STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT STATE OF LOUISIANA NO. 2021 KW 0839 VERSUS

DEVIN C. WHITAKER OCTOBER 05, 2021

In Re: State of Louisiana, applying for writs, supervisory 20th Judicial District Court, Parish of West Feliciana, Nos. 20-- WFLN- 592, 20- WMSD- 593, 594.

BEFORE: WELCH, THERIOT, AND PENZATO, JJ.

WRIT DENIED IN PART; WRIT GRANTED IN PART. There was no clear abuse of discretion or error in the granting of the motion to suppress the marijuana seized from the pocket of the defendant. See State v. James, 99- 3304 ( La. 12/ 8/ 00), 795 So. 2d 1146, 1150 ( per curiam) (" the officer exceeded the scope of a valid Terry stop when he removed the canister from [ the defendant' s] pocket and began manipulating it to determine its contents. At that point, the officer had embarked on ` the sort of that evidentiary search Terry expressly refused to authorize...."') ( quoting, Minnesota v. Dickerson, 508 U. S. 366, 378, 113 S. Ct. 2130, 2139, 124 L. Ed. 2d 334 ( 1993)). Further, the inevitable discovery doctrine does not apply to the marijuana seized from the pocket of the defendant. See State v. Brock, 2015- 2165 ( La. 2/ 24/ 17), 210 So. 3d 276, 277 n. 1 ( per curiam) ("[ a] lthough, as the court of appeal reasoned, it is conceivable that an exception to the warrant requirement could apply in cases involving pharmacy records, the burden was on the S] tate to prove that an exception applied to the initial warrantless search. See La. [ Code Crim. P. art.] 703( D). The S] tate failed to present such evidence at the suppression any hearing and a reopened evidentiary hearing is unwarranted.").

However, Corporal Nettles testified the defendant consented to a search of his vehicle after the frisk. The trial court abused its discretion in suppressing the drug paraphernalia and methamphetamine found pursuant to the consent search.

JEW AHP

Theriot, J., dissents in part and would deny the writ in its entirety.

COURT OF APPEAL, FIRST CIRCUIT

DEPUTY LERK OF COURT FOR THE COURT