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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 64 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 16th day of October, 2007 , are as follows:

BY KNOLL, J. :

2007-KK-0476

STATE OF LOUISIANA v. HARRY BOYER (Parish of Lafourche) (Possession of Cocaine and Prohibited Drug Paraphernalia) The judgment of the court of appeal is reversed and the judgment of the trial court is reinstated. This case is remanded to the trial court for further proceedings consistent with the views expressed in this opinion. REVERSED and REMANDED. Retired Judge Philip C. Ciaccio assigned as Associate Justice ad hoc, sitting for Associate Justice John L. Weimer, recused. JOHNSON, J., dissents and assigns reasons. TRAYLOR, J., concurs in the result and assigns reasons.

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10/16/07 SUPREME COURT OF LOUISIANA NO. 07-KK-0476 STATE OF LOUISIANA VERSUS HARRY BOYER ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIRST CIRCUIT, PARISH OF LAFOURCHE

KNOLL, Justice* This criminal case comes to us in a pretrial posture after the district court granted the defendant's motion to suppress the evidence seized pursuant to a stop and frisk of defendant, who was standing in the vicinity where a search warrant was to be executed. This set of facts implicates the problematic issues raised in a "search all persons" warrant, as well as the issues concerning the scope of a search pursuant to a Terry stop and frisk. The court of appeal reversed the district court, implicitly finding the search was valid under the "plain feel" exception to the warrant requirement. For the following reasons, we reverse the court of appeal, finding that although the initial detention and Terry frisk was reasonable, the valid scope of the frisk was exceeded when the officer reached into the defendant's pocket to remove and visually inspect an item whose incriminating character was not immediately apparent and thus, not justified by the plain feel doctrine. Additionally, we hold the warrant did not authorize the search of this defendant, as to find otherwise would violate the Fourth Amendment's prohibition of general warrants. Finally, we find this search was not valid as a search incidental to arrest because probable cause did not exist to arrest defendant for the
Retired Judge Philip C. Ciaccio assigned as Associate Justice ad hoc, sitting for Associate Justice John L. Weimer, recused.
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offense of resisting an officer. FACTS AND PROCEDURAL HISTORY From the record, the following facts are discerned. On the evening of July 17, 2006, the Lafourche Parish Drug Task Force, assisted by the Thibodaux Police Department, executed a search warrant at 470 Greenville Street in Raceland. The warrant was acquired on July 11, 2006, based upon an affidavit by Sergeant Paul LaGraize of the Lafourche Parish Drug Task Force. In the affidavit, Sgt. LaGraize declares the task force had identified Antonio Tillman as a mid to upper level crack cocaine distributor and had made a controlled buy of crack cocaine from him on October 20, 2005. In addition, at the end of May, 2006, Antonio Tillman's brother, Bryan Tillman, was arrested for possession of crack cocaine. Bryan Tillman informed the task force that Antonio was supplied by a source in Lafaytette. Through several street operations, task force agents obtained information that a black male known as "Monkey Man" was selling crack cocaine for Antonio Tillman. Sgt. LaGraize obtained information from several confidential informants that narcotic sales were being conducted from a van parked in the backyard of the property. On July 11, 2006, agents observed several men, including Antonio Tillman, congregating near an illegally parked car in front of 470 Greenville Street. The agents exited their vehicle, and Sgt. LaGraize observed a white female, a white male and a black male near the gray colored van in the backyard. Sgt. LaGraize observed the white male to be a known crack cocaine user, who had been arrested the same night as Bryan Tillman. The white female was also known to Sgt. LaGraize as a crack cocaine user. The black male identified himself as Benny Sanders, aka "Monkey Man." Sgt. LaGraize and Sgt. John Champagne observed, in plain view on

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the van floor, steel wool commonly used as a filter when smoking crack cocaine. Sgt. LaGraize also located in plain view a broken crack pipe and several plastic sandwich bags with the corners cut off. The plastic sandwich bags are commonly used to package illegal narcotics for sale. When questioned by Sgts. LaGraize and Champagne, Antonio Tillman gave conflicting answers to the officers' inquiries concerning ownership of the van. Tillman also stated that Sanders lives in the van because he is homeless. Sgt. LaGraize observed an extension cord running from Tillman's residence (a mobile home) to the van. The residence bearing the municipal address of 470 Greenville Street is described in both the affidavit and warrant as a white trailer with maroon brown trim that is parallel to Green Street with a rectangular cement slab in the front yard. Based upon the information in the affidavit, a search warrant was issued based upon the probable cause to believe that there was a quantity of illegal narcotics, money derived from their sale, drug equipment and records of illegal narcotic sales at 470 Greenville Street. The warrant stated: This is, therefore, to command you, in the name of the State of Louisiana, with the necessary and proper assistance, in the day or night time [sic], or on Sundays or holidays, to (search the person(s). Curtilidges [sic] vehicles, and residence of 470 Greenville Street, Raceland, LA. At the time of the execution of this search warrant. (enter into or unto or any appurtenances thereto), and there diligently search for Illegal Narcotics, money derived from the sale of illegal narcotics, and narcotic equipment At the time the warrant was executed, about a dozen officers arrived at the residence in a large Penske truck. The officers, which included SWAT team members in tactical gear, swiftly left the truck in a dynamic fashion to storm the property. Officer Eno Guillot of the Thibodaux Police Department testified that it was his

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function to ensure that persons found at the scene during the execution of the warrant did not leave. Sgt. LaGraize testified that several officers were instructed to make contact with individuals standing outside on the property to ensure that nobody shoots the officers entering the residence and also to keep anyone from fleeing. Officer Guillot observed a white male [later identified as the defendant] standing about twenty feet from the front right corner of the mobile home. Unbeknownst to the officers, defendant, an attorney, was there allegedly to meet with his client, Bryan Tillman. Officer Guillot was about thirty feet from the defendant. Officer Guillot testified that the defendant was holding a cell phone up to his ear with his right hand and appeared to be talking. When the defendant observed Officer Guillot, he brought the phone down and begin frantically digging in his left pocket. Officer Guillot ran toward the defendant, shouting "police" and ordering him to get on the ground and remove his hand from his pocket. Officer Guillot made these commands at least four times. In Officer Guillot's experience, weapons are usually involved with drugs, and he believed defendant could have had a small weapon in his pocket. The defendant did not remove his hand from his pocket or get on the ground as commanded. Officer Guillot then grabbed the defendant's wrist, took the defendant to the ground and handcuffed him. Officer Guillot testified that the defendant was not combative and the defendant allowed him to do what he needed to do. The defendant never said anything to Officer Guillot, did not flee and he cooperated when Officer Guillot removed his hand from his pocket and took him to the ground. Officer Guillot conducted a patdown search of the defendant's clothing for a weapon and detected a large unknown object in defendant's pocket. He pulled

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the object out and discovered it was a cell phone.1 After removing the cell phone from the defendant's pocket, Officer Guillot continued his search. He admitted that he continued to search the defendant after he had recovered the cell phone, the singular item that could have been mistaken for a weapon. He felt "two small round objects" in the defendant's left pocket. He stated he could "not exactly" identify what those objects were. However, they felt "abnormal. In my past experiences they could have been mistaken for any kind of narcotic, crack rock, things like that." He admitted he really did not know what they were at the time. He removed all the items from defendant's left front pants pocket and visually inspected the two small round objects. He determined they were charcoal filters used for smoking crack. By bill of information defendant was charged with possession of a controlled dangerous substance in violation of La. Rev. Stat. 40:967, as the charcoal filters/wire mesh allegedly tested positive for cocaine. Defendant moved to suppress the evidence, arguing the officers did not possess specific facts or rely upon specific circumstances to justify a belief that defendant was armed and dangerous so as to support a Terry limited frisk, and that defendant's mere proximity to drugs or presence on the property did not give rise to probable cause for arrest or reasonable suspicion to conduct a patdown of defendant's outer clothing. The State opposed the defendant's motion, arguing the seizure was valid under one or all of three different legal theories. First, the warrant to search the particular

Officer Guillot's testimony on cross-examination suggests that officers recovered two cell phones from the defendant although it appears that only one phone was recovered during the search of his person. The officer stated that defendant had a cell phone in his right hand and was apparently using it when he saw the officer approach. Defendant then took the "phone from his ear and br[ought] it down with him to his pocket." However, it is not clear from the officer's testimony whether this cell phone was the second one recovered from defendant or the one recovered from his left pants pocket when the officer patted him down. The officer testified that the defendant had two cell phones. 5

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premises for contraband impliedly grants the limited authority to detain the occupants. Where a warrant was issued based upon information that the occupant of the residence participated in the sale of drugs shortly before the issuance of the warrant, the reasonable scope of the warrant extended to a search of the resident's pockets who was on the premises when the warrant was executed. State v. Beals, 410 So.2d 745 (La. 1982). Second, the defendant's actions constituted a violation of La. Rev. Stat. 14:108, a knowing and willful interference and obstruction of the officers' attempt to execute the search warrant for which he was subject to arrest and thus, the search was incidental to arrest. Finally, the defendant's presence at the scene and his behavior gave the officers probable cause to believe defendant was in possession of contraband or a weapon.2 After the hearing on the motion to suppress, the trial court granted the motion. Relying upon Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the court ruled the warrant did not give the officers authority to search the defendant merely because he was present; there was no reasonable belief that defendant was involved in any criminal activity or was armed and dangerous. The court rejected the State's argument that the warrant authorized the search of the defendant. Neither did the court accept the State's reliance upon State v. Washington, 98-545 (La. Ct. App. 5 Cir. 12/16/98), 725 So.2d 587 and State v. Johnson, 534 So.2d 529 (La. Ct. App. 5 Cir. 1988) to support its argument that defendant violated La. Rev. Stat. 14:108, resisting an officer. The court observed that the defendant in Washington disobeyed an officer's lawful commands to stop. The court found Johnson clearly

distinguishable where the defendant was yelling obscenities and interfering with the execution of a search warrant. However, in the present case, the court could not find

This last argument of the State is properly encompassed within our address of the scope of the warrant with regard to this defendant and the Terry frisk of the defendant. 6

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the defendant's actions of refusing to take his hand out of his pocket and get on the ground quickly enough, without more, to constitute the offense of resisting an officer. The court also rejected this search as a Terry search, implicitly finding there was no ground for a Terry frisk as there was no support to find defendant was committing or about to commit a crime. Moreover, even if it was a permissible Terry frisk, the unknown object was a cell phone and the officer certainly did not think it was a weapon. The State sought supervisory writs from the court of appeal, which granted the writ and reversed. That court found that under the circumstances presented, Officer Guillot was justified in dispelling the fear that the defendant was in possession of a weapon. The appellate court found the search of the defendant's pocket and seizure of the contraband was valid considering that Officer Guillot testified that the two round objects felt "abnormal" and in his past experiences they "could have been mistaken for any kind of narcotic, crack rock." We granted the defendant's writ application, State v. Boyer, 07-476 (La. 4/27/07), 955 So.2d 670, to study the correctness, vel non, of the lower courts' resolution of these troubling issues. DISCUSSION The Fourth Amendment, applicable to the states through the Fourteenth Amendment, provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. The Fourth Amendment is not a guarantee against all searches and seizures, only those that are unreasonable. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). We will start our discussion with the issue of whether Officer Guillot had authority to search

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the defendant pursuant to the "search the person(s)" clause in the warrant. Search All Persons The United States Supreme Court has rejected the argument that search of persons present where a search warrant is being executed should be permitted when police have a reasonable suspicion that such persons are connected with drug trafficking and may be concealing the contraband. Ybarra, 444 U.S. at 94-96, 100 S.Ct. at 344. In Ybarra, police had obtained a warrant to search a tavern and the person of "Greg" the bartender for heroin, based on information from a reliable confidential informant. Upon entering the tavern, the officers announced their purpose and advised all those present they were going to conduct a cursory search for weapons. The officers frisked each one of the 9 to 13 customers present; one officer initially frisked Ybarra, feeling a cigarette pack with objects in it. The officer conducted a second frisk of Ybarra, removed the cigarette pack from Ybarra's pants pocket and found heroin. In finding the contraband recovered from Ybarra

inadmissible, the Court reiterated that "a person's mere propiniquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Ybarra, 444 U.S. at 91, 100 S.Ct. at 342, citing, Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968). Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. Ybarra, 444 U.S. at 91, 100 S.Ct. at 342. Although the search warrant, issued upon probable cause, gave the officers authority to search the premises and "Greg," it gave them no authority to invade the constitutional protections possessed individually by the customers. Id., 444 U.S. at 92, 100 S.Ct. at 342. Moreover, the police executing the search warrant could not invoke Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d

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889 (1968), to frisk a patron unless the officers had individualized suspicion that the patron might be armed or dangerous. Ybarra, 444 U.S. at 94, 100 S.Ct. at 343. The Court held in Ybarra that probable cause was absent to search a tavern patron when the search warrant, which specified search of the tavern and the person of "Greg," was executed. As "open-ended" or "general" warrants are constitutionally prohibited by the Fourth Amendment, a fortiori, a warrant to search a place cannot normally be construed to authorize a search of each individual in that place. Ybarra, 444 U.S. at 92, n.4, 100 S.Ct. at 342. However, the Court also noted that because the warrant for the tavern provided no basis for departing from this general rule, it "need not consider situations where the warrant itself authorizes the search of unnamed persons in a place and is supported by probable cause to believe that persons who will be in the place at the time of the search will be in possession of illegal drugs." Id. A leading commentator has observed this seems to indicate that there is no inherent defect in a search-all-persons-present warrant if the information supplied to the judicial officer supports the conclusion that it is probable anyone in the described place when the warrant is executed is involved in the criminal activity in such a way to have evidence on his person. 2 Wayne R. LaFave, Search and Seizure,

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