                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                          NEWS RELEASE #036


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 29th day of June, 2017, are as follows:



BY PER CURIAM:



2015-K-2144       STATE OF LOUISIANA    v.   JOSEPH   MICHAEL   MOULTRIE   (Parish   of
                  Terrebonne)

                  Accordingly, we reverse the court of appeal’s ruling and remand
                  for consideration of defendant’s claim that the evidence is
                  insufficient to support the conviction.
                  REVERSED AND REMANDED

                  WEIMER, J., recused.
                  HUGHES, J., dissents for the reasons given by the          court
                  of appeal.
                  CRICHTON, J., additionally concurs and assigns reasons.
                  GENOVESE, J., dissents and assigns reasons.
06/29/17



                      SUPREME COURT OF LOUISIANA

                                  No. 2015-K-2144

                             STATE OF LOUISIANA

                                      VERSUS

                        JOSEPH MICHAEL MOULTRIE

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FIRST CIRCUIT, PARISH OF TERREBONNE


PER CURIAM

      Defendant was found guilty as charged of possession with intent to distribute

cocaine, La.R.S. 40:967(A), based on approximately two ounces of crack cocaine

found by officers in a barbeque grill in a driveway between two trailers, one of

which belonged to defendant’s mother. Officers noticed defendant standing in the

street in front of the trailer at approximately 11 p.m. in a high crime neighborhood.

Defendant quickly retreated out of view into the driveway when he saw the officers

before returning to the street. One officer approached defendant while two others

entered the driveway to see if defendant had discarded drugs or a weapon. They

noticed that there were torn baggies on the ground that appeared to have cocaine

and marijuana residue. At the end of the driveway farthest from the street, one

officer also noticed a grill whose lid was slightly askew with dew that had been

disturbed on the handle. Inside the grill was the large quantity of cocaine.

      When arrested, defendant claimed he lived in the trailer, the grill belonged to

his family, and he disavowed any knowledge of the cocaine but said there was

nothing the officers “could do about it” because the cocaine was found on his

property. At trial, defendant’s sister testified that their mother lives in the trailer

(and she gave a street address for the trailer that was not the same as that provided

by defendant earlier) but defendant does not live with their mother although he
does visit her. Defendant’s sister also testified that their mother owns a barbeque

grill, which she moves to various locations on the property as she uses it but she

does not normally place where this grill was described to have been.

      On appeal, defendant contended the district court erred in denying his

motion to suppress and that the evidence was insufficient to support the conviction.

At the outset, the court of appeal correctly noted that, in reviewing a trial court’s

ruling on a motion to suppress, the reviewing court looks to the totality of the

evidence presented at the motion to suppress hearing and the trial. See State v.

Burkhalter, 428 So.2d 449, 455 (La. 1983) (citing State v. West, 408 So.2d 1302,

1307 (La. 1982)). The court of appeal also found that the officers had reasonable

suspicion to stop and question the defendant based on his location, the hour, the

reputation of the neighborhood, and his reaction when he saw the officers. The

court of appeal determined, however, that the search inside the grill was beyond

the permissible scope of a protective search for weapons that might be used to

harm them. See State v. Moultrie, 14-1535, pp. 5–8 (La. App. 3 Cir. 10/23/15), 182

So.3d 1017, 1022–23. The dissent, in contrast, found no basis to suppress the

evidence because, among other reasons, defendant had no reasonable expectation

of privacy in the grill. See id., 14-1535, p.2, 182 So.3d at 1025–26 (McDonald, J.,

dissenting). After examining the totality of the evidence presented at the motion to

suppress hearing and the trial, we agree with the dissenting judge’s determination.

      The Fourth Amendment to the United States Constitution and Article 1,

Section 5 of the Louisiana Constitution prohibit unreasonable searches and

seizures. A warrantless search is per-se unreasonable unless the state can show it

falls within one of the limited and well-delineated exceptions to the warrant

requirement. State v. Hernandez, 410 So.2d 1381, 1383 (La. 1982) (citing

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971));

                                         2
State v. Zito, 406 So.2d 167, 168 (La. 1981). A limited search incident to an

investigatory stop is one such exception. Minnesota v. Dickerson, 508 U.S. 366,

373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993).

      La. Const. art. I, § 5 extends standing to “[a]ny person adversely affected”

by an invalid search or seizure to raise its illegality. However, the protection is not

unqualified, because La. Const. art. I, § 5 also presupposes that “there must be an

invasion of someone’s rights to privacy before there can be an unreasonable

search.” State v. Perry, 502 So.2d 543, 558 (La. 1986). The test of whether and

when an intrusion on privacy rights occurs as a matter of the Louisiana constitution

is identical to the Fourth Amendment standard, i.e. the person must possess an

objectively reasonable expectation of privacy in the area. Perry, 502 So.2d at 558;

State v. Ragsdale, 381 So.2d 492, 497 (La. 1980) (“The test for determining

whether one has a reasonable expectation of privacy is not only whether the person

had an actual or subjective expectation of privacy, but also whether that

expectation is of a type which society at large is prepared to recognize as being

reasonable.”).

      Although the state ultimately bears the burden of establishing the validity of

a warrantless search, in challenging the search a defendant bears an initial

threshold burden of showing that he had a reasonable expectation of privacy in the

premises. See, e.g., United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547,

2555, 65 L.Ed.2d 619 (1980). Defendant thus was in the difficult position of

having to both distance himself from the barbeque grill, if he hoped to be found not

guilty of possession of the cocaine found inside it, and tie himself more closely to

the grill, if he hoped to obtain a favorable ruling on the motion to suppress. Trying

to do both, he succeeded at neither.



                                          3
       As noted by the dissent in the court below, the ownership of the grill was

never established. See Moultrie, 14-1535, pp. 3–4, 182 So.3d at 1026–27

(McDonald, J., dissenting). It was never seized as evidence and never identified

from any photograph as the grill belonging to defendant’s mother. Although

defendant’s sister testified that her mother used a grill, her testimony did not

establish that the grill in which the drugs were found belonged to defendant’s

mother. Defense counsel, in fact, argued in closing that the state never proved who

owned the barbeque grill or on whose property it sat. Because defendant failed at

the threshold to make a showing of any reasonable expectation of privacy in the

barbeque grill, the inquiry ends. Accordingly, we reverse the court of appeal’s

ruling and remand for consideration of defendant’s claim that the evidence is

insufficient to support the conviction.1

REVERSED AND REMANDED




1
  When issues are raised on appeal both as to the sufficiency of the evidence and as to one or
more trial errors, the reviewing court should first determine the sufficiency of the evidence. State
v. Hearold, 603 So.2d 731, 734 (La. 1992). The reason for reviewing sufficiency first is that the
accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970,
67 L.Ed.2d 30 (1981).
                                                  4
06/29/17



                     SUPREME COURT OF LOUISIANA

                                 No. 2015-K-2144

                            STATE OF LOUISIANA

                                     VERSUS

                       JOSEPH MICHAEL MOULTRIE

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
            FIRST CIRCUIT, PARISH OF TERREBONNE


Hughes, J., dissenting.

      I respectfully dissent for the reasons given by the court of appeal.




                                          1
06/29/17

                     SUPREME COURT OF LOUISIANA

                                 No. 2015-K-2144

                            STATE OF LOUISIANA

                                     VERSUS

                       JOSEPH MICHAEL MOULTRIE

    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST
               CIRCUIT, PARISH OF TERREBONNE


CRICHTON, J., additionally concurs and assigns reasons:

      I agree with the per curiam’s conclusion that the defendant failed to establish

any reasonable expectation of privacy in the barbeque grill, and therefore the

search inside the grill was within the scope of a permissible search for weapons

that might be used to harm law enforcement. I write separately to emphasize the

paramount importance of officer safety in exigent situations such as these. Here,

the officers encountered the defendant at a late hour in a known high-crime area,

and observed the drugs and related paraphernalia on the ground near defendant.

The barbecue grill, which the officers observed had its lid askew and the dew on

the handle disturbed, could have been used to destroy evidence or conceal a gun.

As a result, in my view, the officers were justified in searching the grill to secure

their safety during this rapid encounter with defendant. See Warden, Maryland

Penitentiary v. Bennie Joe Hayden, 387 U.S. 294, 299, 87S.Ct. 1642, 1646, 18

L.Ed.2d 782 (1967) (Court finding warrantless home entry and subsequent search

for a robber reasonable, as the “exigencies of the situation made that course

imperative,” (quoting McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191,

193, 93 L.Ed. 153) and finding that “[t]he Fourth Amendment does not require

police officers to delay in the course of an investigation if to do so would gravely

endanger their lives or the lives of others.” ). As the U.S. Supreme Court held in

                                         1
Terry v. Ohio, “[w]hen an officer is justified in believing that the individual whose

suspicious behavior he is investigating at close range is armed and presently

dangerous to the officer or to others, it would appear to be clearly unreasonable to

deny the officer the power to take necessary measures to determine whether the

person is in fact carrying a weapon and to neutralize the threat of physical harm.”

391 U.S. 1, 24, 99 S.Ct. 1868, 1882, 20 L.Ed.2d 889 (1968).




                                         2
06/29/17

                    SUPREME COURT OF LOUISIANA

                               No. 2015-K-2144

                           STATE OF LOUISIANA

                                    VERSUS

                      JOSEPH MICHAEL MOULTRIE

   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST
              CIRCUIT, PARISH OF TERREBONNE


GENOVESE, J., dissents.

     I dissent for the reasons assigned by the court of appeal.
