source: Caselaw Access Project

license: Public Domain

text:
    A.M.C., et al. v. James D. CALDWELL, et al.
    CA 17-628
    Court of Appeal of Louisiana, Third Circuit.
    February 15, 2018 Rehearing Denied May 9, 2018
   Patricia Hill Wilton, Assistant Attorney General, Jessica Thornhill, Assistant Attorney General, P. O. Box 94005, Baton Rouge, LA 70804-9005, (225) 326-6300, COUNSEL FOR DEFENDANTS/APPELLANTS: Devin George, Registrar of Vital Records, Tim Barfield, Sec of State, Dept of Revenue, James D. "Buddy" Caldwell, former La. Atty General

Stuart Kyle Duncan, Special Assistant Attorney General, 1629 K Street NW, # 300, Washington, DC 20006, (202) 508-1473, COUNSEL FOR DEFENDANTS/APPELLANTS: Tim Barfield, Secretary of State, Department of Revenue, Devin George, Registrar of Vital Records, James D. "Buddy" Caldwell, former Louisiana Attorney General

Jeffrey K. Coreil, Jennie P. Pellegrin, Carolyn C. Cole, NeunerPate, P. O. Drawer 52828, Lafayette, LA 70505, (337) 237-7000, COUNSEL FOR DEFENDANTS/APPELLANTS: Tim Barfield, Secretary of State, Department of Revenue, Devin George, Registrar of Vital Records, James D. "Buddy" Caldwell, former Louisiana Attorney General

Paul R. Baier, 4222 Hyacinth Ave., Baton Rouge, LA 70808, (225) 364-4647, COUNSEL FOR PLAINTIFFS/APPELLEES: C.S.B., A.M.C.

Joshua S. Guillory, 317 E. University Ave., Lafayette, LA 70503, (337) 233-1303, COUNSEL FOR PLAINTIFFS/APPELLEES: A.M.C., C.S.B.

Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.

EZELL, Judge.

The essential issue in this same-sex marriage, intrafamily adoption case is whether attorney fees and costs were properly awarded following remand of the case to the district court from the supreme court. The Defendants filed an appeal from a judgment of the district court denying their motions to annul judgments rendered on July 10, 2015, and July 25, 2016. They ask for a reversal of the award of attorney fees and costs granted to the Plaintiffs, or in the alternative, an adjustment of the amounts awarded. Lastly, the Defendants claim that the district court erred in failing to grant the Attorney General's exception of no cause of action.

FACTS

C.S.B. gave birth to a son, N.B., on August 1, 2004. A.M.C. and C.S.B., a same-sex couple, were lawfully married in Los Angeles, California on August 8, 2008. On July 12, 2013, the Plaintiffs filed a petition for intrafamily adoption asking that the child's stepmother, A.M.C., be allowed to adopt N.B. The Plaintiffs filed an amending petition asking that the Louisiana Attorney General be served with the amending petition so that they can have due process and their marriage be afforded full faith and credit. This was based on the fact that the Attorney General issued an advisory opinion that Louisiana was not required to recognize an adoption by a same-sex couple who were married in a state that recognizes same-sex marriage.

The district court entered a judgment on January 27, 2014, granting the adoption. The Attorney General filed a suspensive appeal to this court. This court found that the district court erred in holding a hearing on the matter without notifying the Attorney General, since the Attorney General made an appearance in the case and requested notice. In re Adoption of N.B. , 14-314 (La.App. 3 Cir. 6/11/14), 140 So.3d 1263. This court vacated the judgment of adoption and remanded the case to the district court for a hearing on all issues raised by the parties.

Following remand, the Plaintiffs added the Attorney General, the Governor, the Secretary of the State of Louisiana Department of Revenue, and the Louisiana State Registrar as defendants in supplemental and amending petitions. In their second supplemental and amending petition, the Plaintiffs added a claim that the Defendants violated their civil rights pursuant to 42 U.S.C. § 1983.

The Attorney General and the Governor filed an exception of no cause of action. The parties also filed cross motions for summary judgment. A hearing on these matters was held on September 15, 2014.

The district court granted the Governor's exception of no cause of action but denied the Attorney General's exception of no cause of action. The district court also denied the Defendants' motion for summary judgment. In granting the Plaintiffs' motion for summary judgment, the district court declared Louisiana Constitution Article XII, § 15, the Defense of Marriage Act, and La.Civ.Code arts. 86, 89, and 3520(B) unconstitutional, finding these laws violated the Due Process and Equal Protection Clauses of U.S. Const. amend. XIV and the Full Faith and Credit provision found in U.S. Const. art. IV, § 1. The district court further ruled that Louisiana's Revenue Bulletin No. 13-024 (9/13/13) was unconstitutional and ordered the Secretary of the Department of Revenue to allow the Plaintiffs to file their state tax returns as a couple whose marriage is valid and recognized in Louisiana. Additionally, Louisiana was ordered to recognize the Plaintiffs' marriage, validly contracted in California, as lawful in this state. Judgment was signed on September 24, 2014.

Another judgment was also signed on September 24, 2014, reaffirming its previous judgment of intrafamily adoption. The district court ordered the Registrar of Vital Records to issue a new birth certificate listing A.M.C. as N.B.'s mother. The Defendants, except for the Governor who was dismissed on the exception of no cause of action, filed a suspensive appeal of both judgments to the supreme court.

After the appeal, the United States Supreme Court issued its opinion in Obergefell v. Hodges , --- U.S. ----, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), which held that same-sex couples may not be deprived of the fundamental right to marry under the Due Process and Equal Protection Clauses of the United States Constitution. U.S. Const. amend. XIV. The Supreme Court further held that states must recognize lawful same-sex marriages performed in other states.

Subsequently, the federal district court in Robicheaux v. Caldwell , 791 F.3d 616 (5th Cir. 2015), held that La.Const. art. XII, § 15 and La.Civ.Code arts. 89 and 3520(B) were in violation of U.S. Const. amend XIV, and enjoined the State of Louisiana and its officials from enforcing those provisions as well as Louisiana's Revenue Information Bulletin No. 13-024.

Following these rulings, the supreme court ruled that the Plaintiffs in the present case had received all the relief they requested in their motion for summary judgment and dismissed the Defendants' appeal as moot. A.M.C. v. Caldwell , 14-2090 (La. 7/7/15), 167 So.3d 619. The case was remanded to the district court for further proceedings.

After remand, the Plaintiffs presented a judgment to the district court which reaffirmed the September 2014 judgment of the district court and once again reiterated the provisions from the two previous judgments. However, this judgment also awarded costs, expenses, and reasonable attorney fees pursuant to 42 U.S.C. § 1988, as prayed for by the Plaintiffs in their second supplemental and amending petition and requested in their motion for summary judgment. A hearing on the amount of attorney fees to be awarded was set for August 3, 2015. The Defendants objected to this judgment, which was signed on July 10, 2015. The Defendants then filed a motion to annul and vacate the July 10, 2015 judgment or, in the alternative, for a new trial. The Plaintiffs filed a motion for attorney fees and costs on July 22, 2015, attaching affidavits from their two attorneys regarding their time spent on the case.

A hearing on these matters was held on May 9, 2016 before a pro tem judge. Following the hearing, the pro tem judge entered a written "Minute Entry" into the record. He signed the minute entry on May 19, 2016, which was served on all counsel of record. The pro tem judge denied Plaintiffs' request for attorney fees and costs. The pro tem judge affirmed the remainder of the July 10, 2015 judgment.

On May 25, 2016, the district judge originally assigned to the case signed a judgment dismissing Plaintiffs' claims in their motion for summary judgment as moot following the dictates of the supreme court. He also reinstated the previous order of September 24, 2014, granting the intrafamily adoption. The district judge then ordered that the parties file contradictory motions regarding costs, expenses, and attorney fees.

The Plaintiffs filed a motion to amend this judgment on June 7, 2016. The district court then entered judgment on July 25, 2016, denying Plaintiffs' request for attorney fees and costs pursuant to the minute entry of the pro tem judge and vacated the judgment rendered on May 25, 2016. On July 26, 2016, Plaintiffs filed a motion for new trial. Defendants filed a petition to annul and vacate the July 25, 2016 judgment or, in the alternative, for a new trial.

On March 20, 2017, the district court held a hearing on both of Defendants' motions to annul and vacate or for a new trial of the July 10, 2015 and July 25, 2016 judgments. The court also considered Plaintiffs' motion for attorney fees and costs. The district court denied both of Defendants' motions and granted Plaintiffs' motion. Defendants were ordered to pay attorney fees to Paul Baier in the amount of $51,790.30 and to Joshua Guillory in the amount of $61,357.61. Defendants were also cast with all court costs. It is from this judgment that Defendants filed the present appeal.

JURISDICTION

Defendants claim that the district court lacked jurisdiction to rule on Plaintiffs' claims for declaratory and injunctive relief and for a violation of 42 U.S.C. § 1983, including an action for attorney fees and costs pursuant to 42 U.S.C. § 1988. Defendants claim that the district court had jurisdiction over the adoption proceeding only and any judgment over any other non-juvenile matter was null and void and should be vacated.

Pursuant to La.Const. art. V, § 16 (A), original jurisdiction of all civil and criminal matters is vested in district courts. As noted by the supreme court in footnote 9 in Pope v. State , 99-2559, p. 6 (La. 6/29/01), 792 So.2d 713, 717, "district courts have either exclusive or concurrent original jurisdiction in any civil or criminal matter, except when the Constitution itself vests jurisdiction in another tribunal." There is constitutional authority for the legislature to divest the district courts of original jurisdiction and provide for jurisdiction in juvenile and family courts. La.Const. art. V, § 18 ; Pope , 792 So.2d 713 ; McCann v. McCann , 11-2434 (La. 5/8/12), 93 So.3d 544.

In the present case, the legislature has not acted to vest original jurisdiction in a juvenile court in Lafayette Parish. Pursuant to La.Ch.Code art. 302(2), the district court in Lafayette Parish still has original juvenile jurisdiction and the authority to hear adoption proceedings pursuant to La.Ch.Code art. 303(A)(7).

Defendants argue that specialized juvenile courts, as courts of limited jurisdiction, lack authority to decide other claims for relief such as the claims asserted by Plaintiffs for attorney fees and costs pursuant to their 42 U.S.C. § 1983 action. They claim that La.Dist.Ct.R. 40.2 and existing jurisprudence limit a district court's jurisdiction to concurrently decide anything other than Plaintiffs' adoption request. However, what Defendants fail to appreciate is that the district court is not a court of limited jurisdiction but a court with "broad jurisdiction in all matters." Welborn v. 19th Judicial Dist. Court , 07-1087, 07-1202, p. 11 (La. 1/16/08), 974 So.2d 1, 8.

We recognize that Pierre v. Pierre , 04-1496 (La.App. 1 Cir. 12/30/04), 898 So.2d 419, held that a district court sitting as a district court cannot entertain jurisdiction of cases cognizable only in the juvenile court, even though there is no separate juvenile court. However, that case relied on State v. Laborde , 233 La. 556, 97 So.2d 393 (1957), cited by the Defendants, which relied on La.R.S. 13:1561 - 13:1592, which was repealed by Acts 1978, No. 172, effective January 1, 1979, when the Code of Juvenile Procedure was adopted. Prior law provided:

By Act 82 of 1950 the Legislature substituted a new Chapter 6 of Title 13 of the Revised Statutes ( R.S. 13:1561 -1592) reenacting a general law governing all juvenile courts in the State. That law provides that, when the district judge is serving as judge of the Juvenile Court for any parish in his district, he shall be known as the judge of the Juvenile Court of such parish and all official acts performed by him shall be acts of the Juvenile Court of such parish (see R.S. 13:1562 ); that said juvenile courts shall be in continuous session and "All sessions of said courts shall be held separate and apart from the sessions of all other courts * * *" (see R.S. 13:1584 ); that the court shall make and keep records of all cases brought before
it (see R.S. 13:1586 ) and that the judge of the court may employ such stenographic, secretarial and other personnel as may be deemed necessary to make the functions of the court effective and provide adequate services (see R.S. 13:1587 ).
Thus it is seen that, although the judge of the district court is ex-officio judge of the juvenile court, the court itself is distinct and functions separately and apart from the district court. Accordingly, when he is sitting as a district judge in sessions of the district court, the judge cannot entertain jurisdiction of cases cognizable in the juvenile court. State v. Kiffe, 210 La. 863, 28 So.2d 459 [ (1946) ]. See State v. Hilaire , 216 La. 972, 45 So.2d 360 [ (1950) ] and compare State v. Tanner , 224 La. 374, 69 So.2d 505 [ (1953) ].

Laborde , 97 So.2d at 395-96 (alteration in original). No similar provision was adopted in the Code of Juvenile Procedure. Therefore, Pierre , 898 So.2d 419, relies on law that was outdated.

A district court has juvenile jurisdiction unless the legislature divests it of such. By creating specialized juvenile and family courts in some parishes, the legislature has not limited the jurisdiction of district courts in other parishes where there are no specialized juvenile and family courts. Furthermore, there is no statute which limits jurisdiction of district courts to decide other matters between the parties before it when acting as a juvenile court. We find that the district court had jurisdiction to decide both the adoption matter and the constitutionality claims.

JULY 25, 2016 JUDGMENT

Defendants argue that it was procedurally improper for the district court to enter the July 25, 2016 judgment, which vacated the May 25, 2016 judgment, and therefore, it should be annulled or vacated. Defendants claim that the Plaintiffs did not file a petition for nullity, a motion for new trial, or an appeal challenging the judgment, but simply filed a motion to amend the judgment. On the other hand, Plaintiffs claim that even though their petition was styled as a motion to amend, it should be treated as a motion for new trial because the substance of the motion itself was to ask for a new trial.

The May 25, 2016 judgment contained the following language:

IT IS FURTHER ORDERED that the Court's previous order of September 24, 2014, granting an intrafamily adoption to petitionerANGELA MARIE COSTANZA under Louisiana Children's Code Article 1243 with respect to the minor child at issue in this matter, is hereby reinstated.

IT IS FURTHER ORDERED that the parties will file contradictory motions regarding whether any costs, expenses, or attorneys fees should be awarded in this matter. The Court will determine a briefing schedule in accordance with the law and local rules.

THIS DONE AND SIGNED, in Lafayette, Louisiana this 25 th day of May, 2016

Plaintiffs' motion to amend asked the court to amend the judgment for the specific and limited purposes of:

(1) clarifying the following excerpt found on page 4 of the judgment in order to resolve the parties' uncertainty about which provision(s) of the judgment to which the word "MOOT" applies and the meaning and/or effect thereof; and (2) recognizing that the Petitioners' Motion for Attorneys' Fees and Costs on Remand from the Louisiana Supreme Court No. 20154-CA-2009 (July 7, 2015) was heard by Judge Cox on May 9, 2016 but the disposition of which remains to be received[.]

The hearing on the motion to amend indicates that Defendants were presented with the July 25, 2016 judgment at the hearing. The proposed judgment was not circulated prior to the hearing. The district court then signed the July 25, 2016 judgment, which provided:

Considering the minute entry filed by ad hoc Judge Ronald Cox on May 19, 2016 and Plaintiffs' pending motion to amend the phraseology of the May 25, 2016 judgment signed in this matter:

IT IS ORDERED that Petitioners' request for attorney's fees and costs are hereby denied pursuant to the minute entry entered in the record of this proceeding on May 19, 2016, by the honorable ad hoc Judge Ronald Cox.

IT IS FURTHER ORDERED that theJudgment signed by this Honorable Court on May 25, 2016 is hereby vacated, nullified, and not a judgment of this Honorable Court.

IT IS FURTHER ORDERED that, because the May 25, 2016 judgment rendered in this matter is now vacated, Petitioners' pending motion entitled "Petitioners' Motion for Amendment of Judgment " is dismissed as moot.

THUS DONE AND SIGNED in Lafayette, Louisiana, this 25th day of July, 2016.

"Substantive amendments to judgments can be made only by consent of the parties or after a party has successfully litigated a timely application for new trial, an action for nullity, or a timely appeal." Greene v. Succession of Alvarado , 15-1960, p. 29 (La.App. 1 Cir. 12/27/16), 210 So.3d 321, 339. "Otherwise, a trial court lacks authority to make any modifications of substance to a final judgment." Id. "When the substance of a judgment has been improperly amended, the amending judgment is annulled and set aside, and the original judgment is reinstated." Id.

"[T]he characterization of a pleading by the litigant is not controlling." Id. "Courts should look through the caption of pleadings in order to ascertain their substance and to do substantial justice to the parties." Id. ; La.Code Civ.P. art. 865. "A pleading is considered a motion for new trial if it requests a substantive modification of the judgment and is filed within the delays applicable to a motion for new trial." Greene , 210 So.3d at 339.

In Denton v. State Farm Mutual Automobile Insurance Co. , 08-483, p. 7 (La. 12/12/08), 998 So.2d 48, 53, the supreme court observed that "there is no specific grant of statutory authority for a trial court to clarify substantive provisions of a final judgment." The supreme court then went on to state that a motion for new trial would be an appropriate motion to ask for clarification of judgment.

We find that the substance of Plaintiffs' motion was a motion for new trial. Defendants argue that if the motion is considered a motion for new trial, the procedural requirements were not met. Specifically, Defendants claim that there was no hearing on a motion for new trial as the judgment was signed in the absence of any contradictory hearing.

"When a new trial is granted, it shall be assigned for hearing in accordance with the rules and practice of the court." La.Code Civ.P. art. 1977 ; Eagle Pacific Ins. Co. v. Sunbelt Innovative Plastics, Inc. , 05-270 (La.App. 5 Cir. 11/29/05), 917 So.2d 1178.

At the hearing on the motion to amend the judgment, the district court was presented with a judgment signed by the Plaintiffs. Defendants objected, having never received notice of the judgment. No hearing regarding Plaintiffs' motion was held.

We find no hearing was held on the new trial itself. The district court erred in signing the July 25, 2016 judgment without argument. Therefore, we vacate and set aside the July 25, 2016 judgment.

JULY 10, 2015 JUDGMENT

Defendants claim that the July 10, 2015 judgment should be annulled because it was unnecessary for Plaintiffs to submit another judgment on remand. They received the relief they requested when the supreme court dismissed Defendants' appeal as moot. Defendants further argue that any judgment rendered subsequent to the supreme court's ruling should not have included an award for attorney fees and costs because the September 24, 2014 judgment granting Plaintiffs' motion for summary judgment awarded no such relief.

Plaintiffs' second supplemental and amending petition added a claim for violation of 42 U.S.C. § 1983 and requested attorney fees and costs pursuant to 42 U.S.C. § 1988. Plaintiffs' motion filed on August 4, 2015, requested summary judgment on all issues in addition to specifically requesting attorney fees and costs. Plaintiffs' memorandum in support of their motion for summary judgment claimed that Defendants were in violation of 42 U.S.C. § 1983 and that they were entitled to attorney fees and costs pursuant to 42 U.S.C. § 1988. The Secretary of the Department of Revenue and the Louisiana State Registrar also sought summary judgment, upholding the constitutionality of Louisiana's laws. A judgment was signed by the district court on September 24, 2014, granting Plaintiffs' motion for summary judgment and denying Defendants' motion for summary judgment. The district court specifically declared La.Const. art. XII, § 15 and La.Civ.Code arts. 86, 89, and 3520(B) unconstitutional. The judgment further enjoined the State of Louisiana from enforcing these laws insofar as they prohibited a person from marrying a person of the same sex. The judgment also declared Louisiana's Revenue Bulletin No. 13-024 unconstitutional and ordered the Secretary of the Department of Revenue to allow Plaintiffs to file their state tax returns as a couple whose marriage is valid and recognized in the State of Louisiana. The judgment further ordered the State of Louisiana to recognize that Plaintiffs' marriage was validly contracted in California and entitled to full faith and credit. No mention of attorney fees was made at the hearing, and the judgment made no mention of attorney fees.

In Ken Lawler Builders, Inc. v. Delaney , 36,865 (La.App. 2 Cir. 3/5/03), 840 So.2d 672, the second circuit was presented with a case concerning very similar circumstances. A property owner filed suit against lessees to recover rents, costs, interest, and attorney fees due to repudiation of a lease. The property owner moved for summary judgment, which was granted by the trial court. Although the property owners sought attorney fees in its petition, the judgment did not award or mention attorney fees. While an appeal on the grant of summary judgment was pending, the property owner filed a motion for attorney fees. Defendants filed a motion to dismiss, claiming that the appeal divested the trial court of jurisdiction. The trial court denied the motion and awarded attorney fees.

The second circuit recognized that "[s]ummary judgment is a definitive judgment and will support plea of res judicata ." Id. at 674. "When a court renders a judgment that decides the merits of the case in whole or in part, the judgment is a final judgment." Id. The second circuit concluded that there was no reservation of the attorney fees for future adjudication and applied "the principle that a demand not granted or reserved in the judgment must be considered as rejected." Id. at 675. The court then held that "[t]he legal effect of the silence of a judgment on any part of a demand that might have been allowed under the pleadings is a rejection of such part of the demand, which tacit rejection has the force and effect of res judicata against subsequent suit for such part of the demand." Id.

Following Ken Lawler , this court held that silence in two judgments after a hearing constituted a denial of a claim for penalties and attorney fees. Lowery v. Jena Nursing & Rehab. Ctr. , 14-1106 (La.App. 3 Cir. 12/23/14), 156 So.3d 216.

In Siemens Water Technologies Corp. v. Revo Water Systems, LLC , 13-631 (La.App. 3 Cir. 1/8/14), 130 So.3d 473, this court concluded that exceptional circumstances justified relief from the res judicata effect of prior judgment to allow an award of attorney fees after remand. The fact that the trial court addressed and granted the claim for attorney fees at a hearing and reserved the issue in its judgment created the exceptional circumstances.

In the present case, exceptional circumstances do not exist. Although Plaintiffs raised the issue of attorney fees and costs in both their motion for summary judgment and memorandum, the issue was neither raised at the hearing nor reserved in the judgment. Plaintiffs did not even raise the issue when an appeal was filed by Defendants to the supreme court.

We find that the July 10, 2015 judgment was an attempt by the Plaintiffs to get attorney fees and costs. It was not necessary for the district court to enter a new judgment on July 10, 2015. Once the supreme court dismissed the appeal as moot, the September 24, 2014 judgment was effective and final. "Once a final judgment acquires the authority of the thing adjudged, no court has jurisdiction to change the judgment." Ken Lawler Builders, Inc. , 840 So.2d at 674. Therefore, the district court had no jurisdiction to render the July 10, 2015 judgment, which awarded attorney fees and costs. Accordingly, we vacate and set aside the July 10, 2015 judgment.

AWARD OF ATTORNEY FEES AND COSTS

The Defendants claim that the trial court erred in awarding attorney fees and costs. We agree. Based on our above discussion, we find that Plaintiffs' claims for attorney fees and costs are barred by res judicata under La.R.S. 13:4231.

"After a final judgment, res judicata bars relitigation of any subject matter arising from the same transaction or occurrence of a previous suit." Ken Lawler Builders , 840 So.2d at 674. "This promotes judicial efficiency and final resolution of disputes .... [because] a party had the opportunity to raise a claim in the first adjudication, but failed to do so." Id.

The Plaintiffs raised the issue of attorney fees and costs in their motion for summary judgment. No mention of this issue was raised at the hearing on the matter. Furthermore, the judgment did not include a reservation of the right to address the issue later. Finally, the Plaintiffs did not appeal the failure of the trial court to address the issue when the case was appealed to the supreme court.

Therefore, pursuant to La.Code Civ.P. art. 927(B), we render judgment sustaining the peremptory exception of res judicata , on our own motion. As such, we reverse the trial court judgment awarding attorney fees to the Plaintiffs.

NO CAUSE OF ACTION

The Attorney General claims that the district court erred in failing to sustain his exception of no cause of action. He argues that La.Code Civ.P. art. 1880 requires only that the Attorney General be served with a copy of the proceeding and afforded an opportunity to be heard, and not that he be joined as an actual party.

The function of the peremptory exception of no cause of action as authorized by La.Code Civ.P. art. 927(A)(5) is to "test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts" that are alleged in the petition. Everything on Wheels Subaru, Inc. v. Subaru S., Inc. , 616 So.2d 1234, 1235 (La.1993). Because the peremptory exception of no cause of action "raises a question of law and the lower court's decision is necessarily based solely on the sufficiency of the petition[,]" we review the grant of the exception under a de novo standard. State, Div. of Admin., Office of Facility Planning & Control v. Infinity Sur. Agency, L.L.C. , 10-2264, p. 9 (La. 5/10/11), 63 So.3d 940, 946.

This court addressed this very issue in Stelly v. Ieyoub , 01-755, p. 4 (La.App. 3 Cir. 10/31/01), 799 So.2d 1206, 1209, stating:

It is clear, not only from the statute, but also from the discussion in Vallo [v. Gayle Oil Co., Inc. , 94-1238 (La. 11/30/94), 646 So.2d 859 ], that the attorney general has the discretion whether to appear in a suit questioning the constitutionality of a statute. If a plaintiff is permitted to name the office as a party, in what appears to be at least partially a declaratory judgment action, the attorney general would no longer have the discretion whether to appear, undermining the statutory scheme. Accordingly, there was no error in the trial court's determination that no cause of action existed against the attorney general.

The only reason the Attorney General is involved in this case is because the constitutionality of several state laws was at issue. We find that the district court erred in denying the Attorney General's exception. Accordingly, we reverse the district court judgment denying the Attorney General's exception of no cause of action.

For the reasons expressed in this opinion, we vacate and set aside the July 10, 2015 judgment and the July 25, 2016 judgment. We sustain the peremptory exception of res judicata , properly noticed on our own motion, and reverse the trial court's award of attorney fees and costs. We also reverse the district court judgment denying the Attorney General's exception no cause of action. We sustain the exception of no cause of action and dismiss the Plaintiffs' demands against the Attorney General. Costs of this appeal are assessed to the Plaintiffs.

JULY 10, 2015 JUDGMENT VACATED AND SET ASIDE; JULY 25, 2016 JUDGMENT VACATED AND SET ASIDE; EXCEPTION OF RES JUDICATA SUSTAINED; EXCEPTION OF NO CAUSE OF ACTION SUSTAINED.

      Pursuant to Uniform Rules-Courts of Appeal, Rules 5-1 and 5 -2, the initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding.


author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Reginald Taral WARREN
    17-1169
    Court of Appeal of Louisiana, Third Circuit.
    February 28, 2018
    Billy Joseph Harrington, District Attorney, Tenth Judicial District, P.O. Box 838, Natchitoches, LA 71458-0838, (318) 357-2214, COUNSEL FOR PLAINTIFF/RESPONDENT: State of Louisiana
    David Michael Williams, Attorney at Law, 720 Murray Street, Alexandria, LA 71301, (318) 442-6240, COUNSEL FOR DEFENDANT/APPLICANT: Reginald Taral Warren
    Court composed of John D. Saunders, Marc T. Amy, and Candyce G. Perret, Judges.
   SAUNDERS, Judge.

On June 9, 2016, Defendant, Reginald Warren, was charged by bill of information with second offense possession with the intent to distribute CDS II (methamphetamine), in violation of La.R.S. 40:967 and 40:982 ; possession of CDS V (promethazine), in violation of La.R.S. 40:970 ; third offense possession of CDS I (marijuana), in violation of La.R.S. 40:966 and 40:982 ; illegal window tint, in violation of La.R.S. 32:361 ; and driving while under suspension, in violation of La.R.S. 32:415.

On September 22, 2016, Defendant filed two motions to suppress, alleging an illegal search of a residence and an illegal traffic stop which led to invalid consent to search a vehicle. On June 15, 2017, the trial court held a single hearing on the motions to suppress. On September 11, 2017, the trial court denied Defendant's motions, and on September 28, 2017, the trial court issued "Written Reasons for Judgment," denying Defendant's motions to suppress.

On September 22, 2017, Defendant filed his notice of intent to seek review and the trial court set a November 3, 2017 return date. On November 3, 2017, Defendant sought an extension of the return date from the trial court, which on November 7, 2017, extended the return date to December 18, 2017. Defendant's writ application was timely postmarked on December 18, 2017, and seeks review of the trial court's denial of the motions to suppress.

ASSIGNMENT OF ERROR:

In his sole assignment of error, Defendant alleges the trial court erred in denying his motions to suppress. Defendant breaks his argument into four parts: (1) the search of his wallet and seizure of the Motel 6 key card was illegal, (2) the search of the motel room itself should be illegal due to the illegality of the initial search of Defendant's wallet, (3) the search of the motel room was not legal "as a probationer search based on valid '[r]easonable [s]uspicion' that [he] was engaged in criminal activity[,]" and (4) the State failed to prove the motel room was his residence to make it subject to a probationer search. We will address the legality of the initial stop of Defendant, as well as the search of the wallet, and the search of the motel room itself.

The testimony presented at trial shows that on March 31, 2016, Defendant was stopped by two law enforcement officers who were on the look-out for him for driving a vehicle with illegal tint on the windows. Both officers smelled marijuana, leading to a K-9 open air sniff of the car. The animal alerted, and the officers searched the vehicle, finding marijuana residue. Based on information provided by a narcotics task force sergeant, the officers searched Defendant's wallet and obtained a motel room key card for a nearby Motel 6. At that time, following the arrival of Probation and Parole agents at the traffic stop, Defendant was transported to the Motel 6, and local law enforcement joined officers from Probation and Parole in entering the motel room whose key card Defendant, a parolee, had in his possession at the traffic stop. Officers found marijuana in plain sight in the room and subsequently found methamphetamine hidden in a small bag inside a clothes hamper. At that point, Probation and Parole turned the investigation over to local law enforcement. Upon taking over the investigation from Probation and Parole, local law enforcement sought a warrant for the motel room, after having already located the marijuana and methamphetamine.

On March 31, 2016, was the defendant stopped by Deputy Brandon Smith and Sergeant Clinton Dunn for driving with illegal tint on his windows. While speaking with Defendant, both Deputy Smith and Sergeant Dunn testified they could smell marijuana. Both officers testified the tint was measured and was illegal. Agent Cory Campbell, a K-9 officer, ran his dog around the vehicle, and it alerted. Deputy Smith was clear that the vehicle was not searched until after Agent Campbell ran his K-9, which alerted. Deputy Smith testified he found "marijuana shake and residue" inside the vehicle, along with cigars and spray bottles that he would consider paraphernalia due to the residue. Deputy Smith clarified that marijuana shake was "loose marijuana that they drop on the carpet or in a vehicle, not enough for us ... we could really charge for it, but we don't. It's just pieces of it, small pieces of it." Deputy Smith testified that he was instructed to bring Defendant to the Motel 6 by Sergeant Dunn and that he entered a motel room with several Probation and Parole officers, Sergeant Dunn, and Agent Trent Perry to clear the room for officer safety. Deputy Smith noted that while clearing the room, he observed a bag of suspected marijuana in plain view on the bed. He stated he heard the Probation and Parole officers say they were going to search the room prior to the decision to obtain a search warrant.

Sergeant Dunn testified that after the K-9 alerted on Defendant's vehicle, he searched Defendant's wallet where he found a key to a room at Motel 6. Sergeant Dunn believed the search of Defendant's wallet was legal because he felt they had probable cause to search him as a result of the K-9 alerting on the vehicle. Sergeant Dunn testified that he did not observe or recover any narcotics in the vehicle or on Defendant's person. He testified that once he obtained the card from Defendant's wallet, he spent the remainder of the time covering logistics with Sergeant Roberts via the radio. While certain an officer from Probation and Parole eventually arrived at the traffic stop, he did not know the name of the officer. Sergeant Dunn testified the uniformed officers who entered the motel room were there specifically to assist Probation and Parole. He stated that he noticed flakes of marijuana on the table, and he was present when someone found a bag of methamphetamine in a clothes hamper, at which point Sergeant Roberts had everyone exit the room while obtaining a search warrant.

Sergeant Dunn, on cross-examination, reiterated that he did not find narcotics in Defendant's car and that Defendant was not arrested for having illegal narcotics prior to the search of his wallet. He also acknowledged the K-9 alerting to the car did not create probable cause to arrest Defendant, but Defendant was detained at Probation and Parole's request. Sergeant Dunn also testified the sole purpose of searching Defendant's wallet was to obtain the motel key; he was not looking for weapons or narcotics, merely the key. Although Sergeant Dunn initially stated that Defendant was cooperative and handed over his wallet when asked, he acknowledged after reviewing body-cam footage Defendant simply acknowledged the wallet on the hood of the patrol car was his when asked. No testimony was presented to explain why Defendant's wallet was simply sitting on the hood of the car.

Sergeant Dunn testified that Defendant told him he was coming from the mechanic's shop, which was located next to the Motel 6. As Sergeant Roberts had already told Sergeant Dunn and Deputy Smith that Defendant had left the motel, they considered his claim of coming from the mechanic a lie. Sergeant Dunn acknowledged that multiple Probation and Parole officers arrived on-scene at the traffic stop, but he did not know their names. He acknowledged Sergeant Roberts was already in contact with Probation and Parole prior to the traffic stop, though he could not say when the initial contact between them occurred. Sergeant Dunn was unsure who found the methamphetamines in the laundry basket.

Following testimony from Deputy Smith and Sergeant Dunn, defense counsel stated he would not be challenging the validity of the K-9 alerting on the car. Subsequently, Agent Danny Green, an agent with Probation and Parole for the State of Louisiana took the stand. He testified Defendant was on parole at the time of the traffic stop, but that Agent Green was not the parole officer assigned to Defendant. Agent Green testified that if Defendant was staying at a motel, even temporarily, he was required to inform Probation and Parole where he was staying. Furthermore, he testified that Defendant's parole officer, Agent LaPoole, did not know for sure where Defendant was staying when he had been stopped on a prior traffic stop. Agent Green testified that he and other Probation and Parole officers went to the traffic stop to determine if Defendant had violated the conditions of his parole.

Agent Green testified that while speaking with Defendant at the scene of the traffic stop, he asked Defendant "if anyone else was staying with him [at the motel], he said no[.]" Agent Green testified Defendant told him he was staying at the motel room by himself. Agent Green later clarified that Defendant did not directly admit to staying in the motel room but that when asked if anyone else was staying in the room with him, he simply said "no." He also specifically stated that he asked officers from the Natchitoches Parish Sheriff's Office to assist him in searching the motel room, as it was his intent to search the room. He stated the motel staff informed him Defendant had been staying in Room 166 for approximately five days, although he had been in multiple other rooms since February. Agent Green testified he and several other officers entered the motel room using the key card recovered from Defendant, and upon confirming no one else was in the room, he noticed a bag of marijuana on the bed. Agent Green testified that he asked the narcotics task force officers to take over the investigation once it was clear that there were narcotics in plain sight, noting they typically "let the locals" handle it since they were the ones who would need to have the narcotics tested.

Agent Green testified that he did not remember anything other than the marijuana being found before he asked the task force officers to take over and that they chose to seek a search warrant because of departmental policy. He left prior to the search pursuant to the warrant. Agent Green testified the conditions of Defendant's parole included: "I agree to visits at my residence or place of employment by my parole officer at any time. I also agree to searches of my person, property, residence, and/or vehicle when reasonable suspicion exists that I am or have been engaged in criminal activity."

Sergeant Jonathan Roberts, a member of the Natchitoches Sheriff's Office's Drug Task Force, testified that he was conducting a narcotics investigation into Defendant based upon a complaint involving Defendant staying at the Motel 6. Sergeant Roberts testified that while surveilling Defendant pursuant to the complaint, he noted a 2001 tan Chevy Tahoe parked outside the Motel 6 and that roughly thirty minutes after seeing the vehicle at the Motel 6 on March 29, he encountered Defendant driving the vehicle at a Chevron station nearby. Sergeant Roberts stated that he saw the vehicle leave the motel on March 31, at which time he alerted other officers to be on the lookout for the Tahoe. This alert led to the traffic stop by Deputy Smith shortly thereafter. Sergeant Roberts testified that he was never present at the scene of the traffic stop, but that he was the one who informed Probation and Parole that Defendant had been stopped. He testified he alerted Sedrick Smith, the Probation and Parole supervisor, who sent Agent Green to meet Sergeant Roberts at the motel. He also testified he was never instructed by Probation and Parole to detain Defendant.

Sergeant Roberts testified Defendant had been frequenting the motel and giving an address of 1445 Grace Avenue, which he stated "prompted Agent Green to realize that something was not right" because it was not the address Defendant had reported. Sergeant Roberts testified that he was speaking to Defendant when the motel room was initially entered. Sergeant Roberts testified that when he entered the room the bag of marijuana on the bed was obvious, and he subsequently noticed a bag that was out of place in the clothes hamper. He testified there was a pencil bag which felt like it contained a "rock-like substance" in the clothes hamper. Upon opening the bag, it contained "cellophane baggies with light crystal-like substance in it. At that time, I knew that uh ... I believed it to be methamphetamine, due to the complaint I got already." Sergeant Roberts testified that at that point he put down the bag, photographed the bag, and informed Agent Green of what he had found. Sergeant Roberts testified that he felt he was assisting Probation and Parole when he found the methamphetamine and that he obtained a search warrant once Probation and Parole turned the investigation over to him as a matter of personal preference because "[y]ou can't go wrong getting a search warrant."

Sergeant Roberts testified on cross-examination that, according to his report, he stated they needed a search warrant when he first entered the room but Probation and Parole told him no warrant was necessary. Sergeant Roberts noted the address Defendant gave to Probation and Parole was on Schoolhouse Road in Cloutierville, but he registered for the motel room with a Grace Avenue address. Sergeant Roberts testified his early surveillance on the motel was "rolling surveillance" where he simply drove through the parking lot, so he could not verify how long Defendant stayed at the motel each night.

INITIAL TRAFFIC STOP

Although Defendant does not raise the issue of the original traffic stop to this court, we will quickly address the validity of the initial stop. Testimony from multiple officers during the suppression hearing makes it clear Deputy Smith and Sergeant Dunn stopped Defendant because Sergeant Roberts was investigating him pursuant to a narcotics complaint. As the Supreme Court made clear in Whren v. U.S. , 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the actual motivations of the officers making a traffic stop are irrelevant so long as there is objective evidence the officers had probable cause to believe a traffic violation has occurred. Accordingly, the initial traffic stop for illegal tint was valid.

SEIZURE AND SEARCH OF DEFENDANT'S WALLET

"A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent abuse of that discretion." State v. Wilder , 09-2322, p. 2 (La. 12/18/09), 24 So.3d 197, 198.

The Fourth Amendment of the U.S. Constitution and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. Warrantless searches and seizures are unreasonable per se unless justified by a specific exception to the warrant requirement. State v. Manson , 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 757, cert. denied , 01-2269 (La. 9/20/02), 825 So.2d 1156. However, a person on parole or probation has a reduced expectation of privacy under the Fourth Amendment of the U.S. Constitution and under Article I, § 5 of the Louisiana Constitution. State v. Young , 07-988 (La.App. 5 Cir. 6/19/08), 988 So.2d 759, 762.
An individual on parole or probation does not have the same freedom from governmental intrusion into his affairs as does the average citizen. A probationer must necessarily have a reduced expectation of privacy, which allows for reasonable warrantless searches of his person and residence by his probation officer, even though less than probable cause may be shown. This reduced expectation of privacy derives from the probationer's conviction and his agreement to allow a probation officer to investigate his activities
in order to confirm that he is abiding by the provisions of his probation. State v. Saulsby , 04-880 (La.App. 5 Cir. 12/28/04), 892 So.2d 655, 657-658.
A probation officer may not use his authority as a subterfuge to help another police agency that desires to conduct a search, but lacks probable cause. State v. Malone , 403 So.2d 1234, 1238 (La.1981). The parole or probation officer must believe that the search is necessary in the performance of his duties and reasonable in light of the total circumstances. State v. Saulsby , 892 So.2d at 658. In determining whether a warrantless search by a probation or parole officer was reasonable, the court must consider: (1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, and (4) the place in which it was conducted. State v. Malone , 403 So.2d at 1239 ; State v. Young , 988 So.2d at 763-764. Although the State still bears the burden of proving the admissibility of evidence seized without a warrant, when the search is conducted for probation violations, the State's burden will be met when it establishes that there was reasonable suspicion that criminal activity was occurring. State v. Saulsby , 892 So.2d at 658.

State v. Bolden , 09-33, pp. 4-5 (La.App. 5 Cir. 5/12/09), 13 So.3d 1168, 1171, writ denied , 09-1317 (La. 2/5/10), 27 So.3d 297.

"It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is 'per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.' " Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). As laid out in La.Code Crim.P. art. 703(D), "the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant." Obviously, there was no warrant issued granting Sergeant Dunn the authority to seize and search Defendant's wallet in order to obtain the key card for the motel room which was subsequently searched. Thus, the State bears the burden of proving the search falls into a valid exception to the warrant requirement. The trial court held the search of Defendant's wallet was lawful as a search incident to arrest. Defendant argues the search could not be incident to arrest, correctly noting Deputy Smith's testimony he did not intend to arrest Defendant for the marijuana residue that was found in the vehicle.

In State v. Sherman , 05-779, p. 15 (La. 4/4/06), 931 So.2d 286, 296, the supreme court specifically stated "we find the subjective intent of the officers does not determine the reasonableness of a warrantless search incidental to arrest, where the officer did not have an intent to arrest for the offense for which probable cause objectively existed." In Sherman , law enforcement officers on a narcotics interdiction patrol observed the defendant standing in the road next to his motorcycle, which may or may not have been in the roadway. The officers spoke to the defendant, who told them his motorcycle was out of gas and that he did not have a driver's license. One of the officers then searched the defendant and found crack cocaine, at which point the defendant was arrested for possession with the intent to distribute CDS II. The supreme court upheld the search as incident to arrest even though the defendant was not arrested for the crime, operating a motor vehicle without a license, for which there was probable cause prior to the search, stating:

Given the fact the lawful custodial arrest alone is sufficient to find a warrantless search of the person reasonable, [United States v. ] Robinson , 414 U.S. [218,] 235, 94 S.Ct. [467,] 477, 38 L.Ed.2d 427 [ (1973) ], and that the search may precede the actual arrest, Rawlings [v. Kentucky ], 448 U.S. [98,] 111, 100 S.Ct. [2556,] 2564, 65 L.Ed.2d 633 [ (1980) ], we find where probable cause to arrest exists, a search of the person does not violate the Fourth Amendment or La. Const. art. I, § 5, where the suspect is subject to the greater intrusion of arrest and search.
Nor should the subjective intentions of the officers play any role in our analysis. See Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996).

Id. at 295.

Although the testimony is not very clear regarding how long the traffic stop lasted, it is clear that after law enforcement obtained the wallet and motel key card, Deputy Smith transported Defendant to the Motel 6 then subsequently transported him to the detention center for booking. There seems to have been some confusion amongst law enforcement, as Sergeant Dunn testified they were detaining Defendant at the traffic stop for Probation and Parole, yet Probation and Parole never asked for Defendant to be detained, and Sergeant Roberts never told Sergeant Dunn and Deputy Smith to detain Defendant.

Under La.Code Crim.P. art. 201 : "Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him." As the supreme court has previously stated:

An arrest is "the taking of one person into custody by another [through] actual restraint [that] may be imposed by force or may result from submission of the person arrested to the custody of one arresting him." State v. Fisher , 97-1133 (La. 9/9/98), 720 So.2d 1179, 1183 ; La. C.Cr. P. art. 201. Whether a person has been arrested is determined by an objective test; neither the person's subjective impression nor the lack of formality of the arrest resolves the issue. State v. Thibodeaux , 414 So.2d 366, 368 (La.1982). The determination of whether an arrest occurred depends on the totality of the circumstances, but several factors distinguish an arrest from lesser infringements on personal liberty. State v. Allen , 95-1754 (La. 9/5/96), 682 So.2d 713, 719. A prime characteristic of any Fourth Amendment seizure of a person is whether, under the totality of the circumstances, a reasonable person would not consider himself or herself free to leave. Id. Ultimately, whether a person has been arrested depends on circumstances indicating an intent to impose an extended restraint on the person's liberty. Id.

State v. Coleman , 14-402, pp. 15-16 (La. 2/26/16), 188 So.3d 174, 190-91, cert. denied , --- U.S. ----, 137 S.Ct. 153, 196 L.Ed.2d 116 (2016).

Although the exact amount of time which passed from the initiation of the traffic stop to the search of the motel room is unclear, it is clear that Defendant was detained after the initial traffic stop, was transported to the Motel 6 in a police cruiser, the Chevy Tahoe he was driving was towed away, and he was formally arrested and booked after the initial search of the motel room. While the defendant in Coleman was determined to have not been under arrest following the trial court's determination he had voluntarily cooperated and agreed to be transported to the police station without restraints, there is no testimony in the instant case that would support the notion Defendant voluntarily rode to the Motel 6 with law enforcement. Considering the testimony presented during the suppression hearing, we find that Defendant was arrested shortly after the search of his wallet, as no reasonable person would have considered themselves free to leave under the circumstances. At the time Sergeant Dunn searched Defendant's wallet, both he and Deputy Smith had smelled marijuana, the officers had already determined the window tint was illegal, a K-9 had alerted on Defendant's vehicle, Deputy Smith found marijuana residue in the vehicle, and Defendant had admitted there had been marijuana in the vehicle that day. Under Sherman , the search would still be permissible as a search incident to arrest given the existence of probable cause to arrest Defendant for possession of marijuana and the arrest shortly after the search of his wallet. Accordingly, we cannot say that the trial court abused its discretion in finding the search of Defendant's wallet was valid as a search incident to arrest where probable cause existed to arrest Defendant for possession of marijuana.

SEARCH OF THE MOTEL ROOM

Defendant argues the search of the motel room was illegal for three reasons: (1) the illegal search of the wallet produced the key card used to enter the motel room, so the search of the motel room was tainted by the illegal search of Defendant's wallet; (2) the search of the motel room was not a valid probationer search because there was no valid reasonable suspicion that he was engaged in criminal activity; and (3) the State failed to prove the motel room was Defendant's residence such that it would be subject to a warrantless search.

Our prior finding that the search of Defendant's wallet was legal as a search incident to arrest precludes the first part of Defendant's claim regarding the alleged illegality of the search of the motel room. With regard to Defendant's second claim, he acknowledges that he has a reduced expectation of privacy which allows for warrantless searches when less than probable cause exists for a search due to his status as a parolee but argues "[t]here is no established and/or corroborated facts that would promote the presence of [r]easonable [s]uspicion that the [D]efendant was engaged in criminal [a]ctivity at the motel room[.]" This argument ignores the evidence presented at the suppression hearing.

By the time law enforcement reached the motel and decided to enter Defendant's room, Defendant had already admitted prior to the search of his wallet that his vehicle had marijuana in it earlier in the day, residue of which was found by Deputy Smith. Defendant told Sergeant Dunn the key card was an old, invalid card. However, the motel manager confirmed the card was active for a motel room Defendant had been renting for nearly a week. Further, the motel manager informed law enforcement that Defendant had been renting rooms frequently for over a month. Defendants had not been reporting this to Probation and Parole, and the address Defendant used when renting the motel room was not the address he had provided to Probation and Parole as his residence. The trial court held the officers had reasonable suspicion that Defendant was engaged in or had recently been engaged in criminal activity, and, given the above evidence known to law enforcement when they entered the motel room, we cannot say the trial court abused its discretion.

Defendant, citing State v. Malone , 403 So.2d 1234 (La.1981), correctly argues Probation and Parole cannot use their authority to conduct searches as a subterfuge to allow another agency to conduct an otherwise illegal warrantless search. The Malone court set forth that parolee search must be reasonable in light of the totality of the circumstances, noting a court "must consider (1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it and (4) the place in which it was conducted." Id. at 1239. As noted above, Defendant's wallet was searched legally incident to arrest, and the key card for the room was found during that search. The search of the motel room was conducted by Probation and Parole officers after they were contacted regarding Defendant's possible involvement with narcotics. Upon speaking with Defendant at the traffic stop, Agent Green decided to investigate the hotel, which had never been reported by Defendant to his parole officer. Agent Green testified that if Defendant was going to stay anywhere other than the residence he registered with his parole officer, he would have to notify said officer and receive permission.

Agent Green testified Probation and Parole needed "to go and check the room to verify that that's where he was staying, and look for any items he may not was [sic] supposed to have." He also stated they entered the room to "see if there was anything illegal going on that would be a violation of his probation and his parole." Everyone agreed the initial entry into the room was done by Probation and Parole with local law enforcement assisting. Upon entering the room, marijuana was located in plain view.

Defendant asserts the scope of the intrusion was illegal because the search of his wallet was illegal, a claim we have already found lacks merit. He contends the presence of Probation and Parole officers other than his own is clear proof their presence was "for the mere purpose of creating a method to subterfuge the warrant requirement." While the trial court stated in its written reasons that Danny Green was Defendant's parole officer, that finding is directly contrary to the testimony presented to the trial court, namely Agent Green's specific testimony that he was not Defendant's assigned officer. However, this fact is irrelevant to the case sub judice.

In State v. Brignac , 17-448 (La. 10/18/17), 234 So.3d 46, 2017 WL 4681982, the supreme court held the language of La.Code Crim.P. art. 895(A)(13)(a), the statute governing warrantless searches of probationers based upon reasonable suspicion of criminal activity, was specific enough to require that the probationer's actual probation officer be the one to effectuate such a search. Defendant, however, was on parole, not probation. Warrantless searches based on reasonable suspicion of criminal activity for a parolee are governed by La.R.S. 15:574.4.2(A)(2)(i), not La.Code Crim.P. art. 895(A)(13)(a). As this court noted in State v. Sinegal , 17-527, p. 8 (La.App. 3 Cir. 12/13/17), --- So.3d ----, ----, 2017 WL 6350261"[u]nlike La.Code Crim.P. art. 895(A)(13)(a), La.R.S. 15:574.4.2 does not reference the assignment of the agents involved in the search." While La.Code Crim.P. art. 895(A)(13)(a) subjects probationers to searches "by the probation officer or the parole officer assigned to [them]," parolees agree "to searches of person, property, residence, or vehicle, when reasonable suspicion exists that criminal activity has been engaged in while on parole." See La.R.S. 15:574.4.2(A)(2)(i). As noted in Brignac , La.Code Crim.P. art. 895(A)(13)(a) was initially written to apply to parolees, but the legislature instead chose to apply it to probationers only, subsequently writing a new statute for parolees which lacked the specificity of the probation article. Accordingly, parolees are subject to searches pursuant to reasonable suspicion by more than just that parolee's supervising officer.

Here, there were three agents from Probation and Parole who felt the circumstances presented sufficient reasonable suspicion that they needed to search Defendant's motel room to ensure he was not violating his parole any further. Defendant, a parolee, was driving a vehicle within which marijuana residue was present and admitted there had been marijuana in the vehicle earlier that day. Clearly, Probation and Parole had reasonable suspicion Defendant had engaged in criminal activity while on parole.

Next, Defendant argues there was "no established and/or corroborated facts that would promote the presence of [r]easonable [s]uspicion that [he] was engaged in criminal [a]ctivity at the motel room." As has been noted repeatedly, there were plenty of facts presented which would support Probation and Parole having reasonable suspicion Defendant may have been engaged in criminal activity in the motel room: he claimed the active key card was just an old card that did not work, there was marijuana residue in his vehicle, he had been renting rooms at the motel for nearly a month, and he had been registering for the motel rooms with an address that did not match the address he registered with Probation and Parole.

Finally, Defendant acknowledges his parole conditions allow for warrantless searches of his residence, but argues the State failed to prove the hotel room was his residence because "clearly he still maintained a residence and there is no evidence that he actually spent the night at the motel or that he relinquished his reported residence." Defendant's argument evidences a belief that for the purposes of parole, a parolee can only have one residence. As noted by the trial court, "to accept this argument would mean that any probationer or parolee engaged in criminal activity could evade such a search by simply doing so in a hotel room." Multiple federal courts of appeal have held that a person can have multiple residences for Fourth Amendment purposes:

We have found no authority to support [the defendant's] implicit assumption that a person can have only one residence for Fourth Amendment purposes. Rather, when evaluating [the defendant's] expectation of privacy in his home, we are guided by the principle that, so long as [the suspect] possesses common authority over, or some other significant relationship to, the ... residence, that
dwelling "can certainly be considered ... 'home' for Fourth Amendment purposes, even if the premises are owned by a third party and others are living there, and even if [the suspect] concurrently maintains a residence elsewhere as well."

Case v. Kitsap County Sheriff's Dept. , 249 F.3d 921, 931 (9th Cir. 2001) (quoting United States v. Risse , 83 F.3d 212, 217 (8th Cir. 1996) ).

Defendant's argument that the motel room was not his residence because it was not the residence reported to Probation and Parole is an argument that has been rejected by this court previously. In State v. Edwards , 12-891 (La.App. 3 Cir. 2/6/13), 107 So.3d 883, the defendant was arrested following a parolee search of his girlfriend's apartment. The Edwards defendant argued his residence was his parents' address that he gave his parole officer, not his girlfriend's apartment. Noting the defendant himself told his parole officer he stayed at his girlfriend's apartment multiple days a week and his parole officer was unable to contact him at his listed residence multiple times over a two-week span, this court found the defendant was residing at his girlfriend's apartment and that it was therefore subject to a lowered expectation of privacy.

In the case before us, the trial court's written ruling states:

This court finds that "residence" as used in condition number 9 of the terms of his parole means to include any place where he is presently housed, albeit temporarily, elsewhere than his place of employment, if different. For the purposes of condition number 9, Room 166 of the Motel 6 was Mr. Warren's "residence" to which he had given the state consent to search.

Additionally, Black's Law Dictionary discusses "residence" in part by stating:

Residence , usu. just means bodily presence as an inhabitant in a given place; domicile usu. requires bodily presence plus an intention to make the place one's home. A person thus may have more than one residence at a time but only one domicile. Sometimes, though, the two terms are used synonymously.

BLACK'S LAW DICTIONARY (10th ed. 2014).

The trial court's holding that the room was Defendant's residence would is appropriate under the facts and circumstances of this case using the definition found in Black's Law Dictionary. Accordingly, we cannot find that the trial court abused its discretion in finding the motel room was Defendant's residence.

Given the facts that Defendant was carrying an active key card to a motel room where his vehicle had been seen multiples times, a room Defendant had been renting for nearly a week in a motel where he had been renting rooms frequently for over a month, and where Defendant specifically told law enforcement officers no one else was staying in the motel room, we cannot say the trial court abused its discretion in finding the motel room was Defendant's residence such that it was subject to a parolee search, despite Defendant never admitting he was staying at the motel.

In light of the above, we cannot say that the trial court abused its discretion in denying Defendant's motions to suppress.

WRIT DENIED: Defendant seeks review of the trial court's September 11, 2017 denial of his motions to suppress filed on September 22, 2016. The trial court did not err in denying Defendant's motions. Accordingly, Defendant's writ application is denied.

      We note that the actual written conditions of Defendant's parole were not submitted as an exhibit at the motion to suppress hearing. However, this language tracks the language of La.R.S. 15:574.4.2(A)(2)(i), as noted by defense counsel's remark that "this isn't just something that your office made up, this is the law."

      We note that the details of the complaint which prompted the investigation of Defendant are not provided, as neither the State nor the defense actually asked about the details of the complaint.

      The statutes governing parole do not define the term "residence." However, an example from a different Chapter of the Code that does define "residennce" is the law governing the registration of sex offenders. Under La.R.S. 15:541(22) :
      "Residence" means a dwelling where an offender regularly resides, regardless of the number of days or nights spent there. For those offenders who lack a fixed abode or dwelling, "residence" shall include the area or place where the offender habitually lives, including but not limited to a rural area with no address or a shelter.