Opinion
No. 2023-KK-01608
04-03-2024
STATE of Louisiana v. Bryan JOHNSON
Hughes, J., dissents and assigns reasons. Genovese, J., dissents for reasons assigned by Justice Hughes. Griffin, J., dissents. Hughes, J., dissents and would grant the writ.
Applying For Supervisory Writ, Parish of Assumption, 23rd Judicial District Court Number(s) 21-309, Court of Appeal, First Circuit, Number(s) 2023 KW 0959.
1Writ application denied.
Hughes, J., dissents and assigns reasons.
Genovese, J., dissents for reasons assigned by Justice Hughes.
Griffin, J., dissents.
Hughes, J., dissents and would grant the writ.
1 INTRODUCTION
This case presents the absurdity of an "inventory search" where the vehicle at issue was not only not towed, but was loft in place at the home of the defendant where he was first stopped.
APPLICABLE LAW
Both the US Constitution and the Louisiana Constitution prohibit unreasonable searches and seizures. U.S. Const. amend. 4; La. Const. art. I, § 5. A warrantless search is per se unreasonable, subject only to a few specifically established and well-delineated limited exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). The inventory search has been recognized as one such limited exception. Because of the possibility of its misuse, however, the LASC has held that an inventory search must strictly be limited to the purposes that justify it, those purposes being the protection of a defendant’s valuables and claims against police departments for failing to prevent such loss. State v. Rome, 354 So.2d 504 (La. 1978); State v. Gaut, 357 So.2d 513 (La. 1978); State v. Killcrease, 379 So.2d 737 (La. 1980); State v. Hardy, 384 So.2d 432 (La. 1980); State v. Osbon, 426 So.2d 323 (La. 1983). When an inventory search is challenged, courts must examine the specific facts of each case to determine if, under the totality of the circumstances, a truly valid inventory search has taken place. State v. Escoto, 09-2581, p. 5 (La. 7/6/10), 41 So.3d 1160; 2 State v. LaRue, 368 So.2d 1048 (La. 1979). For a truly valid inventory search, the State must first prove that impoundment of the vehicle was actually necessary. State v. Jewell, 3 38 So.2d 633 (La. 1976); State v. Crosby, 403 So.2d 1217, 1219 (La. 1981). Where the circumstances show that police custodial care of the vehicle was not necessary, the inventory search is unlawful. Jewell, supra (citing Inventory Search of Impounded Vehicle, 48 A.L.R.3d 537, 544 (1973)). Good faith on the part of the police is also an "essential requirement’’ to a valid inventory search. Jewell, supra. Where police conduct is inconsistent with the contention that the search was conducted for inventory purposes (i.e., to inventory and safeguard defendant’s valuable property from theft), the search is unlawful. Jewell, supra. Police must not have used the inventory procedure as a subterfuge for a warrantless search. Jewell, supra. Some factors the courts have found significant in determining whether an alleged "inventory search" was truly valid or simply a subterfuge for a warrantless search without probable cause include the following:
1. Whether the vehicle could have remained safely at or near the place where it was located;
2. Whether the search was conducted in the field;
3. Whether a tow truck was called before the search was conducted;
4. Whether formal impoundment procedures were followed;
5. Whether the vehicle operator was asked if he consented to the search, if the car contained any valuables, or if he would consent to a waiver of the protections afforded by an inventory search; and,
6. Whether the operator was given an opportunity to make arrangements for someone to pick up the vehicle for them.
Escoto, supra; State v. Brumfield, 560 So.2d 534, 536–537 (La. App. 1 Cir. 1990).
SUMMARY OF THE FACTS
After observing the defendant traveling in excess of the speed limit, Dep. Johnson initiated a traffic stop. The defendant pulled into the private driveway of the home 3Where he and his girlfriend, Kizzie Bell Jones, had recently moved. According to the body camera footage, exactly one minute eighteen seconds elapsed from the time Dep. Johnson activated his siren and lights until his vehicle came to a stop in the driveway. The officer parked his vehicle approximately three car lengths behind the defendant’s vehicle and ordered the defendant to exit his vehicle and walk towards him. Defendant complied. As he handcuffed the defendant, conducted a pat-down, and advised the defendant of his Miranda rights, the officer gave the reason for the stop and asked the defendant if he knew what lights meant, and whether there were any passengers in the vehicle. The defendant said that there were no passengers in the vehicle and that he "was coming home." The officer asked, "this your house," defendant says "yeah," and the officer says "Ok." The officer asked the defendant his name and birthdate, which information he repeated to the dispatcher. When the officer asked, "where you stay at," the defendant responded, "right here," and the officer said, "Ok." The officer then led the defendant around the front of the officer’s vehicle to the rear passenger-side door. As they arrived at the door, the officer asked the defendant how many drinks he had, and the defendant told the officer, "I was just where you was at." The dispatcher then came across the officer’s radio, advising him that the defendant’s driver’s license was suspended. The officer responded, "figures, driving under suspension." As he sat the defendant down on the back seat, facing out, the officer stated, "I don’t want you to think just because you pull up to your house I ain’t gonna tow your vehicle." When the defendant attempted to respond, the officer speaks over him in a loud, aggressive voice, stating:
Ms. Jones testified at the hearing that she had purchased the home approximately two months prior to defendant’s traffic stop, and that she and the defendant lived in the home together.
Man, push in. I’m not about to play with you. Push in. We past all that. All that extra stuff. You seen me at the club you shoulda known I was on the road. Watch your leg, watch your foot. You under arrest.
It is noted that this all happened very quickly, with less than four minutes passing from the time the officer first activated his siren until he stated, "you under arrest."
4The defendant mumbles, "I wasn’t tripping," to which the officer states, "me, neither," and closes the door. He then grabs a flashlight from the front passenger area of his vehicle and traverses the three car lengths to the defendant’s vehicle. He approaches and walks around the vehicle as he shines his flashlight through the windows into the vehicle’s interior. He then opens the front and rear driver’s-side doors as he contacts the dispatcher to run the license plate number of the white car parked underneath the carport of the home. The dispatcher informs him that the vehicle is registered to Kizzie Bell Jones, and the officer asks her if Ms. Jones is an African American or a White American, stating, "say this his house." When he is informed that Ms. Jones is an African American, the officer responds, "10-4," then walks back to his vehicle, opens the trunk, and grabs a pair of gloves. As he walks back to the defendant’s vehicle, he puts the gloves on his hands and tells the dispatcher to "log an inventory search… alcoholic beverages. Corona spilled all over the seat." From his position at the front driver’s-side door of the defendant’s vehicle (which he had left open), he reaches for a small, blue, men’s shaving kit bag that was located on the floorboard just under the driver’s seat. As he raises the bag to the hood of the vehicle, the officer begins unzipping the bag. Once fully unzipped, he opens the bag and states, "yes, indeed." Inside were several bags of suspected drugs and a digital scale. He reports this information to the dispatcher then carries the bag and places it on the hood of his own car. As Dep. Gillis walks up and sees the bag, he says "oooh," to which Dep. Johnson responds "PWIT, baby. PWIT all day long." Dep. Johnson then asks Dep. Gillis to secure the bag in his unit and returns to defendant’s vehicle where he briefly checks under the front driver’s-side seat and the center console before moving to the rear driver’s-side door. There, he appears to look up into the wheel area and underneath the car and driver’s seat. He 5then states, "up there go the gun up under the seat," as he stretches his arm under the driver’s seat and pulls out a 9mm handgun. He then examines the gun, reports its description and serial number to the dispatcher, and asks if the defendant has any felony convictions (apparently there were none), b?- fore taking the gun to his vehicle. At that point, a woman’s voice was heard coming through the security camera on the front of the home. When the woman asked what was going on the officers advise her that they were conducting a traffic stop of a driver who pulled into her yard.
Because of its location, the bag would have only been visible to the officer upon opening the front driver’s-side door.
The woman is later identified as Kizzie Bell Jones, the defendant’s girlfriend.
Meanwhile, as Dep. Johnson again approaches the defendant’s vehicle, he tells the other officers to "pop the trunk." After briefly rummaging in the trunk and spare tire compartment, he heads back towards his vehicle. The woman then comes back over the speaker and questions why the officers would be searching the vehicle during a traffic stop. Dep. Johnson stated that the driver was under arrest and the vehicle was being inventoried. He then asked if she knew the driver to which the woman responded, "Who is that?" When told that the last name was Johnson, the woman stated, "Yes, I know him." Dep. Johnson quickly states, "Alright, as of now he’s under arrest. That is called an inventory search," before getting into his vehicle and closing the door, thus foreclosing any further conversation with Ms. Jones. Shortly thereafter, Dep. Johnson radios the other officers that he is taking the defendant to the jail to begin the paperwork. As he goes to leave, the camera footage ends.
Defendant’s vehicle was never actually towed. Rather, when the tow truck arrived, the vehicle was released to Ms. Jones and the defendant’s mother.
The defendant was ultimately charged with: 1) flight from an officer; 2) obstruction of justice; 3) operating a vehicle with a suspended license; 4) 2 counts 6of possession with the intent to distribute schedule II controlled dangerous substances; 5) possession of drug paraphernalia; and, 6) illegal carrying of a weapon in the presence of controlled dangerous substances.
I. Good Faith
The TC’s finding that Dep. Johnson acted in good faith is based on its determination that "[t]he testimony and body camera footage presented during arguments showed that the officers on scene attempted to discern whose residence the Defendant parked the vehicle at and why." This finding is directly contradicted by the very evidence cited as its support. Specifically, the testimony and body camera footage establish that, at the time of the defendant’s arrest, Dep. Johnson had already made the decision to tow and search his vehicle: "I don’t want you to think just because you pull up to your house I ain’t gonna tow your vehicle." In any event, the testimony and body camera footage evidence that Dep. Johnson made absolutely no attempt to "discern whose driveway the Defendant pulled into and why." The officer did not ask the defendant any questions about the home, such as who he lived there with, when he had moved in, or whether he could produce any proof of his claim. The officer made no attempt to identify, locate, or contact the homeowner or anyone else in the home or otherwise investigate their connection to the defendant. The officer also failed to ask the defendant if there were any valuables in the vehicle, if he would consent to the search, or if he wished to waive its protections, and he did not afford the defendant an opportunity to make arrangements for the vehicle to avoid impoundment, as required by law. The evidence in this case therefore clearly shows an absolute lack of consideration as to whether it was necessary to impound and/or search the vehicle. On the contrary, the evidence suggests that Dep. Johnson 7rushed to search the vehicle and deliberately avoided or otherwise prevented any possibility of avoiding impounding the vehicle while conducting an alleged inventory search. It bears considering: Not only could the car have safely remained where parked, it was never towed.
The only action that could remotely be considered as one intended for the determination of whether impoundment was necessary is Dep. Johnson’s inquiry into Ms. Jones’s race. However, although the information would seem to corroborate defendant’s claim, the officer nevertheless proceeded with the search, and had in fact already entered the vehicle at that time.
Three minutes and thirteen seconds elapsed from the time the officer stopped his own vehicle and the search of the defendant’s vehicle was commenced.
II. Factor 1-Whether the Vehicle Could Remain
The TC’s determination that this factor weighed in favor of the validity of the search is questionable under the facts and circumstances of this case, where the officer gave no consideration to whether the vehicle could be left, and the facts establish that the vehicle could (and did) safely remain where it was located.
The TC based its determination that the vehicle could not safely be left where it was located on its finding that the defendant’s license listed a different address, and the "person speaking over the security camera did not inform the officers as to whether they knew the Defendant or if he was a resident of the home." It is noted, however, that the evidence confirms that the homeowner, when asked, did confirm that she knew the defendant. The TC’s finding is therefore based on an error of fact.
Insofar as it is suggested that the defendant had to prove that he was a resident of the home for his vehicle to remain there, It is noted that neither the law nor the Jurisprudence require that a defendant be a resident or occupant of a property to leave their vehicle there. The relevant determination is simply whether the vehicle can safely remain until the defendant or someone on his behalf is able to retrieve it. As such, the knowledge that defendant and the homeowner were acquainted would, at a minimum, alert the officer to the likelihood that the vehicle could remain.
The defendant informed Dep. Johnson at the outset that they were at his own home. Regardless of this claim, the camera footage, wherein Dep. Johnson states, "I don’t want you to think just because you pull up to your house I ain’t gonna tow your vehicle," as well as his testimony at the hearings, establish that he never considered leaving the vehicle. This pre-determination explains Dep. Johnson’s failure to consult with the defendant regarding whether there were any valuables in the vehicle and whether he would consent to the search or waive its protections, as 8well as his refusal to afford the defendant an opportunity to make other arrangements or ask the homeowner if the vehicle could be left there. Further, the officer’s claim that he had "no obligation" to take minimal action in this case is not supported by the law applicable to a valid inventory search. Under the facts and circumstances of this case, this factor weighs against the validity of the search.
III. Factor 2-Whether the Search was Conducted "In the Field"
The TC committed an error of law in finding that this factor weighs in favor of the validity of the search. Specifically, while the TC correctly found that the search in this case was conducted "in the field," it was apparently on the mistaken belief that conducting an inventory search "in the field" is preferable and that doing so lends the search greater validity. The TC erroneously interpreted this factor to weigh in favor of a valid search. A true inventory search, however, would more likely be conducted at the place where the vehicle would be held, with a secure place made available and maintained for the storage of any valuables. Inventory searches that take place at the place of arrest rather than at the place of impoundment are suspect and have frequently been found to be a subterfuge for a search for evidence. See Killcrease, 379 So.2d at 739; State v. Griffin, 2007-0974 (La. App. 1 Cir. 2/8/08), 984 So.2d 97, 109–11. As such, this factor weighs against a valid search.
It is noted that the State’s opposition and the Memo circulated by Central Staff also erroneously interpret this factor to weigh in favor of a valid search.
"We are not prepared to say that a permissible inventory search may never take place In the field at the time of the arrest; however, an indicia of a true inventory search is that it is made at the place of custody for safekeeping of the vehicle, by Inventorying and storing those contents which might be pilfered or damaged after the vehicle is stored in official custody." Jewell, 338 So.2d at 639.
IV. Factor 3-Whether Tow Truck Called Before Search Commenced
The TC likewise erred in finding that a tow truck was called before the search commenced, as the bodycam footage establishes that Dep. Johnson entered the vehicle before the tow truck was called. Specifically, both the testimony of Dep. Johnson and the bodycam footage establish that immediately after the defendant’s 9arrest, and before a tow truck was called, he opened both the front and rear driver’s-side doors. Dep. Johnson alleged at the second hearing that "[t]he tint was pretty dark," and therefore all the doors had to be open for him to see that no one else was in the vehicle. However, the officer previously testified that there were no passengers in the vehicle, and that, upon illuminating the interior of the defendant’s vehicle prior to the stop, he could see only a black male driver in the vehicle. The bodycam footage also contradicts the officer’s testimony that the defendant "never answered that question" of whether he had any passengers. Rather, the footage establishes that Dep. Johnson asked the defendant if anyone else was in the vehicle and the defendant responded that no one else was in the vehicle, just him. The officer’s testimony that the window tint was too dark for him to see into the vehicle is likewise contradicted by the video footage. Rather, the vehicle’s interior is easily visible through the windows in the officer’s bodycam video. It is also noted that the officer did not at any time give any indication that he suspected additional occupants. He made no reference to occupants, and he made no attempt to contact any alleged suspected occupants. No order was given for any occupants that may be in the vehicle to show their hands or exit, as would be the standard procedure. In any event, although presumably within his authority to look through the vehicle’s windows with his flashlight, there was no justification for Dep. Johnson to enter the vehicle without a warrant, and in doing so he commenced a warrantless search of the vehicle without probable cause. Because he entered the vehicle before contacting the dispatcher to call a tow truck and log an inventory search, this factor also weighs against the validity of this search.
A. Asked the driver to step out, which he did, came to the back, and I placed him in handcuffs, detained him, and informed him that the reason I was attempting to stop him was speeding.
Q. Did he have any passengers in the vehicle?
A. No passengers in the vehicle, just him.
10 V. Whether Formal Impoundment Procedures were Followed
In support of its finding that this factor weighed in favor of a valid inventory search, the TC references the procedure to institute a traffic stop and discusses customary practices between tow truck operators and vehicle owners. However, no basis is provided for a finding that the officers in this case followed established departmental policies and procedures related to the impoundment of vehicles and the conducting of an inventory search solely for the protection of defendant’s property. While the officers testified that these policies and procedures do exist and can be accessed in the field from their vehicles, there was very little testimony as to what those policies and procedures are, exactly. Testimony on this issue was limited to the officers’ agreement that the purpose of an inventory search is to protect a defendant’s valuables, as well as their acknowledgement that the policies require officers to: 1) ask a defendant if there are any valuables in the vehicle; 2) ask a defendant for consent to search the vehicle; 3) ask a defendant if he wishes to waive the protections afforded by an inventory search; and, 4) afford a defendant an opportunity to make other arrangements for the vehicle, all of which the officers admitted they did not do in this case. It can also be gleaned from the record that an inventory form is required. Although there is an inventory form in this case, the testimony establishes that the form was neither fully completed, nor filled out simultaneously with the search, notwithstanding that there were sufficient officers at the scene to have done so. See State v. Escoto, supra. Instead, Dep. Johnson testified that he filled out the inventory form at some later time at the jail. There is also no evidence in the record that any valuables were removed from the vehicle and secured in a safe place. 11Rather, it seems the only items that were removed were logged as evidence against the defendant and/or sent to the laboratory for analysis. Nor does the record contain any indication that the wrecker service was required to sign a document of any kind to acknowledge taking possession of any alleged valuables. Under the totality of the circumstances, and considering the testimony provided in this case, including the officers’ admissions that they did not follow the required policies and procedures, this factor weighs against the validity of the search.
Although there was cash in defendant’s vehicle, it was not included on the inventory list, and was left lying on the seat. There were three officers present; however, no system or structure was used, and there was no coordination or discussion amongst the officers to ensure an accurate and complete accounting. Rather, the officers randomly dropped in and out of the search and appeared to focus on areas where contraband would be hidden, as opposed to areas where valuables would likely be stored. In fact, Dep. Gillis sounds disappointed and states, "and of course, nothing" when there is nothing incriminating found in the glovebox.
VI. Whether Defendant was Consulted
All three officers at the scene admitted that they did not ask the defendant if there were any valuables in the vehicle, if he would consent to the inventory search, or if he wanted to waive its protections.
The purpose of an inventory search is to safeguard a defendant’s valuables when impoundment of the vehicle is necessary. State v. Jewell, supra. It would therefore follow that an "inventory search" cannot be valid if impoundment of the vehicle was avoidable. In cases wherein officers do not ask the defendant whether there are any valuables in the vehicle, whether he would consent to the search, or whether he wishes to waive the protections afforded by the inventory search, courts have repeatedly found the alleged inventory search invalid. See State v. Jewell, supra (reasoning that, because the sole purpose of an inventory search is the safeguarding of the defendant’s valuables, it is difficult to justify an officer’s failure to discuss the matter with a defendant who is present: "If the purpose of the search is truly only to inventory the contents of the vehicle and to safeguard them during official storage, an indicia that such is the real purpose of the search is to consult with the owner or custodian of the vehicle when he is present at the time of the search"); see also State v. Gaut, supra ("The justification of the inventory search has a hollow basis if the driver was willing to waive the protections of the search, or if he alleged there were no valuables in the vehicle, and thus, such an inventory 12search cannot be upheld as lawful"); see also State v. La-Rue, 368 So.2d 1048 (La. 1979); State v. Dorociak, 493 So.2d 173 (La. 1986); State v. Schmidt, 359 So,2d 133 (La. 1978); State v. Osbon, 426 So.2d 323 (La. 1983); State v. Rome, 354 So.2d 504 (La. 1978); State v. Carey, 499 So.2d 283 (La. 1986). This factor therefore weighs heavily against the validity of the search.
VII. Whether Officers Afforded Opportunity for Alternative Option
All the officers likewise admit that they did not afford the defendant an opportunity to make any other arrangements for the vehicle, notwithstanding that he claimed to live at the home and therefore the vehicle was parked in his own driveway. Again, because the purpose of an inventory search is to safeguard defendant’s valuables, in cases wherein the defendant, although present, is not afforded an opportunity to make arrangements for the vehicle so as to avoid the vehicle being impounded, the alleged inventory search has been held invalid. See, State v. Killcrease, 379 So.2d 737 (La. 1980) ("Where officers made no attempt to determine if an inventory search could have been avoided, never asked the defendant if he consented to a search of his vehicle, if he would waive his rights of a civil suit against the police department, or if he could make other arrangements to have the vehicle picked up, the search is not a true inventory search and cannot be upheld"); see also State v. Loicana, 18-0497 (La. App. 4 Cir. 8/22/18), 254 So.3d 761. The evidence at the hearings established that the defendant lived in the home where the vehicle was located, and therefore arrangements for the vehicle could have easily been made had the defendant been given any opportunity to do so. This factor undoubtedly weighs against the validity of the search.
CONCLUSION
The facts and circumstances herein indicate that the alleged "inventory search" in this case was merely a pretext for a warrantless search of the defendant’s vehicle. None of the officers on the scene made any attempt whatsoever to determine whether an inventory search could have been avoided. There is no indication in the record 13that the vehicle could not have remained safely where it was located (and in fact it did—it was never towed.) The purported "inventory search" was conducted on location, immediately upon the defendant’s arrest, and before the tow truck was called. The defendant was not asked if he consented to the search, if the vehicle contained valuables, or if he would waive the protection of an inventory search, and the officers did not afford him an opportunity to make other arrangements for the vehicle. If, as the record suggests, the defendant could have, left the vehicle there or easily made arrangements other than having the vehicle impounded, or if he had been willing to waive his rights against the department for failure to guard against the loss of any alleged valuables, no justification for this so-called inventory search would have existed. State v. Griffin, 2007- 0974 (La. App. 1 Cir. 2/8/08), 984 So.2d 97, 109-11; Killcrease, 379 So.2d at 739. The law requires the State to make a showing that impoundment was necessary. It must also be found, based on the totality of the circumstances, that the officers acted in good faith and that the inventory search was conducted for the purpose of protecting the defendant’s property from potential theft. However, the actions of the officers in this case make it clear that their motivation for the search was not to protect the defendant’s property or the department against a claim for failure to guard against such loss. See State v. Griffin, 984 So.2d at 109–11. The officers’ conduct, therefore, indicates that they did not conduct a true inventory search. Instead, under the pretext of an inventory, they set out on a warrantless search of the vehicle without probable cause. As such, the State has not borne its heavy burden of proving that an inventory search exception to the warrant requirement legitimately existed in this case. See Carey, 499 So.2d at 288; State v. Griffin, 984 So.2d at 111.