Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #036
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 29th day of June, 2017, are as follows:
BY PER CURIAM:
2015-K-2144 STATE OF LOUISIANA v. JOSEPH MICHAEL MOULTRIE (Parish of
Terrebonne)
Accordingly, we reverse the court of appeal’s ruling and remand
for consideration of defendant’s claim that the evidence is
insufficient to support the conviction.
REVERSED AND REMANDED
WEIMER, J., recused.
HUGHES, J., dissents for the reasons given by the court
of appeal.
CRICHTON, J., additionally concurs and assigns reasons.
GENOVESE, J., dissents and assigns reasons.
06/29/17
SUPREME COURT OF LOUISIANA
No. 2015-K-2144
STATE OF LOUISIANA
VERSUS
JOSEPH MICHAEL MOULTRIE
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF TERREBONNE
PER CURIAM
Defendant was found guilty as charged of possession with intent to distribute
cocaine, La.R.S. 40:967(A), based on approximately two ounces of crack cocaine
found by officers in a barbeque grill in a driveway between two trailers, one of
which belonged to defendant’s mother. Officers noticed defendant standing in the
street in front of the trailer at approximately 11 p.m. in a high crime neighborhood.
Defendant quickly retreated out of view into the driveway when he saw the officers
before returning to the street. One officer approached defendant while two others
entered the driveway to see if defendant had discarded drugs or a weapon. They
noticed that there were torn baggies on the ground that appeared to have cocaine
and marijuana residue. At the end of the driveway farthest from the street, one
officer also noticed a grill whose lid was slightly askew with dew that had been
disturbed on the handle. Inside the grill was the large quantity of cocaine.
When arrested, defendant claimed he lived in the trailer, the grill belonged to
his family, and he disavowed any knowledge of the cocaine but said there was
nothing the officers “could do about it” because the cocaine was found on his
property. At trial, defendant’s sister testified that their mother lives in the trailer
(and she gave a street address for the trailer that was not the same as that provided
by defendant earlier) but defendant does not live with their mother although he
does visit her. Defendant’s sister also testified that their mother owns a barbeque
grill, which she moves to various locations on the property as she uses it but she
does not normally place where this grill was described to have been.
On appeal, defendant contended the district court erred in denying his
motion to suppress and that the evidence was insufficient to support the conviction.
At the outset, the court of appeal correctly noted that, in reviewing a trial court’s
ruling on a motion to suppress, the reviewing court looks to the totality of the
evidence presented at the motion to suppress hearing and the trial. See State v.
Burkhalter, 428 So.2d 449, 455 (La. 1983) (citing State v. West, 408 So.2d 1302,
1307 (La. 1982)). The court of appeal also found that the officers had reasonable
suspicion to stop and question the defendant based on his location, the hour, the
reputation of the neighborhood, and his reaction when he saw the officers. The
court of appeal determined, however, that the search inside the grill was beyond
the permissible scope of a protective search for weapons that might be used to
harm them. See State v. Moultrie, 14-1535, pp. 5–8 (La. App. 3 Cir. 10/23/15), 182
So.3d 1017, 1022–23. The dissent, in contrast, found no basis to suppress the
evidence because, among other reasons, defendant had no reasonable expectation
of privacy in the grill. See id., 14-1535, p.2, 182 So.3d at 1025–26 (McDonald, J.,
dissenting). After examining the totality of the evidence presented at the motion to
suppress hearing and the trial, we agree with the dissenting judge’s determination.
The Fourth Amendment to the United States Constitution and Article 1,
Section 5 of the Louisiana Constitution prohibit unreasonable searches and
seizures. A warrantless search is per-se unreasonable unless the state can show it
falls within one of the limited and well-delineated exceptions to the warrant
requirement. State v. Hernandez, 410 So.2d 1381, 1383 (La. 1982) (citing
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971));
2
State v. Zito, 406 So.2d 167, 168 (La. 1981). A limited search incident to an
investigatory stop is one such exception. Minnesota v. Dickerson, 508 U.S. 366,
373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993).
La. Const. art. I, § 5 extends standing to “[a]ny person adversely affected”
by an invalid search or seizure to raise its illegality. However, the protection is not
unqualified, because La. Const. art. I, § 5 also presupposes that “there must be an
invasion of someone’s rights to privacy before there can be an unreasonable
search.” State v. Perry, 502 So.2d 543, 558 (La. 1986). The test of whether and
when an intrusion on privacy rights occurs as a matter of the Louisiana constitution
is identical to the Fourth Amendment standard, i.e. the person must possess an
objectively reasonable expectation of privacy in the area. Perry, 502 So.2d at 558;
State v. Ragsdale, 381 So.2d 492, 497 (La. 1980) (“The test for determining
whether one has a reasonable expectation of privacy is not only whether the person
had an actual or subjective expectation of privacy, but also whether that
expectation is of a type which society at large is prepared to recognize as being
reasonable.”).
Although the state ultimately bears the burden of establishing the validity of
a warrantless search, in challenging the search a defendant bears an initial
threshold burden of showing that he had a reasonable expectation of privacy in the
premises. See, e.g., United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547,
2555, 65 L.Ed.2d 619 (1980). Defendant thus was in the difficult position of
having to both distance himself from the barbeque grill, if he hoped to be found not
guilty of possession of the cocaine found inside it, and tie himself more closely to
the grill, if he hoped to obtain a favorable ruling on the motion to suppress. Trying
to do both, he succeeded at neither.
3
As noted by the dissent in the court below, the ownership of the grill was
never established. See Moultrie, 14-1535, pp. 3–4, 182 So.3d at 1026–27
(McDonald, J., dissenting). It was never seized as evidence and never identified
from any photograph as the grill belonging to defendant’s mother. Although
defendant’s sister testified that her mother used a grill, her testimony did not
establish that the grill in which the drugs were found belonged to defendant’s
mother. Defense counsel, in fact, argued in closing that the state never proved who
owned the barbeque grill or on whose property it sat. Because defendant failed at
the threshold to make a showing of any reasonable expectation of privacy in the
barbeque grill, the inquiry ends. Accordingly, we reverse the court of appeal’s
ruling and remand for consideration of defendant’s claim that the evidence is
insufficient to support the conviction.1
REVERSED AND REMANDED
1
When issues are raised on appeal both as to the sufficiency of the evidence and as to one or
more trial errors, the reviewing court should first determine the sufficiency of the evidence. State
v. Hearold, 603 So.2d 731, 734 (La. 1992). The reason for reviewing sufficiency first is that the
accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970,
67 L.Ed.2d 30 (1981).
4
06/29/17
SUPREME COURT OF LOUISIANA
No. 2015-K-2144
STATE OF LOUISIANA
VERSUS
JOSEPH MICHAEL MOULTRIE
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF TERREBONNE
Hughes, J., dissenting.
I respectfully dissent for the reasons given by the court of appeal.
1
06/29/17
SUPREME COURT OF LOUISIANA
No. 2015-K-2144
STATE OF LOUISIANA
VERSUS
JOSEPH MICHAEL MOULTRIE
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST
CIRCUIT, PARISH OF TERREBONNE
CRICHTON, J., additionally concurs and assigns reasons:
I agree with the per curiam’s conclusion that the defendant failed to establish
any reasonable expectation of privacy in the barbeque grill, and therefore the
search inside the grill was within the scope of a permissible search for weapons
that might be used to harm law enforcement. I write separately to emphasize the
paramount importance of officer safety in exigent situations such as these. Here,
the officers encountered the defendant at a late hour in a known high-crime area,
and observed the drugs and related paraphernalia on the ground near defendant.
The barbecue grill, which the officers observed had its lid askew and the dew on
the handle disturbed, could have been used to destroy evidence or conceal a gun.
As a result, in my view, the officers were justified in searching the grill to secure
their safety during this rapid encounter with defendant. See Warden, Maryland
Penitentiary v. Bennie Joe Hayden, 387 U.S. 294, 299, 87S.Ct. 1642, 1646, 18
L.Ed.2d 782 (1967) (Court finding warrantless home entry and subsequent search
for a robber reasonable, as the “exigencies of the situation made that course
imperative,” (quoting McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191,
193, 93 L.Ed. 153) and finding that “[t]he Fourth Amendment does not require
police officers to delay in the course of an investigation if to do so would gravely
endanger their lives or the lives of others.” ). As the U.S. Supreme Court held in
1
Terry v. Ohio, “[w]hen an officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed and presently
dangerous to the officer or to others, it would appear to be clearly unreasonable to
deny the officer the power to take necessary measures to determine whether the
person is in fact carrying a weapon and to neutralize the threat of physical harm.”
391 U.S. 1, 24, 99 S.Ct. 1868, 1882, 20 L.Ed.2d 889 (1968).
2
06/29/17
SUPREME COURT OF LOUISIANA
No. 2015-K-2144
STATE OF LOUISIANA
VERSUS
JOSEPH MICHAEL MOULTRIE
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST
CIRCUIT, PARISH OF TERREBONNE
GENOVESE, J., dissents.
I dissent for the reasons assigned by the court of appeal.