CRIMINAL DISTRICT COURT

 

PARISH OF ORLEANS
STATE OF LOUISIANA
STATE OF LOUISIANA CASE NO. 512-390
VERSUS
JOSEPH THORNTON SECTION 
OPINION AND ORDER
PROCEDURAL HISTORY

 

On May 27, 2012, Joseph Thornton was arrested for violating New Orleans Municipal
Code Ordinance art. 54-411, regarding begging on a public street, and arrested for Possession of
Cocaine, in violation of La. Code Crim. Proc. Ann. Art. (2013). The Bill of
Information was ?led on July 2, 2012. On July 9, 2012, Mr. Thornton entered a plea of not
guilty. On November 26, 2012, the defense ?led ?Omnibus Motion for Suppression of
Statements, Evidence, and Identi?cations? and ?Memorandum of Law In Support of Defendant?s
Motion to Suppress Evidence Seized as the Result of an Illegal Stop Under a Law That Violates
the First Amendment.? On November 30, 2012, the defense argued the motion. This court
granted the motion to suppress, reasoning that the investigatory, stop performed by the of?cers,
was illegal and in violation of the defendant?s constitutional rights. The state informed the court
of its intent to seek a writ. On February 28, 2013, the state ?led a writ with the Fourth Circuit
Court of Appeal. On March 5, 2013, the Fourth Circuit granted the state?s Twrit and reversed the
order of this court. On March 25, 2013, the defense ?led ?Motion and Order to Reopen
Suppression Hearing to Determine Whether Begging Statute is Flagrantly Unconstitutional.?
This court granted the motion on April 11, 2013. On May S, 2013, this court held the motions

hearing on this matter.

The issues presented before this court are:
1. Whether New Orleans Municipal Code Ordinance art. 54-411 is unconstitutional,
2. Whether suppression can be used as a remedy to the enforcement of a statute which was
not unconstitutional at the time of the arrest,
3. Whether the of?cers? detention of the defendant constituted an illegal stop in violation of

the constitution such that suppression of evidence is a justifiable remedy.

STATEMENT OF THE FACTS

On May 27, 2012, Of?cer Glen Buckel, Jr. and his partner Of?cer Gaudet observed
Defendant Joseph Thornton standing at the intersection of Martin Luther King Blvd. and Simon
Bolivar Ave. The defendant was holding a sign and walking up to cars, and appeared, to the
of?cers, to be begging. The of?cers, believing that the defendant was violating New Orleans
Municipal Code Ordinance art. 54-411, began to approach Mr. Thornton. As the of?cers
approached, the defendant began to walk away; however, the of?cers stopped the defendant,
asked for identi?cation, and proceeded to conduct an investigatory stop. During questioning,
Officer Gaudet noticed the defendant had something in his mouth and asked the defendant to spit
out the item. The seized item appeared to be cocaine. The defendant was arrested for possession
of cocaine. Subsequent to the arrest for cocaine possession, Of?cer Buckel ran the defendant?s
name and discovered two outstanding warrants.

ANALYSIS

This court must determine 1) whether Art. 54-411 is unconstitutional, ll) whether
suppression is an appropriate remedy when an ordinance is declared unconstitutional subsequent
to an arrest, and 111) if suppression is an appropriate remedy, is suppression warranted given the
facts of this case.

I. Constitutional Analysis

A. Authority of this court

This court has jurisdiction to determine whether New Orleans Municipal Code Ordinance
art. 54-411 is constitutional. La. Const. art. district court shall have original
jurisdiction of all civil and criminal matters?); La. Rev. Stat. Ann. (2012) (?The
Criminal District Court for the Parish of Orleans shall have general supervisory jurisdiction over
the municipal and traffic courts of New Orleans and shall have authority to issue and
orders as are necessary in aid of the jurisdiction of the court. 

Statutes are generally presumed to be constitutional, and the party challenging the
validity of the statute bears the burden of proving unconstitutionality. State of Louisiana v.
Horton, 07-2377 (La. 7/1/08); 985 So.2d 709, 719 (citing State v. Fla-my, 01-0871 (La.
10/16/01); 799 So.2d 468, 472; State v. Brenner, 486 So.2d 101, 102 (La. 1986); State v. Hones,

67 So.2d 99, 105 (La. 1953)). Any doubt is generally resolved in favor of the state. State v.

Citizen, 04?1841 (La. 4l1l05); 898 So.2d 325, 334 (citing Brenner, 486 So.2d at 103; Theriot v.
Terrebonne Parish Police Jury, 436 So.2d 515, 520 (La. 1983)). Since the provisions of the
Louisiana Constitution are not grants of power, but instead are limitations on the otherwise
plenary power of the people, exercised through the legislature, the legislature may enact any
legislation the constitution does not prohibit. City ofNew Orleans v. La. Assessors? Ret. Relief
Fund, 05-2548 (La. 10l01/07); 986 So.2d 1, 12 (citing Louisiana Mun. Ass ?n v. State, 04-0227
(La. 01l19l05); 893 So.2d 809, 842; Polk v. Edwards, 626 So.2d 1128. 1132 (La. 1993); Bd. of
Comm ?rs of Orleans Levee District v. Dept. of Natural Resources, 496 So.2d 281, 286 (La.
1986)). The Louisiana Supreme Court has consistently held legislative enactments are presumed
valid and their constitutionality should be upheld when possible. Hatton, 985 So.2d at 719
(citing State v. Caruso, 98-1415 (La. 03l02l99); 733 So.2d 1169, 1170). Due to this
presumption, a party challenging the constitutionality of a statute must site the speci?c
constitutional provision that prohibits the legislative action. State v. Granger, 07-2285 (La.
5i21l08); 982 So.2d 779, 786. In view of this presumption, judicial self-restraint is appropriate
when statutes are under constitutional attack. Sherman v. Cabila?o Constr. Co, 490 So.2d 1386,
1390 (La. 1986). Courts should address constitutional issues ?only ?if the procedural posture of
the case and the relief sought by the appellant demand that [the court] do so.? Citizen, 898 So.2d
at 334 (quoting State v. Mercadel, 03-3015 (La.5l25l04); 874 So.2d 829, 834 (citation omitted)).

Furthermore, courts should attempt to resolve issues on non-constitutional grounds when
possible. Id. (citing Ring v. State, Dept. of Transp. Development, 02-1367 (La.1ll4l03); 835
So.2d 423, 428); see Cat's Meow, Inc. v. City of New Orleans, 98-0601 (La.10l20l98); 720 So.2d
1186, 1200. A party seeking the constitutional challenge must have standing to bring the
challenge. Greater New Orleans Exp. Comm?n v. Oliver, 04-2147 (La. 1/19/05); 892 So.2d 570,
573 2005). A party has standing when his or her own rights are affected. Id.
?There must be an ?actual present or immediater threatened injury resulting from unlawful
governmental action.? State v. Rochon, 11?0009 (La. 10l25/11); ?75 So.3d 876, 882 (quoting
Laird v. Tatum, 408 US. l, 15 (1972)).

B. Is Begging Unconstitutional

In the current case, the arresting of?cer testi?ed that he approached Mr. Thornton
because the defendant appeared to be begging. The United States Supreme Court has held that

soliciting charitable donations is protected by the ?rst amendment. Riley v. National Federation

ofrhe Blind of North Carolina, Inc, 487 U.S. 781, 7'89 (1988). The Louisiana Court of Appeals
Fourth Circuit expanded National Federation to include begging. Clarrerhuck v. City of
Charlorresville, Nos. 12?1149, 12-1215, 2013 US. App. FASTCASE, at *7 (4th Cir. Feb. 21,
2013) speech and expressive conduct that comprise begging merit First Amendment
protection?).

C. An. 54-411

Art. 54?41 I, currently before this court, is similar to a previous New Orleans Municipal
Code Ordinance 828 M.C.S. 38-182. The ordinance stated:

No person shall stand in the roadway for the purpose of soliciting a ride from the
driver of any vehicle, and no person shall stand in a roadway or upon a neutral
ground for the purpose of selling any produce or commodity to the occupants of
vehicles, or for the purpose of soliciting funds.

Acorn v. City ofNew Orleans, 606 F.8upp. 16 (ED. La, 1984). In Acorn, the Eastern District
Louisiana Court addressed the constitutionality of 828 M.C.S. 38-182. Id. The court held that
the statute was ?overbroad? and therefore unconstitutional. id. at 22. The court issued a
permanent injunction barring the city from enforcing the code. Id. at 24. The court also
provided guidance on how subsequent statutes could address solicitation.

If the City wishes to provide further guidance to solicitors, it may do so by
enacting true time, place and manner restrictions, rather than this total ban on
expression. It may prohibit solicitation during certain hours or on certain streets,
either by name or by limiting tagging to areas with a particular maximum speed
limit. The City may require high visibility vests, set a minimum age for taggers,
limit the number of taggers per intersection, require the presence of supervisors,
prohibit tagging in areas where the neutral ground is insuf?ciently wide, or forbid
signs above a designated height. The City may allow tagging only at traf?c lights,
require that taggers return to the neutral ground when the light changes to yellow
or, if actually warranted, forbid solicitors from entering streets during the hours
they are open to vehicular traffic. Any of these regulations would be less
restrictive methods for the City to address its interests.

Id. at 23-24.

The City of New Orleans ignored the court?s directive and advice. On November 16,
1995, The Municipal Code was modified and codi?ed. New Orleans Municipal Code (available
at ORLEANS 
[hereinafter Mun. Code]. In this new code, Art. 54-411 currently reads:

Sec. 54-411. - Begging, solicitation of rides, business, employment, or charitable
contributions prohibited.

It shall be unlawful for any person to commit the crime of begging as set forth
herein.

Begging is the unauthorized solicitation for money or anything of value by
any person.

No person shall stand, sit, 0r remain next to or in a roadway or street, or upon
the shoulder of any street or roadway, or upon a neutral ground of any street or
roadway for the purpose of begging, soliciting or otherwise requesting a ride,

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soliciting employment, making known hisfher availability for employment,
soliciting business or charitable contributions, or selling items or services to or
from the drivers or occupants of any vehicle.

Individuals violating the provisions of this section may participate in a city-
approved community service program in lieu of suffering the penalties imposed
by this Code for violation of this section.

Id. The current municipal code expands the original prohibitions of the previous,
unconstitutional ordinance, which the court had already deemed too broad. Additionally, In
2009, the constitutionality of the current ordinance was challenged. City of New Orleans 12.
Baham, 09-2109 (La. li8i10); 24 So.3d 861 (writ denied). The Of?ce of the City Attorney
presented a brief to the court stating, ?[T]he Of?ce of the City Attorney has taken the ordinance
in question under review and will not be prosecuting persons under 54-41 1 until such time as it
is amended or re-enacted in a substantially altered form.? Opp?n. Mem. p. 3. The Louisiana
Supreme Court denied the writ stating that the issue was moot. Baham, 24 So.3d at 861. To
date, no changes to Art. 54-41] have been made since February 18, 1999, yet, the Ordinance
remains in effect. Mun. Code (available at In light of this
precedent, this court concludes that Art. 54-411 is unconstitutiOnal.

This court is not alone in this conclusion. Previously, this court had declared the statute
unconstitutional. State v. Thornton, 13-0237, p.l (La. App. 4 Cir. 3i1i13) (per curiam). The
Louisiana Fourth Circuit Court of Appeal agreed with this court about the constitutionality of
this ordinance. State v. Thornton, 13-0237, p.l (La. App. 4 Cir. 3/11'13) (unpublished decision).
The court stated, ?We do not disagree with the trial judge?s assessment of the constitutionality of
the Id. The Fourth Circuit reversed the trial court?s ruling only because the
constituionality of the ordinance was not properly placed before the court; and therefore, need
not have been addressed. id. Currently, the constitutionality of Art. 54-411 is properly placed
before this court. Art. 54?411 is unconstitutional.

H. Suppression as a Remedy of Enforcing a Statute Later Declared Unconstitui?ional

The second issue before this court is the appropriate remedy when a person is arrested due
to an unconstitutional statute, which was not declared unconstitutional at the time of the arrest.
Even though a court may find that a criminal statute or ordinance is unconstitutional, such a
?nding does not mean that an arrest occurring prior to the declaration of unconstitutionality is
automatically invalidated, or that the evidence gathered will be suppressed. Illinois v. Km?, 480
U.S. 340, (1987); City of New Orleans v. Lyons, 342 So.2d 196 (La, 1977). The Louisiana

Supreme Court held that when an of?cer effects an arrest pursuant to a ?good faith? belief that a

statute or ordinance is valid, the arrest will stand. Lyons, 324 so.2d at 200. This sentiment was
echoed by the United States Supreme Court which looked at the application of suppression in
cases where an of?cer was acting on a good faith and reasonable reliance on the validity of the
statute. Kraft, 480 U.S. at 349-50. (holding that the exclusionary rule does not apply to evidence
gathered by of?cers acting in objectively reasonable reliance on a state staute).
The Supreme Court did not, however, grant a blanket immunity for good faith. Kraii, 480

U.S. at 355; Michigan v. 443 U.S. 31, 38 (1979) (?Police are charged to enforce laws
until and unless they are declared the possible exception of a law so
grossly and ?agrantly unconstitutional that any person of reasonable prudence would be bound
to see its flaws?) The Kruii court identi?ed two speci?c instances in which good faith reliance
is not applicable and suppression of evidence is warranted.

A statute cannot support objectively reasonable reliance if, in passing the statute,

the legislature wholly abandoned its responsibility to enact constitutional laws.

Nor can a law enforcement of?cer he said to have acted in good-faith reliance

upon a statute if its provisions are such that a reasonable officer should have
known that the statute was unconstitutional.

480 U.S. at 355.

A. Objective Reasonable Reliance

An of?cer is presumed to be acting in good faith reliance until such time as a statute is
declared unconstitutional. 443 U.S. at 38. ?The enactment of a law forecloses
speculation by enforcement of?cers concerning its constitutionality.? Id. A statute would not
meet the objective standard if, for instance, the statute eliminated the need for both probable
cause and a warrant. Id. at 39 (referencing Torres v. Pnerro Rico, 442 U.S. 465 (1979); Aimeida-
Sanchez v. United States, 413 U.S. 266 (1973); Sibron v. New York, 392 U.S. 40 (1968); Berger
v. New York, 388 U.S. 41, (1967)). Reasonable reliance is an objective standard which is not
reliant on the good faith of an individual of?cer. Kruii, 480 U.S. at 355.

Of?cer Buckel did not act in reasonable good faith when he stopped the defendant. Of?cer
Buckel testi?ed that NOPD of?cers were informed that Ordinance 54-411 should no longer be
enforced. Mot. Hr? Tr. 3-5. Of?cer Buckel stated the policy had gone into effect prior to the
defendant?s arrest. Id. at 5.

Witness: I believe, something (referring to the policy not to enforce the
ordinance) came out during a roll call brie?ng.

Court: Did you ask [your fellow of?cers] when?
Witness: I asked them when and it was sometime, I believe, prior to May of 2012.

Id. The NOPD had a policy in place not to stop and arrest individuals for violating Ordinance
54?411. Officer Buckel further testi?ed that he personally did not have knowledge of the policy.

Q: Of?cer, I just want to be clear. Were you personally aware of this policy.
A: At that time, I wasn?t aware to the best of my knowledge.

Id at 6-7. Good faith reliance is an objective standard which is not based on an individual
of?cer?s beliefs. Krull, 480 U.S. at 355. A department wide policy was in effect that of?cers
should not enforce Ordinance 54-411. A reasonable of?cer would be aware of department
policies. Of?cer Buckel?s individual lack of knowledge is not suf?cient to apply the good faith
reliance exception.

B. Legislative Abandonment

Even though an officer is generally presumed to act in good faith, that good faith may be
vitiated if the legislature acted in a way which abandons its duty to enact constitutional laws.
480 US. at 355. In State v. White, the Washington State Supreme Court addressed when a
legislature abandons the ?responsibility to enact constitutional laws.? 640 P.2d 1061 (Wash,
1982). The court in White determined that when a similar statute had, in the past, twice been
ruled unonstitutional, the legislature had abandoned its responsibility by again enacting identical
legislation. Id. at 102-04. The court further noted that the wording of the statute at issue was
nearly identical to the wording of the two unconstitutional statutes. Id. Since the new statute
was practically identical to the unconstitutional statute, the court reasoned, ?Where substantially
the same language in a different statute has been adjudicated unconstitutional by a court a
statute that has not been previously construed may nevertheless by virtue of a prior
dispositive judicial not serve as the basis of a valid arrest.? The statute was declared
unconstitutional. Id.

As previously stated, Acorn held that an ordinance concerning the solicitation of funds
unconstitutional. 606 F.Supp. at 16. city has no greater right to completely prohibit
solicitation at all times and places in its streets, which are traditional public Acorn,
606 F.Supp. at 22. Additionally, a permanent injunction was issued barring the city from
enforcing the statute. Id. at 24. The court in Accra also provided guidance on how subsequent
statutes could address solicitation. Id. at 23?24. As in White, this court must address an
ordinance similar to one which was previously declared unconstitutional. Also similar to White,
the previously declared unconstitutional ordinance had nearly identical wording to current Art.

54-411. Even the New Orleans City Attorney stated that the ordinance would be reviewed, but

has yet to remove the current, unconstitutional statute from the books. The New Orleans City
Council abandoned its duty to provide constitutional legislation. The good faith exception does
not apply; therefore, suppression of evidence gathered as a result of the enforcement of this order
is an acceptable remedy.
When Suppression Applies

Even though suppression is available as a remedy, the court must determine if
suppression is warranted given the facts of the instant case. The Fourth Amendment of the
Constitution of the United States, and Article I, ?5 of the Louisiana State Constitution prohibit
unreasonable searches and seizures. State v. Butler (Jody), 11-0985 (la. App. 4 Cir. 108! 12);
101 So. 3d 121, 124. Evidence resulting from an unreasonable search or seizure should be
excluded from trial. State v. Butler (Jeffery), 09-314 (La. App. 5 Cir. 28 So. 3d 317,
321-22 (citing State v. Warmack, 07-311, p. 4 (La. App. 5 Cir. 11/27/02); 973 So.2d 104, 107).
However, police are not totally prohibited from warrantless interactions with citizens. Jody, 101
So. 3d at 124; See Je?i'ey, 28 So. 3d at 323. In Louisiana, three-tiers of interaction between
police and citizens are recognized:
I. Mere communication between of?cers and citizens implicating no Fourth Amendment
concerns as long as there is no detention or coercion,
2. Investigatory (Terry) Stops, requiring an objective, reasonable susPicion, supported by
speci?c and articulated facts, that a person is engaged in, or about to be engaged in a
crime. Such stops may require a brief seizure of the individual, and a physical patdown
of the person to determined if armed with a weapon,
3. Custodial Arrest requiring the of?cer to have ?probable cause? to believe the person has
committed a crime. A person is not free to walk away in this situation.
Jody, 101 So. 3d at 125 (citing State v. Hamilton, 09?2205, p. 4 (La.5f11l10), 36 So.3d 209,
212); Jeffrey, 28 So. 3d at 322 (citing State 1: Fisher, 97-1133, pp. 4-5 (La. 99998); 720 So. 2d
1179, 1182-83); State v. Butler (Derrick), 96-1600 (La. App. 4 Cir. 8:27:97); 700 So.2d 224,
225.

The Fourth Amendment of the United States Censtitution protects ?the right of the peeple
to be secure in their against unreasonable searches and seizures.? Terry v. State of

Ohio, 392 U.S. l, 88 (1963). Fruits of such stops must be suppressed in the interest of justice.

Id. at 15. Discovery of evidence during an illegal stop or arrest must be suppressed as fruits of
the poisonous tree.

A. The Initial Stop

In the current case, Defendant Thornton?s encounter clearly falls in the second?tier,
?Investigatory Stop.? When Mr. Thornton tried to walk away from the of?cers, he was stopped
and questioned. Since he was not free to walk away, as was attempting to do, Mr. Thornton was
detained by the of?cers for the purpose of an investigatory stop. For an investigatory stop to be
justi?ed an officer must have reasonable suspicion that a crime has occurred or is likely to occur.
See State v. Hill, 725 So.2d 1282 (La. 1998). Art. 54?411 is unconstitutional, furthermore, good
faith reliance does not apply. Consequently, the act of begging was not suf?cient to raise
reasonable suspicion necessary for an investigatory stop of the defendant. Detaining the
defendant for the act of begging violated his First Amendment rights.

B. The Seizure of Cocaine

The seizure of the cocaine was the result of an illegal investigatory stop. The officers
illegally detained the defendant for questioning because probable cause did not exist. But fer the
illegal step, the officers would not have discovered the drugs. The seizure of cocaine must be
suppressed as fruit of the poisonous tree.

C. The Outstanding Warrants

The Louisiana Supreme Court has held that the discovery of an active warrant is a
sufficient intervening factor which allows for the admittance on any evidence recovered in the
?search incident to arrest.? State Hill, 725 So.2d 1282, 1288 (La, 1998). The Louisiana
Supreme Court made a point of distinguishing between the discovery of evidence during an
investigatory stop and the discovery of evidence during a search incident to arrest.

arguendo that the NOPD officers did conduct an impermissible Terry

stop, no evidence was recovered during that search; rather, the evidence was not

seized until after the o?ieers discovered the two outstanding arrest warrants,

arrested the defendant, and conducted a lawful search incident to his arrest on the

outstanding warrants. The of?cers? did not arrest and search the defendant due to

exploitation of the initial Terry stop or due to any evidence gained through the

exploitation of the initial stop. Instead, the of?cers lawfully arrested the defendant
pursuant to the outstanding arrest warrants. . ..

Id. at 1286 (emphasis added). In the current case, the seizure of evidence and subsequent arrest
occurred prior to the of?cers discovering active warrants; therefore, Defendant Thornton?s arrest
was not the result of the officers finding the warrants. The officers performed the search and

arrest by exploiting an illegal Terry Stop. The discovery of active warrants for the defendant

was not so attenuated from the illegal investigatory stop to prevent suppression of the evidence.
The discovery of the cocaine and arrest occurred prior to the of?cer running a background check
on the defendant.

CONCLUSION AND ORDER

 

This court finds that New Orleans Municipal Code Ordinance art. 54-411 is
unconstitutional. This court further ?nds that the New Orleans City Council abandoned their
legislative duty to protect constitutional rights, thus vitiating the arresting of?cers? good faith
reliance on the constitutionality of Art. 54-41]. This court further ?nds that, because Art. 54-
411 is unconstitutional, and because the good faith exception does not apply, the arresting
of?cers had no probable cause to stop and question the defendant. Defendant Thornton?s arrest
was the result of an illegal Terry Stop and all evidence and statements resulting from this stop
must be suppressed.

Additionally, the Louisiana Code of Criminal Procedure grants judges all inherent power
and authority necessary for the enforcement of justice. La. Code Crim. Proc. Ann. Art. 17
(2013). This includes the authority to issue orders that are ?necessary and proper in the aid of its
jurisdiction.? Id.

This court must address the constitutionality of a statute when a person faces a threat to
liberty and constitutional rights. In Mr. Thornton?s case, the threat to liberty became a reality.
Because of the lack of reasonable good faith reliance by Of?cer Buckel, the absence of
corrective action by the granting of authority, the New Orleans City Council, and in the interest

of halting the unconstitutional threat to liberty and expression created by Ordinance 54-411:

This court ?nds NO PROBABLE CAUSE for the stop and arrest of Mr. Thornton.

IT IS HEREBY ORDERED THAT the Motioo to Suppress is GRANTED.

IT IS FURTHER ORDERED THAT the Superintendent of the New Orleans Police Department

shall re-instruct any and all New Orleans Police Of?cers under his command and authority, and

any and all other law enforcement of?cers under his command and authority to cease and desist

enforcing New Orleans Municipal Code Ordinance art. 54?411.

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THIS ORDER IS EFFECTIVE IMMEDIATELY.

A copy of this order shall be served upon the Superintendent of the New Orleans Police

Department.

DATE: 7 May 2013

 

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