author: GRAVOIS, J.

text:
    STATE of Louisiana v. Joshua EVERY
    NO. 19-K-40
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2019
    COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, David P. Wolff, New Orleans, Juliet L. Clark
    COUNSEL FOR DEFENDANT/RELATOR, JOSHUA EVERY, Kerry P. Cuccia, New Orleans
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson
   GRAVOIS, J.

Relator, Joshua Every, seeks this Court's supervisory review of various rulings of the trial court denying his Motions to Suppress Evidence. Relator argues five assignments of error in his writ application. For the following reasons, we deny this writ application.

PROCEDURAL BACKGROUND AND FACTS

On October 27, 2016, a Jefferson Parish Grand Jury returned a true bill of indictment charging relator with violating La. R.S. 14:30 by committing the first degree murder of Taylor Friloux on June 29, 2016 while engaged in the perpetration or attempted perpetration of armed robbery, aggravated kidnapping, and second degree kidnapping upon her and during the perpetration or attempted perpetration of an aggravated burglary upon a Raising Cane's Restaurant.

On January 3, 2018, relator filed eight motions to suppress evidence, challenging evidence seized from the search of a Mercedes automobile (DM-39) ; two searches of the Mercedes pursuant to warrants (DM-40 and -41); an Alcatel cell phone seized from the Mercedes (DM-42); a silver iPhone seized from the Raising Cane's (DM-43); a black Kyocera cell phone (DM-44); a black iPhone 5 (DM-45); and a black and silver iPhone 6S (DM-46). The State filed written responses to each motion. Relator's motions DM-39 through DM-46 were heard at suppression hearings held on February 1, March 9, and March 19, 2018, at which hearings the trial court heard the testimony of witnesses and pertinent evidence was admitted. On August 17, 2018, the parties presented arguments as to DM-39 through DM-41 (regarding the warrantless search and seizure of the Mercedes and the two subsequent search warrants). Relator and the State submitted on their pleadings as to DM-42 through DM-46 (searches of cell phones pursuant to warrants). The trial court denied DM-39 through DM-46 for reasons assigned from the bench at the hearing on this date.

On September 6, 2018, relator filed additional motions to suppress evidence seized from relator's Facebook account (DM-77); a black iPhone linked to Ariana Runner, a co-defendant (DM-78); the same black and silver iPhone 6S (DM-79); a cell phone belonging to Candace Rose (DM-80); a cell phone owned by Felix Santiago (DM-82); a phone owned by Taylor Friloux, the victim (the same phone seized from the manager's office) (DM-84); the black Kyocera cell phone (DM-85); the black iPhone 5 (DM-86); and the black Alcatel cell phone (DM-87). The State filed responses to each of these written motions to suppress.

On November 2, 2018, the parties argued DM-77 and submitted DM-78 through DM-87 on the pleadings. After taking the motions under advisement, on November 14, 2018, the trial court denied DM-77 through DM-87.

Relator filed a timely writ application in this Court. Upon review, this Court found deficiencies in the writ application, namely that it failed to contain the full transcripts of the hearings on the motions to suppress referenced in the writ application, and ordered relator to supplement the writ application with any and all relevant transcripts in an Order dated February 27, 2019. This Court further ordered relator to supplement the writ application, in accordance with Uniform Rules - Courts of Appeal, Rule 4-5(C)(8), with the State's responses to the various motions to suppress and post-hearing memoranda filed by relator. Having received the requested supplements to the writ application, this Court now considers relator's assignments of error.

ASSIGNMENT OF ERROR NO. ONE

The trial judge erred as a matter of law in finding that Det. Ricke had the right to enter the Every property and scrutinize the interior of the Mercedes for evidence after the premises had been secured and after Mr. Every had been removed from the premises (DM-39).

In this assignment, relator argues that in light of the United States Supreme Court's decision in Collins v. Virginia , --- U.S. ----, 138 S.Ct. 1663, 201 L.Ed.2d 9 (2018), the trial court erred in finding that Detective Ricke lawfully entered relator's property and scrutinized the interior of the Mercedes. He argues that because Detective Ricke was within the curtilage of the home, he was required to have either probable cause to conduct the search of the Mercedes under the automobile exception to the warrant requirement or there must have been exigent circumstances present. He asserts that the Mercedes had no connection to the crime as it was located over twenty miles away from the Raising Cane's and was peered into by the police more than five hours after the incident occurred. He also argues the holding of State v. Hernandez , 410 So.2d 1381 (La. 1982) applies.

The State responded that Detective Ricke was legally justified in conducting a warrantless search of the vehicle under the automobile exception as it was probable that the Mercedes contained contraband and/or under the plain view exception. It further argued that the officers had a lawful right to access the driveway, which was not within the curtilage of the home. It argued that the Collins and Hernandez decisions are distinguishable, and that Detective Ricke more than complied with constitutional mandates by obtaining two search warrants for the Mercedes.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Aston , 12-955 (La. App. 5 Cir. 9/4/13), 125 So.3d 1148, 1156, writ denied , 13-2374 (La. 3/21/14), 135 So.3d 618. A defendant who is adversely affected may move to suppress evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. C.Cr.P. art. 703(A). The trial court's decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Butler , 01-907 (La. App. 5 Cir. 2/13/02), 812 So.2d 120, 124.

As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. State v. Holmes , 08-719 (La. App. 5 Cir. 3/10/09), 10 So.3d 274, 278, writ denied , 09-816 (La. 1/8/10), 24 So.3d 857. Warrantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. Id. When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving that the search and seizure was justified pursuant to one of the exceptions to the warrant requirement. La. C.Cr.P. art. 703(D) ; State v. Joseph , 02-717 (La. App. 5 Cir. 6/27/03), 850 So.2d 1049, 1052, writ denied , 04-2404 (La. 6/17/05), 904 So.2d 686.

The testimony and evidence at the hearing on the motions to suppress show that a witness to the robbery identified relator as a known perpetrator and that his name was provided to Officer Matthew Glapion of the Kenner Police Department at around 2:45 a.m. Officer Glapion found relator's address at 168 River Oaks Drive in LaPlace, Louisiana, in St. John the Baptist Parish, and learned that a black Mercedes was registered to the same address. After pulling up a photo of relator, Officer Glapion drove to LaPlace where, at 5:53 a.m., he saw a black Mercedes driving away from the River Oaks house apparently being driven by relator. Because he could not see the license plate, Officer Glapion established surveillance of the house. At approximately 7:00 a.m., Officer Glapion saw the Mercedes return and pull into the driveway in front of the home's garage. Relator exited the vehicle and entered the house through a rear door on the backside of the garage. Officer Glapion called for assistance, which arrived at approximately 8:10 a.m. Relator was detained shortly thereafter without incident.

After assisting other officers with a protective sweep of the residence, Officer Glapion left the house and went over to the Mercedes, still parked in the driveway, to speak to officers standing nearby. He looked through the front windshield and observed a sleeve of coins on the front passenger floorboard. Officer Glapion did not enter the vehicle, but stayed on the scene until the arrival of Detective Ricke.

Detective Ricke testified that he arrived at relator's residence around 8:53 a.m. after relator had been detained and transported. He spoke with Officer Glapion and also observed the presence of approximately ten officers from the different agencies of Kenner Police, the U.S. Marshals, and St. John the Baptist Parish in the immediate area who had secured the scene in anticipation of the issuance of search warrants. Detective Ricke looked through the front passenger window and windshield of the Mercedes and observed the roll of coins encased in wrapper that was similar to the coin wrappers he had observed near and inside of the safe at Raising Cane's. He also observed an item he described as a "Kids Meal kind of thing" from Raising Cane's. It was determined that the Mercedes was registered to relator's mother, who also lived at the same address. Officers did not enter the Mercedes while it was parked in the driveway. The Mercedes was then towed to the Kenner Police Department while an application for a search warrant was pending.

In Collins , supra , the United States Supreme Court resolved the issue of "whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein."

Id. , 138 S.Ct. at 1668. In Collins , the property that was subject to an illegal search was a stolen motorcycle. The stolen motorcycle was parked at the defendant's girlfriend's house in a partially enclosed area at the top of the driveway and was covered by a tarp but was partially visible by investigating officers while they viewed the property from the street. An officer entered the partially enclosed portion of the driveway, lifted the tarp off the motorcycle, and photographed it. The court found that the area where the motorcycle was parked was inside a partially enclosed top portion of the driveway that adjoined the house and was within the curtilage of the home. Accordingly, the court held that "[t]he automobile exception does not permit the warrantless entry of a home or its curtilage in order to search a vehicle." Id.

In Hernandez , supra , the defendant was arrested for DWI and related traffic offenses as he parked his car in his driveway after police officers had chased him through the streets for some distance. Id. , 410 So.2d at 1383. As the defendant was escorted to the patrol car, he stated he did not want anyone driving his car. Nevertheless, in accordance with alleged police policy, the officers radioed for a wrecker to tow the car. While waiting for the wrecker, one officer returned to the private property upon which the car was parked, entered the car, and inspected its interior. He discovered marijuana cigarettes on the console between the front seats and on the left floorboard and seized the cigarettes as evidence. Id. The court held that police had no right to re-enter the private property on which the defendant's car was parked and inspect its interior, including the glove compartment, after the defendant was in custody and removed from the scene since the search of the car was not contemporaneous with the arrest, and there was no probable cause or any circumstances to justify an exception to the warrant requirement. Id. , 410 So.2d at 1383-84.

Both cases cited by relator are readily distinguishable from the instant matter. The curtilage of a home is that "area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life." State v. Salinas , 17-485 (La. App. 5 Cir. 7/6/18), 251 So.3d 1166, 1177 n. 8, writ denied , 18-1301 (La. 4/8/19), 2019 WL 1619783. It is considered part of the home itself and is therefore afforded Fourth Amendment protection. Id. To determine whether an outside area is part of the curtilage or extension of the residence's living area, courts look at four factors which indicate how intimately the area is tied to the home itself: (1) the area's proximity to the home; (2) whether the area is included within an enclosure surrounding the home; (3) whether the area is being used for the intimate activities of the home; and (4) the steps taken by the resident to protect the area from observation by passers-by. Id.

In this matter, photographs of the driveway reveal that the driveway was not enclosed but was entirely open, led to the street, and was the path on which any person would approach the front door of the house and access it from the street. The driveway was open to law enforcement officers as well as any other member of the public. Therefore, even if it was a part of the curtilage of the home, this open driveway did not enjoy the same measure of Fourth Amendment protection that a home does, nor that enjoyed by the partially enclosed driveway space where the motorcycle in Collins was parked covered by a tarp. As the Louisiana Supreme Court noted in State v. Deary , 99-0627 (La. 1/28/00), 753 So.2d 200, 201 (per curiam), "police with legitimate business may enter the areas of the curtilage which are impliedly open to use by the public, and that in so doing they are free to keep their eyes open and use their other senses." It further stated that the police "have the same right as other members of the public to approach the doorway [of a home] and see what was exposed by the owner to the view of the general populace." Id. (citing State v. Dixon , 391 So.2d 836, 838 (La. 1980) ). It is also important to note that unlike in Collins , where the officer uncovered the motorcycle, and Hernandez , where the officers entered the vehicle during the search, no officer entered the Mercedes while it was parked in relator's driveway.

Relator also argued that the Mercedes had "no connection" to the crime; however, the facts show that the vehicle was clearly connected to relator, who had been identified as a perpetrator of the crime within an hour of its occurrence. Relator was seen by Officer Glapion driving the vehicle, registered to relator's mother at the address they shared, at 5:53 a.m., only hours after the crime occurred.

Accordingly, we find no abuse of the trial court's discretion in denying the motion to suppress. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. TWO

The trial judge erred as a matter of law in not finding that Detective Ricke and the Kenner Police Department lacked the authority to tow the vehicle to Kenner without a search warrant (DM-39).

In this assignment, relator argues that the authority of a municipal law enforcement officer is limited to the territorial boundaries of the municipality in which he is commissioned unless in "hot pursuit," citing La. R.S. 33:423(A), 2 La. Atty. Gen. Op. No. 09-0159, 2010 WL 3699994. Relator argues that in this case, the officers had not been in hot pursuit of the Mercedes. Thus, the trial judge's failure to find that the Kenner Police Department officials exceeded their lawful authority in ordering the towing of Mrs. Every's car was an error of law and should be reversed.

On June 14, 2018, relator filed a "Post-Hearing Memorandum in Support of the Motion to Declare Warrantless Seizure Invalid." Therein, he argued, for the first time, that the Kenner Police Department lacked the authority to seize the Mercedes from relator's home in St. John the Baptist Parish. In its post-hearing memorandum, and at the August 17, 2018 hearing, the State argued that the Kenner Police were within their lawful authority as they were working with the St. John the Baptist Parish police and the U.S. Marshal's Task Force. The State argued that even if there was an issue with jurisdiction, exclusion of the evidence was not an appropriate remedy, and no purpose of the exclusionary rule would be served by suppression.

Here, the victim was murdered in Kenner, Louisiana, which is in Jefferson Parish, and when relator was identified shortly thereafter as a suspect, it was learned that relator lived in St. John the Baptist Parish. Officer Glapion of the Kenner Police Department and the U.S. Marshal's Task Force were sent to LaPlace to investigate. The testimony at the hearing established that this was a multi-jurisdictional investigation, and the Kenner Police Department was working with the St. John the Baptist Parish police and the U.S. Marshal's Task Force.

Not all violations of statutory restrictions, such as territorial restrictions as argued by relator, are constitutional violations. State v. Gates , 13-1422 (La. 5/7/14), 145 So.3d 288, 299. Nor has the exclusionary rule been extended to include non-constitutional violations of statutes which are not designed to protect the privacy interests of citizens. "When the statutory limitation (or duty) alleged to have been violated by the officer is not designed to implement fundamental rights of privacy, this court should not employ the exclusionary rule as a device to enforce such legislative directives." Id. The Gates court noted that "[t]he statutory rules which delineate the territorial zones of responsibility of various law enforcement agencies are not designed to prevent unreasonable invasions of privacy." Id.

Considering this jurisprudence, we find that the Kenner Police Department, even if technically outside of their territorial bounds, did not act unconstitutionally in towing the vehicle, but rather did so as part of a multi-jurisdictional investigation. Thus, suppression of the evidence is not warranted as it "would not serve the administration of justice or the purpose of the legislative directing of territorial responsibility." See Gates , supra . This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. THREE

The trial judge erred as a matter of law in ruling valid the search warrants for the Mercedes were properly issued (DM-40 and -41).

In this assignment, relator challenges the validity of the two search warrants issued for the Mercedes, arguing that the affidavits in support of the warrants fail to address whether it was reasonable to believe that evidence of the crime would be found therein. He argues that the affidavits fail to connect the roll of coins to the robbery/murder, nor is it inherently suspicious to have a roll of coins in a person's car. He asserts that there was no evidence that the Mercedes was used to commit the crime or that evidence of the crime would be found in the Mercedes.

The first warrant was issued on June 29, 2016. The roll of coins and an Alcatel one-touch cell phone were seized pursuant to this warrant. The second warrant was issued on July 1, 2016 because officers were unable to access the trunk of the car during the first search, after which they acquired the trunk's keys. A search of the trunk pursuant to the second warrant yielded some Raising Cane's advertising material and plastic wrap. Both warrants were affirmed and executed by Detective Ricke of the Kenner Police Department.

When evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a hearing on his motion to suppress that evidence. La. C.Cr.P. art. 703(D) ; State v. Falcon , 13-849 (La. App. 5 Cir. 3/12/14), 138 So.3d 79, 88, writ denied , 14-769 (La. 11/14/14), 152 So.3d 877. A search warrant may be issued only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. State v. Aston , supra .

Probable cause for the issuance of a search warrant exists when the facts and circumstances, within the affiant's knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place that is to be searched. Id. The facts establishing probable cause for the warrant must be contained within the four corners of the affidavit. State v. Green , 02-1022 (La. 12/4/02), 831 So.2d 962, 969. An affidavit supporting a search warrant is presumed to be valid, and the defendant has the burden of proving that the representations made in the affidavit are false.

State v. Shiell , 16-447 (La. App. 5 Cir. 12/7/16), 204 So.3d 1213, 1217, writ denied , 17-0041 (La. 9/15/17), 225 So.3d 477 ; State v. Dee , 09-712 (La. App. 5 Cir. 2/23/10), 34 So.3d 892, 899, writ denied , 10-705 (La. 10/29/10), 48 So.3d 1097.

The magistrate's determination of probable cause to issue a search warrant is entitled to significant deference on review, and "marginal cases should be resolved in favor of a finding that the issuing magistrate's judgment was reasonable." State v. Rodrigue , 437 So.2d 830, 833 (La. 1983). If the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, the reviewing court should interpret the affidavit in a realistic and common sense fashion. State v. Green , 831 So.2d at 969. Within these guidelines, courts should strive to uphold warrants in order to encourage their use by police officers. Id. The reviewing court must ensure that under the totality of the circumstances, the issuing magistrate had a "substantial basis" for concluding that probable cause existed. Id.

Further, the United States Supreme Court has also held that evidence seized pursuant to a warrant based on less than probable cause need not be suppressed if the officers who executed the warrant believed it to be validly issued. State v. Davis , 2017 WL 10118514, at *2 (La. App. 5 Cir. 12/11/17) (citing United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d. 677 (1984) ). In formulating this judicially created good faith rule, the Court reasoned that the good faith of an officer in the execution of a warrant signed by a neutral magistrate should be enough for the evidence obtained as a result of the search to be admissible. Id. Thus, the Court expressed a strong preference for warrants over warrantless searches by allowing evidence seized in constitutionally questionable searches to be admissible into evidence if the officers were relying on a validly issued warrant. Id.

The Leon Court, however, listed four scenarios where suppression is the appropriate remedy for a search conducted pursuant to a warrant: (1) the affiant misled the magistrate by including in the affidavit misleading statements which the affiant knew were false or would have known were false, except for reckless disregard for the truth; (2) the magistrate abandoned his neutral and detached role; (3) the affiant was so lacking of indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) the warrant was deficient and could not be presumed valid. Davis , supra (citing Leon , 468 U.S. at 914-15, 104 S.Ct. at 3416 ).

The affidavit supporting the first search warrant, which was made and presented to the magistrate on the same day as the crime, clearly states that relator was identified as a suspect by eyewitnesses to the crime, that he had been observed driving the Mercedes to his mother's house hours later, and was positively identified by officers as he exited the car. The affidavit also explained that the search was for the purpose of seeking evidence of the crime, including the knife or knives used to stab the victim, the various items of clothing known to be worn by the perpetrators of the robbery as shown by the restaurant's surveillance cameras, cell phones, DNA evidence, and any other evidence deemed to be pertinent to the investigation.

The affidavit supporting the second search warrant was substantially the same as the affidavit supporting the first search warrant, but additionally recites that the first search was unable to access the Mercedes' trunk due to security features, but that the keys had subsequently been obtained from the car's registered owner and that a second search warrant, for the car's trunk, was requested at that time.

Upon review, we find that the facts and circumstances reflected in the affidavits were sufficient to support a reasonable belief that relator participated in the robbery, the murder of the victim, and the fair probability that evidence of the offenses may have been found in the Mercedes. Relator was seen driving the Mercedes only hours after the murder occurred. And, although relator argues there was nothing inherently suspicious about his possession of a roll of coins, Officer Glapion and Detective Ricke observed that the packaging of the roll of coins in the Mercedes was consistent with the rolls of coins found inside the Raising Cane's after the murder. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. FOUR

The trial judge erred as a matter of law in denying the motions to suppress evidence seized from cell phones pursuant to search warrants (DM-42, -43, -44, -45, -46, -78, -79, -80, -82, -84, -85, -86, and -87).

In this assignment, relator argues that the trial judge erred in finding that probable cause to search was established within the four corners of the warrants authorizing the search of each of the cell phones. Relator suggests that under Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), a cell phone may not be searched without a warrant issued upon probable cause, and the essence of probable cause is a "nexus" between the thing to be searched and the crime. He notes that for each cell phone, the affidavits fail to establish a nexus between the cell phone and the robbery, or describe with any particularity the evidence which the affiant expected to be found therein.

The Alcatel Warrants (DM-42 and -87)

The Alcatel cell phone was seized during the first search of the Mercedes and belonged to relator. It was searched twice under warrants. The first warrant was issued on July 13, 2016 and the second one was issued on November 9, 2016.

In his writ application, relator challenges the Alcatel warrants on the same basis as he did below in his motions to suppress (DM-42 and -87), arguing that Detective Ricke failed to particularize the evidence he expected to find, nor did he give specific reasons establishing a nexus between the phone and the crimes. Relator argues that the affidavit merely shows that the Alcatel cell phone was found in the Mercedes he was driving approximately six hours after the incident and which contained a roll of nickels. The State responded below that there was a fair probability that evidence would be found in the digital files of the phone given the fact that the phone was found in the vehicle that relator, who had already been identified as the alleged perpetrator, was seen operating and then exiting. It argued alternatively that suppression was inappropriate as the officers relied upon the magistrate's determination in good faith.

In United States v. Gholston , 993 F.Supp.2d 704, 707 (E.D. Mich. 2014), a police investigation of a robbery revealed that the defendant was one of the two suspects, and he was arrested and his cell phone was seized. In support of a warrant to search the phone's contents, a federal agent detailed the robbery offense and then averred that based on his "training and experience," the phone could be expected to contain evidence that the defendant and others had used cell phones to communicate details related to the robbery. The defendant claimed that the affidavit did not include facts indicating that he or his accomplices had "actually used a cell phone in connection with" the robbery. Id. Nevertheless, the court found that the affidavit established the required nexus in that the agent had cited the defendant's joint participation in the gas station robbery along with another individual as supporting his belief that a search of the phone would contain evidence shedding light on the identities of these multiple participants and their possible pre-planning and coordination of criminal activity. Id.

Upon review, we find that the facts and circumstances reflected in the affidavit were sufficient to support a reasonable belief that relator participated in the robbery, the murder of the victim, and that evidence of the offenses may have been found in his cell phone. Detective Ricke did not explicitly include in the affidavit that he believed there was communication between the perpetrators that would be found in the cell phone, but it was alleged in the affidavit that relator and a co-defendant entered the Raising Cane's together and were armed. Accordingly, we find no abuse of discretion in the trial court's rulings denying the motions to suppress regarding this phone. This assignment of error is without merit.

The Silver iPhone Warrants (DM-43 and -84)

The silver iPhone was retrieved from the manager's office in the Raising Cane's restaurant and belonged to the victim. It was searched twice pursuant to two warrants.

Relator challenges the affidavits to search the silver iPhone on the basis that the affidavit does not say the cell phone was used to plan or commit the crime or was used in the aftermath of the crime. He argues that the trial court erred in finding that relator did not have standing to challenge the seizure of the cell phone to the extent it produces communications between him and the owner of the phone.

The probable cause affidavit included in the writ application establishes that the silver iPhone found in the manager's office belonged to the victim. Upon review, we find that the trial court was correct in finding that relator has no standing to challenge the evidence seized from the searches of the victim's cell phone. La. Const. art. I, § 5 extends standing to "[a]ny person adversely affected" by an invalid search or seizure to raise its illegality. However, the protection is not unqualified because La. Const. art. I, § 5 also presupposes that "there must be an invasion of someone's rights to privacy before there can be an unreasonable search." State v. Perry , 502 So.2d 543, 558 (La. 1986), cert. denied , 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987) ; State v. Moultrie , 15-2144 (La. 6/29/17), 224 So.3d 349, 351-52. Relator has no possessory interest or reasonable expectation of privacy in the personal property of the victim. Hence, even if relator was "adversely affected" by the search of the victim's cell phone, the victim, who had the privacy interest in the cell phone, is deceased. See State v. Farris , 51,094 (La. App. 2 Cir. 12/14/16), 210 So.3d 877, 888, writ denied , 17-0070 (La. 10/9/17), 227 So.3d 828 (finding that because the deceased victim's right to privacy was not violated in the search of her cell phone, the defendant did not have standing to challenge the search of it). Accordingly, we find no abuse of discretion in the trial court's ruling regarding the victim's cell phone. This assignment of error is without merit.

The Kyocera (DM-44 and -85), iPhone 5 (DM-45 and -86), and iPhone 6S (DM-46 and -79) Warrants

The Kyocera, iPhone 5, and iPhone 6S cell phones were seized from the gold Toyota Highlander in which co-defendant Gregory Donald was a passenger when he was arrested one day after the murder. The gold Highlander had been identified as the getaway car by eyewitnesses at the robbery. The iPhone 6S belonged to Donald. It is unclear to whom the Kyocera and iPhone 5 belonged. The Kyocera and iPhone 5 were searched twice. The iPhone 6S was also searched twice, but it appears that three warrants were issued because the phone was password protected at the time the first search warrant was issued. The supporting affidavits for the search warrants of the three phones, challenged together in one assignment of error, are substantially identical in terms of relating probable cause thereto.

Specifically, relator challenges the search warrants of the Kyocera, iPhone 5, and iPhone 6S on the basis that the affidavits fail to show that the cell phones belonged to a perpetrator, or to one of the victims, or were used to plan the crime, commit the crime, or in the aftermath of the crime. Relator argues that there is no particular evidence cited which the affiant expected to find, but rather the affidavits only show that the cell phones were found in the suspected getaway vehicle and under the seat in which a perpetrator was seated at the time of his arrest.

Upon review, we find that the facts and circumstances reflected in the affidavits were sufficient to support a reasonable belief that relator participated in the robbery of the Raising Cane's, the murder of the victim, and that evidence of the offenses may have been found in these cell phones. At the time the affidavits were executed, it was known that more than one suspect was involved in the robbery at the Raising Cane's and that the getaway car was a gold Highlander. Detective Ricke set forth in the affidavits that another suspect in the robbery, Mark Crocklen, had indicated that the robbery was planned one month in advance, and he (Crocklen) was contacted by relator. Further, upon surveillance of the known getaway car, Donald, who matched the description of a second armed perpetrator, was seen entering the Toyota Highlander. Under the totality of the circumstances, we find that the affidavits stated sufficient probable cause for the issuance of the search warrants. This assignment of error is without merit.

The Runner iPhone Warrant (DM-78)

The Runner iPhone was obtained from Arianna Runner, a suspected perpetrator, in the Jefferson Parish Correctional Center after her arrest in connection with the murder and was searched twice pursuant to warrants. The supporting affidavits allegedly assert that Runner recruited Donald to participate in the robbery, introduced him to Joshua Every, and they planned the robbery. Relator argues that the affidavits fail to state that Runner's iPhone may have been used in recruitment, discussions, or planning, nor do they particularize the evidence expected to be found in the phone's files. Thus, relator argues that the search warrants were fatally flawed.

Upon review, we find that whereas the writ application includes the motion to suppress regarding Runner's phone and the State's response thereto, relator failed to attach a copy of the affidavit in support of the search warrants for Runner's phone. The party seeking relief is responsible for filing and attaching all documents and exhibits in connection with an application for writs. See Uniform Rules - Courts of Appeal, Rule 4-1. We are unable to adequately review this claim without the affidavit, and hence deny this argument on the showing made. Further, we note that Detective Ricke testified at the hearing on March 9, 2018 that he interviewed Runner on July 1, 2016, during which he obtained her consent to search her cell phone where conversations between herself, Donald, and relator were found. Accordingly, this assignment of error is without merit.

The Rose iPhone Warrant (DM-80)

The Rose iPhone belonged to Candace Rose and was searched three times pursuant to warrants. Allegedly, because "they were good friends and were with each other in the days leading up to the robbery," Rose received a "Snapchat" message from relator, informing her that the Raising Cane's restaurant would be robbed.

Specifically, relator challenges the warrants on the basis that because the affiant does not provide the source of the information, the affidavit does not satisfy probable cause since the commissioner could not have assessed the "veracity, reliability, or basis of knowledge" of the source. He argues that the affiant's belief that the message was likely sent by relator was mere speculation.

Relator has included with the writ application his motion to suppress the evidence seized from Rose's iPhone (DM-80) and the State's response thereto. The transcript from the March 19, 2018 hearing indicates that the affidavit for the search warrant for Rose's iPhone was admitted. However, relator has failed to attach a copy of the affidavit for this Court's review. The party seeking relief is responsible for filing and attaching all documents and exhibits in connection with an application for writs. See Uniform Rules - Courts of Appeal, Rule 4-1. Therefore, we are unable to adequately review this claim, and hence deny this assignment of error on the showing made.

The Santiago iPhone Warrants (DM-82)

The Santiago iPhone belonged to Felix Santiago, an employee at the Raising Cane's, and was searched three times under warrants. Specifically, relator challenges the affidavit on the basis that it states that Santiago may have had prior knowledge of the robbery and that he had cell phone text/call contact with the suspect. Relator argues that there is no indication when Santiago had cell phone communication with relator and no identification of the source that Santiago had prior knowledge of the plans to rob the Raising Cane's.

Relator has included with the writ application his motion to suppress the evidence seized from Santiago's iPhone (DM-82) and the State's response thereto. The transcript from the March 19, 2018 hearing indicates that the affidavit for the search warrant for Santiago's iPhone was admitted. However, relator has failed to attach a copy of the affidavit for this Court's review. The party seeking relief is responsible for filing and attaching all documents and exhibits in connection with an application for writs. See Uniform Rules - Courts of Appeal, Rule 4-1. Therefore, we are unable to adequately review this claim, and hence deny this assignment of error on the showing made.

ASSIGNMENT OF ERROR NO. FIVE

The trial judge erred as a matter of law in denying the motions to suppress evidence seized from Joshua Every's Facebook account (DM-77).

In this assignment, relator alleges, as he did below in his motion to suppress evidence, that the search warrant for his Facebook account was issued without a sufficient showing of probable cause. He argues that Detective Ricke failed to provide the dates on which certain Facebook posts were made by relator, so the issuing magistrate was unable to properly determine whether the information contained in the affidavit was stale. He also alleges that Detective Ricke failed to include the race of the murder victim or that one of the victims at the Raising Cane's was black, which would have refuted Detective Ricke's assertion that the posts showed relator's "history of hatred toward the white race."

The State responded below to defendant's motion to suppress, arguing that relator's Facebook posts were public, and thus, he had no expectation of privacy in them. The State asserted that nonetheless, a search warrant subsequently was obtained and relator's posts showed his motive and intent to commit the robbery and murder. The State contended that relator's argument attempting to refute Detective Ricke's theory that relator's actions constituted a hate crime had no bearing on the constitutionality of the search warrant. The State alternatively argued that suppression would be inappropriate if there was any issue with the affidavit under the good faith exception.

At the November 2, 2018 hearing, Detective Ricke testified that during July 2016, he viewed relator's public Facebook page and utilized its public contents to complete a search warrant affidavit. He subsequently obtained private records from relator's Facebook page via a search warrant.

The search warrant affidavit, in addition to the details regarding relator and Donald entering the Raising Cane's armed and relator's alleged killing of the victim and the identification of relator as the perpetrator by eyewitnesses, provided the substance of the posts observed by Detective Ricke, but not the dates upon which they were posted. At the hearing, Detective Ricke acknowledged that his affidavit failed to include these dates.

An affidavit supporting a search warrant is presumed to be valid, and the defendant has the burden of proving that the representations made in the affidavit are false. That burden requires the defendant to prove by a preponderance of the evidence that the affidavit contains intentional misrepresentations.

State v. Shiell , 204 So.3d at 1217. For an affiant to make a material and intentional misrepresentation to a magistrate constitutes a fraud upon the court and will result in the invalidation of the warrant and suppression of the items seized. State v. Byrd , 568 So.2d 554, 559 (La. 1990) ; State v. Shiell , supra . However, if the misrepresentations or omissions are inadvertent or negligent, the correct procedure is for the warrant to be retested for probable cause after supplying that which was omitted or striking that which was misrepresented. Id.

A warrant may become stale if facts and circumstances at the time of its execution show that probable cause no longer exists. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, 1028, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). Thus, "staleness is only an issue when the passage of time makes it doubtful that the object sought in the warrant will be at the place where it was observed." State v. Tate , 407 So.2d 1133, 1137 (La. 1981).

Upon review, we find that it does not appear that Detective Ricke intentionally left out the date of the Facebook posts or the race of one of the victims. These facts have little bearing on the core of the probable cause showing. In addition to the information regarding relator's Facebook page, the probable cause affidavit alleged that relator and Donald entered the Raising Cane's armed, and relator had stabbed the victim, ultimately leading to her death. Detective Ricke indicated that it sought this particular search warrant to discover other information relevant to the murder, robbery, and a possible hate crime. Considering what Detective Ricke was able to observe publicly on Facebook, it was reasonable to assume that further evidence would be found on relator's Facebook account. Thus, we find that the affidavit recited sufficient facts to establish probable cause for the issuance of this search warrant. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, this writ application is denied.

WRIT DENIED

      "DM" is short for "Defense Motion."

      This is one of the same phones that was the subject of the earlier motion to suppress.

      Detective Brad Ricke with the Kenner Police Department Criminal Investigations Division testified that he was the lead detective of the June 29, 2016 homicide, which occurred at approximately 1:13 a.m. Detective Ricke arrived at Raising Cane's at 1:47 a.m., at which time relator was identified as a suspect by one witness who was there during the robbery and murder.

      The particular cell phone and its corresponding motion(s) are as follows: Alcatel Phone (DM-42 and -87); Silver iPhone (DM-43 and -84); Kyocera Phone (DM-44 and -85); iPhone 5 (DM-45 and -86); iPhone 6S (DM-46 and -79); "Runner's" iPhone (DM-78); "Rose's" iPhone (DM-80); and "Santiago's" iPhone (DM-82).

      In his writ application, although relator challenged two searches of each of the cell phones pursuant to warrants, and filed two motions to suppress relevant to each search, the writ application includes only one search warrant affidavit relevant to some of the cell phones (the Alcatel, black Kyocera, iPhone 5, and iPhone 6S). In his writ application, however, relator notes that the affidavits are identical in all aspects relating to probable cause. Detective Ricke testified that multiple searches of the same cell phones were conducted due to law enforcement having two download programs.

      Evidence was presented that two Raising Cane's employees' cell phones were stolen during the robbery, but their cell phones were not the subject of motions to suppress. Donald's girlfriend and her mother (to whom the Toyota belonged) were in the vehicle during the traffic stop of the Toyota Highlander, but it was never developed whether those phones belonged to them.

      Detective Ricke testified that relator's Facebook account was still open to the public as of the morning of the hearing. At the time of the hearing, relator had photographs of a few of the Facebook pictures-which were apparently attached as exhibits to DM-77-which he used as demonstrative evidence during examination of Detective Ricke, and it was adduced which of the posts were public and which were private. These photographs were not included with relator's writ application.


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    King George MURRAY v. Brent Michael WINDMANN, Wesco Distribution, Inc. and Liberty Mutual Insurance Company
    NO. 18-CA-530
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, KING GEORGE MURRAY, King George Murray, III
    COUNSEL FOR DEFENDANT/APPELLEE, WESCO DISTRIBUTION, INC. AND LIBERTY MUTUAL INSURANCE COMPANY, H. Minor Pipes, III, John W. Joyce, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg
   WICKER, J.

The instant appeal, in which appellant appears pro se , arises from a February 12, 2015 auto and bike accident between appellant, King George Murray, III, and appellee, Brett Michael Windmann. Mr. Murray seeks review of the July 13, 2018 judgment of the trial court adopting the jury determination that Mr. Windmann was negligent, but was not the legal cause of the accident. For the reasons following, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On February 12, 2015, Mr. Murray and Mr. Windmann were involved in an auto and bike collision at the intersection of Airline Drive and Shrewsbury Road in Metairie, Louisiana. Mr. Murray, the bicyclist, brought suit against, defendant-driver, Mr. Windmann, and his insurer - Liberty Mutual Corporation - in the Twenty-Fourth Judicial District Court on February 10, 2016, seeking damages and a trial by jury. On June 18, 2018, the matter proceeded to trial by jury.

At trial, Trooper Chris Ledoux, of the Louisiana State Police Troop B, testified that he responded to an accident at 9:24 a.m. on February 12, 2015, at the intersection of U.S. 61 (Airline Drive) and Shrewsbury Road. Upon arrival, he observed a blue Chevy Malibu "somewhat on Shrewsbury, almost partially in the right lane of Airline" and a bicycle. Trooper Ledoux spoke with Mr. Windmann, Mr. Murray, and a witness, Ms. Debra Primo, at the scene of the accident.

Trooper Ledoux testified that Ms. Primo in her statement said that she saw the collision as she was the first car in line at a stop light at the intersection of Airline Drive and Severn Avenue. According to Ms. Primo's statement, while waiting for the light to turn green, she saw Mr. Murray pedaling his bicycle toward Kenner. As Mr. Windmann was making a right turn on red, Mr. Murray did not stop or slow down prior to impact.

Trooper Ledoux further testified that he spoke to Mr. Windmann, who stated that his car was stopped in the right lane headed northbound on Shrewsbury Avenue, and he was waiting for traffic to clear so that he could make a right turn onto Airline. According to Mr. Windmann, he saw that southbound traffic on Airline had cleared and he proceeded to turn right on red. At that time, he noticed Mr. Murray on a bicycle directly in his path and applied his brakes, but was unable to avoid the collision. Mr. Windmann informed Officer Ledoux that he did not look to his right before initiating his turn.

Trooper Ledoux also spoke with Mr. Murray, who stated that he was traveling against traffic on Airline Highway from the direction of the traffic circle at Airline and Causeway, when "the vehicle" pulled out in front of him and hit him. Mr. Murray told Trooper Ledoux that he was on the gravel portion along the south side of Airline. When asked by defense counsel if Mr. Murray could have avoided the accident, Trooper Ledoux testified:

In my opinion? Bicyclists, you generally have a shorter stopping distance than cars and there wasn't any obstructions in his path, so more than likely he probably - more than likely, I would say that if he was paying attention and he saw the car, he could have stopped in time.

Trooper Ledoux also observed minor damages to the Chevrolet Malibu on the front bumper and hood area. He further testified that it was not illegal for Mr. Windmann to make a right turn at the red light at the intersection of Airline and Shrewsbury and that there were no signs erected along the intersection that said "no turn on red."

On cross, Trooper Ledoux testified that he investigated between 150 and 180 automobile accidents each year. Of these accidents, only five or six have involved bicycles. He explained that a bicycle must abide by the same laws as vehicles, with the exception that they can ride on the shoulder and are also limited in the number of places they can ride. Trooper Ledoux further explained that a bicyclist should be riding with traffic and not against it. After conducting his investigation, Trooper Ledoux found that Mr. Murray broke the law by traveling against traffic and gave him a citation.

On the second day of trial, Mr. Murray's counsel called Dr. Mahmoud M. Sarmini who was tendered as an expert in physical medicine and rehabilitation medicine, including pain management. He testified that he first evaluated Mr. Murray on June 7, 2013 - prior to the accident at issue - for chronic lower back pain. On August 7, 2014, Mr. Murray had a follow-up visit regarding his back pain wherein he informed Dr. Sarmini that he experienced mild leg weakness which resulted in occasional falls. Dr. Sarmini evaluated Mr. Murray again on January 14, 2016, at which time he complained of increased back pain and a newly raised complaint of neck pain. During this visit, Mr. Murray reported to Dr. Sarmini that he was involved in an auto and bike accident in February of 2015, which led to increased back pain and an onset of neck pain, which Dr. Sarmini treated with several medications. Dr. Sarmini also ordered a CT scan of Mr. Murray's lumbar spine because Mr. Murray continued to complain of back pain and expressed that he experienced weakness in his left leg. Again, Dr. Sarmini prescribed nerve medication and discussed the possibility of physical therapy which would focus on developing muscle strength in Mr. Murray's back and neck as well as help with pain. Mr. Murray attended one 15-minute physical therapy session. Dr. Sarmini further testified that on August 12, 2016, Mr. Murray visited his office complaining of neck and back pain which had been aggravated after Mr. Murray slipped and fell in his dentist's office.

On February 17, 2017, Mr. Murray indicated to Dr. Sarmini that he underwent epidural steroid injections at C7-T1 (the last vertebra of the thoracic spine) on January 17, 2017, which did not help to alleviate his pain. Dr. Sarmini stated that prior to Mr. Murray's bike accident, he never mentioned neck pain. However, after the bike accident, Mr. Murray indicated that he had some intensification of his back pain and a new onset of neck pain. Dr. Sarmini further testified that Mr. Murray's neck pain is likely correlated to his accident.

Mr. Murray then visited with Dr. Sarmini again on July 18, 2017, at which time Mr. Murray stated that his neck and back pain became worse after a slip and fall accident and Mr. Murray further mentioned that he was hit by another car on March 21, 2017. Mr. Murray's final visit to Dr. Sarmini occurred on November 13, 2017, at which time Mr. Murray informed Dr. Sarmini of a new fall.

Mr. Murray also testified that on February 12, 2015, the date of the accident at issue, he was on his bicycle headed to the gas station prior to going to work, as was his daily custom, when he was struck by Mr. Windmann's vehicle while attempting to cross the intersection of Shrewsbury and Airline.

On cross examination, Mr. Murray testified that he was running late for work at the time of the accident but was not in a rush because he had contacted his employer. He proceeded down the Causeway/Airline Circle off-ramp with the flow of traffic on the right side of Airline Drive. Since the gas station he visits every morning for his orange juice is on the left side of the road, near the intersection of Airline Drive and Shrewsbury, Mr. Murray dismounted his bike and "ran" across six lanes of traffic to a "grassy area" near the intersection of Airline Drive and Shrewsbury. Mr. Murray testified that he saw Mr. Windmann's Chevy Malibu in the right lane at the intersection and decided to cross in front of it, as it was a pedestrian crossway. He testified that he noticed that Mr. Windmann was looking left and that Mr. Murray paused for five to ten seconds before crossing the intersection, as he believed the traffic was too close to Mr. Windmann for him to turn. Mr. Murray further testified that he waved at Mr. Windmann in an effort to get his attention before proceeding, however, Mr. Windmann continued to look to the left, so he waited until traffic "got so close upon him that I figured he wasn't going to turn. And when I went out there, that's when he gunned his - he gunned and hit it." Mr. Murray stated that at the time of the accident, he had just put his foot on the pedal and gave himself "a push." He stated that Mr. Windmann's wheels were the only thing turned and that Mr. Windmann had not yet made a partial turn. Mr. Murray stated that the vehicle hit both his bike and his left thigh and caused his medication to fall out of his pocket and onto the street. He explained that right after the accident, he asked Mr. Windmann to contact his wife and shortly thereafter he was taken to the hospital.

When asked about the location of Mr. Windmann's vehicle immediately prior to and at the time of the accident, Mr. Murray stated that it was "behind the white line." However, Mr. Murray testified that he was struck by the middle of defendant's car, on his left side. Mr. Murray stated that when he was hit, he was thrown off his bike, rolled over the hood of Mr. Windmann's vehicle, his back slammed against the windshield and his right leg slammed against the top of the car and he then slid down on his head.

Mr. Murray testified that he immediately felt pain in his neck, back, shoulders, and his right leg. According to Mr. Murray, he next remembers being attended to by EMS and speaking with Trooper Ledoux. Mr. Murray testified that Trooper Ledoux asked Mr. Murray where he had come from and Mr. Murray responded "I told him up there. That's all I say. I didn't tell him I was coming down or which side. He assumed what he wrote." According to Mr. Murray, he was x-rayed and admitted for medical observation in the emergency room. After Mr. Murray was in the observation room for approximately 20 or 30 minutes, Trooper Ledoux entered his room. Mr. Murray testified that Trooper Ledoux informed him that his bike was in the front of the hospital at security and that Mr. Murray was not "supposed to be up there riding a bike." Mr. Murray responded that he "should sue the state because y'all ain't got no sign up there saying pedestrian prohibited, so he got angry. He left and came back with a ticket, saying I find you at fault." Mr. Murray testified that the district attorney chose not to pursue the ticket.

Mr. Murray testified that he was released from the hospital on the date of the accident and that, a few days later, he experienced pain in his neck, shoulders, and back. Mr. Murray went to Ochsner Hospital's emergency room where he was given unspecified medication, placed in an examination room, and then sent home. Prior to being released, Mr. Murray was told to contact Dr. Sarmini to schedule an appointment. After contacting Dr. Sarmini, Mr. Murray underwent an examination wherein he alleges Dr. Sarmini concluded that Mr. Murray's right leg was not getting enough blood flow as a result of the accident. Mr. Murray also stated that he was referred to Ochsner Baptist to see Dr. Walsh who administered epidural shots to his back on four occasions. Mr. Murray testified that the shots were non-effective and that on his next visit to Dr. Sarmini, they discussed the possibility of Mr. Murray having surgery. Mr. Murray stated that he did not have the surgery because of his mother's passing and the need for him to travel back and forth to Monroe because of "family problems." Mr. Murray also testified that he was unable to go to his therapy sessions because of financial difficulties.

Mr. Murray testified that on the date of the accident, he was headed to his job at Super 8 Motel where he worked as a maintenance man. At the time of the incident, he was making $ 10 per hour. Mr. Murray testified that after the accident he missed a lot of work and was fired.

Ms. Primo testified that she witnessed the accident at issue. She testified that she was the first car in line in the left lane on Severn Avenue, facing Airline, waiting on the red light to turn green. She testified that she was sitting at the red light listening to music and looking straight ahead on Severn Avenue when she saw Mr. Windmann's car "out of the left peripheral vision." According to Ms. Primo, Mr. Murray was riding his bike on the street about two or three car lengths away from the intersection of Airline and Shrewsbury and she noticed him about "a second or two before impact." She stated:

And all of a sudden, I saw something out of the left peripheral vision and it was a man on a bicycle and I thought, Oh, my god, he's going to hit that car, because he did not slow down and he hit the car and that's when the impact occurred.

She further testified that she could not see the bottom of Mr. Murray's bike wheels which she testified were on the asphalt of the street prior to impact. Regarding the speed of Mr. Windmann's turn, Ms. Primo testified that prior to impact, Mr. Windmann was turning right "probably very, very slowly, like you would do when you are creeping out to see if there's other cars coming."

When asked whether Mr. Windmann's car "actually impacted" Mr. Murray, Ms. Primo responded, "Mr. Murray ran into the car." With regard to the impact, Ms. Primo testified that:

[Mr. Murray] hit the car. He went to his right and his back hit against the windshield and then he slid off of the car right in front of the driver's side door by the wheel and he seemed to stop his impact with his hand. And he laid there straight.
* * *
He was by the front quarter panel. He fell. He hit the roof. He hit the hood. His back hit the windshield and slid right before the driver's side door right by the wheel.

Upon seeing the impact, Ms. Primo testified that several cars stopped and pulled over. Mr. Murray was lying on the ground faced down, with his hands next to him. The bike was lying next to the car.

Mr. Windmann testified that he works for Wesco Distribution and on the morning of the accident, he was in route to a vendor. He stated that he passes through the Shrewsbury and Airline intersection every day to travel from work to see customers. According to Mr. Windmann, on the morning of the accident, around 9:00 a.m. he arrived at the intersection of Airline and Shrewsbury intending to turn right "to get on the on-ramp to the Causeway loop" to go toward the lake. The light was red and he stopped behind the white line. There were a lot of cars at the intersection so he was not immediately able to turn right.

Mr. Windmann explained that when he arrived at the intersection, he saw a red light and came to a stop. There was no one walking in the area or riding a bike in the area at that time. He further explained he only looked left before turning to see if traffic was coming. As to why he did not look right before turning, Mr. Windmann testified:

No. There's really no reason. There's no shoulder there and I didn't expect to have, you know, anybody coming the wrong side of the highway in the middle of the street.

Mr. Windmann further testified:

Well, I said in my deposition from what I remember is, the traffic was so heavy that morning that, you know, when you're looking left to make a right hand turn, you can see -- if there's a lot of traffic -- I was watching the traffic. And then I saw the cars starting to slow down. So when I noticed they were starting to slow down, that's when I started to creep up a little bit.
And then by the time I went to accelerate, that's when the light had already turned green. And when I -- as soon as I went to accelerate, I saw him, Mr. Murray out of my peripheral vision. I slammed on my brakes and then that's when the impact happened.

Mr. Windmann testified that after the impact, he got out of the car to check on Mr. Murray who was lying face down. Mr. Murray asked that Mr. Windmann contact someone for him and shortly thereafter, the police arrived.

Mr. Robert Douglas - an expert in traffic engineering and accident reconstruction - testified at trial that he was retained in January 2017 to examine the intersection of Shrewsbury and Severn at Airline Drive. After reviewing the depositions of Mr. Murray and Mr. Windmann and visiting the intersection where the accident occurred on four separate occasions, Mr. Douglas drafted a report.

In reviewing his findings, Mr. Douglas testified that had Mr. Windmann been at the stop bar or white line, which is 15 feet from the curb, he would have had a clear vision of Mr. Murray "who had gotten off his bicycle, according to him, and - or straddled his bike so that it was standing at the location." Mr. Douglas further testified:

Okay. I think we are all well aware of the right turn on red. In most areas of Jefferson Parish, you are allowed to turn right on red unless restricted. But you also have to yield to any pedestrian or bicyclist or anybody who is going to be in the proximity of the crosswalk; or if there is no crosswalk, where a crosswalk would be.

Finally, Mr. Douglas testified that had Mr. Windmann looked right prior to turning, the accident would not have happened.

On cross, Mr. Douglas testified that during his most recent visit to the accident site, he saw pedestrians and bicyclists at the intersection but was unaware from where they came. He further testified that he had not interviewed Trooper Ledoux, Mr. Murray, or Ms. Primo prior to making his report. Regarding the route taken by Mr. Murray on the date of the accident, Mr. Douglas explained that Mr. Murray's route along the traffic circle was the best route to take, although it is not pedestrian friendly.

As it relates to the duty of the bicyclist, Mr. Douglas testified:

They to [sic] have do the same. They have to make sure that they are moving with the signals, that they are protected according to the way that the traffic is moving. They have to make sure that they don't cut it front of somebody. And if they become pedestrians, then they have to know what the pedestrian rules are.

He further testified that a bicyclist traveling on a highway is to travel with the flow of traffic. Finally, Mr. Douglas testified that this was a low impact accident.

At the conclusion of Mr. Douglas' testimony, plaintiff and defense counsel rested and the matter was submitted to the jury. On June 19, 2018, the jury found that Mr. Windmann was negligent in the accident, but that his negligence was not a legal cause of the February 12, 2015 accident. The trial court adopted the jury's verdict in a July 13, 2018 judgment.

ASSIGNMENTS OF ERROR

On Appeal, Mr. Murray asserts three assignments of error which we find appropriate to rephrase as follows:

(1) Whether the jury verdict is contrary to law and evidence?
(2) Whether Mr. Murray's counsel provided ineffective assistance in failing to object to statements made by defense counsel during closing arguments?
(3) Whether Mr. Murray's Sixth, Eighth, and Fourteenth Amendment rights were violated by his counsel and opposing counsel throughout the trial of his civil case?

DISCUSSION

Contrary to Law and Evidence

On appeal, Mr. Murray maintains that the jury's verdict was contrary to the law and evidence presented at trial. La. C.C.P. art. 1972 states:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

United Group of Nat. Paper Distributors, Inc. v. Vinson , 27,739 (La. App. 2 Cir. 1/25/96), 666 So.2d 1338. A new trial may be granted when the jury verdict, while free of legal error, does not do substantial justice or is against the manifest weight and probative effect of the evidence. La. C.C.P. arts 1971, 1972, 1973 and Gilley v. Wendy's Inc. , 31,353 (La. App. 2 Cir. 12/9/98), 723 So.2d 517. A jury verdict cannot be set aside on a motion for a new trial on the grounds that the verdict is contrary to the evidence if it is supportable by any fair interpretation of the evidence.

Yokum v. Funky 544 Rhythm and Blues Cafe , 16-1142 (La. App. 4 Cir. 5/23/18), 248 So.3d 723.

Courts of appeal have long held that a jury's finding may not be set aside unless it is clearly wrong or manifestly erroneous. Snider v. Louisiana Med. Mut. Ins. Co. , 14-1964 (La. 5/5/15), 169 So.3d 319, 323 ; Alexander v. Pellerin Marble & Granite , 630 So.2d 706, 710 (La. 1994). Thus, a reviewing court does not attempt to resolve whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Frazier v. Shady , 50,821 (La. App. 2 Cir. 8/10/16), 200 So.3d 874, 876 ; Freeman v. Poulan/Weed Eater , 630 So.2d 733, 737-38 (La. 1994). Even if an appellate court considers its own evaluations and inferences to be more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Philips v. Berner , 00-0103 (La. App. 4 Cir. 5/16/01), 789 So.2d 41, 44-45, writ denied , 01-1767 (La. 9/28/01), 798 So.2d 119 ; Banks v. Jack Jackson, Inc. , 01-3 (La. App. 5 Cir. 5/30/01), 788 So.2d 709, 712-13 ; Miller v. Clout , 03-0091 (La. 10/21/03), 857 So.2d 458, 462. Therefore, if the record reveals a reasonable basis for the jury's determinations, the verdict must stand. Handy v. Owens Corning Corp. , 18-0491 (La. App. 4 Cir. 12/26/18), 262 So.3d 965, 968, writ denied , 19-0153 (La. 3/18/19), 267 So.3d 90.

At trial, Trooper Ledoux testified that, at the scene of the accident, Mr. Murray was riding against the flow of traffic and, had he been paying attention, Mr. Murray could have prevented the accident. Specially, Trooper Ledoux testified:

In my opinion? Bicyclists, you generally have a shorter stopping distance than cars and there wasn't any obstructions in his path, so more than likely he probably - more than likely, I would say that if he was paying attention and he saw the care, he could have stopped in time.

Furthermore, jurors heard testimony from Trooper Ledoux stating that Mr. Murray broke the law by riding against the flow of traffic on his bicycle and received a citation.

Ms. Primo, who witnessed the accident, testified that she saw Mr. Murray a few seconds before the collision and that while Mr. Windmann was turning "very, very" slowly, Mr. Murray was traveling with such speed on his bike that she believed that Mr. Murray hit Mr. Windmann.

Jurors also heard Mr. Windmann's testimony that at the time of the accident, he was looking at on-coming traffic to his left and had not looked to his right, where Mr. Murray was located, as he was not expecting anyone to come from that direction. When he began to turn, he noticed Mr. Murray and applied his breaks, but could not avoid the collision.

Mr. Murray testified that he had been traveling with the flow of traffic on his way to work when he wanted to stop to purchase orange juice from a store near his place of employment - which was his custom. Mr. Murray testified that when he arrived at the intersection, he noticed that Mr. Windmann had not looked over to the area where he was standing with his bike. According to Mr. Murray, after waiting five to ten seconds, he proceeded in front of Mr. Windmann's car. Mr. Murray testified that he was sure Mr. Windmann had not seen him prior to proceeding on bike in front of Mr. Windmann's vehicle.

Finally, the jury heard the testimony of Mr. Douglas - an expert in traffic engineering and accident reconstruction. Mr. Douglas testified that drivers have a duty to look in all directions before turning and that bicyclists have a duty to ride with the flow of traffic.

At the conclusion of the Mr. Murray's case in chief, the jury returned a verdict finding Mr. Windmann negligent in the February 12, 2015 accident, but that his negligence was not the legal cause of the accident.

Under the facts of this case as presented at trial, we cannot say that the jury's determination was manifestly erroneous or unsupported by the evidence. The jury was provided conflicting testimony as to the fault of both parties and the circumstances surrounding the accident. Accordingly, we are unable to conclude that the jury's findings are in error.

Ineffective Assistance of Counsel

In his second assignment of error, Mr. Murray avers his counsel provided ineffective assistance in failing to object to statements made by defense counsel during closing arguments. Specifically, Mr. Murray states:

Ms./Mrs. Stacie J. Fitzpatrick willingly and knowingly mislead and misguided plus deceived the jury and corrupted the jury mind against me, when she made 100% false lies against me, and while my so call attorney's well knew that she was lying and had the proof (100%) inside the courtroom, I quickly moved and told my attorney's to object to this they both refused; in (which I will get to them in a few minutes.)
* * *
Also Mr. Thomas L. Smith and Mr. Mauricio Sierra also clearly heard Ms. Mrs. Stacie J. Fitzpatrick make the statement in open court that she never saw any type of my work W2's and I moved quickly to ask Thomas L. Smith and Mauricio Sierra to object, even beg them but yet both willingly refused me and Mr. Mauricio Sierra told me to sit down or I will be thrown in jail.

The June 19, 2018, trial transcript shows that during closing arguments, opposing counsel stated:

Another aspect of this case, ladies and gentlemen, that I completely disagree on is the plaintiff's claim for lost wages and future lost wages. Now, we've only heard maybe two sentences of testimony from Mr. Murray where he said at the time of the accident he was working for Super 8, he was earning $ 9 an hour, and supposedly he, you know, was going to make $ 10 an hour and all that. That's it. That's all we heard. That is not sufficient for him to meet his burden of proof for lost wages.
He did not talk about the hours that he worked. What was his schedule? Was he full-time? Was he part-time? And one thing that, again, we're missing that has never been introduced into evidence or introduced as exhibits or even testimony to substantiate any lost wage claim is his employment record. We have none of that. We have no records from Super 8. We have no tax records to substantiate this lost wage claim. We've never seen any tax records introduced or any W-2s or anything like that. So I don't think it's enough for him to say, oh, I was making $ 9 an hour. I don't think that's enough.
* * *
So again, for future lost wages, I'm going to ask you to not award anything, and for past lost wages I'm going to ask you to not award anything because there is absolutely nothing that's submitted into evidence to prove that.

As it relates to the statements made by opposing counsel, in providing opening instructions to the jury, the trial court stated, in part:

The arguments that the lawyers will make to you in opening and closing statements aren't evidence. Your decision on the facts must be based on the testimony and the evidence that you hear and see.

Courts have found that instructions given to the jury prior to opening arguments and closing arguments informing them that counsel's statements are not evidence and that their determinations are to be based solely on the evidence and not upon the statements or suggestions of the attorneys served to counteract any possible adverse effect of opposing counsel's argument. See Cooper v. United Southern Assur. Co. , 97-0250 (La. App. 1 Cir. 9/9/98), 718 So.2d 1029 ; Kelly v. Riles , 99-601 (La. App. 5 Cir. 12/15/99), 751 So.2d 302, 308 ; and Sims v. Ward , 05-0278 (La. App. 1 Cir. 6/9/06), 938 So.2d 702, 709.

Therefore we find Mr. Murray's second assignment of error to be without merit.

Constitutional Rights Violations

In his final assignment of error, Mr. Murray alleges that his counsel and opposing counsel violated his constitutional right to effective counsel throughout his civil case. Specifically, Mr. Murray alleges that his counsel violated his Sixth "or" Eighth Amendment rights, and that both his counsel and opposing counsel violated his Fourteenth Amendment rights. This Court has previously declined to consider such arguments and found that "the inadequacy of an attorney in a civil suit is not enough to evoke constitutional concern". Karagiannopoulos v. State Farm Fire & Cas. Co. , 94-1048 (La. App. 5 Cir. 11/10/99), 752 So.2d 202, 209, writ denied , 99-2866 (La. 12/10/99), 752 So.2d 165, and writ denied , 99-3474 (La. 2/11/00), 754 So.2d 940. Moreover, it is established that such constitutional guarantees, including the right to counsel and the protection from cruel and unusual punishment, arise only under certain circumstances, typically involving criminal convictions, and do not govern or apply to civil cases involving the alleged negligence of an individual, private defendant. See Turner v. Rogers , 564 U.S. 431, 441, 131 S.Ct. 2507, 2516, 180 L.Ed. 2d 452 (2011) ; Palermo v. Rorex , 806 F.2d 1266, 1271 (5th Cir. 1987). Accordingly, we decline to consider Mr. Murray's constitutional arguments in this appeal.

CONCLUSION

For the aforementioned reasons, we affirm the July 13, 2018 judgment of the trial court adopting the jury determination finding Mr. Windmann was negligent in the February 12, 2015 accident, but was not the legal cause of the accident, and dismissing Mr. Murray's suit with prejudice.

AFFIRMED

      Mr. Windmann, who was employed by Wesco Distribution Inc., was operating a company vehicle at the time of the accident and thus Wesco's insurer, Liberty Mutual, was named as the defendant-insurer.

      Moreover, as pointed out by defense counsel on appeal, Mr. Murray failed to introduce any tax returns, W-2 forms, or documentary evidence from his employer to verify or support his allegations concerning his alleged lost wages.