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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 15 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 22nd day of February, 2007 , are as follows:

BY JOHNSON, J.:

2005-KK-2248

STATE OF LOUISIANA v. TALVIN WARREN (Parish of Iberia) Thus, we find the court of appeal erred in affirming the trial court's ruling granting the defendant's motion to suppress the evidence. Accordingly, the decisions of the lower courts are reversed and this matter is remanded to the district court for further proceedings consistent with this opinion. REVERSED AND REMANDED. CALOGERO, C.J., concurs and assigns reasons. KIMBALL, J., dissents for the legal reasons cited by Traylor, J. VICTORY, J., concurs in the result by Weimer, J. TRAYLOR, J., dissents and assigns reasons. WEIMER, J., concurs in the result and assigns reasons.

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SUPREME COURT OF LOUISIANA No. 05-KK-2248 STATE OF LOUISIANA v. TALVIN WARREN On Writ of Certiorari to the Court of Appeal, Third Circuit Parish of Iberia
JOHNSON, Justice The defendant, Talvin Warren, was charged by bill of information with possession of marijuana with intent to distribute in violation of LSA-R.S 40: 966(A)(1). The trial court heard the motion to suppress the evidence and granted defendant's motion to suppress the evidence relative to the 12 to 15 pounds of marijuana seized from the interior of the black duffel bag. The State sought review of the trial court's ruling on the motion to suppress the evidence. On writ, the Third Circuit upheld the trial court's granting of defendant's motion to suppress the 12 to 15 pounds of marijuana seized from the interior of the black duffel bag and denied the State's writ application. State v. Warren, 05-0871 (La. App. 3d Cir. 9/2/05). We granted certiorari in this criminal case in order to determine whether the warrantless search of the black duffel bag by the police officers was objectively reasonable under the Fourth Amendment of the United States Constitution. State v. Warren,05-2248(La. 9/15.06), 936 So. 2d 1251. FACTS AND PROCEDURAL BACKGROUND On April 20, 2003, Officer Salvador Buscaino, a seven-year veteran of the Iberia Parish Sheriff's Office narcotics unit was working a security detail at the Best

Western Motel in New Iberia, Louisiana. At approximately 1:00 a.m., he observed an unknown female in a silver vehicle with Texas license plates drive in the parking lot of the Best Western. An unknown male later identified as Defendant Talvin Warren, ran toward the silver vehicle and got into the passenger side of the vehicle, but then got out and re-entered the vehicle in the driver's seat, while an unknown person exited the passenger side of the vehicle and went into room 222 in the motel. Officer Buscaino approached the vehicle and asked defendant if everything was okay, and defendant responded that all was fine and that he was staying in room 222. The officer continued to make his security rounds and then parked his vehicle near room 222. At that time, he noticed someone in room 222 peeping out from behind the curtains watching him as he spoke with the defendant. Officer Buscaino checked and determined that the Texas license plate was registered to a rental car. With the help of the front desk clerk, Officer Buscaino learned that room 222 was registered to someone named "Mr. Ramos," who had given an Arkansas driver's license. Officer Buscaino reported his findings to his supervisor, Sgt. Kevin Judice, and they decided to conduct a "knock and talk" investigation at room 222. At approximately 2:30 or 3:00 a.m., the two officers, accompanied by their ranking officer, Lt. Darren Denise, and Corporal Seth Pellerin, all dressed in police uniforms, knocked at the door of room 222. Defendant answered the door, and the police officers detected a strong odor of marijuana smoke coming from the room and the defendant's person. From the open doorway, one of the officers observed a small plastic baggie of what appeared to be marijuana on a bed inside the room. Based on the police's observation of the small baggie of marijuana and the smell of marijuana, the officers arrested defendant at the doorway, conducted a safety pat down of his

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person for weapons, cuffed his hands behind his back, and placed him seated in a chair by the doorway. The police officers immediately entered the room and conducted a protective sweep to ascertain if any of the other occupants were on the premises, looking in the bathroom, closet, and under beds, but finding no other persons. Officer Buscaino advised defendant of his Miranda rights, and thereafter, defendant admitted to smoking a "blunt" (hand-rolled marijuana cigar) in the room earlier, and admitted that the partially-smoked remains of that "blunt" in the ashtray were his. Defendant further admitted that the small baggie of marijuana on the bed was also his. During the officers' protective sweep of the room for other occupants, for weapons, and for any evidence that could be destroyed by defendant, the officers opened a large black duffel bag on one of the beds and emptied its contents. From that bag, two large bundles spilled forth, bound separately in white plastic and wrapped with duct tape. One of the officers cut through the white plastic, revealing a layer of mustard before the next layer of plastic packaging, which ultimately concealed 12 to 15 pounds of marijuana. Upon discovery of the bundles of marijuana, defendant did not deny possession of the black bag and its contents. The protective sweep of the room revealed that the other occupants of the room, Lawrence Edward Roan, and Juakena Ramos were not present. However, defendant informed the police officers that they were at the motel bar and would return soon. The officers and defendant waited in the room until the others returned, some two hours later. Roan was arrested. Ramos, who fled, was ultimately apprehended. The police officers did not find any weapons in the room. The state charged defendant with possession of marijuana with intent to distribute. On April 29, 2003, over a week after his arrest and while he was

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incarcerated at the Iberia Parish Jail, defendant sent word to the officers that he would like to talk with them. After the police re-advised defendant of his Miranda rights, defendant offered to cooperate with them in drug investigations and told them that he brings people to a Hispanic male in Brownsville, Texas, and helps them buy large amounts of marijuana and powder cocaine. In the videotaped interview, defendant further claimed to know members of the Mexican Mafia and could supply names to the police. Defendant filed a motion to suppress the evidence and statements, and the court conducted hearings on March 31, 2004; April 1, 2004; and October 6, 2004. Defendant testified at the hearing and admitted to possessing the small baggie of marijuana and the partially-smoked marijuana cigar in the ashtray. However, defendant denied possessing any of the luggage in the room, including the black duffel bag in question, and further claimed that the room was not his. The trial court ruled that the officers acted reasonably in conducting a "knock and talk" investigation of defendant's motel room. In addition, the trial court found that the strong smell of marijuana surrounding defendant's room gave the officers probable cause to conduct a warrantless search for the source of that marijuana. The trial court further determined that after observing a small baggie of marijuana in plain view, the officers had probable cause to arrest defendant. However, as to the 12 to 15 pound bundles of marijuana located in the black duffel bag, the judge found no exigency to justify the warrantless search of the inside of the bag under the facts herein, since defendant was alone in the room, arrested and handcuffed with hands behind his back at the outset, positioned in a chair at the room's entrance some six feet away from the duffel bag, with two or three officers surrounding him. Consequently, the judge granted defendant's motion to suppress

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relative to the 12 to 15 pounds of marijuana seized from the interior of the black duffel bag, opining that while the officers remained in the motel room for an additional two hours waiting for the other occupants to return, one of the four officers could have sought a search warrant for the duffel bag. Likewise, having suppressed the evidence, the judge ruled that there was no probable cause for defendant to be charged with possession of marijuana with intent to distribute, and found probable cause only for a charge of simple possession of the small baggie of marijuana found open on the bed, and reduced defendant's bond obligation accordingly. The court of appeal concluded and reasoned: The burden on the State to prove that there were exigent circumstances to justify a warrantless search. LSA-C.Cr.P. art. 703(D). The duffel bag was outside the immediate area and control of defendant as defined by Chimel v. Calfornia, 395 U.S. 752, 89 S. Ct. 2034(1969). The officers had the means and time to obtain a search warrant. Therefore, the trial court did not err when it found that the warrantless search of the duffel bag, which revealed a large amount of marijuana, was an illegal search and that the evidence, which resulted from the illegal search was inadmissible.(Emphasis ours). State v. Warren, 05-0871 (La. App. 3d Cir. 9/2/05)

LAW AND DISCUSSION "Knock and Talk" is a law enforcement tactic where a police officer, who possess some information that they believe warrants further investigation, but that is insufficient to constitute probable cause for a search warrant, approach the person suspected of engaging in illegal activity at the person's residence (even knock on the front door), identify themselves as police officers, and request consent to search for the suspected illegality or illicit items. See, e.g., People v. Frohriep, 247 Mich. App. 692, 702, 637 N.W.2d 562 (2001);United States v. Hardeman, 36 F.Supp. 2d 770, 777 (E.D.Mich., 1999); State v. Smith, 346 N.C. 794, 796, 488 S.E.2d 210 (1997);

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United States v. Zertuche-Tobias, 953 F.Supp. 803, 829 (S.D.Tex., 1996). Knock and talk investigation "involves officers knocking on the door of a house, identifying themselves as officers, asking to talk to the occupant about a criminal complaint, and eventually requesting permission to search the house." State v. Reinier, 628 N.W.2d 460, 466 (Iowa 2001). "If successful, it allows police officers who lack probable cause to gain access to a house and conduct a search." Id. Both federal and state appellate courts which have considered the question, including the United States Court of Appeals for the Seventh Circuit, have concluded that the knock and talk procedure does not, per se, violate the Fourth Amendment. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567, 575 (2002); see also United States v. Johnson, 170 F.3d 708, 720 (7th Cir.1999); United States. v. Jones, 239 F.3d 716, 720 (5th Cir.2001); Scott v. State, 366 Md. 121, 782 A.2d 862, 872-73 (2001); People v. Frohriep, supra. "Though the 'knock and talk' procedure is not automatically violative of the Fourth Amendment, it can become so." Keenom v. State, 349 Ark. 381, 80 S.W.3d 743, 747 (2002). The constitutional analysis begins with the knock on the door. Scott v. State, 366 Md. 121, 782 A.2d 862, 867 (2001). The 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 867-68. Louisiana jurisprudence allows the "knock and talk" approach of police. See, State v. Davenport, 32-329 (La. App.2d Cir.9/22/99), 801 So.2d 380; State v. Green, 598 So.2d 624 (La. App. 3d Cir.1992). Knocking on a door is an "age old request for permission to speak to the occupant." State v. Haywood, 00-1584 (La. App.5 Cir.3/28/01), 783 So.2d 568, quoting State v. Sanders, 374 So.2d 1186, 1188 (La.1979). When a door is opened in response to a knock, it is a consent of the
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occupant to confront the caller, and there is no compulsion, force or coercion involved. Id. This case presents not the challenge to the knock and talk, but rather the question of when is it permissible to search a suitcase or sealed package within the premises after a person has been arrested under the guidelines set forth by the United States Supreme Court in Chimel v. Calfornia, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 2d 685(1969). In Chimel, the United States Supreme Court clarified the standard applicable in the "search incident to arrest" situation. ... When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area `within his immediate control'-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

In its brief, the State argues that the search of the black duffel bag on the bed of defendant's motel room was a permissible search incident to his lawful arrest, as the bag was only six feet from defendant. In the alternative, the State suggests that exigent circumstances governed the officers' need to act because three other persons had access to the motel room and though they were in the motel bar at the time of defendant's arrest, they would soon return and could have destroyed the evidence or jeopardized the officers' safety. Finally, the State posits that since defendant denied any ownership interest over the black duffel bag, he had no expectation of privacy, and thus a search of the black duffel bag was reasonable as

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a search of abandoned property. The Fourth Amendment1 prohibits both unreasonable searches and unreasonable seizures, and its protection extends to both `houses' and `effects'. Similarly, the provisions of the Louisiana Constitution Article 1,

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