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Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #076 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 1st day of December, 2009, are as follows:

BY GUIDRY, J.: 2009-KK-1589 STATE OF LOUISIANA v. MILTON HUNT (Parish of Orleans) Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tempore, participating in the decision. For the reasons stated herein, the judgment of the district court granting the defendant's motion to s uppress is vacated and the case is r emanded to the dis trict court for fu rther proceedings. DISTRICT COURT JUDGMENT VACATED; CASE REMANDED TO THE DISTRICT COURT. JOHNSON, J., dissents. VICTORY, J., concurs.

12/01/09 SUPREME COURT OF LOUISIANA No. 2009-KK-1589 STATE OF LOUISIANA VERSUS MILTON HUNT ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FOURTH CIRCUIT, PARISH OF ORLEANS GUIDRY, Justice* By bill of information, the defendant, Milton Hunt, is charged with illegal possession of a stolen firearm in violation of Louisiana Revised Statute 14:69.1. The defendant entered a plea of not guilty and, subsequently, moved to suppress both the physical evidence and his custodial statement. After conducting a hearing, the trial court granted the motion upon finding the testimony of the only witness, the arresting officer, was not credible. The State of Louisiana (hereafter, the "State") sought review in the court of appeal, which found no error in the trial court's ruling. We granted certiorari in this matter to address whether the trial court erred in suppressing the evidence based solely on its credibility determination. Upon review, the trial court's credibility determination was not premised on a global rejection of the arresting officer's testimony. Rather, the court's credibility assessment was based on factual findings regarding the seizure of the firearm and circumstances surrounding the custodial statement that are not supported by the record. Moreover, the court's credibility determination is irrelevant insofar as the record and controlling law establish the State sustained its burden of proving sufficient probable cause to support the admissibility of the physical evidence and custodial statement. Therefore, for the reasons that follow, we vacate the district
Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tempore, participating in the decision.
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court's ruling granting the motion to suppress and remand the case to the district court for further proceedings. FACTS AND PROCEDURAL HISTORY The instant criminal proceedings stem from a routine traffic stop conducted by Officer Corey Himel of the New Orleans Police Department (hereafter, "NOPD"). Officer Himel, the only witness at the motion to suppress hearing, testified regarding the facts surrounding the traffic stop that ultimately led to the defendant's arrest and his alleged custodial statement. Specifically, Officer Himel's testimony revealed that, at approximately 10:00 p.m. on the night of November 12, 2008, he was operating a marked police unit on West End Boulevard when he observed the windows on the vehicle traveling directly in front of him had "very heavy tint." He described the tint as so dark that a person "couldn't even see the driver's silhouette through the window." Officer Himel decided to execute a traffic stop based on his belief that the tint was in excess of the legal limitations set forth in Louisiana Revised Statute 32:361.1.1

Louisiana Revised Statute 32:361.1, entitled "View outward or inward through windshield or windows; obscuring prohibited," provides in pertinent part: A. As used in this Section and regulations applicable thereto, the following terms shall have the following meanings, unless the context of use clearly indicates otherwise: (1) "Sun screening device" means a film material or device that is designed to be used in conjunction with motor vehicle safety glazing materials for reducing the effects of the sun. (2) "Light transmission" means the ratio of the amount of total light to pass through the product or material, including any glazing material, to the amount of total light falling on the product or material and the glazing. ***** C. The provisions of this Section do not apply to any of the following: (1) A sun screening device when used in conjunction with automotive safety glazing materials on the front side window, with a light transmission of at least forty percent, all tolerances included, side window behind the driver with a light transmission of at least twenty-five percent, all tolerances included, and rearmost windows with a light transmission of at least twelve percent, all tolerances included. All sun screening devices shall not have a luminous reflectance of more than twenty percent. 2

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After signaling for the vehicle to pull over, Officer Himel noticed the defendant, the driver of the vehicle, make some movements toward the front floorboard. He observed this through the rear window. Officer Himel was

questioned by the trial court as to how he could see the defendant's movement through the allegedly excessive tint. He explained that he stopped the defendant's vehicle due to an illegal tint on the side windows, not the rear window. He stated he first saw the tint on the side windows when the defendant turned the corner onto a side street. Officer Himel further clarified that he observed the defendant's suspicious movements through the rear window when he was approximately one to two car lengths away and his headlights shining in the defendant's car as it pulled over. He elaborated that, while the rear window was tinted, it was not as dark as the side windows. Officer Himel also testified about the warrantless search subject of the motion to suppress. According to his testimony, upon pulling the defendant's vehicle over, Officer Himel got out of his patrol car, approached the defendant's driver's side, and asked the defendant to roll down his window. When the defendant complied, the officer noticed that he was not wearing a seatbelt. The officer asked the defendant to step out of the vehicle. After the defendant exited his vehicle, Officer Himel shined a flashlight on the floorboard of the driver's seat to see if the defendant "had thrown something down there." The light revealed the butt of a 40-caliber semiautomatic handgun sticking out from underneath the driver's seat. Officer Himel retrieved the weapon and discovered by its insignia that it was an NOPD issued service weapon. He confirmed through radio transmission that the weapon was reported stolen by an NOPD employee. Officer Himel informed the defendant that he was under arrest for possession of stolen property and handcuffed him. The

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defendant was advised of his Miranda rights, which the officer attested at the hearing the defendant acknowledged he understood.2 In addition to issuing a traffic ticket for the seatbelt violation, Officer Himel also issued the defendant a citation for the illegal tinting. Officer Himel testified the light transmission device he used on the side windows of the defendant's vehicle registered the driver's window with a light transmission of only five-percent, indicating the window was virtually opaque. See La. R.S. 32:361.1(C)(1), note 1, supra.3 Last, Officer Himel testified regarding the circumstances surrounding the defendant's custodial statement. Within minutes of arriving at the police station for booking and while writing his report, Officer Himel casually asked the defendant where he had acquired the gun. He testified he did not anticipate a response, and was surprised when the defendant replied that he purchased the gun for $100 from an individual named Tyrone Claiborne and that Claiborne had other weapons available for sale. The officer neither recorded the defendant's statement, nor obtained the defendant's signature on a waiver of Miranda rights form. At the close of the hearing, the trial court granted the motion to suppress the physical evidence and the custodial statement based on the absence of probable cause. The only reasons cited by the court were those taken from her remarks when she

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966), the United States Supreme Court set forth the doctrine that the prosecution may not use a statement, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. These safeguards, commonly known as the "Miranda warnings," are as follows: Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. Id. Officer Himel explained that he did not have a light transmission figure for the rear window because the measuring device in his possession required that the sensors be placed on both the interior and exterior sides of the window, limiting its use to windows that could be rolled down. 4
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openly addressed Officer Himel regarding his testimony: Officer Himel, I do not find your testimony credible in this hearing. I do not know how you can see movement in a car with a tint so dark, you could not see the outline of the person in the car. I'm sure you're a fine officer. But that is my ruling. The fact that you took someone further to a police station and didn't get them to write a statement down, you didn't record them, and you didn't use the documentation, none of this passes the smell test to this Court. The trial court granted the State time to seek supervisory relief from its ruling, but denied the State's request for a stay order pending the resolution of its writ application. Subsequently, the court of appeal issued an order denying the State's writ application and motion to stay the proceedings. This Court granted certiorari to review the correctness of the trial court's action relative to the motion to suppress, and granted a stay pending further orders. State v. Hunt, 09-1589 (La. 7/14/09), 11 So. 3d 501. LAW AND DISCUSSION The State urges the trial court erred in suppressing the weapon and the custodial statement based solely on its credibility determination when the record overwhelmingly favors the admission of the evidence. The State argues, irrespective of the trial court's credibility assessment, Officer Himel's uncontradicted testimony and the pertinent law indicates his actions relating to the traffic stop, seizure of evidence, and the defendant's custodial statement were objectively reasonable, citing State v. Kelley, 05-1905, p. 5 (La. 7/10/06), 934 So. 2d 51, 54 ("[T]he determinative question in the present case is not whether the police were right or wrong in claiming that they had probable cause . . ., but whether their conduct up to that point was objectively reasonable under the Fourth Amendment."). In contrast, the defense asserts, regardless of the reasonableness of Officer Himel's actions, it was within the sound discretion of the trial court to find his testimony not credible based on the

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internal inconsistencies and inaccuracies. As a general rule, this Court reviews trial 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. Hampton, 98-0331, p. 18 (La. 4/23/99), 750 So. 2d 867, 884. When a trial 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. State v. Bourque, 622 So. 2d 188, 222 (la. 1993 (A "trial judge's ruling [on a fact question], based on conclusions of credibility and weight of the testimony, is entitled to great deference and will not be disturbed on appeal unless there is no evidence to support the ruling."). In the motion to suppress which is the subject of these proceedings, the defense contests the constitutionality of the warrantless search, seizure of physical evidence, and the custodial statement subject of these proceedings. The Constitutions of the United States and Louisiana protect individuals from unreasonable searches and seizures. U.S. Const. Amend. IV; LSA-Const. Art. 1,

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