The opinion
STATE OF LOUISIANA * NO. 2022-K-0542
VERSUS * COURT OF APPEAL
ORLANDO BROWN * FOURTH CIRCUIT
* STATE OF LOUISIANA
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JCL LOBRANO, J., DISSENTS AND ASSIGNS REASONS.
I respectfully dissent. I find that the statements made by the defendant,
Orlando Brown (“Defendant”), to the police are not subject to suppression under
Miranda. As such, I would exercise our Court’s supervisory jurisdiction, find no
error by the district court, and deny the relief sought by Defendant for the
following reasons:
FACTS
Defendant appeared at the New Orleans Police Department (“NOPD”)
Fourth District station on September 11, 2021 at approximately 8:00 p.m.1 to file a
criminal complaint. Defendant met with a Fourth District police officer at 8:06
p.m. and began to report illegal conduct by the alleged rape victim in the present
case (“Victim”).
At 8:13 p.m., the interview was interrupted when Defendant was handcuffed
and advised that the NOPD Sex Crimes Unit was investigating the rape charged in
the present case and that he would be detained until the sex crimes detectives
arrived to interview him. In a telephone conversation, an officer from the Sex
Crimes Unit directed a Fourth District officer to not question Defendant any
1 All times provided herein are taken from the officers’ bodycam footage, with the exception of
the time the Sex Crime Unit detectives arrived at the Fourth District station and Defendant was
advised on his Miranda rights, which information is contained in the police report and in the
Miranda rights form.
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further until the Sex Crimes Unit detectives arrived. The video footage shows that
at 8:13 p.m., the need to Mirandize Defendant is mentioned, and Officer Barnett
hands a Miranda card to Officer Lauer. Officer Lauer does not provide Miranda
warnings on videotape. However, at 8:23 p.m., Officer Lauer reports that
Defendant has been Mirandized.
From the time Defendant was detained to the time the Sex Crimes Unit
detectives arrived, the Fourth District officers did not question Defendant.
Nevertheless, Defendant made numerous unsolicited statements during this time
period.
Detectives LaBorde and Kennelly of the Sex Crimes Unit arrived at
approximately 9:40 p.m. Defendant was taken to the interrogation room at that
time. Defendant agreed to make a statement and signed a Miranda rights form
(NOPD Form 153). The detectives then took Defendant’s statement.2 Defendant
was arrested pursuant to a warrant for battery on a dating partner and second-
degree rape. The meeting with the detectives ended at approximately 10:10 p.m.
After the conclusion of the interrogation, a Fourth District officer escorted
Defendant to a seating area outside of the police station pending his transport to
Central Lock-up. Defendant remained in the seating area until approximately 10:24
p.m., when he was placed in a police unit at and driven to Central Lock-up.
Defendant made numerous unsolicited statements while he was in the seating area.
LEGAL DISCUSSION
I initially find that all evidence was properly admitted at the hearing. The
State is not required to call witnesses if the burden can be met through
documentary and electronic evidence. The court acted within its discretion in
2 The formal interview of Defendant conducted by Detectives LaBorde and Kennelly is not
captured in the bodycam footage. The detectives made an audio recording of the statement. The
State did not submit the audio recording at the suppression hearing. The police report does not
identify the statements made during the formal interrogation, other than to note that “[t]he
suspect denied the [rape] allegations.”
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accepting the evidence without officers’ testimony. The Supreme Court has
explained:
we find resolution of the question in La.Code Evid. art.
1101(C)(1) which explicitly states the provisions of the
Code of Evidence are not applicable to “[t]he
determination of questions of fact preliminary to
admissibility of evidence when the issue is to be
determined by the court under [La.Code Evid.] Article
104.” As stated in Article 104, “[p]reliminary questions
concerning ... the admissibility of evidence shall be
determined by the court ... In making its determination it
is not bound by the rules of evidence except those with
respect to privileges.” Accordingly, we find the
exclusionary clause of La.Code Evid. art. 1101(B)(8),
when considered in pari materiae with La.Code Evid. art.
104, may be read to generally exempt hearings on
motions to suppress evidence from the rules of evidence
except with respect to privileges.
State v. Shirley, 08-2106, p. 6 (La. 5/5/09), 10 So.3d 224, 228. See also State v.
Taylor, 16-1124, p. 13 (La. 12/1/16), 217 So.3d 283, 293 (finding no error in the
district court’s reliance on an unauthenticated police report in a Prieur hearing).
Next, I find that (1) Defendant was not in custody, for Miranda purposes,
during his interview at the police station prior to being handcuffed and detained,
and thus Miranda warnings were not required for statements made during the
initial statements; (2) the statements Defendant made while detained, both before
his formal interrogation and after his formal interrogation, are not subject to the
requirements of Miranda as they were voluntary and/or spontaneous; and (3) the
statements made by Defendant during his formal interrogation are admissible
because Defendant’s waiver of his rights was knowing and voluntary.
The obligation to provide Miranda warnings attaches when a person is
questioned by law enforcement after he has been taken into custody or otherwise
deprived of his freedom of action in any significant way. Miranda, 384 U.S. 436,
444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); State v. Payne, 01-3196, p. 7
(La. 12/4/02), 833 So.2d 927, 934. As such, Miranda warnings are applicable only
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when it is established that the defendant has been subject to a “custodial
interrogation.” State v. Hunt, 09-1589, p. 11 (La. 12/1/09), 25 So.3d 746, 754.
Custody is decided by two distinct inquiries: an objective assessment of the
circumstances surrounding the interrogation to determine whether there is a formal
arrest or restraint on freedom of the degree associated with formal arrest; and,
second, an evaluation of how a reasonable person in the position of the interviewee
would gauge the breadth of his freedom of action. Stansbury v. California, 511
U.S. 318, 322, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994); State v. Manning,
03-1982, p. 24 (La. 10/19/04), 885 So.2d 1044, 1073. Interrogation under Miranda
refers not only to express questioning, but also to any words or actions on the part
of the police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating response from
the suspect. Payne, 01-3196, p. 14, 833 So.2d at 938.
“Spontaneous and voluntary statements, not given as a result of police
interrogation or compelling influence, are admissible without Miranda warnings
even where a defendant is in custody.” State v. Castillo, 389 So.2d 1307, 1310 (La.
1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1004 (1981)
(citations omitted). “Police officers are not obliged to ignore spontaneous and
unsolicited statements by someone in custody, as long as the statements do not
result from police-initiated custodial interrogation or questioning ‘reasonably
likely to elicit an incriminating response.’ ” State v. Ross, 95-1798, p. 2 (La.
3/8/96), 669 So.2d 384, 386.
I will now apply the legal principles set forth above to determine whether
Miranda applies to the statements made by Defendant to the Fourth District
officers. I start with the statements made when Defendant first appeared at the
police station. Defendant started to report illegal activity by Victim.
Approximately seven minutes into the interview, the interview was interrupted and
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Defendant was handcuffed and detained pending the arrival of the Sex Crime Unit
detectives. The question arises as to whether Defendant was “in custody” at the
time of his initial interview.
In State v. Blank, 04-0204, p. 8 (La. 4/11/07), 955 So.2d 90, 102, two
officers testified that they went to the defendant’s automotive store and that the
defendant agreed to accompany them to the police station to answer questions. The
officers testified that the defendant was free to leave before he confessed to the
crimes. Id. In Blank, the defendant was not administered Miranda warnings at his
place of business nor was he handcuffed while he traveled to the station in the front
passenger seat of the police vehicle. Blank, 04-0204, pp. 8-9, 955 So.2d at 102.
The Louisiana Supreme Court found that the defendant was not in custody when he
voluntarily agreed to accompany the officers to the station. As such, the Court
concluded that the defendant failed to show that he was arrested on less than
probable cause and that the subsequent statements should have been suppressed as
fruits of an illegal detention. Blank, 04-0204 at 8-9, 955 So.2d at 102.
In State v. Allen, 95-1754, pp. 7-8 (La. 9/5/96), 682 So.2d 713, 720, the
Louisiana Supreme Court found that the defendant voluntarily accompanied the
deputies to the substation. The Court found that even assuming the defendant was
transported by a patrol car to the station, there was no indication that the defendant
was forced to go, and that there was no evidence suggesting the defendant was not
free to terminate the interview at any time and leave. The Court concluded there
was no restraint on the defendant’s freedom.
In State v. Hankton, 12-0466, pp. 17-18 (La. App. 4 Cir. 4/30/14), 140 So.3d
398, 410, the defendant contacted the police department to report concerns for a
76-year old for whom she was the caretaker. The defendant agreed to assist in the
investigation in any way possible and agreed to be interviewed. The defendant was
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not restrained during the interview. This Court held that the defendant was not in
custody, for Miranda purposes, during her interview at the police station.
In State v. Obney, 505 So.2d 211, 214-18 (La. App. 3 Cir.1987), officers
arrived at the defendant’s residence dressed in street clothes and driving unmarked
cars. They knocked on the door and were invited in. No guns were drawn, no
handcuffs were displayed, and no threatening statements or actions were made.
The court recognized that the defendant voluntarily accompanied the police to the
station house, and whether sincere or not, fostered the belief that he desired to
assist the officers’ investigation. Even though the defendant was never expressly
told that he did not have to accompany the officers to the station, the court found
that the defendant was not under arrest at the time he gave a statement to the police
at the station. The court found that the evidence did not indicate the defendant was
coerced into traveling to the police station and that the defendant was not in
custody or detained prior to giving a statement.
In State v. Moore, 46,252, p. 21 (La. App. 2 Cir. 5/18/11), 69 So.3d 523,
534, the defendant voluntarily rode with a patrol officer to the police station for
questioning, was never placed in handcuffs, was told on several occasions that he
was not under arrest, and answered the questions he wanted to and refused to
answer the questions he did not want to answer during the interview. The Second
Circuit held that the defendant was not “in custody” for Miranda purposes at the
time he gave his statement to the police.
In the case sub judice, Defendant appeared at the Fourth District station to
report a criminal matter. Prior to the interruption of his interview with the police,
Defendant was not restrained. Based on these facts, I find that Defendant was not
in custody, for Miranda purposes, during his interview at the police station prior to
being handcuffed and detained, and thus Miranda warnings were not required for
statements made during the initial interview.
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After Defendant was detained, the Fourth District officers did not question
Defendant. Nor did the officers question Defendant after he was interrogated by
the Sex Crime Unit detectives and was waiting to be transported. All statements
made by Defendant to Fourth District officers during these two time periods were
unsolicited. Accordingly, I find that the statements Defendant made while
detained, both before his formal interrogation and after his formal interrogation,
are not subject to the requirements of Miranda and are thus admissible.
Finally, I turn to the statements made by Defendant during his formal
interrogation. Defendant agreed to make a statement to the detectives and signed a
Miranda rights form. I disagree with the majority’s conclusion that the State failed
to prove that Defendant’s waiver of his rights was knowing and voluntary.
In Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d
410 (1986) (citations omitted), the Supreme Court discussed the nature of a
voluntary, knowing and intelligent waiver of Miranda rights:
The inquiry has two distinct dimensions. First, the
relinquishment of the right must have been voluntary in
the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception.
Second, the waiver must have been made with a full
awareness of both the nature of the right being
abandoned and the consequences of the decision to
abandon it.
A determination of whether a waiver of constitutional rights was knowing and
voluntary is made on a case-by-case basis, and such a determination rests upon the
totality of the circumstances. State v. Workman, 14-559, p. 22 (La. App. 5 Cir.
4/15/15), 170 So.3d 279, 293 (citation omitted).
Although the record in this case does not show that Defendant was
specifically questioned as to his understanding of the rights delineated in Miranda,
a knowing and voluntary waiver of those rights may be inferred from the
circumstances surrounding the statement. Further, the record is devoid of any
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suggestion Defendant was intimidated, coerced or deceived in any way which
would have led him to waive his rights for any reason other than as a function of
his free will. The rights form signed by Defendant provided: “Do you understand
the rights I have read/explained to you?” Prior to his formal interrogation,
Defendant repeatedly told the Fourth District officers that he wanted to give a
statement to the sex crimes detectives and submit to a lie detector test in order to
immediately disprove the rape allegations against him. And after the conclusion of
his formal interrogation. Defendant continued to make statements relative to the
investigation. In the bodycam footage recorded immediately after his interrogation,
Defendant appears relaxed and is conversing freely with the Fourth District
officers.
I note also Defendant’s past experience with the criminal justice system.
Defendant stated that he has been arrested on domestic charges on three prior
occasions and had two prior drug convictions. “[A]n individual’s prior experiences
with the criminal justice system are relevant to this inquiry because they may show
the individual has, in the past, and, perhaps, on numerous occasions, been informed
of his constitutional rights against self-incrimination both by law enforcement and
judicial officers.” State v. Robertson, 97-0177, p. 26 (La. 3/4/98), 712 So.2d 8, 30
(citing State v. Green, 94-0887, p. 17 (La. 5/22/95), 655 So.2d 272, 284). “One of
the ways that people are educated and gain an understanding of things is through
repetition, through repeated exposure, and it [is] permissible for the trial court to
read [an individual’s] Miranda waivers ... against [that individual’s] criminal
history.” Robertson, 97-0177, p. 26, 712 So.2d at 30 (quoting Green, 94-0887, p.
17, 655 So.2d at 284).
Based on the totality of the circumstances, I find that Defendant’s waiver of
his rights was knowing and voluntary.
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Although I find that the State produced uncontested evidence of the
statements’ knowingly and voluntary nature, I find that a discussion is relevant as
to the option to vacate the ruling and remand the case to the district court to reopen
the hearing on the motion to suppress to allow for officer testimony, especially in
light of the court’s refusal to continue the hearing to allow for the officer’s
testimony upon request by the defense and State,3 the State’s decision not to file a
writ on the continuance denial,4 and the minimal nature of State’s Appellate
Brief.5
3 Both the State and the defense subpoenaed Sex Crime Unit Detective Brandon McDonald, who
participated in the follow up investigation of the alleged rape and prepared the police report
which was submitted at the suppression hearing. McDonald did not participate in the original
rape investigation and was not present when Defendant was interviewed by Detectives LaBorde
and Kennelly at the Fourth District station.
4 I note that the division which ruled on the motion to suppress now has an ad hoc judge
presiding.
5 The entirety of the State’s response to the writ is reprinted below:
STATEMENT OF RELEVANT FACTS
The defendant filed a motion to suppress statement and a motion for preliminary
examination. Both the State and the defense subpoenaed Officer Brandon McDonald, who failed
to appear. Both the State and the defense moved for a continuance, which was denied. During the
oral motion for continuance the State explained that the officer was unavailable. The trial court
ordered that the hearing proceed. The State submitted the arrest warrant, police report, Miranda
form, and body worn camera of the arrest. The Court accepted all evidence submitted and denied
the defendant’s motion to suppress statement.
ISSUE PRESENTED
I. Did the trial court abuse its discretion when it received documents and exhibits into
evidence at a preliminary hearing when the lead detective was unavailable and did the
evidence submitted support a denial of the motion to suppress statement?
LAW AND ARGUMENT
I. The trial court did not abuse its discretion in admitting the evidence.
a) All evidence was properly admitted at the hearing.
The State is not required to call witnesses if the burden can be met through documentary
evidence. In this case the court appeared to implicitly find that the officer was unavailable. As
such, the court acted within its discretion in accepting the evidence despite no officer being
present to authenticate them. The Supreme Court has explained:
we find resolution of the question in La.Code Evid. art. 1101(C)(1) which
explicitly states the provisions of the Code of Evidence are not applicable to
“[t]he determination of questions of fact preliminary to admissibility of evidence
when the issue is to be determined by the court under [La.Code Evid.] Article
104.” As stated in Article 104, “[p]reliminary questions concerning ... the
admissibility of evidence shall be determined by the court ... In making its
determination it is not bound by the rules of evidence except those with respect to
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A remand is an option especially when a defendant objects to the admission
of a confession or inculpatory statement claiming that the State failed to produce
pertinent officers’ testimony and questioning the underlying factual issues and the
voluntariness of his statements. A defendant objecting to the admission of a
confession or inculpatory statement is entitled to a fair hearing in which both the
underlying factual issues and the voluntariness of his confession are actually and
reliably determined. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d
908 (1964). See State v. Joseph, 454 So. 2d 237 (La. App. 1984)(in absence of
rebutting testimony at suppression hearing regarding specific and detailed
allegations of coercion made by a defendant against two officers, trial judge may
have erred by finding confession voluntary without hearing testimony of the
officers who allegedly coerced the defendant, and thus Court of Appeal was
compelled to remand case for retrial of motion to suppress). Pre-trial ruling
remands are favored at times to promote judicial economy and fairness because a
pre-trial ruling on a motion to suppress a confession or inculpatory statement is
privileges.” Accordingly, we find the exclusionary clause of La.Code Evid. art.
1101(B)(8), when considered in pari materiae with La.Code Evid. art. 104, may
be read to generally exempt hearings on motions to suppress evidence from the
rules of evidence except with respect to privileges.
State v. Shirley, 2008-2106 (La. 5/5/09), 10 So. 3d 224, 228.
b) The body worn camera footage does not contain Miranda warnings.
A review of the body worn camera footage reveals that the police did not read the
defendant his Miranda rights prior to the questioning that took place while the defendant was in
custody. Notably, the defendant gave a statement prior to being handcuffed. Whether the
defendant was “in custody” prior to being handcuffed1 is a question that the trial court did not
reach. However, the evidence submitted makes clear that the police knew of the open warrant for
defendant during his initial questioning and prior to him being handcuffed.
Additionally, as the defendant noted in his writ application, the Miranda form contains an
acknowledgment of rights, but no waiver. As such, the State was unable to prove that the
defendant was advised of his Miranda rights.
In conclusion, the State cannot argue in good faith that the evidence submitted at the
hearing was sufficient to carry its burden of proof regarding the constitutionality of the
defendant’s statement.
1 The defendant was handcuffed at minute marker 7:43.
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binding at the trial on the merits. If the confession is ruled admissible, no
additional hearing by the judge to determine admissibility is required at the trial.
See La. C.Cr.P. art. 703(F); State v. Whatley, 320 So.2d 123, 127 (La. 1975).
Nonetheless, I do not find that a remand is necessary because the trial judge
did not err in its findings without hearing testimony of the officers. Defendant
failed to show that an officer’s testimony would prove that he was intimidated,
coerced or deceived in any way. Based on the totality of the circumstances, I find
that a remand is unnecessary.
CONCLUSION
For the above reasons, I would exercise our Court’s supervisory jurisdiction
and deny relief sought by Defendant.
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