State of Louisiana v. Kayla Brignac

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #050

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 18th day of October, 2017, are as follows:

BY JOHNSON, C.J.:

2017-KK-0448 STATE OF LOUISIANA v. KAYLA BRIGNAC (Parish of Orleans)

La. C.Cr. P. art. 895(A)(13)(a) requires that a warrantless
search of a probationer’s residence be conducted by the probation
officer specifically assigned to that probationer. The
determination of whether a probation officer is “assigned to” a
particular probationer is a factual finding to be made by the
district court. Based on the record in this case, we find no
error in the district court’s finding that the search of Ms.
Brignac’s residence was not conducted by the probation officer
assigned to her. Accordingly, we hold the search failed to comply
with the requirements of Article 895(A)(13)(a). We further find
this statute provides certain privacy protections for
probationers, and thus its violation resulted in an
unconstitutional search under Article I, §5 of the Louisiana
Constitution. Because the search was unconstitutional, we hold
the evidence obtained in the search should be excluded pursuant
to La. C.Cr. P. art. 703(C). The district court correctly granted
defendant’s motion to suppress the evidence. Therefore, the
ruling of the court of appeal is reversed, and the ruling of the
district court is reinstated.
REVERSED AND REMANDED TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.

GUIDRY, J., concurs in the result.
CRICHTON, J., concurs in the result and assigns reasons.
10/18/17

SUPREME COURT OF LOUISIANA

No. 2017-KK-0448

STATE OF LOUISIANA

VERSUS

KAYLA BRIGNAC

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS

JOHNSON, Chief Justice

The underlying issue in this case concerns the reasonableness of a warrantless

search of a probationer’s residence by multi-agency state and federal law enforcement

personnel. Specifically, we are called upon to determine whether the search violated

Louisiana Code of Criminal Procedure Article 895(A)(13)(a), which provides as a

condition of probation that the defendant agree “to searches of … his place of

residence … at any time, by the probation officer … assigned to him, with or without

a warrant … when the probation officer … has reasonable suspicion to believe that the

person who is on probation is engaged in or has been engaged in criminal activity.”

After review of the law and record, and considering the arguments of the

parties, we hold that the warrantless search of defendant’s residence violated the

provisions of Article 895(A)(13)(a) because the search was not conducted by the

probation officer assigned to her. We further find that violation of this statute

constituted an unconstitutional search under Louisiana Constitution Article I, §5,

requiring exclusion of the evidence pursuant to Louisiana Code of Criminal

Procedure Article 703(C). Thus, we reverse the ruling of the court of appeal and

reinstate the ruling of the district court which granted defendant’s motion to suppress

the evidence.

1
 FACTS AND PROCEDURAL HISTORY

The charges against defendant, Kayla Brignac, stem from a warrantless search

of her residence on March 8, 2016. On that date, two officers from the New Orleans

District of Probation and Parole, Chris Turner and Tiffany Eagles, along with officers

from the United States Marshals Office, the A.T.F (Bureau of Alcohol, Tobacco,

Firearms and Explosives), and the Louisiana State Police conducted a search of Ms.

Brignac’s residence at 524 ½ Bourbon Street in New Orleans.

Officer Turner testified the “residence check” was prompted because the

probation department received information from another law enforcement agency that

Ms. Brignac may be involved in the sale of narcotics. During the search of the

residence, officers found Ms. Brignac in a bedroom and observed what appeared to

be a burned marijuana cigarette in plain view. The officers then searched the kitchen

and found miscellaneous pills and drug paraphernalia. Officers discovered additional

contraband on the porch.

According to testimony, Officers Turner and Eagles were not the probation

officers regularly assigned to Ms. Brignac; the sole probation officer assigned to Ms.

Brignac was Officer Rebecca Soileau. Officer Soileau had previously performed a

residence verification for Ms. Brignac.

On May 6, 2016, the state filed a bill of information charging defendant with

possession of cocaine with intent to distribute; possession of oxycodone; possession

of marijuana (third offense); and possession of a legend drug. Defendant filed various

motions, including a motion to suppress the evidence. The district court held a

hearing on August 9, 2016, and denied the motion to suppress. Ms. Brignac

subsequently filed a motion for reconsideration of the motion to suppress, essentially

arguing it was unlawful for the state to use a probation officer not assigned to her as

2
a means to conduct a warrantless search of her home by a multi-agency task force,

and further that the search was not based on “reasonable suspicion.” Following

argument on the motion for reconsideration, the district court granted defendant’s

motion to suppress the evidence. Considering La. C.Cr. P. art. 895(A)(13)(a) and the

jurisprudence relating to searches of probationers, the district court found it

“compelling” that Officer Soileau was the sole probation officer assigned to

defendant’s case and that the other probation officers were not regularly assigned to

defendant. The district court found Probation Officers Turner and Eagles were

“simply there in order to effect a warrantless search … at the behest of outside

agencies.” The court further found this was “clearly not a residency check,” rather

“this was a search, based on a tip.” The district court concluded that the search

“smack[ed] of subterfuge to the point where … Probation and Parole was being

utilized in a manner in which they were legally not able to do so.”

The court of appeal reversed, finding the officers acted legally when they

conducted the warrantless search. State v. Brignac, 16-1160, p. 3 (La. App. 4 Cir.

1/18/17), -- So. 3d --. The court explained:

Individuals on probation possess a diminished expectation of privacy.
This reduced expectation of privacy is based on a probationer’s
conviction and agreement to allow a probation officer to investigate his
activities in order to confirm that the probationer is in compliance with
the provisions of his probation. That reduced expectation of privacy
authorizes reasonable warrantless searches of their persons and
residences by their probation or parole officer, even though less than
probable cause may be shown.

This Court has recognized that a probationer is not subject to the
unrestrained power of the authorities, and a search of the probationer
may not be a subterfuge for a police investigation. However, a probation
officer may conduct a warrantless search of a probationer’s property
when the officer believes such a search is necessary in the performance
of his duties, and must be reasonable in light of the total atmosphere in
which it takes place. In order to determine reasonableness we must
consider (1) the scope of the particular intrusion, (2) the manner in
which it was conducted, (3) the justification for initiating it, and (4) the

3
 place in which it was conducted.

Brignac, at p. 2 (internal citations removed). The appellate court found the officers

possessed reasonable suspicion to conduct a search of defendant’s residence based

on information that she may be involved in the sale of illegal narcotics. Id. at p. 3.

The appellate court also noted the marijuana cigarette was readily identifiable in plain

view by the officers when they entered defendant’s room which provided officers

with the requisite level of cause to conduct a more thorough search of the remainder

of the residence. Id.

Although the court of appeal did not directly address Article 895(A)(13)(a), the

court found the “district court’s concern that the defendant’s probation officer played

no role in the search of the residence … is of little importance as an appellate court’s

review on the legality of the search is based on an assessment of the collective

knowledge possessed by all of the police involved in the investigation.” Id. (internal

citations removed). The court of appeal concluded that “defendant’s status as a

probationer did not operate a subterfuge to conduct a suspicionless search but rather

allowed officers to conduct the search without a warrant and based on less than

probable cause.” Id. (internal citations removed).

Judge Love dissented, finding the search was not reasonable. She agreed with

the district court that the officers “‘were simply there in order to effect a warrantless

search on the behest or at the behest of outside agencies.’” Id. Judge Love noted “a

residency verification was already conducted on the defendant by the sole probation

officer assigned to her, and the search in this case was not a residency check, but was

a search based on a tip.” Id.

On defendant’s application, we granted supervisory review. State v. Brignac,

17-0448 (La. 5/12/17), 219 So. 3d 1107.

4
 DISCUSSION

As a general constitutional rule, warrantless searches are per se unreasonable

under the Fourth Amendment of the United States Constitution and Article I, §5 of

the Louisiana Constitution. State v. Surtain, 09-1835 (La. 3/16/10), 31 So. 3d 1037,

1042. Ordinarily, when evidence is seized without a warrant, the burden is on the

state to demonstrate that a search is justified by some exception to the warrant

requirement. State v. Tatum, 466 So. 2d 29, 30-31 (La. 1985). The capacity to claim

the protection of the Fourth Amendment or La. Const. art. I, §5 depends upon

whether the person who claims the protection has a legitimate expectation of privacy

in the invaded place. See State v. Warren, 05-2248 (La. 2/22/07), 949 So. 2d 1215,

1223. This court has long recognized that individuals on probation possess a

diminished expectation of privacy. State v. Malone, 403 So. 2d 1234, 1239 (La.

1981). This diminished expectation of privacy is reflected in La. C.Cr. P. art.

895(A)(13)(a), which provides:

A. When the court places a defendant on probation, it shall require
the defendant to refrain from criminal conduct and to pay a supervision
fee to defray the costs of probation supervision, and it may impose any
specific conditions reasonably related to his rehabilitation, including
any of the following. That the defendant shall:
***
(13)(a) Agree to searches of his person, his property, his place of
residence, his vehicle, or his personal effects, or any or all of them, at
any time, by the probation officer or the parole officer assigned to
him, with or without a warrant of arrest or with or without a search
warrant, when the probation officer or the parole officer has
reasonable suspicion to believe that the person who is on probation
is engaged in or has been engaged in criminal activity.

(Emphasis added). At issue is whether the search of Ms. Brignac’s residence was

conducted in compliance with this statutory provision, in particular whether the

search was conducted by the probation officer “assigned to” Ms. Brignac.

Interpretation of La. C.Cr. P. art. 895(A)(13)(a)

5
 Questions of law, such as the proper interpretation of a statute, are reviewed

by this court under the de novo standard of review. Red Stick Studio Dev., L.L.C. v.

State ex rel. Dep’t of Econ. Dev., 10-0193 (La. 1/19/11), 56 So. 3d 181, 187;

Louisiana Mun. Ass’n v. State, 04-0227 (La. 1/19/05), 893 So. 2d 809, 836. After our

review, we “render judgment on the record, without deference to the legal

conclusions of the tribunals below. This court is the ultimate arbiter of the meaning

of the laws of this state.” Lomont v. Bennett, 14-2483 (La. 6/30/15), 172 So. 3d 620,

628.

The parties offer different interpretations of Article 895(A)(13)(a). Defendant

argues the language of the statute is clear and unambiguous, and the district court

correctly gave the “assigned to” language its generally prevailing meaning. Defendant

argues the court of appeal failed to adequately address, much less provide, a

meaningful review of the district court’s ruling. Defendant further argues the

legislative history of the Article supports a finding that the legislature narrowly

tailored the law to provide authority to conduct such a search only to the probation

agent directly assigned to the probationer.

By contrast, the state argues the district court misapplied Article 895(A)(13)(a).

According to the state, this Article does not require that the probation officer who

conducts a check or search be “the day-to-day supervisory agent” of the defendant.

The state argues in this case the Office of Probation and Parole assigned two officers

to check on defendant because the office had received information from law

enforcement that she was involved in the sale of illegal narcotics. Thus, by the plain

language of the statute, Officers Turner and Eagles were “assigned to” the defendant

for a specific purpose by their office. The state argues nothing in the Article prevents

the Office of Probation and Parole from assigning officers to conduct a residence

6
check immediately prior to executing it, as was the case here. The state further argues

that to interpret the Article otherwise would lead to absurd consequences because if

the day-to-day supervisory officer were unavailable, no action could be taken against

a probationer even if there was overwhelming evidence of a violation.

The rules of statutory construction as set forth by this court are summarized as

follows:

The function of statutory interpretation and the construction given to
legislative acts rests with the judicial branch of the government. The
rules of statutory construction are designed to ascertain and enforce the
intent of the Legislature. Legislation is the solemn expression of
legislative will and, thus, the interpretation of legislation is primarily the
search for the legislative intent. We have often noted the paramount
consideration in statutory interpretation is ascertainment of the
legislative intent and the reason or reasons which prompted the
Legislature to enact the law.

The starting point in the interpretation of any statute is the language of
the statute itself. “When a law is clear and unambiguous and its
application does not lead to absurd consequences, the law shall be
applied as written and no further interpretation may be made in search
of the intent of the legislature.” La. Civ.Code. art. 9. However, “when
the language of the law is susceptible of different meanings, it must be
interpreted as having the meaning that best conforms to the purpose of
the law.” La. Civ.Code art. 10; Moreover, “when the words of a law are
ambiguous, their meaning must be sought by examining the context in
which they occur and the text of the law as a whole.” La. Civ.Code art.
12.

It is also well established that the Legislature is presumed to enact each
statute with deliberation and with full knowledge of all existing laws on
the same subject. Thus, legislative language will be interpreted on the
assumption the Legislature was aware of existing statutes, well
established principles of statutory construction and with knowledge of
the effect of their acts and a purpose in view. It is equally well settled
under our rules of statutory construction, where it is possible, courts
have a duty in the interpretation of a statute to adopt a construction
which harmonizes and reconciles it with other provisions dealing with
the same subject matter. La. Civ.Code art. 13.

M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La. 7/1/08), 998 So. 2d 16, 26-27,

amended on reh’g (La. 9/19/08) (internal citations removed). With these principles

in mind, we first consider the language of Article 895(A)(13)(a).

7
 The word “assign” is commonly defined as “to appoint to a post or duty; to

appoint as a duty or task.” Merriam-Webster, https://www.merriam-webster.com/

dictionary/assign (last visited September 18, 2017). The statutory language “assigned

to him” implies a relationship and a duty of supervision by requiring a particular

probation officer be appointed to a particular probationer. Although the state suggests

a broad reading of this language to encompass searches by any probation officer, as

long as the officer was assigned to some task involving a probationer, we find the

legislature intended a narrower application. The legislature has explicitly provided

that probationers agree to searches “by the probation officer … assigned to him.” The

specificity of the language contemplates a limited authority granted only to the

particular probation officer who is generally and regularly assigned to a particular

probationer. The legislative history of La. C.Cr. P. art. 895(A)(13)(a) supports this

position.

Article 895(A)(13)(a) did not exist prior to 2008. The Article originated as

House Bill (“HB”) 1136, introduced during the 2008 Regular Session of the

Legislature. HB 1136 initially sought to amend and reenact La. R.S.

15:574.4(H)(4)(r), relative to conditions of parole, specifically to provide that as a

condition of parole a person on parole agrees to searches of his person or property by

law enforcement officers with or without an arrest or search warrant. At the time,

subsection (r) provided that parolees agreed “to searches of … his place of residence

… at any time, by the probation officer or the parole officer assigned to him, with or

without a warrant of arrest or with or without a search warrant, when the probation

officer or the parole officer has reasonable suspicion to believe that the person who

is on parole is engaged in or has been engaged in criminal activity since his release

on parole.” (Emphasis added). HB 1136 defined “law enforcement officer” as

8
including “commissioned police officers, sheriffs, deputy sheriffs, marshals, deputy

marshals, correctional officers, constables, wildlife enforcement agents, state park

wardens, and probation and parole officers.” 2008 Original House Bill No. 1136.

HB 1136 was subsequently amended by the House Committee on

Administration of Criminal Justice to provide the same relative to searches as a

condition of probation through the enactment of Code of Criminal Procedure Article

895(A)(13). The committee amendment added the following language to HB 1136:

Section 2. Code of Criminal Procedure Article 895(A)(13) is hereby
enacted to read as follows:

Art. 895. Conditions of probation

A. When the court places a defendant on probation, it shall require the
defendant to refrain from criminal conduct and to pay a supervision fee
to defray the costs of probation supervision, and it may impose any
specific conditions reasonably related to his rehabilitation, including any
of the following. That the defendant shall:
***
(13) Agree to searches of his person, his property, his place of
residence, his vehicle, or his personal effects, or any or all of them, at
any time, by a law enforcement officer, with or without a warrant of
arrest or with or without a search warrant, when the law enforcement
officer has reasonable suspicion to believe that the person who is on
parole is engaged in or has been engaged in criminal activity since his
release on parole. For the purposes of this Subparagraph, “law
enforcement officer” shall mean commissioned police officers, sheriffs,
deputy sheriffs, marshals, deputy marshals, correctional officers,
constables, wildlife enforcement agents, state park wardens, and
probation and parole officers.

2008 Engrossed House Bill No. 1136 (emphasis added).

The current version of Article 895(A)(13)(a) was the result of Senate Floor

Amendments to the Engrossed House Bill. Specifically, HB 1136 was amended to

remove all of the language relative to La. R.S. 15:574.4(H)(4)(r) (corresponding to

parole). Additionally, the original proposed language for Article 895(A)(13) was

deleted and replaced with the following:

(13) Agree to searches of his person, his property, his place of residence,

9
 his vehicle, or his personal effects, or any or all of them, at any time, by
the probation officer or the parole officer assigned to him, with or
without a warrant of arrest or with or without a search warrant, when the
probation officer or the parole officer has reasonable suspicion to
believe that the person who is on probation is engaged in or has been
engaged in criminal activity.

2008 Enrolled House Bill No. 1136 (emphasis added).1

This legislative history makes clear that the legislature specifically considered

the exact wording of Article 895(A)(13)(a) relative to who is entitled to conduct

warrantless searches of probationers. Although the original amended language in the

engrossed version of the bill would have allowed any law enforcement officer–

which specifically included any probation officer - to conduct such searches, the

legislature further amended and limited the language to restrict that authority to the

probation officer assigned to the probationer. 2008 La. Acts 655.

Moreover, we are not swayed by the state’s assertion that such an interpretation

leads to absurd consequences because the probation department would be left without

authority to act, even if there was overwhelming evidence of a violation, if the

“day-to-day” assigned probation officer is unavailable. The authority granted to

probation officers in Article 895(A)(13)(a) applies solely to warrantless searches.

Exigent situations involving probation violations can be handled in other ways. For

example, La. C.Cr. P. art. 899(B) allows the probation officer to authorize a peace

officer, either in writing or verbally, to arrest the probationer without a warrant if he

has “reasonable cause to believe that a defendant has violated or is about to violate

a condition of his probation or that an emergency exists so that awaiting an order of

the court would create an undue risk to the public or to the probationer.” Further,

nothing would prevent any law enforcement officer from obtaining a search warrant

1
Subsection (A)(13) was further divided into its current form, (a) and (b), in 2009. See 2009
La. Acts 362. The content of (b) was added to provide less restrictive search criteria for probationers
convicted of a sex offense.

10
for a probationer’s residence based on probable cause.

Application of La. C.Cr. P. art. 895(A)(13)(a)

In applying Article 895(A)(13)(a), we decline to impose strict requirements on

probation departments purporting to regulate assignments of officers to probationers.

Although we hold there must be some official general assignment of the particular

probation officer to the particular probationer to authorize a warrantless search under

the Article, we recognize the facts and circumstances of each case differ. We leave

open the possibility that the facts of a case may sufficiently demonstrate that more

than one probation officer was assigned to a particular probationer. We also find no

blanket prohibition to outside law enforcement personnel accompanying the assigned

probation officer to conduct a search under Article 895(A)(13)(a). In sum, we leave

to the district court the factual determination of whether a search was conducted in

accordance with Article 895(A)(13)(a) by the probation officer assigned to the

defendant.

Here, the district court implicitly, if not expressly, made a finding that the

search was not conducted by the probation officer assigned to Ms. Brignac as

required by Article 895(A)(13)(a). After review of the record, we find no error in that

ruling. As a general rule, this court reviews district court rulings under a deferential

standard with regard to factual and other trial determinations, while legal findings are

subject to a de novo standard of review. State v. Hunt, 09-1589 (La. 12/1/09), 25 So.

3d 746, 751. When a district 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. Id.

The state argues that Officers Turner and Eagles were “assigned to” Ms.

11
Brignac immediately prior to execution of the “residence check” because the

probation office had received information from law enforcement that she was

involved in the sale of illegal narcotics. Relevant to this issue, Officer Turner

testified:

Q (State): What is your occupation, sir?

A (Turner): I am a Probation and Parole Officer with the New Orleans
District of Probation and Parole.

Q: And, in connection with your employment, did you have
the occasion to take part in the supervision and activities
related to Ms. Kayla Brignac?

A: Yes.
***
Q: [P]lease inform the court what exactly was your role in the
events surrounding March 8th of 2016, as it relates to Ms.
Brignac?

A: On March the 8th, we conducted a residence check at Ms.
Brignac’s address of record, 524 ½ Bourbon Street.
***
Q: And, as part of doing that residence check, what
information was it that led you to conduct a check on that
day?

A: We received information that Ms. Brignac may be involved
in the sale of illegal narcotics.

Q: And, did you receive that information from another law
enforcement agency?

A: Yes.
***
Q: Armed with that information, what did you do?

A: Armed with that information, we elected to conduct a
residence check that morning on March the 8th, around
seven a.m.

On cross examination, Officer Turner testified:

Q (Defense):[2] According to your report, the agents who conducted
the search were Agents Eagles, Bartel, Easley, and

2
Officer Turner was initially questioned by counsel for a related defendant, Jermain Tobias.

12
 Dickens? Is that correct?

A (Turner): Agent Eagles is from our office, and the other ones
were from other law enforcement agencies. Correct.

Q: So, there were folks from the Marshals Service
there?

A: Correct.

Q: From the State Police?

A: Correct.

Q: And, from the Alcohol, Tobacco, and Firearms?

A: That’s correct.

Q: And, just to be clear, you are not Ms. Brignac’s
regularly assigned agent?

A: No, sir.

The defense called Probation Officer Rebecca Soileau to testify:

Q (Defense):[3] Can you introduce yourself to the Court?

A (Soileau): Agent Rebecca Soileau with New Orleans Probation
and Parole.
***
Q: And, you were the probation officer who was
assigned to Ms. Kayla Brignac, correct?

A: Yes, sir.

Q: You were the sole probation officer assigned to Ms.
Kayla Brignac, correct?

A: Yes.

No other testimony or evidence was introduced relative to the issue of whether the

probation officers who were involved in the search were assigned to Ms. Brignac.

Officer Turner did not testify that he was regularly assigned to Ms. Brignac. Officer

Eagles was not called to testify. At most, Officer Turner’s testimony suggests he and

3
Officer Soileau was questioned by counsel for defendant Kayla Brignac.

13
Officer Eagles were assigned the task of conducting a search of Ms. Brignac’s

residence on March 8, 2016. Moreover, Officer Soileau’s testimony that she was the

sole agent assigned to defendant was not controverted.

Based on the record in this case, we find the state did not present evidence to

establish that the probation officers involved in the search of Ms. Brignac’s residence

were “assigned to” her within the meaning of Article 895(A)(13)(a). Thus, we find

no error in the district court’s factual finding. We hold the search of Ms. Brignac’s

residence violated the provisions of Article 895(A)(13)(a).4

Suppression of the Evidence

There is no legislatively-mandated remedy for violation of Article

895(A)(13)(a), necessitating a determination of whether suppression of the evidence

seized as a result of the search is required. Searches violative of the Fourth

Amendment may result in exclusion of the evidence in certain situations.

Additionally, Louisiana law allows for the exclusion of evidence “unconstitutionally

obtained.” La. C.Cr. P. art. 703(C) (“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.”) Thus, to justify exclusion of the evidence, we must find

the search was unconstitutional under either the United States or Louisiana

Constitution.

The Fourth Amendment to the United States Constitution provides: “The right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation, and particularly

4
Because we have determined the search of Ms. Brignac’s residence violated La. C.Cr. P.
art. 895(A)(13)(a) on the basis it was not conducted by the probation officer assigned to her, we need
not reach the issue of whether “reasonable suspicion” existed for the search.

14
describing the place to be searched, and the persons or things to be seized.” Although

the Fourth Amendment protects the right to be free from unreasonable searches and

seizures, it does not prescribe a remedy for its violation. Thus, the United States

Supreme Court created the exclusionary rule, “a deterrent sanction that bars the

prosecution from introducing evidence obtained by way of a Fourth Amendment

violation.” Davis v. United States, 564 U.S. 229, 231-32, 131 S. Ct. 2419, 2423, 180

L. Ed. 2d 285 (2011); see also State v. Davis, 375 So. 2d 69, 72 (La. 1979). However,

the fact that a Fourth Amendment violation occurred—i.e., that a search was

unreasonable—does not necessarily mean that the exclusionary rule applies. See

Herring v. United States, 555 U.S. 135, 140, 129 S. Ct. 695, 700, 172 L. Ed. 2d 496

(2009); Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 2324, 76 L.Ed. 2d 527

(1983). As the Supreme Court explained in United States v. Leon, 468 U.S. 897, 906,

104 S. Ct. 3405, 3411-12, 82 L.Ed. 2d 677 (1984)(internal citations removed):

The wrong condemned by the Amendment is fully accomplished by the
unlawful search or seizure itself … and the exclusionary rule is neither
intended nor able to cure the invasion of the defendant’s rights which he
has already suffered. The rule thus operates as a judicially created
remedy designed to safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a personal constitutional right of
the party aggrieved.

Whether the exclusionary sanction is appropriately imposed in a
particular case, our decisions make clear, is an issue separate from the
question whether the Fourth Amendment rights of the party seeking to
invoke the rule were violated by police conduct.

The Supreme Court has generally held that to trigger application of the exclusionary

rule, the deterrent effect of suppression must be substantial and outweigh any harm

to the justice system. See Herring, 555 U.S. at 147; Leon, 468 U.S. at 909-10.

In considering whether the violation of Article 895(A)(13)(a) constitutes a

Fourth Amendment violation, we examine the most recent decisions from the United

States Supreme Court addressing Fourth Amendment rights of probationers. In Griffin

15
v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed. 2d 709 (1987), the Court upheld

a search of a probationer conducted pursuant to a Wisconsin regulation permitting

“any probation officer to search a probationer’s home without a warrant as long as his

supervisor approves and as long as there are ‘reasonable grounds’ to believe the

presence of contraband.” 483 U.S. at 870-71. The Court held that a state’s operation

of its probation system presented a “special need” for the “exercise of supervision to

assure that [probation] restrictions are in fact observed.” Id. at 875. That special need

for supervision justified the Wisconsin regulation and the search pursuant to the

regulation was thus reasonable. Id. at 875-80.

In United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed. 2d 497

(2001), the Court again took up an issue involving Fourth Amendment rights of

probationers. In Knights, the defendant’s California probation order contained a

“search condition” stating that Knights would “‘[s]ubmit his … person, property,

place of residence, vehicle, personal effects, to search at anytime, with or without a

search warrant, warrant of arrest or reasonable cause by any probation officer or law

enforcement officer.’” 534 U.S. at 114. The Court upheld a search of Knights’

residence as part of an arson investigation, rejecting the notion that the Fourth

Amendment permits only “probationary” searches and not “investigatory” searches

of probationers. Id. at 117-18. In upholding the search, the Court explained that the

probation condition “significantly diminished Knights’ reasonable expectation of

privacy.” Id. at 119-20. Given the reduced expectation of privacy, a search based on

reasonable suspicion, even by a police officer, was permissible. Id. at 121.

Five years later, the Court addressed the scope of Fourth Amendment

protection to parolees in Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165

L.Ed. 2d 250 (2006). In Samson the Supreme Court extended the principle of Knights

16
to uphold a warrantless search of a parolee even in the absence of reasonable

suspicion. 547 U.S. at 847. The search was authorized by a state statute which

provided, in relevant part, that every prisoner eligible for release on parole “shall

agree in writing to be subject to search or seizure by a parole officer or other peace

officer at any time of the day or night, with or without a search warrant and with or

without cause.” Id. at 846.

Although the Supreme Court declined to find Fourth Amendment violations in

these cases, and appears to have given wide latitude to law enforcement officers to

conduct warrantless searches of probationers and parolees, the Court’s sanctioning

of these searches was not based on the defendants’ probationer or parolee status

alone. Rather, it is legally significant that these cases are all premised on the

probationer’s or parolee’s diminished expectation of privacy stemming from either

a state regulation or their parole/probation agreement. Specifically, in Griffin, the

search was conducted by a probation officer pursuant to a state regulation applied to

all probationers which permitted “any probation officer to search a probationer’s

home without a warrant as long as his supervisor approves and as long as there are

‘reasonable grounds’ to believe the presence of contraband.” (Emphasis added). In

Knights, the defendant was subject to a probation condition which provided that he

would “[s]ubmit his ... person, property, place of residence, vehicle, personal effects,

to search at anytime, with or without a search warrant, warrant of arrest or reasonable

cause by any probation officer or law enforcement officer.” (Emphasis added).

Finally, in Samson, the search was conducted under the authority of a California law

which provides that every prisoner eligible for release on state parole “shall agree in

writing to be subject to search or seizure by a parole officer or other peace officer at

any time of the day or night, with or without a search warrant and with or without

17
cause.” (Emphasis added). Notably, the Court in Sampson recognized “that some

States and the Federal Government require a level of individualized suspicion,” and

implied that in such jurisdictions a suspicionless search would remain impermissible.

547 U.S. at 855.

Unlike the more expansive search authority granted by the particular state

regulations or probation/parole agreements in those cases, Article 895(A)(13)(a)

limits the authority to conduct a search to the probation officer assigned to the

probationer, and requires reasonable suspicion. Given Louisiana’s more restrictive

provision governing warrantless searches of probationers, we do not read these

Supreme Court cases broadly to provide constitutional validity to the search of Ms.

Brignac’s residence under a Fourth Amendment analysis. See U.S. v. Freeman, 479

F. 3d 743, 748 (10th Cir. 2007)(“Samson does not represent a blanket approval for

warrantless parolee or probationer searches by general law enforcement officers

without reasonable suspicion; rather, the Court approved the constitutionality of such

searches only when authorized under state law.”)

Moreover, our decision in this case does not hinge on finding a Fourth

Amendment violation. Article I, §5 of the Louisiana Constitution also protects its

citizens against unreasonable searches and seizures, but it is not identical to the

Fourth Amendment. La. Const. art. I, § 5 provides:

Every person shall be secure in his person, property, communications,
houses, papers, and effects against unreasonable searches, seizures, or
invasions of privacy. No warrant shall issue without probable cause
supported by oath or affirmation, and particularly describing the place
to be searched, the persons or things to be seized, and the lawful purpose
or reason for the search. Any person adversely affected by a search or
seizure conducted in violation of this Section shall have standing to
raise its illegality in the appropriate court.

This court has recognized:

Our state constitution’s declaration of the right to privacy contains an

18
 affirmative establishment of a right of privacy, explicit protections
against unreasonable searches, seizures or invasions of property and
communications, as well as houses, papers and effects, and gives
standing to any person adversely affected by a violation of these
safeguards to raise the illegality in the courts. This constitutional
declaration of right is not a duplicate of the Fourth Amendment or
merely coextensive with it; it is one of the most conspicuous instances
in which our citizens have chosen a higher standard of individual liberty
than that afforded by the jurisprudence interpreting the federal
constitution.

State v. Hernandez, 410 So. 2d 1381, 1385 (La. 1982) (internal citations removed).

Supreme Court jurisprudence relative to Fourth Amendment rights of probationers

is of limited relevance in considering whether the search of Ms. Brignac’s residence

violated the Louisiana Constitution. Although this court gives “careful consideration

to the United States Supreme Court interpretations of relevant provisions of the

federal constitution … we are not bound by them in construing the Louisiana

Constitution.” State v. Reeves, 427 So. 2d 403, 409 (La. 1982). Thus, even absent a

Fourth Amendment violation, we are not prevented from finding the search

nonetheless violated the more explicit privacy protections in Louisiana’s constitution.

Article 895 sets forth the conditions of probation, providing rules and

guidelines that directly define a probationer’s expectation of privacy. Article

895(A)(13)(a) diminishes the privacy rights of probationers by allowing for

warrantless searches under certain conditions. By the same token, Article

895(A)(13)(a) protects certain privacy rights of probationers by providing limitations

on warrantless searches of a probationer’s person, property, residence, vehicle, or

personal effects (i.e., searches must be conducted by the probation officer assigned

to the probationer, and reasonable suspicion of criminal activity is required).

Considering the holdings in Griffin, Knights, and Sampson, it is clear Article

895(A)(13)(a) does not restrict probationers’ rights to the extent permitted by the

Supreme Court. Although our legislature is undoubtedly free to further curtail

19
probationers’ privacy rights, it has presumably chosen not to do so.

While not all violations of statutory restrictions on searches can be deemed

constitutional violations, this court has suggested that the exclusionary rule can be

applied to prevent violations of a statute where that statute is designed to prevent

unconstitutional invasions of privacy interests. See State v. Gates, 13-1422 (La.

5/7/14), 145 So. 3d 288, 299 (“Nor have we extended the exclusionary rule to include

non-constitutional violations of statutes which are not designed to protect the privacy

interests of citizens. ‘When the statutory limitation (or duty) alleged to have been

violated by the officer is not designed to implement fundamental rights of privacy,

this court should not employ the exclusionary rule as a device to enforce such

legislative directives.’”); State v. Barrilleaux, 620 So. 2d 1317, 1321 (La. 1993)(“The

affiant in the present case violated the requirements of La.Code Crim.Proc. art. 162

by not including in the affidavit all the information necessary to establish probable

cause. Because Article 162 was designed to prevent unconstitutional invasions of

privacy interests, the exclusionary rule may be used to prevent violations of these

statutory requirements.”); State v. Bickham, 404 So. 2d 929, 933 (La. 1981). Because

Article 895(A)(13)(a) protects certain privacy interests of probationers by placing

limitations on warrantless searches of their residences, we find the violation of Article

895(A)(13)(a) in this case constituted an unreasonable search and invasion of Ms.

Brignac’s privacy under Article I, §5 of the Louisiana Constitution. For these reasons,

we hold the evidence is properly excluded and the district court correctly granted

defendant’s motion to suppress the evidence. See La. C.Cr. P. art. 703(C).

CONCLUSION

La. C.Cr. P. art. 895(A)(13)(a) requires that a warrantless search of a

probationer’s residence be conducted by the probation officer specifically assigned

20
to that probationer. The determination of whether a probation officer is “assigned to”

a particular probationer is a factual finding to be made by the district court. Based on

the record in this case, we find no error in the district court’s finding that the search

of Ms. Brignac’s residence was not conducted by the probation officer assigned to

her. Accordingly, we hold the search failed to comply with the requirements of

Article 895(A)(13)(a). We further find this statute provides certain privacy

protections for probationers, and thus its violation resulted in an unconstitutional

search under Article I, §5 of the Louisiana Constitution. Because the search was

unconstitutional, we hold the evidence obtained in the search should be excluded

pursuant to La. C.Cr. P. art. 703(C). The district court correctly granted defendant’s

motion to suppress the evidence.

Therefore, the ruling of the court of appeal is reversed, and the ruling of the

district court is reinstated.

DECREE

REVERSED AND REMANDED TO THE DISTRICT COURT FOR

FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

21
10/18/17

SUPREME COURT OF LOUISIANA

No. 2017-KK-0448

STATE OF LOUISIANA

VERSUS

KAYLA BRIGNAC

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS

CRICHTON, J., concurs and assigns reasons

I concur in the majority’s conclusion in this matter, but write separately to

emphasize that the plain language of the statute at issue, art. 895(A)(13)(a) of the

Louisiana Code of Criminal Procedure, necessarily dictates the result. Specifically,

the majority appropriately finds the district court correctly gave the “assigned to”

language its generally prevailing meaning. Based upon our rules of statutory

construction, I cannot disagree with the majority’s finding in this regard. However,

I do note that the specific portions of the statute at issue which state that a defendant

agrees to searches . . . “by the probation officer or the parole officer assigned to

him. . . .” (emphasis added) are superficial in that, should the legislature find that

the result here was not what was intended, they may change the wording of the

statute without compromising its substance. In my view, it is unlikely that the

legislature intended for a repeat felon to receive the remedy he does here today when

a different officer conducted a search provided for by this same statute. As the

majority aptly notes, defendants on probation have a decreased expectation of

privacy, and as a condition of their probation, consent to searches such as those

outlined in the statute. Consequently, a warrantless search under La. C.Cr.Pr. art.

1
895(A)(13)(a) does not present a constitutional prohibition on its face– if one applies

the plain language of the statute and has only the probation officer or parole officer

“assigned to him” conduct the search. It is for this reason I am constrained to the

terms of the statute, and believe its strict application to the facts of this case mandates

the Court’s decision today.

2