrant because they
failed to detain him within the immediate vicinity of the premises to be
searched. Nor was the detention justified under Terry. Even if, as the state
contends, there was reasonable suspicion to stop defendant’s car based on
what the officers had seen at the house, after the stop any such suspicion did
not develop into probable cause and defendant was not arrested. Instead of
being questioned, defendant was frisked, handcuffed and placed in a police
vehicle. Thus, the circumstances show that defendant was not stopped for
questioning under Terry, but was immediately detained for the return to his
residence. As acknowledged by Officer Sadler, defendant was told he was
being detained because there was a “search warrant at his house and that we
needed to go back to his house while the search was being conducted.”
Consequently, the record supports a finding that the evidence removed from
defendant’s vehicle was derived from an unreasonable seizure of his person
and must be suppressed. The state’s argument lacks merit.
Even if a detention is unreasonable, a valid consent to search cures
any Fourth Amendment violation that may have occurred. United States v.
Kelley, 981 F.2d 1464 (5th Cir. 1993). Thus, although we have found that
defendant’s detention was illegal, we must also review the issue of consent.
The state contends the district court erred in granting defendant’s
motion to suppress the evidence seized from his vehicle. The state argues
that this evidence should not be excluded because defendant, while being
detained, voluntarily consented to the search of his vehicle with full
knowledge of his right to refuse the request.
8

As previously stated, the United States and Louisiana Constitutions
prohibit unreasonable searches and seizures and a warrant based on probable
cause is normally required for a valid search. Another exception to the
warrant requirement is a search conducted pursuant to validly given consent
by a person possessing authority to consent. Georgia v. Randolph, 547 U.S.
103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); Schneckloth v. Bustamonte,
412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Raheem, 464
So.2d 293 (La. 1985). Valid consent must be (1) free and voluntary, in
circumstances that indicate the consent was not the product of coercion,
threat, promise, pressure or duress that would negate the voluntariness; and
(2) given by someone with apparent authority to grant consent, such that the
police officer reasonably believes the person has the authority to grant
consent to search. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39
L.Ed.2d 242 (1974).
The question of whether consent to a search was “voluntary” or was
the product of duress or coercion, express or implied, is a question of fact to
be determined from the totality of all the circumstances. Schneckloth, supra;
State v. Sera, 43,704 (La. App. 2d Cir. 10/29/08), 997 So.2d 707. Oral
consent to search is sufficient and written consent is not required. State v.
Shed, 36,321 (La. App. 2d Cir. 9/18/02), 828 So.2d 124, writ denied, 2002
3123 (La. 12/19/03), 861 So.2d 561. The state has the burden of proving
that the consent was freely and voluntarily given. Schneckloth, supra.
While knowledge of the right to refuse consent is one factor to be taken into
account, the government need not establish such knowledge to prove
effective consent. Schneckloth, supra.
9

A defendant adversely affected may move to suppress any evidence
from use at the trial on the merits on the ground that it was
unconstitutionally obtained. LSA-C.Cr.P. art. 703(A). A trial court is
afforded great discretion when ruling on a motion to suppress, and its ruling
will not be disturbed absent abuse of that discretion. State v. Thompson,
2011-0915 (La. 5/8/12), 93 So.3d 553; State v. Lee, 2005-2098 (La.
1/16/08), 976 So.2d 109, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172
L.Ed.2d 39 (2008). 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. Thompson,
supra; State v. Wells, 2008-2262 (La. 7/6/10), 45 So.3d 577. If evidence
was derived from an unreasonable search or seizure, the proper remedy is
exclusion of the evidence from trial. State v. Benjamin, 97-3065 (La.
12/1/98), 722 So.2d 988.
This court has previously considered the issue of whether an
accused’s consent to a search was validly given. In State v. Kendrick,
35,233 (La. App. 2d Cir. 12/5/01), 804 So.2d 719, writ denied, 2002-0562
(La. 11/1/02), 828 So.2d 563, a vehicle was stopped for a traffic violation by
police. After learning that the vehicle was an overdue rental, the officers
requested consent to search the vehicle. The investigating officer testified
that the driver “looked at [the vehicle], she looked at the consent list, she
looked at me and she said, just go ahead and look.” In contrast, the driver
testified that the officer informed her that she “had the right to either sign
[the consent form] or he could search anyway.” She then told the officer to
go ahead. In its consideration of the motion to suppress, the trial court was
10

able to see, hear and evaluate the credibility of the officers and the driver.
Faced with conflicting testimony on whether the driver verbally consented to
the search, the trial court made a credibility determination in favor of the
officers. This court affirmed the finding that the statements of the driver
constituted voluntary consent to search the vehicle.
In Sera, supra, the accused was a passenger in a truck that was
stopped by officers on the highway. The driver was asked to consent to a
search of the vehicle after being informed of his right to refuse the search
and his right to suspend the search at any point. The driver consented to the
search and cocaine was found in the truck. This court affirmed the trial
court’s denial of the motion to suppress based upon the officer’s testimony
that the driver understood his rights and gave consent to the search.
In the present case, defendant’s vehicle was stopped because of the
search warrant issued for his residence. Officer Sadler testified that, when
consent was requested, defendant “just kind of shrugged it off. It was like
go ahead, I don’t care[.]” The defendant denied consenting to the search and
testified that when asked for consent he responded that “he was already in
[the] car,” because one of the officers drove his vehicle back to the residence
from the location of the stop. Agents Cowan and Zordan testified that
defendant consented to the search and did not object to having the vehicle
searched. Officer Sadler stated that he did not inform defendant of his right
to refuse consent to search because “any reasonable person would
understand” that he could say no.
Agent Cowan testified that he did not see an officer apply any type of
physical or verbal pressure toward defendant when requesting consent to
search his vehicle. However, defendant asserted that he was concerned for
11

his wife at the time of the search and believed that she might be arrested.
Defendant testified that at the time consent to search his vehicle was
requested, he was in handcuffs, had been driven back to his residence by
officers, advised of his Miranda rights, and that there were approximately 20
armed officers present. He stated that, while the officers did not have their
weapons pointed at him, the weapons were not holstered.
Although the state argues that defendant’s calm demeanor and failure
to object to the search were evidence of his consent, his demeanor, while
part of the circumstances to be considered, does not, in and of itself, prove
that he freely and voluntarily consented to the search of his vehicle. In the
cases of Kendrick and Sera, the trial court made a credibility determination
in deciding a motion to suppress. The district court has wide discretion in
assessing credibility and a reviewing court should not disturb the trial court’s
ruling on a motion to suppress absent abuse of that discretion. Thompson,
supra.
Although the officers in this case testified that defendant verbally
consented to the search, Officer Sadler stated that when asked for consent,
defendant “made the comment, he was like, it don’t matter what I say[.]”
The defendant asserted that he did not give explicit consent to the search of
his car. The trial court considered the circumstances of the detention and
evaluated the credibility of the witnesses in making the determination that
defendant did not give free and voluntary consent to the search. Based upon
the conflicting testimony and the factual situation shown in this record, we
cannot say the district court abused its discretion in granting defendant’s
motion to suppress the evidence seized as a result of the search of his
vehicle. The state’s argument lacks merit.
12

The state’s brief raises three issues, search incident to arrest, the
vehicle exception to the warrant requirement, and inevitable discovery, as
alternative bases for the warrantless search of defendant’s car. U.R.C.A.
Rule 1-3 provides that an appellate court “will review only issues which
were submitted to the trial court.” These issues were not submitted to the
trial court and are not reviewable on appeal. Even if considered by this
court, none of the issues would provide justification for the search of the
defendant’s vehicle.
Once a police officer makes a lawful custodial arrest of a vehicle’s
occupant, the Fourth Amendment allows the officer to search the vehicle’s
passenger compartment as a contemporaneous incident of arrest, even when
an officer does not make contact until the person arrested has already left the
vehicle. Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485
(2009); Thornton v. U.S., 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905
(2004). In this case, the state admitted that, at the time of the stop and his
detention, defendant was not under arrest. Further, defendant was not
arrested until after the search of the residence and car, so the search of his
vehicle could not have been incident to his arrest.
Another exception permits the warrantless search of a vehicle based
upon the vehicle’s mobility, an exigency sufficient to excuse failure to
obtain a search warrant once probable cause to conduct the search is clear,
even if a warrant is not actually obtained. Thus, if a vehicle is readily
mobile and probable cause exists to believe it contains contraband, the
Fourth Amendment permits police to search the vehicle without more.
Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999);
Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031
13

(1996). Here, unlike the cases of Labron and Dyson, there was no showing
that police saw defendant place drugs in the car or had received information
that drugs were being transported in the vehicle. Thus, the state did not
demonstrate probable cause to believe that the car contained contraband as a
basis for a warrantless search.
The doctrine of inevitable discovery provides that, if the evidence
sought to be excluded would be admissible if in fact discovered through an
independent source, it should be admissible if it inevitably would have been
discovered. Lee, supra. The State bears the burden of proving by a
preponderance of the evidence that the information ultimately or inevitably
would have been discovered by lawful means. Lee, supra; State v. Vigne,
2001–2940 (La. 6/21/02), 820 So.2d 533. Citing State v. Brumfield, 560
So.2d 534 (La. App. 1st Cir. 1990), the state argues that, had no consent
been given, defendant’s vehicle would have been secured as evidence of a
crime, inventoried, and the illegal items inevitably found. In Brumfield,
because the vehicle could not be legally driven away and its ownership was
not ascertainable at the time defendant was taken into custody, the police
had the right to impound the vehicle and inventory its contents. Here,
however, the record indicates that if not for the improper detention of
defendant based on the search warrant for the house, then the vehicle would
not have been present on the premises or available for impoundment by
police. Thus, the state failed to show that the items inevitably would have
been discovered by other lawful means.
This court granted the state’s writ application to review the district
court’s ruling granting in part the defendant’s motion to suppress evidence.
After reviewing the record and the applicable law, we cannot say the distric
court erred in granting the defendant’s motion to suppress evidence seized
from his vehicle. Consequently, the assignment of error lacks merit.

Outcome:

For the foregoing reasons, the writ is recalled, the state’s application is denied in part and the district court’s ruling granting the defendant’s motion to suppress evidence seized from his vehicle is affirmed.

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