MEMORANDUM

FROM: Joni SchultzTO: Ja’Net L. Davis DATE: Wednesday, December 10, 2014RE: State of Louisiana v. Sonny BarkerFILE NO.: 062502

A. FACTS

Officer Matthew Dillion noted that the vehicle Sonny Barker was driving did

not have current registration tags and decided to stop the vehicle during a routine

traffic patrol. After stopping the vehicle, Dillion asked to see Barker's driver's

license and the vehicle registration. Since the vehicle was his mother’s, Barker

could not produce either his license or the vehicle's registration.

After checking on the license and registration, there were no warrants and

the vehicle had not been reported as stolen. Officer Dillion then asked Barker if he

could search the vehicle and Barker consented to the search. Dillion looked in the

glove box and found the following: Barker's wallet, a little over one ounce of what

looked like marijuana, and a piece of paper with the following writing --

sbarker@digicom.com ("doobie"). Officer Dillion then reached under the front seat

and found a large quantity of marijuana in a clear plastic bag. At this point, Officer

Dillion arrested Barker.

Later, Officer Dillion, recognizing the writing on the paper from the glove

box as being an Internet e-mail address, accessed the e-mail of Mr. Barker by

utilizing his own computer.

B. QUESTIONS PRESENTED

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Whether the original stop of Mr. Barker was proper.

Whether the search of the car was proper given Mr. Barker's permission.

Whether the permission by Mr. Barker was valid.

Whether Officer Dillion's accessing Mr. Barker's e-mail was proper.

Whether the evidence obtained in the original search and the e-mail search

can be used at trial.

C. LAW AND ARGUMENT

This memo addresses whether or not Mr. Barker's Fourth Amendment rights

were violated under the Constitution regarding whether there was probable cause

for the original stop, whether the search of the car was proper, whether the

permission granted by Barker to search the vehicle was valid, whether the

secondary search of Barker’s e-mail was proper, and whether the evidence

obtained in both the original search and e-mail search can be used at trial in this

matter.

The Fourth Amendment to the United States Constitution and Article I, § 5 of

the Louisiana Constitution prohibits unreasonable searches and seizures.

Further, La. Const. Article I, § 5 provides that every person shall be secure

in his person, property, communications, houses, papers, and effects against

unreasonable searches, seizures, or invasions of privacy. State of Louisiana v.

Chrisman, 364 S. 2d 906 (La. 1978).

The Fourth Amendment defines "the right of people to be secure in the

person, houses, papers, and effects, against unreasonable search and seizures,

shall not be violated and no warrant shall issue, but upon probable cause,

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supported by Oath or affirmation, and particularly describing the place to be

searched, and the person or things to be seized."1

Therefore, the court will determine whether Officer Dillion’s conduct

violated Mr. Barker’s Fourth Amendment rights when Mr. Barker consented to the

search of his vehicle and obtained evidence which lead Mr. Barker to be booked

with possession for sale of marijuana for all of the reasons fully set forth in the

issues described below.

WAS THE INITIAL STOP OF MR. BARKER PROPER?

As in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2D 889 (1968), John

W. Terry (the “Petitioner”), was stopped and searched by an officer after the

officer observed the Petitioner seemingly casing a store for a potential robbery.

The officer approached the Petitioner for questioning and decided to search him

first. In Terry, the rule was whether an officer may perform a search for weapons

without a warrant, even without probable cause, when the officer reasonably

believes that the person may be armed and dangerous.

Unlike Terry, Mr. Barker did not present any behavior suspicious of criminal

activity to warrant an investigative stop. The threshold issue to be determined in

the instant case is whether Officer Dillion who conducted the investigatory stop

had reasonable suspicion of criminal activity and conducted what amounted to an

investigatory stop. In determining whether reasonable suspicion exists to conduct

an investigatory stop, the court must take into account the totality of the

circumstances in a process that allows police to draw upon their own experience

1 "Fourth Amendment." West's Encyclopedia of American Law, edition 2. 2008. The Gale Group 3 Nov. 2014 π1<http://legal-dictionary.thefreedictionary.com/Fourth+Amendment>.

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and specialized training to make inferences from and deductions about the

cumulative information available to them that might elude an untrained person.

In Terry, the U.S. Supreme Court ruled that the Fourth Amendment to the

U.S. Constitution permits a law enforcement officer to stop, detain, and frisk

persons who are suspected of criminal activity without first obtaining their

consent, even though the officer may lack a warrant to conduct a search or

probable cause to make an arrest. 2 Id. Under the “Terry stop”, this type of police

encounter is constitutionally permissible only when an officer can articulate a

particularized objective, and reasonable basis for believing that criminal activity

may be afoot or that a given suspect may be armed and dangerous. Id. In Terry,

Officer McFadden possessed neither a valid search warrant authorizing the pat

down nor probable cause to detain the defendants in this case. Id. Denying the

defendants motion to suppress, the court scheduled the matter for trial where both

defendants were found guilty. Id. The Supreme Court of Ohio affirmed the

convictions, and the defendants appealed to the nation's highest court. Id.

The U.S. Supreme Court in Terry divided its opinion into three parts. Id.

First, the Supreme Court ruled that the defendants enjoyed qualified protection

from temporary police detention under the Fourth Amendment. Id. Before a court

will examine the propriety of police activity under the Fourth Amendment, it must

first determine whether the interests asserted by a defendant are constitutionally

protected. Id. The Fourth amendment governs areas where individuals maintain a

reasonable expectation of privacy, including a zone of personal freedom in which

every individual is secure from unnecessary and unreasonable governmental

2 "Terry v. Ohio." West's Encyclopedia of American Law, edition 2. 2008. The Gale Group 4 Nov. 2014 π’s 1, 4,5,6,7,8,10, and 11 <http://legal-dictionary.thefreedictionary.com/Terry+v.+Ohio>.

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intrusion. Id. Second, the Court ruled that the defendants' freedom was

effectively impeded by their encounter with Officer McFadden. Id. Any time a

police officer accosts an individual to detain him for questioning, the Court

emphasized, the officer has "seized" that person within the meaning of the Fourth

Amendment. Id. It would be nothing less than "torture of the English language,"

the Court added, to suggest that Officer McFadden's pat down of the suspects'

clothing was anything other than a "search" as that term is defined in the

Constitution. Id. Third, the Court ruled that Officer McFadden acted reasonably

during his encounter with the defendants acknowledging that the Constitution

generally requires probable cause to effect an arrest and a lawfully executed

warrant to conduct a search. Id. The express language of the Fourth Amendment

does not prohibit all warrantless searches performed without probable cause, but

only those that are unreasonable. However, if an officer has probable cause to

believe that a crime has been committed and there is no time to obtain a warrant,

the officer may make a warrantless arrest.

In dealing with rapidly unfolding and increasingly dangerous situations in

Terry, the Court said, police may find it impractical or impossible to obtain a

search warrant before choosing to intervene. In other situations, injury or harm

may result to bystanders if law enforcement is made to wait until it has probable

cause before acting. The Court indicated that the Fourth Amendment gives law

enforcement flexibility to investigate, detect, and prevent criminal activity. This

flexibility includes the right of police officers to stop persons suspected of criminal

activity and detain them for questioning. If during questioning police are led to

believe that a suspect is armed and dangerous, an officer may frisk the suspect

without violating the Fourth Amendment.

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The Court reached its holding in Terry by balancing the legitimate needs of

law enforcement against the privacy interests of individuals. Id. Forcible detention

of individuals for questioning is far from a petty indignity. Id. Even a limited

search of outer clothing, the Court stressed, constitutes a "serious intrusion upon

the sanctity of the person, which may inflict great indignity and arouse strong

resentment, and it is not to be undertaken lightly." Id. At the same time, law

enforcement must not be restricted from performing its job in a proficient manner.

Id.

The Fourth Amendment does not restrict police from intervening until after

a crime has been committed. Id. According to Terry, crime prevention is a bona

fide goal of law enforcement, the Court said, and the Fourth Amendment places

only reasonable restrictions upon pursuit of that goal. Id. Outlining these

restrictions, the Court said that no police officer may lawfully stop and detain a

person for questioning unless the officer first observes unusual conduct that

arouses a reasonable suspicion of criminal activity. Id. A stop may be no longer

than necessary to confirm or dispel an officer's suspicion and must not be

unnecessary restrictive or intrusive. Id.

Likewise, in United States v. Sokolow, 808 F. 2d. 1366, 1987 U.S. App. 3753

(9th Cir. 1987), the United States Supreme Court obtained a writ of certiorari to

the United States Court of Appeals for the Ninth Circuit. The court of appeals

reversed defendant's conviction for possession with intent to distribute cocaine on

the ground that the Drug Enforcement Administration agents who stopped

defendant did not have reasonable suspicion for the stop. Id. The court reversed

the judgment of the court of appeals and remanded the case indicating that the

stop must be brief in duration and related to the reason for the stop. Id. In

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Sokolow, the rule was whether the police must legitimately pursue a reasonable

means of investigation to confirm or dispel the officer's suspicion in a short period

of time. Id.

In our case, Officer Dillion characterized Mr. Barker as a “suspected drug

dealer.” Although Mr. Barker had never been convicted of any drug offenses which

lead Officer Dillion to a Reasonable Articulable Suspicion (RAS) under the law

leading up to the traffic violation, this does not mean that Officer Dillion cannot

utilize those certain characteristics under the Reasonable Articulable Suspicion

(RAS) doctrine. Thus, Officer Dillion did not need justification under the Fourth

Amendment to stop Mr. Barker on the street for questioning, and Mr. Barker was

completely free to refuse to answer any such questions and to go about his

business. Therefore, the Fourth Amendment does prohibit Officer Dillion from

detaining Mr. Barker and without first having a reasonable and articulable

suspicion (RAS) that Mr. Barker was engaged in criminal activity.

WAS THE SEARCH OF THE BARKER VEHICLE PROPER?

A warrantless search is unreasonable unless the search can be justified by

one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State of

Louisiana v. Lain, 347 So.2d 167 (La.1977). During the period of detention, no

searches may be performed unless the officer has an objective and particularized

basis for believing the suspect is armed and dangerous. Id. Any search must be

limited to the suspect's outer clothing and may be performed only for the purpose

of discovering concealed weapons. Id. The state bears the burden of proving that

one of these exceptions applies. State of Louisiana v. Adams, 355 So.2d 917

(La.1978); State of Louisiana v. Franklin, 353 So.2d 1315 (La.1978).

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In Barker’s case, however, Officer Dillion went beyond the reasonable

search standard without a warrant. Officer Dillion extended his search to the

entire vehicle despite his investigatory stop for an expired registration tag. Barker

gave the officer no reason to suspect that he was armed and dangerous.

Consequently, one would assume that the search was an unreasonable violation of

Barker’s rights under the Fourth Amendment; however, that scenario does not

take into account the fact that Barker granted permission to the officer to search

his vehicle.

Once Officer Dillion obtained consent from Mr. Barker, Officer Dillion was

able to proceed with the search of the Mercedes. This is not an exception to the

warrant clause, but a waiver to Mr. Barker's right of privacy. In essence, Mr.

Barker did not have to respond to any of Officer Dillion's questions under the Fifth

Amendment with the exception of Mr. Barker only providing his name to Officer

Dillion during the routine traffic stop.

By contrast under the automobile exception, the scope of the warrantless

search is only limited to what area the officer has probable cause to search. This

area can encompass the entire vehicle including the trunk. If Officer Dillion

reasonably believes that the vehicle holds evidence of a crime, then Officer Dillion

was allowed to search the vehicle and allowed to search any containers found

inside the vehicle that could contain the evidence or contraband being searched

for. The objects searched do not need to belong to the owner of the vehicle.

The United States Supreme Court has determined that the automobile

exception is not a violation of the Fourth Amendment because drivers have a

"reduced expectation of privacy" and because a vehicle is inherently mobile.

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Conversely, a vehicle search that is conducted in the absence of reasonable

suspicion would be an infringement of guaranteed Fourth Amendment protection,

and a court would strike down such an infringement as unconstitutional. This

exception was first established by the United States Supreme Court in Carroll v.

United States3.

Much like Carroll, in United States v. Ross, 456 U.S. 798, 72 L.Ed.2d 572,

102 S.Ct. 2157 (1982), the court ruled that a warrantless search of an automobile,

under the rule adopted in Caroll, that a warrantless search of an automobile based

upon probable cause to believe that the vehicle contained evidence of crime in the

light of an exigency arising out of the likely disappearance of the vehicle did not

contravene the Fourth Amendment for the court to include a search of a container

found inside the automobile when the search of the automobile was supported by

probable cause. The court found that the interpretation of the “Carroll doctrine”

set forth in Ross was to apply to all searches of containers found in an automobile.

In other words, the police could search without a warrant if their search was

supported by probable cause. However, the Court's holding neither extended the

“Carroll doctrine” nor broadened the scope of the permissible automobile search

delineated in Carroll. Chambers v. Maroney, 399 U.S. 42 (1970), and Ross. Until

the decision in Chambers, the Court had drawn a curious line between the search

of an automobile that coincidentally turned up a container and the search of a

container that coincidentally turned up in an automobile. The Court ruled that the

protections of the Fourth Amendment could not turn on such coincidences. It,

therefore, interpreted Carroll as providing one rule to govern all automobile

3Hendrie, E. (August 2005). The Motor Vehicle Exception. FBI Law Enforcement Bulletin, 74, Retrieved August 14, 2006, from π 1 < http://web.archive.org/20050825214358/www.fbi.gov/publications/leb/2005/august2005/august05leb.htm#page22>.

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searches -- The police could search an automobile and the containers within it

where they had probable cause to believe contraband or evidence was contained.

With permission being granted by Barker, based upon the above cases, it

appears the original search of the vehicle was obtained properly.

WAS THE PERMISSION OF BARKER VALID?

As in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d

854 (1973), the issue is whether the respondent voluntarily consented to the

search of the vehicle.

In Bustamonte, the police stopped the vehicle containing the respondent and

five other passengers after they noticed a broken headlight and license plate light.

When the driver could not produce a license, the police asked for someone who

could produce identification. Another passenger responded, and when the police

asked him if they could search the vehicle he consented. Three stolen checks were

found, and they were used as evidence to convict the respondent. In Bustamonte,

the rule was whether a search was voluntary does not require that a person knew

of his rights, but whether the totality of circumstances indicated that the person

was voluntarily allowing the search.

In Bustamonte,4 the U.S. Supreme Court found that officers were not

required to warn people of their right to withhold consent in order for consent to

be valid.

In a similar case, the Court of Appeals of Louisiana decided the issue of

whether Mr. Valrie’s Fourth Amendment rights were violated based upon coercion

4 Moenssens, A.A. (2005). Forensic-Evidence.com: Police Procedures/The Validity of Consent Searches. Retrieved August 14, 2006, π 2 <http://www.forensic-evidence.com/site/police/nonverbalconsent.html>.

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and circumstances surrounding whether consent was freely and voluntarily given.

State of Louisiana v. Valrie, 597 So. 2d 1218 (La.App. 3 Cir.), writ denied, 605 So.

2d [Pg 14] 1113 (La.1992). In Valrie, the Defendant refused to sign the consent

form and argues that the State has failed to demonstrate that he voluntarily and

freely gave permission to Officers to search the vehicle. Id. Additionally, defendant

argues that he was coerced in that the officers made promises of aid to induce him

to consent to search of a vehicle that did not even belong to him. Id. The court

held that (1) the warrantless search did not violate defendant's rights under the

Fourth Amendment or La. Const. art. I, § 5 because he did not limit, condition, or

withdraw his consent; and (2) the search was not unreasonable or too intrusive.

Id.

Therefore, Barker did not withdraw consent to the search of the vehicle at

any time during Officer Dillion's investigation. Officer Dillion did not have to

inform Mr. Barker of his right to refuse to conduct the search of the vehicle. Once

Mr. Barker consented to the search, Officer Dillion had to comply with the scope of

the consent. Since no scope was specified, Officer Dillion proceeded with

objectively searching the vehicle and looked into the glove box.

WAS THE ASSESSING OF THE BARKER E-MAIL PROPER?

As in State of Louisiana v. William A. Hargiss, 288 So. 2d. 633 (1974), the

issue is whether the officers had probable cause to conduct a secondary search of

the items in Mr. Hargiss’s vehicle without his consent when the officers observed

them in plain view.

In Hargiss, Hargiss sought review of his conviction from the Seventh Judicial

District Court, Parish of Catahoula in Louisiana of possession of marijuana in

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violation of La. Rev. Stat. Ann. § 40:966(C). After being formally charged with the

possession of marijuana, Mr. Hargiss moved to suppress the evidence, alleging

that it was the product of an unconstitutional search and seizure. Id. After an

evidentiary hearing, the trial judge overruled the motion to suppress on the ground

that the marijuana and pipe were not products of a search but were lawfully taken

when the officers observed them in plain view. Id. Mr. Hargiss sought a

supervisory writ to determine the constitutionality of a search of his automobile,

following his incarceration for a traffic violation. Id. In reversing the conviction

and sentence, the court held that the officers did not have probable cause to

search the automobile at the time the marijuana was seized. Id. The contraband

was seized during the night time, after one of the officers had previously driven the

car during daylight hours from the place of arrest to the local police station. Id.

Further, the officer who drove the car testified that he saw nothing to attract his

attention. Id. In addition, one of the officers testified that they planned to search

the automobile. Id. Mr. Hargiss corroborated that the testimony he overheard by

the officers was during the officers’ discussion of the search announced on the

police radio. Id. The second entry into the automobile was without Mr. Hargiss's

knowledge or consent because Mr. Hargiss had requested that his automobile be

locked and left where he had been arrested. Id. The court, therefore, maintained

Mr. Hargiss's motion to suppress the evidence, reversed his conviction and

sentence, and remanded the case. Id.

Unlike Hargiss, Mr. Barker's disclosure of his e-mail account is constituted

as an unreasonable search and seizure under the Fourth Amendment. Mr. Barker's

rights were violated during the secondary search conducted by Officer Dillion

because the items obtained for evidence in the e-mails were not in plain view.

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According to the private search doctrine, Officer Dillion violated this application to

email information when he exceeded the scope of the private actors search under

the exclusionary rule.

Thus, based upon the above cases, it appears Officer Dillion’s access to Mr.

Barker’s email was not proper.

WILL THE EVIDENCE OBTAINED IN THE ORIGINAL SEARCH AND THE E-MAIL SEARCH BE ALLOWED AT TRIAL?

Under the Fourth Amendment's reasonableness requirement, the

appropriateness of every warrantless search is decided on a case-by-case basis,

weighing on the defendant's privacy interests against the reasonable needs of law

enforcement under the circumstances. Evidence seized by law enforcement from a

warrantless or otherwise unreasonable search is admissible at trial if the judge

found it reliable.

Evidence obtained during searches that comport with the Terry restrictions

(mentioned above), is admissible under the Fourth Amendment. Evidence obtained

in violation of the limitations set forth in Terry may be suppressed under the

Exclusionary Rule.

Whenever an individual may harbor a reasonable 'expectation of privacy' he

is entitled to be free from unreasonable governmental intrusion. Katz v. United

States, 364 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). In Katz, the

police wiretapped a phone booth (on the outside) to catch illegal conversations,

which resulted in no physical intrusion into the phone booth that caught Katz's

conversation with the door closed. In determining whether or not a search

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occurred, the Supreme Court articulates the new rule of whether or not a search

occurs turns on the reasonable expectation of privacy doctrine. Id.

As with Barker, in State of Louisiana v. Jacob Gordon, Jr. , 646 So.2d 995

(La.App. 1 Cir. 11/10/94), Mr. Gordon sought review of his conviction from the

Nineteenth Judicial District Court, in and for the Parish of East Baton Rouge in

Louisiana of possession with intent to distribute cocaine, in violation of

La.Rev.Stat.Ann § 40:967A. Id. Two police officers pulled over a car driven by Mr.

Gordon that did not have a license plate. Id. At Officer Johnson’s request, Mr.

Gordon exited the car and stepped to its rear. Id. One officer detected the odor of

marijuana on Mr. Gordon and the other officer observed a baggie with a white

powder on the lap of Mr. Gordon’s wife, who was sitting in the front seat. Id. A

search of the car revealed one gram of cocaine, five grams of marijuana, various

drug paraphernalia, and business cards and a notebook with incriminating

notations. Id. The trial court denied Mr. Gordon’s motion to suppress. Id.

However, the only argument advanced by Mr. Gordon was that the cocaine found

in Shirley Gordon’s purse was neither in plain view of Officer Cowart nor was it

inadvertently discovered by him. Id. Mr. Gordon also argues that it would be

unreasonable to find him to have been in constructive possession on the basis that

his wife was in possession of a small quantity of cocaine and that to find him in

constructive possession “would make possession crimes a form of community

property, i.e., one spouse could be held criminally liable for the possession of the

other spouse.” Id.

In Gordon, the court held that the warrantless search of the car was justified

based on the officer’s observations. Id. The court rejected Mr. Gordon’s argument

that the evidence was insufficient to support the conviction. Id. The court found

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that Mr. Gordon was in constructive possession of the drugs found in his wife’s

purse given his proximity to them and the fact that they were in plain view. Id. The

court further found that there was sufficient evidence of intent to distribute,

despite the small amount of drugs recovered, and based on the paraphernalia and

the incriminating notations. Id. Thus, the court affirmed Mr. Gordon’s conviction of

possession with intent to distribute cocaine. Id.

Additionally, in State of Louisiana v. Thomas Wells, 593 So. 2d. 465 (1992),

the trial court upheld Mr. Wells's motion to suppress methamphetamine seized

from a parked van. The court reversed, holding that exigent circumstances existed

to allow the warrantless search. Id. In Wells, the court found that the informant

proved to have been reliable, because Mr. Wells and the van were found by the

officers when and where the informant said they would be. Id. Under the

circumstances, the court concluded there was a fair probability that

methamphetamine would be found in the van. Id. Exigent circumstances were

found to exist where evidence of a crime was located in an unlocked and

unattended vehicle parked on a public road, accessible to anyone who might have

had reason to move it or remove the evidence. Id. Therefore, there was probable

cause and exigent circumstances to uphold the warrantless search. Id. The right

of the officers to search the van for methamphetamine was not enervated because

they kept the van directly, and Mr. Wells, indirectly, under surveillance for almost

two hours before staging an "accident" to further "connect" Mr. Wells with the van

and its contents. Id. Although the court did not condone the fabrication of the

officers, the warrantless search was proper. Id.

In Wells, on Application for Writs from the First Judicial District Court for

the Parish of Caddo in Louisiana, the State sought review of a judgment of the

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district court, which upheld Mr. Wells’ motion to suppress methamphetamine

seized from a parked van that resulted from a warrantless search. Id. The

judgment upholding the motion to suppress was reversed, and the case was

remanded to the trial court for further proceedings. Id. While applauding the

court's conclusion that the officers created the exigent circumstances in bad faith,

Wells contends further that the officers did not have probable cause to search the

van. Id. The state agrees that the officers had probable cause to search and urges,

in effect, that exigent circumstances may be found when the thing to be searched

is a motor vehicle. Id.

Indeed, Mr. Barker consented to have the vehicle searched by Officer

Dillion. The evidence located during the original search can be deemed “in plain

view” since the original search revealed their contents based upon the arguments

mentioned above. However, the same cannot be said for the e-mail search.

In Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L. Ed. 652 (1914),

a federal agent conducted a warrantless search for evidence of gambling at the

home of Fremont Weeks. The evidence seized in the search was used at trial, and

Weeks was convicted. Id. On appeal, the Supreme Court held that the Fourth

Amendment barred the use of evidence secured through a warrantless search and

seizure. Id. Week's conviction was reversed and thus was born the exclusionary

rule. Id. This rule provides some substantive protection against illegal search and

seizure. Id.

The exclusionary rule was constitutionally required only in federal court

until Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). In

Mapp, the Court held that the exclusionary rule applied to state criminal

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proceedings through the due process clause of the Fourteenth Amendment cannot

be used to prove the guilt of a defendant at a state criminal trial. Before the Mapp

ruling, not all states excluded evidence obtained in violation of the Fourth

Amendment. After Mapp, a defendant's claim of unreasonable search and seizure

became commonplace in criminal prosecutions.

The application of the exclusionary rule has been significantly limited by a

Good Faith exception created by the Supreme Court in United States v. Leon, 468

U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Under the good faith

exception, evidence obtained in violation of a person's Fourth Amendment rights

will not be excluded from trial if the law enforcement officer, though mistaken,

acts reasonably. The Supreme Court has carved out this exception to the

exclusionary rule because, according to the majority of the court, the rule was

designed to deter police misconduct, and excluding evidence when the police did

not misbehave would not deter police misconduct.

In comparison to the exclusionary rule is the Fruit of the Poisonous Tree

doctrine, established by the Supreme Court in Nardone v. United States, 308 U.S.

338, 60 S. Ct. 266, 84 L. Ed. 307 (1939). Under this doctrine, a court may exclude

from trial any evidence derived from the results of an illegal search and excludes

the evidence initially used to obtain the search warrant.

Particularly in Barker, the good faith exception to the exclusionary rule does

not apply in this case due to Officer Dillion's warrantless search of the e-mail and

the evidence obtained therefrom. In our case, the parties will argue that the

evidence obtained from Mr. Barker's e-mail under the Fruit of the Poisonous Tree

doctrine that the search of the vehicle became an illegal search when Officer

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Dillion failed to obtain the necessary warrants required to obtain a secondary

search without permission from Barker.

Therefore, according to Louisiana law, whatever is seized in plain view or

grabable space may be used against the Defendant. In our case, the items seized

in the glove box and other areas of the Mercedes were in plain view and the

warrant requirement was waived when Barker consented to the search; however,

the evidence obtained through the secondary search of the e-mail were not in plain

view and constituted misconduct on the part of the officer as he did not obtain a

search warrant.

D. LOUISIANA CASES AND JURISDICTION

I now turn to Louisiana law, which will support the facts and are adverse to

the facts asserted in Barker’s case. Louisiana has several cases involving illegal

search and seizures, warrantless searches, and suppression of evidence relative to

vehicle searches. I cite only a few of them here. In State of Louisiana v. Augustus

Jackson, 25 So. 3d 814, 2010 La. LEXIS 177 (La. 2010), the Louisiana Fourth

Circuit Court of Appeal reversed the trial court’s denial of Mr. Jackson’s motion to

suppress marijuana evidence found concealed in a can of bug spray lying on the

floorboard of a rental vehicle from Enterprise after a routine traffic stop. In

Jackson, any dispute that exists over the legality of the Officer’s warrantless entry

into the vehicle and subsequent search of its interior, including closed bug spray

container, reflects a distinctive aspect of Louisiana law with respect to an

individual’s standing to challenge unreasonable intrusions on the right to privacy

guaranteed by La. Const. art. I, § 5. Id.

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On the other hand, in Louisiana, any person “adversely affected by a search

or seizure conducted in violation of La. Const. art. I, § 5 shall have standing to

raise its illegality in the appropriate Court.” Id. Thus, “[t]here is no equivalent

under Louisiana constitutional law to the federal rule that one may not raise the

violation of a third person’s constitutional rights.” State of Louisiana v. Owen, 453

So. 2d 1202, 1205 (La. 1984). Generally speaking, in Louisiana, whether a

defendant is the driver or a passenger of a vehicle stopped by the police has no

bearing on whether he may challenge the lawfulness of a subsequent search of the

car. See, e.g., State of Louisiana v. Scull, 93-2360, pp. 4-7 (La. App. 4th Cir.

6/30/94), 639 So.2d 1239, 1242-44 (affirming grant of motion to suppress currency

retrieved from glove compartment of vehicle in which defendant was riding as a

passenger after police lawfully stopped the car on reasonable suspicion of criminal

activity). The officer clearly had probable cause to search the passenger

compartment of the vehicle without a warrant, based on the burning marijuana the

officer smelled as he approached the car. See State of Louisiana v. Johnlouis, 09-

0235, p. 20 (La. App. 3rd Cir. 11/4/09), 22 So.3d 1150, 1163. The court thereby

accords due deference to the officer’s training and expertise, State of Louisiana v.

Johnson, 01-2081, p.3 (La. 4/26/02), 815 So.2d 809, 811, police may “draw on their

own experience and specialized training to make inferences from and deductions

about the cumulative information available to them that ‘might well elude an

untrained person’”)(quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct.

744, 750-51, 151 L.Ed.2d 740 (2002).

As with Barker, in State of Louisiana v. Cary Anderson, 377 So. 2d 837 (La.

1979), Mr. Anderson was driving while intoxicated and had driven his car into a

chain link fence striking a tree and a house. Nevertheless, one of the officers

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proceeded to make an inventory search of the vehicle’s contents. No effort was

made to secure the consent of Mr. Anderson to this inventory. The searching

officer went immediately to the glove compartment, first looked inside a toilet

article kit and found nothing illegal. Underneath the kit, the officer saw a plastic

bag containing three smaller sandwich bags containing heroin. The Louisiana

Supreme Court held that an unconstitutional warrantless search may not be

constitutionalized by a police policy requiring an “inventory” search, where

impoundment of a vehicle or inventory is unnecessary. Accordingly, the Louisiana

Supreme Court reversed the trial court’s ruling denying Anderson’s motion to

suppress the evidence as unconstitutionally seized, setting aside the conviction and

sentence appealed from, and remanded Anderson’s case for a new trial in

accordance with the law.

E. CONCLUSION

I conclude that the original stop of Barker was proper in that the vehicle he

was driving has an expired registration. The search of the vehicle was proper only

to the extent that Barker gave unrestricted permission to the officer to do so. The

evidence obtained as a result of the initial search was obtained validly in plain view

and/or in an area where it would be expected for the officer to search given the

reason for the stop. Despite arguments of undue duress in granting permission to

the officer to search the vehicle, the evidence of the initial search will likely be

allowed at trial.

The same cannot be said for the evidence obtained from an unreasonable

search of the e-mail. Barker will argue from the perspective of a "reasonable

officer" regarding the facts showing a reasonable expectation of privacy. Barker

will also argue that Officer Dillion's action of the e-mail search constituted "police

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misconduct" in that the necessary and required search warrants was not obtained

prior to the search. Mr. Barker will argue that seizure of the items contained in the

emails were a direct violation of his Fourth amendment rights.

Concerning Officer Dillion's seizure of the contents in the glove box, Mr.

Barker can argue that this was a warrantless search and seizure without probable

cause given the reason for the stop was expired registration and that he granted

permission to search under undue duress.

With regard to the consent of search by Mr. Barker, the Plaintiff must prove

Mr. Barker actually gave consent and mere acquiescence to the police does not

count. The court will determine whether Mr. Barker was coerced or under duress

to submit his consent during the traffic stop and whether Mr. Barker knew he had

the right to refuse the search of his vehicle during the stop.

The court will also take into consideration Mr. Barker's age, whether or not

a language barrier existed during the time of the stop, race, capacity, education

and sophistication, and experience with the police.

The Plaintiff will bear the burden of proving that the search was reasonable

during a warrantless search. However, before evidence is seized during a

warrantless search to be excluded from trial, Mr. Barker must prove that he had a

reasonable expectation of privacy in the place that was searched.

On the factor concerning whether or not the e-mail evidence will be

suppressed obtained from the glove box by Officer Dillion, the court will likely find

Mr. Barker’s mother will face charges relative to conspiracy with intent to

distribute or possession with intent to distribute a Schedule I narcotic drug.

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Thus, viewing all the evidence both direct and circumstantial in the light

most favorable to the state, any rational trier of fact could have concluded beyond

a reasonable doubt and to the exclusion of any reasonable hypothesis of innocence

that Mr. Barker possessed marijuana but since the evidence of the e-mail with the

intent to distribute should be suppressed, the court is not likely to find possession

with the intent to distribute.

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