State v. Williams

STATE OF LOUISIANA v. TERRELL MICHAEL WILLIAMS AND RICO JONES

NO. 21-K-152

FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

May 13, 2021

Susan Buchholz First Deputy Clerk

IN RE STATE OF LOUISIANA

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST, JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE VERCELL FIFFIE, DIVISION "A", NUMBER 19,248

Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg

WRIT GRANTED, JUDGMENT REVERSED, MOTIONS TO SUPPRESS DENIED

On September 12, 2019, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, Terrell Michael Williams, with possession with intent to distribute marijuana under two-and-a-half pounds, in violation of La. R.S. 40:966(A)(1) (count one); "illegal use/possession/control of weapons - crime of violence/CDS", in violation of La. R.S. 14:95(E) (count two); possession with intent to distribute marijuana under two-and-a-half pounds, in violation of La. R.S. 40:966(A)(1) (count three); possession with intent to distribute oxycodone less than twenty-eight grams, in violation of La. R.S. 40:967(A)(1) (count four); and possession with intent to distribute amphetamine less than twenty-eight grams, in violation of La. R.S. 40:967(A)(1) (count five). Counts one and two allegedly occurred on or about May 26, 2019; counts three, four, and five allegedly occurred on or about June 10, 2019.

In the same bill of information, the District Attorney charged defendant, Rico Jermaine Jones, with possession with intent to distribute marijuana under two-and-a-half pounds, in violation of La. R.S. 40:966(A)(1) (count one); "illegal use/possession/control of weapons - crime of violence/CDS," in violation of La. R.S. 14:95(E) (count two); and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count six). All counts allegedly occurring on or about May 26, 2019.

Both defendants filed motions to suppress the evidence that the St. John the Baptist Parish Sheriff's Office obtained as a result of a vehicular search conducted on May 26, 2019, pursuant to La. C.Cr.P. art. 703 (A).¹ Defendant Williams argued that the evidence was inadmissible because it was obtained through a search warrant alleging misinformation, and that the seizing officers conducted a search without sufficient legal cause. Defendant Jones argued that the evidence should be suppressed because it was unlawfully and illegally obtained.

St. John the Baptist Parish Sheriff's Office (SJPSO) Deputy Daniel Materne, Lieutenant Jason Raborn, and Deputy Jenny Estreca testified at the March 10, 2021 suppression hearing. Deputy Materne stated that on May 26, 2019, he went to the Daiquiri Shop at 640 West Airline after receiving a report of loitering in the parking lot. Business management asked Deputy Materne and his supervisor, Lieutenant Raborn, to clear the lot, and at approximately 8:45 p.m., they made everybody either go inside the building or go home. Deputy Materne and Lieutenant Raborn then walked back out to the lot.

According to Deputy Materne, as he and Lieutenant Raborn walked around outside, they could smell the odor of fresh marijuana coming from the west side of the business by the dumpster. Lieutenant Raborn looked into the front passenger-side window of a Nissan Altima with his flashlight and observed a clear cellophane baggie containing marijuana by the "gearshifter." Deputy Materne also observed the clear cellophane plastic baggie containing a green vegetable-like substance, which he said was marijuana, when Lieutenant Raborn showed it to him. Deputy Materne recalled that he was approximately two feet away from the marijuana when he saw it and that he had also used his flashlight to look in the vehicle's windows. Deputy Materne then walked around to the driver's side of the vehicle and observed a rifle lying on the floorboard, pointed toward the gas pedal. No one was in the vehicle.

Lieutenant Raborn's testimony corroborated Deputy Materne's testimony. Lieutenant Raborn explained that he used a "high limit flashlight" to see through the tinted windows when he observed the marijuana and that the light "pushed through the dimness of the tint," and he could see the marijuana clearly. He asserted that the marijuana was in plain view in a clear cellophane bag and that it was a little smaller than the shape of an egg. Lieutenant Raborn said that he was two-and-a-half to three feet from the object when he saw it and that there appeared to be green matter inside of the bag. He noted that he was the first officer to see marijuana inside the vehicle. Lieutenant Raborn stated that he walked around to the driver's side and saw the rifle.

Deputy Materne recalled that they "held" the vehicle, had it towed to patrol headquarters, and applied for a search warrant, identified as State's Exhibit 1.² Both Deputy Materne and Lieutenant Raborn later helped execute the search warrant on the vehicle. Deputy Materne testified that the following evidence was seized from the vehicle:

It was the rifle that was on the floorboard, the marijuana sitting by a Auntie Anne's cup, - - it's a blue cellophane cup by the gearshifter, that weighed approximately 3.4 grams, and also in - - we also located two handguns.

I believe one was in the glove box. And we also located a black backpack that was located in the trunk of the vehicle. And inside the backpack were scales - - digital scales and also approximately a pound of marijuana.

Deputy Materne also identified photographs taken of the vehicle; in one of the photographs, he indicated the marijuana was located next to the gearshift. He stated that the "white substance here" was marijuana and that it weighed 3.4 grams. After looking at the photographs, he stated that it did not appear that the windows were tinted. Deputy Materne could not see the marijuana in the three photographs that defense counsel showed him.³

Lieutenant Raborn testified that Deputy Estreca was the first person to enter the vehicle after they obtained the warrant; before anyone else entered the vehicle, she took photographs of it. Lieutenant Raborn believed that it was Deputy Estreca who recovered the marijuana from the center console. Lieutenant Raborn identified the rifle in one photograph and in another photograph, he identified the location of the suspected marijuana, noting that it was placed next to two black iPhones in front of the gearshift.

Lieutenant Raborn explained that the "fuzzy" object in the photograph was the marijuana but that it was clear and not "fuzzy" when he saw it that night. He was "right on the window" when he saw the marijuana. He looked at Defense Exhibit 2, three photographs, and testified that they did not show the baggie that he saw in State's Exhibit 2, but that it did show the location of the baggie, explaining that State's Exhibit 2 may have been a close-up view. Lieutenant Raborn noted that they requested the search warrant based on the marijuana and the rifle, and that it was not illegal to have a rifle in a vehicle by itself. He also noted that he could not see the marijuana from the driver's side, and his face was touching the window when he looked inside.

SJPSO Deputy Estreca testified that she helped execute the search warrant on May 26, 2019. She took photographs of the vehicle before she retrieved the evidence. Deputy Estreca stated that she recovered three weapons, several DNA swabs, a paper cup, some narcotics, and rental paperwork for the vehicle. She also stated that with respect to the narcotics, there was an ashtray and two rolled cigars inside the armrest console between the driver and passenger seats. She noted that there was a small bag of green vegetable material located on the center pocket area in front of the gearshift and underneath the USB plugs for a cellular device. Deputy Estreca acknowledged that she took the photographs in State's Exhibit 2—the "first" photograph was of the rifle, and the "second" photograph showed the center pocket area located in front of the "gearshifter."

Deputy Estreca testified that she personally took the small bag of marijuana located in front of the gearshift out of the vehicle. The officers did not tell her whatto photograph; she used her own judgment. She also asserted that the officers told her that they saw marijuana and a rifle inside the vehicle, but they did not tell her where they saw it. Deputy Estreca testified that there were four photographs of the marijuana in the baggie by the "gearshifter" taken from different distances. She explained that the marijuana was directly under the white USB cord but that in the photographs the marijuana appeared "blurry." She stated that it was a "little clear green circular area."

Deputy Estreca testified that she did not know that the photographs she had taken were unclear until she uploaded them into the computer system. There was a screen that "flipped out" on the camera that she could have used while taking the photographs, but she did not use it; she did not have any training to use the camera. She also noted that she did not take any photographs of the marijuana with the door closed, as photographing through a closed window would either create a "flashback" or, if the window was tinted, she would not see inside the vehicle. Deputy Estreca asserted that when she took the photographs in State's Exhibit 2, she was standing outside the passenger door and leaning into the vehicle. She stated that she was not leaning into the vehicle when she took the three photographs in Defense Exhibit 2.

Defendants argued that the officers lacked probable cause to apply for the search warrant—that the officers were lying and that the facts in the search warrant, such as observing the marijuana in plain view, were not true. Defense counsel claimed the officers applied for the search warrant hoping they would find narcotics in the vehicle. Furthermore, the defense argued that the...