Opinion
No. 2023-KK-00096.
04-12-2023
STATE of Louisiana v. Eugene ALLEN.
Applying For Supervisory Writ, Parish of Orleans Criminal, Criminal District Court Number(s) 553-386, Court of Appeal, Fourth Circuit, Number(s) 2022-K-0706.
Writ application denied.
Hughes, J., would grant.
Genovese, J., would grant and assigns reasons.
McCallum, J., concurs and assigns reasons.
Griffin, J., would grant.
Genovese, J., would grant this writ for the following reasons:
In this matter, the defendant was arrested and charged with illegal carrying of a concealed weapon in violation of La. R.S. 14:95(A)(1). The defendant then filed a motion to suppress the seized weapon. The only and major concern I have is that the weapon was not fully concealed; therefore, there can be no crime of illegal carrying of a concealed weapon.
The facts in this case reveal that the patrolling officers observed the defendant walking on the street, and without reasonable suspicion or probable cause, "called him over" and asked him if he was carrying a weapon. The officer who made the stop informed the defendant that he stopped him because: "the magazine was still sticking out ... or this gr[a]y butt thing was sticking out ... the handle, grip portion, that's what I saw." The body camera audio confirmed the fact that the gun (an AR-15) was not fully concealed. An AR-15 is not readily or easily concealable.
In State v. Fluker, 311 So.2d 863, 865-66 (La. 1975), this Court held that "a weapon, although not in `full open view,' is nonetheless not a `concealed' weapon if it is sufficiently exposed to reveal its identity." Witnesses may be evasive and skirt the issue, but the body camera does not lie. If the object is in view, whether completely, partially, or noticeable as a gun, the individual does not possess the requisite intent to be convicted of violating La. R.S. 14:95(A)(1). See also, State v. Dyer, 388 So.2d 374 (La. 1980). In other words, if you can see it, or a part of it, then it is not deemed concealed; and that is what you have here. Thus, there is no violation of the statute, and the seizure of the weapon was unlawful. Consequently, I would reverse the lower courts and grant the defendant's motion to suppress.
McCALLUM, J., concurs and assigns reasons.
I concur in the result because of the unique posture in which this matter is presented; a motion to suppress evidence. Our case law indicates that a defendant bears the burden of proof at a hearing on a motion to suppress evidence. State v. Every, 19-40, p. 11 (La. App. 5 Cir. 5/23/19), 274 So.3d 770, 780, writ denied, 2019-01048 (La. 10/1/19), 280 So.3d 159. Further, a trial court's ruling on motion to suppress is afforded great weight and will not be set aside unless there is an abuse of that discretion. See State v. Hunt, 2009-1589, p. 7 (La. 12/1/09), 25 So.3d 746, 752.
Here, the defendant was charged under La. R.S. 14:95 with the illegal carrying of a weapon. Subpart A(1)(a) of the statute defines the illegal carrying of a weapon as the "intentional concealment of any firearm...." At the hearing on the motion to suppress, the trial court heard testimony and received evidence, following which it denied the defendant's motion to suppress, basing the decision on the lack of any evidence that the firearm in the defendant's possession was not concealed. The trial court noted: "Nobody saw anything. Nobody ever put on evidence today to say that that weapon was visible prior to the officers talking to him." Indeed, the only officer who testified at the hearing stated that he did not observe a gun and could not "necessarily say that [he] saw a gun, that [he] knew [defendant] had a gun."
The seminal case on the issue of whether a weapon is "concealed" for purposes of La. R.S. 14:95 A(1) (a) is State v. Fluker, 311 So.2d 863, 866 (La. 1975), where we observed that "a weapon, although not in `full, open view,' is nonetheless not a `concealed' weapon if it is sufficiently exposed to reveal its identity." That is, "[i]f the weapon is carried in a manner that reveals its identity, its carrier cannot be presumed to have Intended to conceal it and, accordingly, is not in violation of the statute." Id.
Based upon the record before us, I find no abuse of discretion in the trial court's denial of the motion to suppress. I thus concur in the denial of this writ application.