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Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 3 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 21st day of January, 2009, are as follows:

PER CURIAM: 2008-KK-1002 STATE OF LOUISIANA v. BRANDON WHITE (Parish of Orleans) Calogero, Chief Justice, retired, participated in the decision which was argued prior to his retirement. Accordingly, the Fourth Circuit's order is vacated, the trial court's judgment denying the motion to suppress is reinstated, and this case is remanded for further proceedings consistent with the views expressed herein. COURT OF APPEAL REVERSED; JUDGMENT OF THE DISTRICT COURT REINSTATED; CASE REMANDED. JOHNSON, J., dissents.

01/21/09

SUPREME COURT OF LOUISIANA

No. 08-KK-1002 STATE OF LOUISIANA v. BRANDON WHITE

On Writ of Certiorari to the Fourth Circuit Court of Appeal

PER CURIAM:* The state has charged defendant with a violation of La.R.S. 14:95.1, convicted felon in possession of a firearm. After a hearing on defendant's motion to suppress the handgun taken from him by New Orleans Police Officers, the trial court upheld the validity of the seizure. However, the Fourth Circuit granted defendant's writ of review and reversed the lower court's ruling. State v. White, 08-0389 (La. App. 4th Cir. 4/9/08). The state sought review of that order in this Court. For the reasons that follow, we reverse the Fourth Circuit's order, reinstate the ruling of the trial court, and remand this case for further proceedings.

Calogero, Chief Justice, retired, participated in the decision which was argued prior to his retirement.

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The evidence presented at the hearing on the motion to suppress established the following. On the evening of November 11, 2007, Officers Stamps and Williams, conducting a routine patrol, pulled over a vehicle they observed in the area of Chartres and Canal Streets, on the edge of the French Quarter in New Orleans. According to the officers, the windows of the vehicle were so heavily tinted that they could barely make out the interior of the car or a temporary tag placed in the rear window. After stopping the vehicle, Officer Stamps went to the driver's side and Officer Williams approached on the passenger side. While Stamps spoke with the driver of the car and determined that he was operating the vehicle although his license had been suspended, Officer Williams peered through the open window on the passenger side and observed defendant sitting in the vehicle with a handgun on his lap. According to Officer Williams, defendant asked if he could hand the weapon to her. The officer instead reached into the vehicle, took custody of the gun, and walked back to her patrol unit to run a background check on the weapon. Defendant produced a bill of sale for the weapon and a computer check run from the patrol unit determined that the gun had not been stolen and that he lawfully owned it. Officer Williams also determined from the computer check that defendant appeared to have had several prior arrests but no prior felony convictions. Officer Stamps placed the driver of the vehicle under arrest and made arrangements for a relative to retrieve the vehicle, as defendant did not possess a
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driver's license. Stamps also informed defendant that for his safety and the safety of the general public, the officers would retain custody of the weapon and that he could retrieve it on the next business day by appearing at police headquarters and presenting his identification. Officer Stamps conceded at the hearing that it would not have been against the law for defendant to have walked away on Canal Street with a gun fully exposed in his hand. However, the officer explained that there were "a lot of tourists out there, a lot of hotels with cameras, anything could have happened upon him leaving and I was not going to take that chance." At the same time, Officer Stamps acknowledged that while defendant had appeared somewhat nervous to Officer Williams, he was "just a little anxious . . . he wanted the gun back." The officers secured the vehicle on the scene and waited for the driver's relative to arrive to remove the vehicle. Although not sure how defendant left the scene, Officer Williams "supposed" that he just walked away. At the conclusion of the traffic stop, which led to the arrest of the driver for operating the vehicle on a suspended license and for driving a vehicle with illegally tinted windows, Officer Williams then delivered the gun to the property and evidence room at police headquarters. On the following day, Sergeant Jeff Sislo, acting in a supervisory capacity, reviewed the report of the incident by Officer Williams. Sislo decided to double check Williams's work and ran a search of defendant's name in the police department's computer system. Sergeant Silso observed that the computer records
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listed defendant as having no prior felony convictions. However, he also noticed data revealing that defendant had been on probation for distribution of marijuana, which Silso knew was a felony offense, from 1998 to 2002. Sergeant Sislo then used his computer to access the docket master of the case from Orleans Parish Criminal Court and confirmed that defendant had, in fact, pleaded guilty to distribution of marijuana in 1998 and that he was therefore a convicted felon. After confirming defendant's status, Sergeant Sislo went to the property room and redesignated the handgun as evidence to keep it from being released. He then helped Officer Williams prepare a warrant for defendant's arrest based on an accompanying affidavit which fully set forth the circumstances under which the police had obtained the handgun, retained custody of it, and then determined that defendant had a prior felony conviction and had therefore committed a violation of La.R.S. 14:95.1. A magistrate signed the warrant on the night of November 13, 2007, and defendant's arrest followed three days later. According to the incident report filed into the record, the arrest occurred at police headquarters when defendant arrived to pick up his gun and the officers on duty discovered the outstanding warrant issued by the magistrate. In denying defendant's motion to suppress, the trial court took into account the explanation offered by Stamps for the decision to keep the weapon and concluded that "it was reasonable to allow the officers to take the gun and put the gun into central evidence and property and allow the defendant to come in the next
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day and pick it up." On that premise, the court ruled that the police then acquired probable cause to arrest defendant and to retain the weapon when Sergeant Sislo double checked defendant's name in the computer system and determined his status as a convicted felon. However, in reviewing that judgment, the court of appeal agreed with defendant that the officers had failed to offer a reasonable explanation for confiscating defendant's weapon which appeared, from all of the circumstances known to them at the time, to have been in his lawful possession. To the extent that "the State had no reason to believe that the defendant was committing a crime at the time that the defendant's property was seized," the court of appeal concluded that "the seizure violated the state and federal constitution." White, 08-0389, p. 1 (citing United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). We agree with the court of appeal that the Supreme Court's decision in Place stands generally for the proposition that "the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person's [effects] on less than probable cause." Place, 462 U.S. at 709, 103 S.Ct. at 2645. The decision specifically addressed circumstances in which the police seized the defendant's luggage after he landed at his destination at La Guardia Airport in New York and removed the suitcases to Kennedy Airport where they held them for approximately 90 minutes before a drug detection dog
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arrived and alerted on the luggage. The officers thereby acquired probable cause to obtain a search warrant and to retrieve the cocaine hidden inside the suitcases. In this context, the Supreme Court rejected the argument that "seizures of property are generally less intrusive than seizures of the person," observing that "[p]articularly in the case of detention of luggage within the traveler's immediate possession, the police conduct intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary." Id., 462 U.S. at 708, 103 S.Ct. at 2645. The Supreme Court concluded that "[t]he length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause." Place, 462 U.S. at 709, 103 S.Ct. at 2645. Thus, while declining to "adopt any outside time limitation for a permissible Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] stop," the court noted that "we have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case." Id., 462 U.S. at 709-10, 103 S.Ct. at 2646 (citing Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed. 2d 824 (1979)(prolonged detention of defendant on less than probable cause at station house for investigation violated Fourth Amendment). In the present case, although defendant's privacy or liberty interests were not implicated by the officers' decision to retain custody of the gun, a seizure unquestionably occurred for purposes of the Fourth Amendment and La. Const. art.
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