author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Jonathan McCLENDON.
    No. 2013-K-1454.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, Donald G. Cassels, III, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for State of Louisiana.
    John T. Fuller, Gregory Q. Carter, John T. Fuller & Assoc., New Orleans, LA, for Jonathan McClendon.

      (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

hWe granted the prosecution’s application for a writ of certiorari in order to review whether the district judge erred when he suppressed for use at trial the illegal narcotics evidence seized from the person of the defendant, Jonathan McClendon, following an investigatory stop. The parties were afforded oral argument.

In his motion to suppress, Mr. McClen-don contended that the police violated his fundamental right to be secure in his person when he was unconstitutionally seized without reasonable suspicion. After hearing the testimony of Sergeant Eric Gillard, the district judge granted Mr. McClen-don’s motion to suppress. After our de novo review, we also hold the seizure to be unreasonable under the Fourth Amendment and find that the officers lacked reasonable suspicion to effectuate a lawful investigatory stop. Furthermore, we find that the district judge did not abuse his discretion in granting Mr. McClendon’s motion to suppress. We thus affirm the ruling and remand the matter to the trial court for further proceedings. We explain our decision in greater detail below.

Jl

In this Part, we set forth the facts pertinent to our review. At approximately 7:15 p.m. on September 10, 2013, Mr. McClen-don and a companion were standing near the corner of Second and Dryades Streets in New Orleans. Sergeant Gillard, the only witness to testify at the suppression hearing, stated that it “was still kind of daylight” and “wasn’t actually getting dark” at that time. Sergeant Gillard described the neighborhood in which Mr. McClendon and his companion were standing as one of the worst in the Sixth Police District, which covers the area commonly referred to as “Central City.” According to Sergeant Gillard, in the vicinity of that corner, there is bar that is a nuisance and attracts illegal conduct, such as shootings, robberies, stabbings, fights, and sales of illegal narcotics.

Sergeant Gillard, a nineteen-year veteran of the police force, was traveling on Dryades Street in a police unit following several car lengths behind another unit occupied by two other officers. As the lead car approached Second Street, the officers observed Mr. McClendon and his companion. According to Sergeant Gil-lard, when Mr. McClendon saw the police vehicle, he became “kind of anxious and kind of hurried to get from the area.” Mr. McClendon then entered a vehicle driven by his companion, and the vehicle attempted to pull off. At this point, the ^police elected to conduct an investigatory stop, and the lead police unit blocked in the vehicle such that it could not proceed down the road.

Subsequent to the initiation of the investigatory stop, the officers approached the vehicle, noticed that the vehicle’s brake tag was expired, and explained to the men their reason for stopping and detaining them. As Sergeant Gillard approached the vehicle from the passenger side, he observed Mr. McClendon in the vehicle fumbling with his waistband area and looking around nervously as if he was trying to reach for or destroy something.

The officers then elected to remove the subjects from the vehicle and conduct a limited weapons frisk. At this point, Mr. McClendon became visibly nervous and started shaking. When Sergeant Gillard patted down Mr. McClendon’s right front pocket area, he felt a bulge. Mr. McClen-don then blurted out that “it was drugs.” Sergeant Gillard advised Mr. McClendon of his rights and handcuffed him. He recovered crack cocaine wrapped in plastic from Mr. McClendon’s front pocket. Sergeant Gillard then re-advised Mr. McClen-don of his rights and explained that he was being placed under arrest for possession of cocaine. While in the patrol car, Mr. McClendon made statements that he was just trying to take care of his family. Sergeant Gillard was not present, however, when other incriminating statements were made by Mr. McClendon.

After hearing Sergeant Gillard’s testimony, the district judge suppressed for use at trial the evidence seized from Mr. McClendon as well as the statements made by him.

Ji.II

In this Part, we discuss the legal precepts that guide our review. The Fourth Amendment to the United States Constitution and Article I, Section 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. It is important to remember that “the Fourth Amendment protects people, not places.” Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (citing Katz v. U.S., 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). In order for the Fourth Amendment to guard a citizen from unreasonable state action, however, that person must have a reasonable expectation of privacy at the time of the search or seizure. See id. See also State v. Clausen, 97-0885, p. 4 (La.App. 4 Cir. 7/2/97), 697 So.2d 1066, 1068.

“Reasonableness is always the touchstone in striking the balance between legitimate law enforcement concerns, such as officer safety, and protected individual privacy interests.” State v. Francis, 10-1149, pp. 4-5 (La.App. 4 Cir. 2/16/11), 60 So.3d 703, 708 (citing State v. Bell, 09-0574, p. 14 (La.App. 4 Cir. 12/9/09), 28 So.3d 502, 512). Warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless the governmental conduct is shielded by one of the few narrow exceptions to the warrant requirement. See State v. Surtain, 09-1835, p. 7 (La.3/16/10), 31 So.3d 1037, 1043 (citing Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). The prosecution carries the burden of proving that a warrantless search is compatible with one of these exceptions and is thus reasonable under the Fourth Amendment. See La.C.Cr.P. art. 708 D. This requires that pertinent facts and circumstances be articulated through testimony by 15law enforcement officials at evidentiary hearings on motions to suppress. See State v. Temple, 02-1895, p. 5 (La.9/9/03), 854 So.2d 856, 860.

A Fourth Amendment violation alone, however, is not sufficient to justify the suppression of evidence recovered pursuant to unconstitutional searches and seizures. See Herring v. U.S., 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (citing Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). If the prosecution fails to elicit adequate information, the district judge should still only grant a motion to suppress upon a finding that the application of the exclusionary rule furthers the interest protected by that constitutional guarantee. See Hudson v. Michigan, 547 U.S. 586, 593, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006); Wong Sun v. U.S., 371 U.S. 471, 491-492, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); U.S. v. Ceccolini, 435 U.S. 268, 278-279, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978).

With regards to violations of the Fourth Amendment, “[t]he exclusionary rule should only apply where it “results in appreciable deterrence” of police misconduct. Id. at 141, 129 S.Ct. 695 (citing United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (2004)) (internal punctuation omitted). This requires “an assessment of the flagrancy of the police misconduct,” and review of whether “the law enforcement officer had knowledge, or may be properly charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. at 143, 129 S.Ct. 695. The district judge, prior to making his ruling on a motion to suppress, should then weigh the benefit of this deterrence against the social costs of the application of the exclusionary rule, namely letting guilty, possibly dangerous defendants go free and stifling truth seeking. See id. at 141, 129 S.Ct. 695.

| fiIn our review of a district judge’s decision to deny or grant a petitioner’s motion to suppress, we first look to the factual findings underlying the judge’s decision. We grant great deference to these findings of fact, and will “not overturn those findings unless there is no evidence to support those findings.” State v. Wells, 08-2262, p. 4 (La.7/6/10), 45 So.3d 577, 580. See also State v. Morgan, 09-2352, p. 5 (La.3/5/11), 59 So.3d 403, 406 (“Furthermore, a reviewing court must give due weight to factual inferences drawn by resident judges.”). This extremely heightened deference is rooted in the limitations of our appellate jurisdiction set forth in La. Const. art. 5, § 10(B), which provides: “In criminal cases, [an appellate court’s] jurisdiction extends only to questions of law.” This limited scope of review also stems from the “complementary role of trial courts and appellate courts,” State v. Love, 00-3347, p. 9 (La.5/23/03), 847 So.2d 1198, 1206, as district judges have the unique “opportunity to observe the witnesses and weigh the credibility of their testimony.” Wells, 08-2262 at p. 5, 45 So.3d at 581.

Applying the district court’s supported findings of fact, we review the district judge’s holdings on questions of law, including the reasonableness of government conduct under the Fourth Amendment, de novo. See Id., 08-2262 at p. 4, 45 So.3d at 580; State v. Pham, 01-2199, p. 3 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218. Should we find no reversible legal error in the court’s reasonableness determination, we then review the district judge’s decision to grant a motion to suppress for abuse of discretion, see Wells, 08-2262 at p. 5, 45 So.3d at 581, as the ruling as to whether the exclusionary rule is being properly applied under Fourth Amendment doctrine is a mixed question of law and fact. See Pham, 01-2199 at p. 3, 839 So.2d at 218. See also State v. Lewis, 11-0889, p. 11 (La.App. 4 Cir. 2/1/12), 85 So.3d 150, 157-158.

JjA

Under the Fourth Amendment, a seizure occurs when an individual “either submits to [a] police show of authority or is physically contacted by the police.” State v. Tucker, 626 So.2d 707, 711 (La.1993) (citing California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). The standard applied when making this determination was set forth in United States v. Mendenhall, which requires a reasonable person to believe that he was “not free to leave” the encounter in light of the circumstances surrounding the incident. 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

La. Const. art. I, § 5 provides more expansive protections to individuals than that supplied by the Fourth Amendment. See State v. Sylvester, 01-0607, p. 3 (La.9/20/02), 826 So.2d 1106, 1108; State v. Harris, 11-0941, p. 5 (La.App. 4 Cir. 8/2/12), 98 So.3d 903, 909. A seizure occurs under Article I, Section 5 “when the individual is either ‘actually stopped’ or when an ‘actual stop’ of the individual is ‘imminent.’ ” Tucker, 626 So.2d at 712. An “actual stop” is only “imminent” when the “police come upon an individual with such force that, regardless of the individual’s attempt to flee or elude the encounter, an actual stop of the individual is virtually certain.” Id. (emphasis in original).

B

The prosecution asserts that this seizure was a constitutionally permissible Terry stop, which allows for police officers, when they observe unusual conduct which leads them to reasonably conclude in light of their experience that criminal ^activity may be afoot, to briefly stop suspicious persons and make reasonable inquiries aimed at confirming or dispelling their suspicions. See Dickerson, 508 U.S. at 373, 113 S.Ct. 2130 (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868); Sylvester, 01-0607 at p. 5, 826 So.2d at 1109. “Although the purpose of the stop is limited and the duration is brief, an investigatory stop constitutes a ‘seizure.’ ” State v. Moreno, 619 So.2d 62, 65 (La.1993) (citing Mendenhall, 446 U.S. 544, 100 S.Ct. 1870). See also Terry, 392 U.S. at 16, 88 S.Ct. 1868 (“[Whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person” for Fourth Amendment purposes).

In order to perform a lawful investigatory stop, the police must have reasonable suspicion that a particular person is committing, has committed, or is about to commit an offense prior to the seizure of that person. See La.C.Cr.P. art. 215.1 A. Reasonable suspicion for an investigatory stop “is something less than probable cause for arrest.” State v. Fogan, 609 So.2d 1016, 1018 (La.App. 4th Cir.1992). See also Dickerson, 508 U.S. at 873, 113 S.Ct. 2130; Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). “Police do not have to observe what they know to be criminal behavior before investigating.” State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989.

Our review is “an objective inquiry into the totality of the circumstances surrounding the encounter,” State v. Dumas, 00-0862, p. 2 (La.5/4/01), 786 So.2d 80, 81 (citing State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881), and calls for consideration of whether “the facts available to the officer at the moment 19of the seizure ... warrant a man of reasonable cause in the belief that the action taken was appropriate.” Terry, 392 U.S. at 21-22, 88 S.Ct. 1868 (internal quotations and punctuation omitted, and emphasis added). See also State v. Robertson, 97-2960, pp. 3-4 (La.10/20/98), 721 So.2d 1268, 1270.

“[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 5.Ct. 1868. See also Francis, 10-1149 at p. 6, 60 So.3d at 709. Inchoate, unparticu-larized hunches are insufficient grounds for detention under La.C.Cr.P. art. 215.1 A. See State v. Denis, 96-0956, p. 4 (La.App. 4 Cir. 3/19/97), 691 So.2d 1295, 1297. This standard is less demanding, however, “not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” White, 496 U.S. at 330, 110 S.Ct. 2412.

Officers should consider numerous factors before determining whether they have reasonable suspicion under the totality of the circumstances. First, officers can consider whether the person attempted to flee or appeared nervous at the sight of police officers. See State v. Johnson, 94-1170, p. 5 (La.App. 4 Cir. 8/23/95), 660 So.2d 942, 947. See also State v. Huntley, 97-0965, p. 3 (La.3/13/98), 708 So.2d 1048, 1049. “[A]n individual’s subjective nervous reaction to the presence or arrival of police near to him is not sufficient [alone] to conclude that an actual stop of him is reasonable.” State v. Lewis, 11-0889 at p. 9, 85 So.3d at 157. See also State v. Chopin, 372 So.2d 1222, 1224 (La.1979); Morgan, 09-2352 at p. 8, 59 So.3d at 408.

Second, officers can weigh the reputation of the area being patrolled. See State v. Dappemont, 98-0446, p. 12 (La.App. 4 Cir. 3/17/99), 734 So.2d 736, 742. Inquiry into the criminal character of an area is a legally relevant contextual consideration upon which an officer may rely in determining whether reasonable suspicion is present. See Adams v. Williams, 407 U.S. 143, 147-148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Ratliff, 98-0094, p. 3 (La.App. 4 Cir. 5/19/99), 737 So.2d 252, 254. But an individual’s presence in an area of expected crime, standing alone, is insufficient to support a reasonable, particularized suspicion that a person is involved in criminal activity. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). This is because “[w]e must presume that citizens are law abiding, even those in public housing developments and other targeted high crime areas.” Temple, 02-1895 at p. 7, 854 So.2d at 861.

Third, officers can consider both the time of day and whether the area was dimly lit. See State v. Alvarez, 09-0328, p. 3 (La.3/16/10), 31 So.3d 1022, 1024; State v. Wilson, 00-0178, p. 3 (La.12/8/00), 775 So.2d 1051, 1053; Morgan, 09-2352 at p. 7, 59 So.3d at 407. Finally, we should consider all other cumulative information available to the officers as a result of their training, experience, and common sense when reviewing their determinations in the field. See Terry, 392 U.S. at 27, 88 S.Ct. 1868; State, v. Boyer, 07-0476, p. 17 (La.10/16/07), 967 So.2d 458, 469-170. This means consideration of “the circumstances known to the police ‘not in terms of library analysis by scholars, but as understood by those versed in the field of law | ¶ enforcement.’ ” State v. Huntley, 97-0965 at p. 3, 708 So.2d at 1049 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).

Ill

In this Part, we apply these guiding precepts to the facts of this case. There is no question that Mr. McClendon and his associate were entitled to the protection of the Fourth Amendment and La. Const, art. I, § 5 when this seizure occurred. See, e.g., Terry, 392 U.S. at 9, 88 S.Ct. 1868. The crucial inquiry in this case is whether the police possessed reasonable suspicion to perform an investigatory stop at the time of that seizure. Before deciding whether the officers had reasonable suspicion to stop Mr. McClendon and his associate, however, we must first determine at what point in time the men were “seized” as it is from before that moment that the prosecution must show that the police possessed reasonable suspicion. See La.C.Cr.P. art. 703 D. See, e.g., Alvarez, 09-0328 at p. 3, 31 So.3d at 1024; Harris, 11-0941 at pp. 7-8, 98 So.3d at 911.

The police effected a seizure under both the Fourth Amendment and La. Const, art. I, § 5 at the moment that the police unit blocked in the vehicle containing Mr. McClendon and his companion. Completely blocking in a person’s vehicle with a patrol unit constitutes a seizure as it imposes an “actual restraint” on a person’s movement. See State v. Broussard, 00-3230, pp. 5-6 (La.5/24/02), 816 So.2d 1284, 1288 (per curiam); State v. Zielman, 384 So.2d 359, 362 (La.1980). This seizure constituted a “complete restriction of movement” as the vehicle was not able to proceed down the road, see Broussard, 00-3230 at p. 3, 816 So.2d at | ia1287, and a reasonable person would not feel free to leave under the circumstances. See Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870.

A police car boxing in another vehicle about to drive away is vastly different from a police officer approaching a vehicle to simply ask some casual questions to the driver. See Sylvester, 01-0607 at pp. 4-5, 826 So.2d at 1108-1109. Sergeant Gil-lard’s testimony contains nothing to indicate that this encounter was consensual on the part of Mr. McClendon or anything less forceful than an investigatory stop. Furthermore, Sergeant Gillard’s testimony confirms the degree of force used in effectuating the stop: “They pulled off from the intersection and kind of they couldn’t go any further because the police vehicle was in front of them.”

That the seizure occurred at that moment is very important as the prosecution cannot utilize the presence of an expired brake tag as justification for the police’s seizure of the men. Sergeant Gillard confirmed in his testimony that the officers did not see the brake tag until after the officers had blocked in the vehicle. Thus, the prosecution must show that the police had reasonable suspicion to conduct an investigatory stop prior to when the police blocked in the vehicle. See La.C.Cr.P. art. 703 D.

We have identified three factors upon which the officers based their suspicion. One is the high crime reputation of the intersection of Second and Dryades Streets. The second is that Mr. McClen-don, upon observing the approaching police, was “kind of anxious.” And third is that Mr. McClendon and his companion “kind of hurried to get from the area.”

Of course, officers may weigh all three of these considerations in determining whether there is sufficient cause present to justify an investigatory stop. The police, however, may not simply rely on high crime neighborhood | ^residents’ fear of interaction with police officers to form the foundation of their suspicions and label them as “reasonable” in hindsight after discovering contraband on the person seized. See U.S. v. Martinez-Fuerte, 428 U.S. 548, 565, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (“One such purpose [of the requirement of a warrant] is to prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure.”).

In this case, all that is set forth in Sergeant Gillard’s testimony is that the police were driving in a two-car caravan through a neighborhood that is known for high crime rates. Around 7:15 p.m., while still light outside, they approached the intersection of Dryades and Second Streets and observed Mr. McClendon become “kind of’ nervous and “kind” of hurry to leave the area upon seeing the police unit. The police received no information connecting Mr. McClendon and his associate to criminal activity, and the men were not committing any crime at the time that the police observed them. Police are not permitted to stop people solely because they become “kind of’ nervous upon their realization of the presence of the police. See Chopin, 372 So.2d at 1225.

Nothing contained in Sergeant Gillard’s testimony provides a reasonable basis upon which he and the other two officers could have detained Mr. McClendon and his companion. The prosecution failed to meet their burden set forth in La.C.Cr.P. art. 703 D. After our de novo review, we agree with the district judge’s ruling that the officers lacked reasonable suspicion to conduct an investigatory stop and, thus, that the seizure was unreasonable under the Fourth Amendment. Furthermore, the district judge did not abuse his discretion in granting Mr. McClendon’s motion to suppress. The police conduct in this case must be deterred in order to properly protect citizens from governmental intrusion into their everyday lives. The social cost of suppressing the evidence is Insignificantly outweighed by the need to deter the police from effectuating investigatory stops without reasonable suspicion. The fruit of this unlawful seizure was properly suppressed.

DECREE

Having granted a writ of certiorari, we now affirm the district judge’s ruling which suppressed the narcotics evidence obtained from Mr. McClendon as well as Mr. McClendon’s statements at trial. We remand the matter to the trial court for further proceedings.

WRIT OF CERTIORARI GRANTED; AFFIRMED AND REMANDED.

      . See State v. Carter, 13-1452, pp. 1-2 (La.App. 4 Cir. 12/19/13), 131 So.3d 479, 484, 2013 WL 6923712 (discussing the factors to be considered in granting the prosecution's application for a writ of certiorari to review a district judge's decision to grant a defendant's motion to suppress).

      . Mr. McClendon did not avail himself of the provisions of La.C.Cr.P. art. 703 E(l) and introduced no evidence to contradict Sergeant Gillard’s testimony. La.C.Cr.P. art. 703 E(l) permits a defendant to testify at an evi-dentiary hearing on a motion to suppress "without being subjected to cross-examination on other matters,” and his testimony cannot be used by the prosecution "except for the purpose of attacking the credibility of the defendant's testimony at the trial on the merits.”

      . The limitations on governmental action and remedies for such conduct set forth in the Fourth Amendment and the U.S. Supreme Court’s interpretive jurisprudence apply to State prosecutions through the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

      . We also apply a reasonableness standard when analyzing governmental conduct under La. Const. art. I, § 5. See State v. Tucker, 626 So.2d 707, 711 (La.1993); State v. Lewis, 11-0889, p. 4 (La.App. 4 Cir. 2/1/12), 85 So.3d 150, 154.

      . Because we find that an actual stop occurred in this case, see Part III, post, we need not discuss whether the police's stop of Mr. McClendon and his companion was "imminent.” The Louisiana Supreme Court, however, has set forth factors for this determination: (1) the proximity of the police in relation to the defendant at the outset of the encounter, (2) whether the individual has been surrounded by police, (3) whether the police approached the individual with their weapons drawn, (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter, (5) the location and characteristics of the area where the encounter takes place, and (6) the number of police officers involved in the encounter. See id. at 712-713.

      . La.C.Cr.P. art. 215.1 A provides: "A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, his address, and an explanation of his actions.” This article complies with the standards established under the Fourth Amendment to the U.S. Constitution and La. Const. art. I, § 5. See State v. Denis, 96-0956, p. 3 (La.App. 4 Cir. 3/19/97), 691 So.2d 1295, 1296.

      . See Harris, 11-0941 at p. 9, 98 So.3d at 912 n. 4 (discussing the consideration of “high crime areas” in police officer determinations of reasonable suspicion for conducting investigatory stops).

      . Though not briefed, we hold that the subsequent search and statements by Mr. McClendon were not sufficiently attenuated to dissipate the taint of the unlawful conduct "considering the[ir] temporal proximity [to the illegality], the lack of intervening circumstances, and the purpose and flagrancy of the misconduct.” Moreno, 619 So.2d at 67. See also Wong Sun v. U.S., 371 U.S. 471, 491, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).


source: Caselaw Access Project

author: JAMES F. McKAY III, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Steven DOMINICK.
    No. 2013-KA-0270.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2014.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Matthew C. Kirk-ham, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for State of Louisiana.
    Julie C. Tizzard, Julie C. Tizzard, L.L.C., New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO).
   JAMES F. McKAY III, Chief Judge.

It The defendant, Steven Dominick, appeals the judgment of the trial court denying his motion for a downward departure from a previously agreed ten year sentence. We find no error in the trial court’s denial of this motion. However, we find that the trial court erred in failing to impose a mandatory fine pursuant to La. R.S. 14:81.1(E)(1)(a). As such, we affirm the defendant’s conviction and sentence and remand the matter to the trial court for the imposition of the statutorily required fine.

STATEMENT OF THE CASE

In ease number 505-411 “E”, the defendant was charged by bill of information on April 27, 2011, with one hundred and thirty-nine counts of violation of La. R.S. 14:81.1 , to wit, pornography involving juveniles. On May 6, 2011, the defendant entered a plea of not guilty. On June 17, 2011, the trial court held a preliminary hearing and found probable cause to substantiate the charges and bound the defendant for trial. That same day, the trial court denied the defendant’s motion to suppress evidence.

|2On October 6, 2011, the State filed a response to the defendant’s motion for a bill of particulars and a notice of intent to introduce evidence in accordance with La. C.E. art. 412.2. The trial date was continued several times throughout October and November of 2011. On March 13, 2012, the defendant withdrew all one hundred and thirty-nine former not guilty pleas and pled guilty as charged to an agreed upon sentence of ten years per count, each to run concurrently with the others. On August 8, 2012, the defendant appeared for formal sentencing. Prior to the formal sentencing, the defendant filed a written motion for consideration of downward departure of a previously agreed ten year sentence. The trial court denied the motion and sentenced the defendant to ten years on each of the one hundred and thirty-nine counts(violations) pursuant to La. R.S. 14:81.1, to wit, pornography involving juveniles, to run concurrently with any and all other sentences being served, with credit for time served.

FACTS

Detective James O’Hern testified that on June 10, 2010, he was executing a search warrant on the defendant in a separate case and seized the defendant’s computers, which were placed on the books at the New Orleans Police Department central property and evidence department and then delivered to the Attorney General’s Office. On February 11, 2011, a forensic analyst at the Attorney General’s Office contacted Detective O’Hern and advised that contraband had been discovered that was “outside the scope of the original search warrant.” The contraband consisted of twenty-four videos and forty-six still images of pornography involving juveniles. Accordingly, Detective O’Hern executed an |,^arrest warrant on the defendant which charged the defendant with seventy counts of possession of pornography involving juveniles. The defendant was subsequently charged with one hundred and thirty-nine counts of possessing or possessing with the intent to distribute pornography involving juveniles, a violation of La. R.S. 14:81.1.

ERRORS PATENT

A review of the record evidences one error patent with respect to sentencing. At the time the defendant committed the offenses, La. R.S. 14:81.1(E)(1)(a) provided that whoever commits the crime of pornography with juveniles shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than two years or more than ten years, without benefit of parole, probation, or suspension of sentence.

However, when the trial court sentenced the defendant, the trial court failed to state that the sentences were to be served without benefit of parole, probation, or suspension of sentence, and failed to impose a fine. This Court has recognized that “paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restrictions are not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court.” State v. Wyatt, 2011-0219, p. 20 (La.App. 4 Cir. 12/22/11), 83 So.3d 131, 143 (citing State v. Williams, 20001725 (La.11/28/01), 800 So.2d 790). Accordingly, “this Court need take no action to correct the trial court’s failure to specify that the defendant’s sentences be served without benefit of parole, probation or suspension of sentence” because it is statutorily effected. State v. Wyatt, 2011-0219, p. 20, 83 So.3d at 143 (citing La. R.S. 15:301.1(A)).

With respect to the failure to impose a fine, “[tjhis court has determined that the failure to impose a mandatory fine requires that the matter be remanded for the imposition of that fine.” State v. Hart, 2010-1614, p. 4 (La.App. 4 Cir. 11/2/11), 80 So.3d 25, 29 (citing State v. Williams, 2003-0302, pp. 3-4 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, 753). Therefore, we remand the matter for the imposition of the mandatory fíne.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In the defendant’s sole assignment of error he asserts that the trial court abused its discretion in denying his motion to reconsider sentence. Despite the defendant’s assertions on appeal, our review of the record indicates that the defendant moved the trial court on a motion for consideration of a downward departure from his previously agreed upon sentence that was pursuant to a plea agreement, which the trial court denied. This denial is the only judgment on appeal in the case subjudice, case # 505-411 “E.” The defendant’s motion for downward departure was filed and denied prior to the formal sentencing.

Specifically, the defendant asserts, in his motion for downward departure, that mitigating evidence that was discovered after he had entered a guilty plea but prior to sentencing, is of such a nature that the agreed upon sentence of ten years |fishould be reduced. He argues that the trial court must consider mitigating factors before imposing a sentence; the newly discovered mitigating evidence suffices to allow the trial court to reconsider his ten-year sentence. See La.C.Cr.P. art. 894.1.

The defendant argues that on the computer from which the pornographic material was seized, he was using LimeWire, “a popular computer application used by many to download and distribute music, pictures and videos.” Additionally, the defendant attached an article to the motion for downward departure entitled “How Li-meWire Works”, which described how Li-meWire worked with a network protocol called Gnutella, a peer-to-peer sharing device. The defendant also argues that according to “[m]any articles on the Internet,” child pornography videos would often “get mixed up with” adult pornography videos without the users’ knowledge. Additionally, the defendant cites a report from the Federal Trade Commission that explained “inadvertent exposure to pornographic or other inappropriate materials when sharing files through [peer-to-peer networks].” Specifically, the defendant argues that the FTC report establishes that file sharing software such as LimeWire has the ability to select files for sharing, and that as a result, files would be sent and received by a user without the user’s knowledge.

Likewise, the defendant argues, peer-to-peer software is generally susceptible to viruses and spyware, which search for shared folders on a computer and then become inserted into the file, potentially “adjusting] shared folders on a user’s hard drive so that the user ended up sharing more files than he intended.” The defendant requests this Court take judicial notice, pursuant to La.C.Cr.P. art. 201, “that viruses are so sophisticated that it is possible that a virus will add |6folders and files to a person’s computer without the owners’ consent or knowledge.”

The defendant further argues that the Second Circuit has acknowledged that the possession of child pornography could occur accidentally, citing State v. Horton, 42,199, p. 13 (La.App. 2 Cir. 6/20/07), 962 So.2d 459, 467, in which the court stated the following:

La. R.S. 14:81.1(A)(3) unambiguously states that “pornography involving juveniles includes the intentional possession ... or possession with intent to sell or distribute....” Thus, there appears to be no mistake by the legislature in intending to punish not only possession with intent to sell or distribute, but also merely “intentional possession.” Additionally, the words “intentional possession,” taken in their usual sense, mean that the individual knowingly and voluntarily possessed the pornography, in contrast to circumstances where a person downloads images from the internet without realizing that some images included in the download were child pornography.

State v. Horton, 42,199, p. 18 (La.App. 2 Cir. 6/20/07), 962 So.2d 459, 467.

The defendant further argues that the State alleged that the majority of the child pornographic files on the defendant’s computer were under the file name “PRI-VATE2”, which, as previously noted, could have been infected with spyware or a virus, or could have been used by numerous other individuals who had access to the defendant’s computer. The defendant notes that he kept his password for the computer at issue taped to the wall near the computer, and therefore, the computer could have been easily accessed by his son, his girlfriends, or co-workers. The defendant contends that these facts refute the argument that he intended to download the pornography involving juveniles.

The defendant acknowledges that his trial attorneys advised him that “[t]he state has entries that show work documents were being drafted by you in MS word while pornography files were being accessed.” However, the defendant argues that |7there is a simple explanation for this, because the “last accessed” time upon which his trial attorneys relied was inaccurate because, according to correspondence counsel for the defendant received from “Computer Expert, Wes Atta-way”, “the Last Accessed Time is not a reliable indicator of when (or even if) a file was viewed by a human operator.”

With regard to alleged mitigating factors, counsel for the defendant argued that counsel had “never handled a child pornography case where the child pornography was stored as overtly as it was in this case”, because, according to the defendant’s trial counsel, the child pornography was allegedly discovered in a subfolder of PRIVATE2 entitled “cp vid.” This filen-ame, the defendant argues, mitigates his guilt because the lack of concealment of the pornography, which was “strewn about randomly in the PRIVATE2 and PRI-VATE2/cpvid folders” thereby “indicates a lack of an awareness of the contraband, not an intent to possess said contraband.” Counsel for the defendant also cites the correspondence from the defendant’s trial counsel that acknowledged that Detective O’Hern inserted a zip drive into the defendant’s computer and thus “had custody and control over the computer before it was sent to the State AG’s office for forensic analysis” and notes that this fact is “especially curious” when considered with the “overt location of the child pornography” on the defendant’s computer.

The defendant also contends that the number and nature of the pornographic images and videos involving juveniles that he possessed was “not aggravating”, citing a law professor’s blog entry which quoted an article from Canada wherein a Canadian law official stated that he had seen seizures of child pornography with over one million images and twelve hundred videos. In contrast, the defendant argues, he possessed “nowhere close” to this amount, and furthermore, the types of loimages he possessed were “not abnormal for child pornography cases” as “the majority of child pornography cases include these images.”

Despite the fact that the trial court indicated that it did review the motion, the defendant’s reliance on La.C.Cr. Pro. art 894.1, is misguided. The defendant’s asserted mitigating factors clearly address his guilt or innocence in the case sub judi-ce, and are not a basis for a sentencing downward departure.

Therefore, the defendant’s assertions concerning issues of mitigation factors are meritless and are of no moment in this appeal.

The entire matter in the ease sub judice is confounded by the fact that the defendant was sentenced in both case #497-512, and case # 505-411 (the instant matter) on the same day, which in the same transcript memorialized what transpired at the August 8, 2012 formal sentencing.

As evidenced in the transcript:

By the Court;

All right. Miss Tizzard, I understand you have some filings you’d like to place in the record before we begin.

By Ms. Tizzard:

Yes, Your Honor. At this time I’m filing in case #497-512, a motion to withdraw guilty plea. Also in case # 497-512, a motion to proffer evidence in support of the motion to withdraw guilty plea. In case # 497-512, a formal request for a hearing on the motion to withdraw guilty plea.

And in case number 505-411, a motion for consideration of downward departure of a previously agreed to ten-year sentence based on mitigation evidence that is attached, Your Honor.

By the Court:

... And as to your motion to withdraw the guilty plea of Mr. Dominick in case number 497-512, I have reviewed this motion. And at this time I am going to deny your request.

And again, I previously reviewed this. And then in 505-411, I have previously reviewed your motion for a consideration of a downward departure of the previously agreed upon ten-year sentence of Mr. Dominick. And at this time I am going to deny your request.

|9Ms. Tizzard:

Note my objection, Your Honor.

Clearly, the defendant’s objection was based upon the trial court’s denial of his motion for downward departure in case # 505-411. The trial court, subsequent to this objection, proceeded to sentence the defendant in case # 505-411.

The State maintains that the trial court properly denied the defendant’s motion for a downward departure pursuant to La.C.Cr.P. art. 881.2(A)(2), arguing that the defendant accepted the ten-year sentence in conformity with his guilty plea. The State also cites a passage from State v. Taylor, 44,205, pp. 5-6 (La.App. 2 Cir. 5/13/09), 12 So.3d 482, 484-85, wherein the Second Circuit found that reviewing claims of excessiveness where the sentence imposed was within an agreed range pursuant to a plea bargain was a waste of judicial resources:

Finally, in the past this court, in an abundance of caution, often has reviewed excessiveness claims even after stating that a sentence imposed within an agreed range cannot be appealed as excessive. However, we conclude that this practice is not in the interest of sound judicial administration, because it encourages meritless appeals, like this one, that challenge only the alleged ex-cessiveness of a sentence imposed pursuant to and in conformity with a sentencing cap voluntarily and intelligently agreed to by the defendant. Such appeals waste judicial resources. Counsel representing defendants who have no other issues are hereby cautioned against filing such appeals.

The State’s argument has merit. The defendant was properly informed of what his sentence would be prior to the actual imposition of sentence. The record contains a copy of the defendant’s Felony Waiver of Constitutional Rights/Plea of | ipGuilty Form, wherein the defendant acknowledged that the sentencing range was two to ten years. At the March 13, 2012 hearing, during which the defendant withdrew his not guilty pleas and entered guilty pleas to the 139 counts of pornography involving juveniles, the trial court plainly advised the defendant that the sentencing range for his offenses was two to ten years and that the sentence would be subsequently determined at a sentencing hearing:

THE COURT:
Have the acts constituting the offenses to which you are pleading guilty been explained to you?
[DEFENDANT]:
Yes, they have.
THE COURT:
As well as the fact that the sentencing range as to the five counts of forcible rape, the range is five to a maximum of 40 years on each count; as to the extortion, the range is one to a maximum of 15 years on each count; as to the second-degree kidnapping, the range is five to 40 years; as to the six counts of stalking the range is one to five years; do you understand that? [DEFENDANT]:
Ido.
THE COURT:
And as to the pornography involving juveniles, the sentencing range as to each count is two to a maximum of ten years in the department of corrections. Do you understand that ? [DEFENDANT]:
I do.
THE COURT:
And that the sentence you will receive will be determined at the hearing that will be held on May 3rd? [DEFENDANT]:
Yes, I do.

(emphasis added)

| irIt is evident that all parties agreed to the deferment of sentencing and were under the impression that an agreement as to sentencing, regarding the case with respect to the pornography involving juveniles, had been reached prior to formal sentencing. Specifically, counsel for the defendant’s request for a downward departure was captioned as a “Motion for Consideration of Downward Departure of a Previously Agreed Ten Year Sentence.” Additionally, at the formal sentencing hearing, defense counsel stated at the outset of the hearing, “And in case number 505-411, a motion for consideration of downward departure of a previously agreed to ten-year sentence based on mitigation evidence that is attached, Your Honor.”

The trial court was unequivocal in its opinion that the defendant had agreed to a ten year sentence, as the trial court stated, “[a]nd then in 505-411, I have previously reviewed your motion for a consideration of a downward departure of the previously agreed upon ten-year sentence for Mr. Dominick. And at this time I am going to deny your request.” Additionally, the trial court stated:

All right. Mr. Dominick, let me have you approach the podium for me.
And let me just state for the record that some of the parties are asking for sentences that are not in conjunction with the agreement that we made with the victims in this case. And, Mr. Dominick, at this time I am going to enforce the plea agreement, although it was not made in consideration for your testimony in another case, but prior to you going to trial with the attorneys that you had at this time and with the State. With the consideration of the victims and their input, sir, I agreed that if you pled guilty prior to trial, that I would sentence you to 20 years in the Department of Corrections in case number 497-512. And as to 505-411, ten years in the Department of Corrections. And, Mr. Dominick, I am going to enforce that agreement, because that is the agreement that we made.

(emphasis added)

112Here, there is no evidence in the record that the defendant raised an objection that the ten-year sentence was not previously agreed upon pursuant to his guilty plea. Conversely, there is also clear evidence in the record that the defendant was informed that he was facing a ten-year sentence pursuant to his guilty plea. The matter can only go to its logical conclusion that based on objective evidence the defendant, the court and the State knew the defendant would be sentenced to ten years. To reiterate, nowhere in the record did the defendant assert or object to the fact that he was unaware of the ten-year sentence.

As previously noted, when the trial court sentenced the defendant as to the charges of pornography involving juveniles, the trial court stated:

As to case number 505-411, Mr. Dominick, sir, you also pled guilty in this case on March 12th of this year — March 13th, excuse me, of this year. And as to each count of the pornography involving juveniles, sir, I’m going to sentence you to ten (10) years in the Department of Corrections, run those concurrent with any and all sentences, and give you credit for any time you’ve served. And again, this is an agreed upon sentence that we had prior to you going to trial.

(emphasis added).

In conjunction with this issue, it is clear that the defendant knowingly, intelligently, and voluntarily entered an unqualified guilty plea and that the 1 ,¿fundamental Boykin requirements were satisfied. This Court recently recognized “that ‘[i]t is well settled that entry of an unqualified plea of guilty waives all non-jurisdictional defects occurring prior thereto, and precludes review thereof either by appeal, or where appeal is unavailable, by supervisory review.’ ” State v. Pete, 2012-0378, pp. 5-6 (La.App. 4 Cir. 3/20/13), 112 So.3d 353, 357 (emphasis added)(quoting State v. Sellers, 2004-1922, 2004-1923, p. 5 (La.App. 4 Cir. 4/20/05), 902 So.2d 418, 421). Accordingly, “[b]ecause this assignment of error involves a non-jurisdictional defect, this Court is not required to entertain it.” State v. Pete, 2012-0378, p. 6, 112 So.3d at 357 (citing State v. Sellers, 2004-1922, p. 6, 902 So.2d at 421).

Furthermore, the record evidences that the defendant did not file a motion to withdraw the guilty plea in connection with this case.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s convictions and sentence and remand for the imposition of the statutorily mandated fine.

AFFIRMED IN PART AND REMANDED IN PART.

      . La. R.S. 14:81.1 provides, in pertinent part:
      A. (1) It shall be unlawful for a person to produce, promote, advertise, distribute, possess, or possess with the intent to distribute pornography involving juveniles. (2) It shall also be a violation of the provision of this Section for a parent, legal guardian, or custodian of a child to consent to the participation of the child in pornography involving juveniles.

      . La. R.S. 14:81.1(E)(1)(a) was amended to provide that, effective August 1, 2012, “[w]ho-ever intentionally possesses pornography involving juveniles shall be fined not more than fifty thousand dollars and shall be imprisoned at hard labor for not less than five years or more than twenty years, without benefit of parole, probation, or suspension of sentence.” See Acts 2012, No. 446, § 1 (emphasis added).

      . The trial court sentenced Defendant as follows:
      BY THE COURT:
      I’ll let you take that up.
      As to case number 505-411, Mr. Dominick, sir, you also pled guilty in this case on March 12th of this year — March 13th, excuse me, of this year. And as to each count of the pornography involving juveniles, sir, I’m going to sentence you to ten (10) years in the Department of Corrections, run those concurrent with any and all sentences, and give you credit for any time you’ve served. And again, this is an agreed upon sentence that we had prior to you going to trial. I’ll note your objections as to that, [counsel for Defendant].

      . Although the defendant references La. C.Cr.P. art 201, the correct reference for judicial notice of adjudicative facts is La. C.E. art 201.

      . La.C.Cr.P. art. 881.2(A) provides:
      A. (1) The defendant may appeal or seek review of a sentence based on any ground asserted in a motion to reconsider sentence. The defendant also may seek review of a sentence which exceeds the maximum sentence authorized by the statute under which the defendant was convicted and any applicable statutory enhancement provisions.
      (2) The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.
      La.C.Cr.P. art. 881.2(A) (emphasis added); see also State v. Vital, 2012-882, pp. 5-6 (La.App. 3 Cir. 2/6/13), 107 So.3d 1279, 1283-84 (emphasis added).

        . The colloquy between the defendant and the trial court at the March 13, 2012 hearing transpired in part as follows:
      THE COURT:
      Mr. Dominick, I hold before me two waiver of rights plea of guilty forms, one in case No. 497-512, for the crime of five counts of forcible rape, three counts of extortion, one count of second-degree kidnapping, and six counts of stalking.
      And then the second, in case No. SOS-All, for 139 counts of pornography involving juveniles. Have you been informed of and do you fully understand the charges to which you are pleading guilty?
      [DEFENDANT]:

        Yes.
      THE COURT:
      Do you understand that you would have the right to a trial by judge or jury in each of these cases, and if convicted, the right to an appeal?
      [DEFENDANT]:
      I do, Your Honor.
      THE COURT:
      And that by entering these pleas of guilty in each of these cases, Mr. Dominick, do you understand that you are waiving both your right to trial and an appeal?
      [DEFENDANT]:
      I do.
      THE COURT:
      Mr. Dominick, sir, are you entering these pleas of guilty to these crimes because you are, in fact, guilty?
      [DEFENDANT]:
      Yes, I am.
      THE COURT:
      Have you been forced, threatened, coerced, or intimidated in any way into making these pleas?
      [DEFENDANT]:
      No.
      (emphasis added).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)