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Date: 07-12-2018

Case Style:

STATE OF LOUISIANA VERSUS LANCE COWANS

Case Number: 17-KA-483

Judge: HANS J. LILJEBERG

Court: FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

Plaintiff's Attorney: Joel T. Chaisson, II
Louis G. Authement

Defendant's Attorney: Frank G. DeSalvo

Description: Defendant, Lance Cowans, was arrested on February 1, 2015, along with
Juan Salinas. Defendant was charged with possession of more than sixty but less
than two thousand pounds of marijuana in violation of La. R.S. 40:966(F) (count
one), and possession of Schedule II controlled dangerous substances3 in violation
of La. R.S. 40:967(C) (count three).4 On April 7, 2015, defendant was arraigned
and entered a plea of not guilty. On February 18, 2016, defendant, Juan Salinas,
filed motions to suppress evidence and statements, later adopted by defendant.
The State filed an opposition on July 29, 2016. On June 7, 2016, the trial court

1 During the hearing, the trial court noted that defendant did not file a motion to suppress, but confirmed with defendant’s counsel that defendant adopted the motion to suppress filed by Juan Salinas, who was charged under a separate bill of information. The State confirmed that the parties agreed to conduct one suppression hearing for both defendants because they involved the same witnesses. The trial court’s written ruling on the motion to suppress evidence and statements was captioned with both defendants’ case names and numbers. 2 Previously, defendant filed a writ application with this Court seeking supervisory review of the trial court’s ruling denying the motion to suppress. This Court denied the writ application, noting the application was deficient because it failed to include a transcript of the hearing on the motion to suppress, and also that based on the materials submitted, this Court could not determine which ruling defendant was asking this Court to review. See State v. Cowans, 16-520 (La. App. 5 Cir. 12/28/16) (unpublished writ disposition). 3 The bill of information alleges that defendant possessed Adderall, oxycodone, dilaidad, Roxicodone, amphetamine/dextro amphetamine and/or hydrocodone.

4 The bill of information alleged five additional counts against defendant. Pursuant to the plea agreement, counts two and four through seven were dismissed.


17-KA-483 2
heard the motion to suppress and took the matter under advisement. The parties
filed additional briefing and on September 7, 2016, the trial court denied the
motion to suppress evidence and statements without reasons.
On April 27, 2017, defendant withdrew his plea of not guilty and pleaded
guilty to counts one and three pursuant to State v. Crosby, supra. In accordance
with the plea agreement, the trial court sentenced defendant on count one to 15
years of imprisonment with the Department of Corrections, suspended seven of the
15 years, and placed defendant on active probation for five years. The trial court
also sentenced defendant on count three to five years in the Department of
Corrections, to run concurrently with the sentence on count one. On May 8, 2017,
defendant filed a motion for an appeal pursuant to Crosby, which was granted on
May 12, 2017.
FACTS
Because there was no trial, all facts were elicited at the hearing on the
motions to suppress evidence and statements, which took place on June 7, 2016.
At the June 7, 2016 suppression hearing, Agent Christopher Kenny and
Agent George Carcabasis with the United States Drug Enforcement Administration
(“DEA”) testified that in late 2014, they were investigating a suspect, Ricardo
Hernandez, alleged to be involved in drug trafficking between the Houston and the
Greater New Orleans area. As part of this investigation, Agent Kenny used a
reliable confidential informant (“CI”) and in October 2014, he monitored the CI’s
meeting with Hernandez and two unknown individuals in the parking lot of an
Applebee’s Restaurant in Kenner, Louisiana. The CI and other individuals
discussed the purchase of a large quantity of cocaine to be delivered from Houston
to a “stash house” near Baton Rouge. During the meeting, the original suspect
indicated that Salinas, one of the unknown individuals present at the time, was “the
main guy in charge,” and that his relatives owned the drugs. The original suspect


17-KA-483 3
also indicated Salinas was present to make sure everything ran smoothly.
Hernandez and the other individuals wanted the CI to show or provide them with
money before they would deliver the drugs. This did not occur, and the agents did
not see any drugs or money exchanged during the meeting.
The agents similarly testified that following the meeting, they maintained
surveillance of the vehicle, a blue Ford F-150 truck with a Texas license plate,
containing Hernandez and the two other unknown individuals. Agent Kenny ran
the license plate and learned that the vehicle was registered to Salinas. Officers
observed the vehicle go to 836 Fox Lane, a residence in St. Rose in St. Charles
Parish, later determined to be defendant’s home. The residence was located on a
dead-end street in an area where mostly families lived. The suspects stayed at the
residence for only 15 to 20 minutes. Next, they drove to a parking lot at a nearby
restaurant and sat in the truck for approximately an hour. Agents then observed the
truck return to Fox Lane for 15 minutes. An undercover agent observed flashlights
around the residence and shed area behind the residence.
Agent Kenny testified that the Fox Lane residence was previously unknown
to them, but after their surveillance, they suspected it was a stash house for drugs.
The truck and the men then drove away on I-10 heading west. Agents maintained
surveillance on the truck in order to determine whether the suspects would stop at a
stash house in Baton Rouge. When the truck passed the Baton Rouge area, they
requested that a local police unit stop the truck in West Baton Rouge Parish in
order to identify the occupants. During the stop, agents learned Salinas’ identity.
No one was arrested, the vehicle was not searched, and the agents ceased
surveillance. Because they believed the truck may be used for drug trafficking in
the future, agents entered the truck’s license plate number into the Louisiana
license plate camera recognition system maintained by the Louisiana State Police.
The system would alert the agents if the truck returned to Louisiana.


17-KA-483 4
Several months later, on February 1, 2015, the agents received an email alert
indicating the truck was travelling eastbound on I-10 near Lake Charles. Agent
Kenny testified that they assumed the truck would return to Fox Lane as this was
the only previous place they saw the truck visit. He and Agent Carcabasis
attempted to locate the truck on the interstate, but they were unsuccessful. Agent
Carcabasis contacted the St. Charles Parish Sheriff’s Office (“SCPSO”) for
assistance. They provided the vehicle’s description and license plate information.
They also informed the SCPSO that the truck was possibly a “load vehicle” (one
used to transport narcotics) and that based on prior surveillance, it might be headed
to Fox Lane.
Sergeant Paul Walker of the SCPSO was on patrol when he observed the
truck and its driver near Fox Lane at a Brother’s Food Mart. Sgt. Walker then
alerted the other units that he saw the vehicle drive down Fox Lane. The DEA
agents met with Detective Allan Tabora of the SCPSO, as well as other SCPSO
officers, in an empty parking lot near the intersection of Fox Lane and Airline
Highway. As the group discussed their next move, several officers observed the
truck disregard a stop sign at the intersection of Airline Highway and Fox Lane.
Detective Tabora and Detective Danny April with the SCPSO performed a
traffic stop. Agents Kenny and Carcabasis spoke with the driver, Salinas. Agent
Kenny testified that Salinas related that he travelled from Houston, stopped to eat
at Ruth’s Chris Steakhouse in Baton Rouge, visited his friend on Fox Lane for
about 15 to 20 minutes, and was headed back to Houston. Agent Kenny thought
that it was odd that someone would drive for hours to see a friend and stay for only
15 to 20 minutes. He also testified that he noticed Salinas’ hands were shaking and
very dirty. Salinas explained that his front tire was “messing up” and he had to fix
it. Agent Kenny testified that he observed the tire and it appeared to be fine.
Agent Kenny described Salinas’ demeanor as “very nervous.”


17-KA-483 5
Detective Tabora also spoke with Salinas and testified that he was nervous
and stuttering. He asked Salinas when he arrived in St. Rose and Salinas
responded noon; however, Detective Tabora noted that it was only 11:45 a.m.
when they made the traffic stop. Salinas provided his license, insurance, and proof
of registration, and eventually, he was asked to step out of the truck. Detective
Tabora testified that six law enforcement officers were present at the traffic stop,
including four SPCSO officers and two DEA agents.
Detective Tabora testified that, based on the information provided by the
DEA agents, as well as Salinas’ nervous behavior and statements regarding his
travel itinerary, he requested a canine to perform an open-air sniff of the truck.5
Detective Tabora testified that Salinas then provided consent to search the truck.
During the search, the agents and officer located several items, which they
explained were commonly used to attempt to conceal the odor of illegal drugs.
They located an excessive amount of fabric softener sheets in the center console, in
a pocket behind the front seat and in the back seat. They also found coffee grinds
throughout the truck and fish remains in the bed of the truck. They did not find
any illegal drugs.
According to Detective Tabora, several officers relocated to the Fox Lane
residence during the traffic stop to further investigate. Based on the items found in
the truck during the traffic stop, as well as Salinas’ statements and demeanor,
Salinas was detained in handcuffs and placed in the back of a unit pending the
outcome of the investigation at Fox Lane. Detective Tabora testified that Salinas
was advised of his Miranda6 warnings at some point either on Airline Highway or
shortly thereafter.

5 No witness testified regarding the results of the canine’s open-air sniff of the vehicle.

6 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


17-KA-483 6
Meanwhile, after receiving a briefing of the ongoing events at the scene of
the traffic stop, Lieutenant Marlon Shuff and Sergeant Bradley Walsh with the
SCPSO went to 836 Fox Lane, along with other detectives and patrol officers in
their division, to continue the investigation by conducting a “knock and talk” at the
residence. Lt. Shuff knocked on the door of the residence, but no one answered. A
short time later, defendant exited the residence located next door and identified
himself.7 Lt. Shuff recalled that he could immediately tell that defendant was
nervous, and he asked defendant if they could go inside the residence, but
defendant declined, stating they could talk in the front yard. Lt. Shuff testified that
he and defendant were located in an area between defendant’s house and the
neighboring property, and the two houses were very close to one another.
Sgt. Bradley Walsh, with the SCPSO special investigations division,
testified that he also left the traffic scene to go to Fox Lane and attempt contact
with the homeowner. Sgt. Walsh witnessed another officer knock at the door, but
no one answered. At that point, he saw defendant come out of the neighbor’s
residence next door, where Lt. Shuff made contact with him. Sgt. Walsh started
walking towards them. As he got closer to them, he could see between the two
residences and saw what appeared to be a garage behind defendant’s house. He
continued to walk towards the backyard of the residence and saw that the structure
had multiple bays with roll-up doors, which were open.
Sgt. Walsh explained that he went to the back structure to do a protective
sweep to make sure no one else was in the area behind the residence. He agreed on
cross-examination that he had no information anyone else was at the residence as
defendant told the officers he was the only one at the residence. Sgt. Walsh
testified that in any type of investigation, it was common practice to do a protective

7 The title to the 836 Fox Lane residence entered into evidence indicated that defendant was the owner of the property.


17-KA-483 7
sweep of the area for officer safety.8 He agreed that defendant did not give him
permission to do the sweep of his backyard, nor did he ask. Sgt. Walsh agreed he
had no reason to believe a dangerous person might be present, and officers did not
have probable cause to obtain a search warrant for the Fox Lane residence at that
time.
As Sgt. Walsh approached one of the open garages, he noticed a tire sitting
upright two to three feet inside of the entrance to the garage. He could see that a
section of the tire had been cut out. He could also see a “sawzall” lying next to the
tire, as well as freshly cut rubber from the tire. He testified that, as he stood
outside the garage, he could see the “gleanings of vegetable matter” throughout the
inside of the tire. On cross-examination, he admitted that he first saw discolored
matter inside the tire and had to enter the garage in order to determine that it
looked like marijuana. He returned to the front yard to advise Lt. Shuff regarding
what he observed in the garage. Lt. Shuff went into the backyard and into the
garage, and upon close inspection of the tire, observed a small amount of green
vegetable matter, which field tested positive for marijuana.
Sgt. Walsh helped take photographs of the premises that day, which he
identified in court.9 He agreed that the marijuana gleanings he saw inside the tire
were not depicted in the photographs. The garage structure in the photographs had
a concrete floor that did not extend or connect to a driveway outside of the
structure. The driveway in the front of the house led into an enclosed carport. The
garage in the back of the property was not visible from the front door or the
driveway in the front of the property.10

8 Lt. Shuff also agreed on cross-examination that the officers had no reason to believe anyone else was behind the residence posing a danger. He testified that it was general procedure for officer safety to conduct a protective sweep during a “knock and talk” such as this.

9 The photographs introduced into evidence are blurry. Sgt. Walsh acknowledged that his camera was not functioning well, and the more photos he took, the poorer the quality became. 10 Agent Carcabasis testified that the lot was approximately 60 feet wide by 120 feet deep, and had a driveway that went to the front of the residence, but not around back to the garage/shed area.


17-KA-483 8
Lt. Shuff testified that, based on the information received from the DEA, the
traffic stop and the discovery of the tire containing the green vegetable matter, they
approached defendant and told him they were securing his residence in order to
obtain a search warrant. Defendant cooperated and after unlocking the door,
restrained his two dogs, which were inside. The officers then conducted a
protective sweep of the inside of the residence.
Once inside the residence, Lt. Shuff and Sgt. Walsh both testified to
smelling a strong odor of marijuana. As Sgt. Walsh walked down the hallway
towards the bedrooms, another officer came out of the last bedroom and reported
finding a large amount of marijuana in the shape of a tire. Defendant was arrested
and Mirandized after the marijuana was found in the house. After the officers
spoke with defendant inside the residence, defendant indicated that Salinas had
“just dropped off” drugs. Salinas was then placed under arrest.
Detective Tabora testified he arrived at 836 Fox Lane approximately 15
minutes after Sgt. Walsh and Lt. Shuff left for the residence. Once he arrived, the
officers briefed him on what they found during the protective sweep. Additionally,
Detective Tabora observed packaging material and a digital scale inside the
residence. Detective Tabora testified that he was the one who prepared an
application for a search warrant, which included the findings from the protective
sweep of the garage and residence. Detective Tabora, Lt. Shuff, and Sgt. Walsh
testified that additional narcotics, including cocaine, steroids, and pills, as well as
firearms, were found after the search warrant was executed. Following execution
of the search warrant, Salinas admitted that he delivered narcotics to 836 Fox Lane
in the past and was paid $1,200. He stated that he was paid $1,000 to deliver the
marijuana seized from defendant’s house.


17-KA-483 9
ANALYSIS
In his brief, defendant does not specify an assignment of error, but argues
the trial court erred by failing to suppress the evidence and statements because his
Fourth Amendment rights were violated due to the officers’ protective sweep of
the curtilage of his home. He argues the officers did not meet the threshold
requirement of protective sweep cases of “being invited in” and then observing
evidence from a legal vantage point.
The State contends the totality of the evidence presented at the suppression
hearing shows that, at the time of the protective sweeps, the officers were
investigating serious allegations of narcotics trafficking. The State argues that by
its very nature, narcotics investigations present dangerous circumstances to
officers. The State notes that the officers had credible evidence that on an earlier
occasion, numerous subjects known to be involved in narcotics trafficking had, in
fact, been present at 836 Fox Lane, so that on the date in question, the protective
sweeps were justified.
The right of every person 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 Article I, § 5 of the Louisiana
Constitution. State v. Ables, 16-538 (La. App. 5 Cir. 2/8/17), 213 So.3d 477, 482,
writ denied, 17-488 (La. 11/28/17), 230 So.3d 221; State v. Flagg, 99-1004 (La.
App. 5 Cir. 4/25/00), 760 So.2d 522, 526, writ denied, 00-1510 (La. 3/9/01), 786
So.2d 117. In an effort to discourage police misconduct in violation of these
standards, if evidence is derived from an unreasonable search or seizure, the proper
remedy is to exclude the evidence from trial. State v. Tucker, 92-2093, 92-2130
(La. 5/24/93), 626 So.2d 707, 710; Ables, supra. The exclusionary rule bars, as
illegal fruit, physical and verbal evidence obtained either during or as a direct
result of an unlawful invasion. The exclusionary rule reaches not only primary


17-KA-483 10
evidence obtained as a direct result of an illegal search or seizure, but also
evidence later discovered and found to be derivative of illegality, or fruit of the
poisonous tree. State v. Nicholas, 06-903 (La. App. 5 Cir. 4/24/07), 958 So.2d
682, 686-87. A defendant who is adversely affected may move to suppress any
evidence from use at the trial on the merits on the ground that it was
unconstitutionally obtained. La. C.Cr.P. art. 703(A).
Ultimately, the State bears the burden to show that a warrantless search falls
within one of the exceptions to the rule that a warrantless search is per se
unconstitutional. Ables, supra; Flagg, supra. In a hearing on a motion to suppress,
the State bears the burden in establishing the admissibility of the evidence seized
without a warrant. La. C.Cr.P. art. 703(D); State v. Butler, 13-850 (La. App. 5 Cir.
5/28/14), 142 So.3d 306, 312. When evidence is seized pursuant to a search
warrant, the defendant bears the burden of proof at a hearing on his motion to
suppress that evidence. La. C.Cr.P. art. 703(D); State v. Cortez, 11-1041 (La. App.
5 Cir. 5/22/12), 98 So.3d 382, 391. The trial court’s denial of a motion to suppress
is afforded great weight and will not be set aside unless the preponderance of the
evidence clearly favors suppression. Ables, supra.
A “protective sweep” is an exception to the general warrant requirement of
the Fourth Amendment. A protective sweep is “a quick and limited search of the
premises … conducted to protect the safety of police officers or others. It is
narrowly confined to a cursory visual inspection of those places in which a person
might be hiding.” Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108
L.Ed.2d 276 (1990). In order to conduct a protective sweep, the searching officer
must possess a “reasonable belief based on specific and articulable facts” which,
taken together with the rational inferences from those facts, reasonably warrants
the officer to believe the area swept “harbors an individual posing a danger to
those on the arrest scene.” Id. at 337. The legitimate protective sweep may not be


17-KA-483 11
“a full search,” but may be no more than “a cursory inspection of those spaces
where a person may be found.” United States v. Gould, 364 F.3d 578, 587 (5th
Cir. 2004), cert. denied, 543 U.S. 955, 125 S.Ct. 437, 160 L.Ed.2d 317, quoting
Maryland v. Buie, 110 S.Ct. at 1099.
In Buie, the Supreme Court held that the Fourth Amendment to the United
States Constitution permits a limited protective sweep in conjunction with an in
home arrest:
As an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Buie, 110 S.Ct. at 1098.

Subsequent cases have authorized the use of protective sweeps in scenarios
other than as an incident to an arrest. See Gould, supra. However, in order for the
protective sweep to be valid when an arrest or search warrant is not involved,
officers must enter the premises legally and for a legitimate law enforcement
purpose and must have a reasonable, articulable suspicion that the area to be swept
contains a person posing a danger to those on the scene. Gould, 364 F.3d at 587;
see also State v. Hilton, 16-325 (La. 3/24/16), 187 So.3d 981, 983 (“police acted
reasonably while in places they were lawfully entitled to be.”). Furthermore, in
Nicholas, 958 So.2d at 689, this Court noted that a protective sweep conducted
solely as a matter of standard procedure or policy was not warranted, but rather
must be accompanied by additional exigent circumstances necessitating a sweep.
Warrantless entries into the home for arrest or seizure are invalid in the
absence of exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct.
1371, 63 L.Ed.2d 639 (1980). Exigent circumstances may arise from the need to


17-KA-483 12
prevent the offender’s escape, minimize the possibility of a violent confrontation
which could cause injury to the officers and the public, and preserve evidence from
destruction or concealment. State v. Brisban, 00-3437 (La. 2/26/02), 809 So.2d
923, 927-28.
The scenario at issue before this Court involves a “knock and talk.” A
“knock and talk” is a law enforcement tactic where police officers, who possess
information they believe warrants further investigation but is insufficient to
constitute probable cause for a search warrant, approach the person suspected of
engaging in illegal activity at the person’s residence, knock on the front door,
identify themselves as police officers, request consent to talk to the individual
about the alleged illegal activity and request permission to enter the premises.
State v. Warren, 05-2248 (La. 2/22/07), 949 So.2d 1215, 1221-22. In Warren, the
Louisiana Supreme Court noted “[t]he prevailing rule is that, absent a clear
expression by the owner to the contrary, police officers, in the course of their
official business, are permitted to approach one’s dwelling and seek permission to
question an occupant.” Id. at 1222.
In the instant matter, officers did not possess any information regarding the
occupants of the Fox Lane residence, other than that a suspected drug trafficker
visited the property for brief periods on two prior occasions. Officers knocked on
the door and no one responded. Defendant then exited a neighboring property and
identified himself. When officers asked to enter the Fox Lane residence, defendant
declined and told officers they could speak on the front lawn of his property.
Therefore, at that point, officers had no right to further entry onto defendant’s
property without the existence of exigent circumstances. As noted above, standard
procedure and policy for officer safety is not sufficient to create exigent


17-KA-483 13
circumstances to allow officers to gain lawful entry into a private residence.11
Furthermore, officers cannot manufacture exigent circumstances by deciding to
conduct a knock and talk at a residence. Warren, 949 So.2d at 1225 (“Exigent
circumstances, however, do not meet Fourth Amendment standards if the
government deliberately creates them.”).
The following cases present examples of situations where officers gained
lawful entry to premises after approaching a residence to conduct a knock, and
further illustrate the circumstances allowing officers to proceed with a protective
sweep. In Hilton, 187 So.3d at 982-84, the Louisiana Supreme Court reversed the
trial court’s ruling suppressing evidence seized following the execution of a search
warrant predicated upon drug and firearm evidence observed during a protective
sweep. The officers received a Crimestoppers’ tip regarding narcotics activity at a
residence. Officers approached the front door of the residence only to find that it
was chained shut. While at the front door officers detected the smell of marijuana.
Officers decided to further investigate and observed an accessible side entrance
through an open gate leading to the backyard. Officers knocked and announced
their presence at the side door and heard a commotion going on inside. Once
someone opened the side door, the officers observed a dimly lit area and
continuing commotion involving several individuals. The Supreme Court found
that based on the detection of the smell of marijuana and the commotion inside the

11 The State does not challenge defendant’s assertion that the open garage was curtilage of a home, which falls under Fourth Amendment protections. The State only contends that the protective sweep of the property was lawful. The curtilage of a home is that “area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.” United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); State v. Raborn, 33,980 (La. App. 2 Cir. 11/15/00), 771 So.2d 877, writ denied, 00-3414 (La. 11/2/01), 800 So.2d 868. It is considered part of the home itself and is therefore afforded Fourth Amendment protection. Id. To determine whether an outside area is part of the curtilage, or extension of the residence’s living area, courts look at four factors which indicate how intimately the area is tied to the home itself: (1) the area’s proximity to the home; (2) whether the area is included within an enclosure surrounding the home; (3) whether the area is being used for the intimate activities of the home; and (4) the steps taken by the resident to protect the area from observation by passers-by. Id.

The garage at issue was located directly behind the home and used to store cars, tools and other equipment. The backyard and garage were within the curtilage of the residence and, thus, subject to Fourth amendment protections.


17-KA-483 14
residence, the officers were reasonable in directing the individuals to exit,
detaining them, and conducting a protective sweep for officer safety and to prevent
the destruction of evidence. Thus, it held that the search warrant was not tainted
by the evidence located during the protective sweep. Id.
In Gould, supra, after receiving a tip that the defendant, a known violent
felon, was planning to kill two judges, sheriff’s deputies went to the defendant’s
home to talk to him. Upon arriving at the residence, the deputies were granted
permission to enter the home by a co-resident of the home, who indicated the
defendant was located in the back bedroom. The deputies approached the
bedroom, but were unable to ascertain the defendant's precise location.
Consequently, the officers conducted a protective sweep of the room, looking
under the bed and opening the doors to each of the two bedroom closets. During
the sweep, the deputies noted the presence of three rifles in one of the closets, but
they did not seize them at that time. The court upheld the validity of the sweep of
the residence, noting that the police officers, who only intended to talk to the
defendant, had a right to be inside the residence because they had the permission of
a resident of the home. Id. at 589-90.
In State v. Guiden, 399 So.2d 194 (La. 1981), after a warrant was issued for
the defendant's arrest for an attempted armed robbery and shooting, police officers
received information that the defendant and an accomplice were hiding at a motel.
The officers proceeded to the motel, surrounded the room where the two suspects
were believed to be located, announced their presence, and ordered the occupants
of the room to come outside. The defendant and another individual (not the alleged
accomplice) emerged from the room and were immediately placed under arrest.
Since the accomplice had not appeared, the officers entered the motel room to see
if he was hiding there. Once inside, one of the officers went into the bathroom to
check for the presence of the accomplice and noticed a revolver in the open


17-KA-483 15
commode. At that point, the officer secured the room and left to obtain a search
warrant. The search conducted pursuant to the warrant resulted in the retrieval of
the weapon from the commode.
The Guiden court noted that the officers had arrest warrants for individuals
wanted in connection with the shooting and attempted armed robbery, and it was
expected that the suspects were armed and dangerous. Additionally, since only
one of the suspects came out of the motel room, the police officers had reason to
believe that the other wanted individual was still in the room. Therefore, the court
concluded that there was prior justification for intrusion into the motel room, and
the weapon was inadvertently discovered in plain view. Id. at 199.
In State v. Narcisse, 01-49 (La. App. 5 Cir. 6/27/01), 791 So.2d 149, writ
denied, 01-2231 (La. 6/14/02), 817 So.2d 1152, after responding to a call regarding
a burglary complaint, police officers learned that the two suspects were in a brown
car around the corner from the scene of the incident. The victim identified the
defendant as one of the suspects. The officers spotted a brown car near an
apartment complex and began to knock on apartment doors. As one of the officers
knocked on an apartment door, the defendant came out of another apartment
several doors down and indicated that he was the resident of the apartment where
the officers were knocking. At that point, the defendant was placed under arrest.
As the officer was arresting the defendant, he heard a noise inside of the
defendant’s apartment. He looked inside and saw the other suspect running out of
the back sliding glass door, and the other officer pursued him. During a security
check of the apartment, one of the officers observed bags of marijuana and a
handgun lying on a bed in an upstairs bedroom. The narcotics division was called
to the scene, and the defendant consented to a search of his apartment. The court
upheld the validity of the search stating, “[c]onsidering that both suspects were in
defendant’s apartment before the police arrived, and one fled through the back


17-KA-483 16
door, a security check of the apartment to determine if anyone else was inside was
certainly justified.” Id. at 153.
In State v. Robichaux, 00-1234 (La. App. 4 Cir. 3/14/01), 788 So.2d 458,
writ denied, 01-1177 (La. 3/15/02), 811 So.2d 897, cert. denied, 537 U.S. 839, 123
S.Ct. 157, 154 L.Ed.2d 60, police officers received a tip regarding “trouble” at an
apartment on North Tonti Street in New Orleans. As the police officers
approached the apartment, they noticed drops of blood on the ground and rear
porch, and they heard someone moaning inside. The victim, who was partially
clothed and bleeding from the head, met the officers at the back door and informed
them that she had been attacked with a hammer, raped, and tortured over a period
of several hours. She identified the defendant as her assailant. The officers
performed a sweep of the apartment and found a hammer. The court held that the
search of the residence and the seizure of the hammer were valid stating, “[t]he
officers were thus justified to make a limited sweep of the premises to verify that
there was no one else in the residence who could have posed a threat to the officers
or who could have destroyed evidence.” Id. at 468.
In State v. Jefferson, 13-703 (La. App. 4 Cir. 4/16/14), 140 So.3d 235, 241
43, writ denied, 14-2062 (La. 9/18/13), 178 So.3d 138, officers obtained a tip from
an untested confidential information regarding drug activity at a residence.
Officers learned that the owner of the vehicle in the driveway had a history of drug
offenses. Officers decided to conduct a knock and talk. The defendant answered
the door and agreed to allow the officers inside to talk. Officers smelled the odor
of marijuana upon entering the defendant’s home and heard a commotion and dogs
barking in the back of the residence. The officers decided to conduct a protective
sweep and found cocaine on a counter in the master bedroom, which officers used
to obtain a search warrant. Based on the detection of marijuana odor and the
commotion officers heard, the Fourth Circuit determined the trial court did not err


17-KA-483 17
in finding that the agents were justified in their belief that the threat to officer
safety created an exigency warranting a protective sweep. Id. at 243.
In State v. James, 99-1406 (La. App. 4 Cir. 7/19/00), 788 So.2d 23, writ
denied, 00-2473 (La. 6/29/01), 794 So.2d 822, during an investigation of
allegations of aggravated rape, crime against nature and aggravated burglary, the
victim informed the police officers of the perpetrator’s identity and told them
where he lived. When officers arrived at the defendant’s house, the defendant
opened the door. At that point, the officers noticed dried blood on the side of the
defendant’s jaw and placed him under arrest. The officer asked the defendant if
anyone else was in the house, and the defendant responded in the negative. The
defendant then gave the officer permission to check the house for himself. Once
inside, the officer observed shoes with what appeared to be blood on them and a
television set. He also observed water in the bathtub. While the officer was still
inside of the house, the victim’s mother and brother arrived and told the officer that
the perpetrator had taken the victim’s television set and identified the television set
as belonging to the victim. Noting that the defendant had consented to the search
of his residence, the court stated, “[t]he officer was thus justified, with or without
the consent of the appellant, to make a limited protective sweep to be certain that
there was no one lurking in the residence who could destroy evidence or pose a
danger to the officers or members of the public.” Id. at 31.
In United States v. Howard, 106 F.3d 70, 73-75 (5th Cir. 1997), the United
States Fifth Circuit upheld a finding that exigent circumstances justified a
warrantless entry into the home of a suspected drug dealer. In that case, DEA
agents had credible information that the defendant’s house was a stash house.
DEA agents surveilled the house over a seventh-month period and witnessed
evidence of drug activity. They later arrested an individual coming out of the
defendant’s house who agreed to cooperate with the agents and who advised the


17-KA-483 18
agents that the defendant was storing drugs in the house and that the defendant
expected him to return to the house with a kilogram of cocaine. During the
surveillance, police stopped a vehicle leaving the defendant’s house within view of
the residence. A crowd gathered and police were concerned defendant would see
the police activity and attempt to destroy evidence. Therefore, police decided to
knock on the door and arrest defendant. They then did a protective sweep of the
home. The court held that the warrantless entry into the defendant’s house was
justified under the circumstances to prevent the destruction of evidence. Id. at 79.
All of the above referenced cases are distinguishable from the instant matter.
In Gould, Jefferson, and Robichaux, the officers were granted permission to enter
the residence by someone who lived at the residence. In Guiden, the officers
secured a warrant for the defendant’s arrest and for the arrest of an accomplice who
did not exit the room when ordered to do so and was presumed to have been still in
the room. In James and Howard, the sweep of the residence was incident to the
defendant’s arrest, and the James defendant granted the officers permission to
search his house. In Narcisse, officers entered the residence after they saw blood
outside the home and encountered a bleeding victim at the back door of the home.
In Hilton, officers smelled marijuana outside of the home and heard an ongoing
commotion inside of the residence after they knocked on the door and announced
they were police officers.
The dissenting opinion provided below in the instant matter refers to State v.
Doussan, 05-586 (La. App. 5 Cir. 2/14/06), 924 So.2d 333, in support of its
position to uphold the trial court’s denial of the motion to suppress evidence and
statements. This case is clearly distinguishable from the present matter. In
Doussan, officers applied for a warrant to search a music studio, not a residence,
based on information obtained from a confidential informant (CI) who purchased
marijuana from the owner of the studio in the past and who indicated a fresh


17-KA-483 19
supply of marijuana was available at the studio. Prior to obtaining the warrant,
officers established surveillance and instructed the CI to make an additional
purchase, which tested positive for marijuana. The surveillance team witnessed
three other people enter and leave the studio, one of whom officers stopped and
found to be in possession of marijuana. The officers also witnessed the owner
repeatedly enter and exit the studio and feared one of the visitors may have alerted
the defendant to the surveillance. Officers decided to approach the defendant, who
was outside the studio. The defendant fled into the studio and locked the door.
Officers pounded on the door and defendant allowed officers to enter. Officers
then conducted a protective sweep of the studio and learned 10 to 15 minutes later
that the search warrant was signed. The Doussan court upheld the protective
sweep because the officers could not have known if anyone else was in the studio.
Id. at 342-43. The Doussan case is obviously distinguishable from the present
matter based on the exigent circumstances created by the criminal actions
witnessed by the officers during their surveillance, the defendant’s behavior and
the fear their surveillance was detected and evidence may be destroyed.
State v. Ledford, 40,318 (La. App. 2 Cir. 10/28/05), 914 So.2d 1168,
provides an example of a case where the court suppressed evidence collected
during a protective sweep. In Ledford, the sheriff’s office received a call from a
motorist reporting a fight in the front yard of a residence. Deputies went to the
address and approached a woman in the front yard with blood on her chin, but no
visible cuts or bruises. The woman told deputies the defendant ran into the woods
when he saw the police officers approaching. Deputies asked to go into the home,
but the woman denied entrance. Deputies decided to enter the home without
consent to conduct a protective sweep to ensure the defendant was not inside to
harm the woman or deputies. When they entered, they found marijuana in plain
view.


17-KA-483 20
The trial court found the officers lawfully entered the home to ensure the
defendant was not hiding there. The State argued that the search of defendant's
residence was constitutionally valid under the plain view and exigent
circumstances exceptions to the warrant requirement. However, the appellate court
determined that the plain view exception was inapplicable as the deputies were not
lawfully in the place from which the contraband was viewed. Id. at 1172. It
further determined that entry into defendant's residence, without a warrant or
consent, to conduct a protective sweep was not justified by any reasonable
articulable suspicion that defendant was inside of the residence or that, even if
present, he would have been any danger to anyone at the scene. Id. at 1177. The
appellate court suppressed the evidence because the State failed to meet its burden
of proving the protective sweep of the residence was justified pursuant to one of
the exceptions to the warrant requirement. Id.
Furthermore, in a federal case involving a knock and talk, United States v.
Wyatt, 2012 U.S. Dist. Lexis 42725 (W.D. Ky. 3/28/12), officers received a
complaint that defendant was running a meth lab at a residence. Upon surveilling
the home, they learned that the owner of one of the vehicles parked at the home
had purchased a large, but legal amount of pseudophedrine, often used to make
meth. Defendant’s name also came up during the search of another suspected drug
house. Officers decided to go to the house and talk to the defendant. When they
arrived, they encountered two other individuals in the front of the house
performing yard work. Officers asked where the defendant was, the two
individuals responded that he was not home, and officers asked them to call
defendant. One of the officers then began to perform a protective sweep to make
sure no one else was at the residence. During the sweep, he went around to the
back of the residence and observed items used in a meth lab in the backyard. The


17-KA-483 21
court set forth the following reasons when determining that the protective sweep
was not warranted by the circumstances:
Considering Detective Travis’s and Alexander’s testimony regarding their articulated safety concerns, the Court finds that the protective sweep performed by Detective Travis was not reasonable under the circumstances. Detective Travis and Alexander have not articulated facts that would warrant a reasonably prudent officer to believe that the area to be swept harbored an individual posing a danger to those on the scene. Alexander testified that Joe and Dalton Wyatt told him that Defendant was not there, and that “[they] took their word for it.” Alexander and Detective Travis believed that Defendant was not there, as evidenced by their own testimony and their failure to knock on the front door of the home. Thus, the fact that Defendant was known to carry weapons in the past is not a sufficient reason to perform the protective sweep. Additionally, Detective Travis testified that he did not know if any other individuals were present but that he performed the protective sweep to find out. Although there were cars present on the property, the officers could not detect the presence of any other individuals. Importantly, even if they detected the presence of others, there is no evidence that other individuals would pose a danger to the officers. Cf. United States v. Stover, 474 F.3d 904, 91012 (6th Cir. 2007) (officers observed two cars parked in driveway of duplex - one registered to the defendant and the other to a local criminal who resided at a different address - and heard noises and movement in the house before the defendant came downstairs). Accordingly, the government has not met its burden of providing sufficient facts to support a reasonable belief that a third party was present on the premises who posed a danger to the officers. Thus, Detective Travis’s warrantless sweep of the curtilage of the home was not justified.

Id. at pp. 31-32

In the instant matter, the facts do not support the officers’ decision to enter
defendant’s backyard to conduct a protective sweep. Prior to approaching the
residence, officers did not witness the exchange of any drugs and their CI was not
involved in the purchase of any drugs. Rather, officers obtained information from
their CI that Salinas was a drug trafficker and indicated he could deliver drugs to
the CI from Houston. Officers observed Salinas visit the Fox Lane residence for a
brief period of time on two occasions. During the traffic stop of Salinas’ truck,


17-KA-483 22
officers found items that are used by drug traffickers to mask the odor of drugs, but
located no drugs in the truck.
Officers did not possess any information regarding the individuals residing
at the Fox Lane residence, but suspected the home was possibly a stash house for
drugs. Therefore, based on their suspicions, officers decided to conduct a knock
and talk. Officers agreed they did not possess probable cause to obtain a search
warrant. After officers knocked on defendant’s door, he exited a neighboring
property and identified himself. Defendant denied officers’ request to enter his
home and told officers they could talk in the front yard. Defendant told officers no
one else was present at the residence and officers testified that they had no reason
to believe otherwise.
Sgt. Walsh testified that he did not obtain consent from defendant to enter
the backyard or the garage to conduct the protective sweep. He further testified
that he was not in fear for his safety and that it was standard operating procedure to
conduct a protective sweep, particularly in a narcotics investigation. Officers did
not testify to any facts creating an exigent situation that would justify officers’
entry into defendant’s backyard. Officers further failed to testify to any specific
knowledge that additional individuals would be in the backyard or the house to
raise concerns of officer safety. Officers cannot encroach upon the Fourth
Amendment protections based solely on their belief that narcotics may be
involved, particularly when officers have no surveillance or other evidence to
establish that drug trafficking actually occurred at the suspected location.
Furthermore, as explained above, officers cannot create exigent circumstances by
deciding to conduct a knock and talk. The Court understands law enforcement’s
zeal. However, the quantity of illegal narcotics seized does not retroactively
supply probable cause or obviate the need for a search warrant.


17-KA-483 23
In sum, the facts of this case do not show the entry into defendant’s
backyard, without a warrant or consent, to conduct a protective sweep was justified
by any reasonable articulable suspicion that someone would be in the backyard or
that, even if present, would be any danger to anyone at the scene. We find that the
state failed to meet its burden of proving that the protective sweep of the garage
was justified pursuant to one of the exceptions to the warrant requirement.
Accordingly, we find that the preponderance of the evidence clearly favors
granting defendant’s motion to suppress the evidence and statements resulting
from the improper protective sweep.

Outcome: For the following reasons, we reverse the trial court’s denial of defendant’s
motion to suppress and enter an order granting the motion to suppress evidence and statements. We vacate defendant’s convictions and sentences and remand the
matter to the trial court.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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