GENOVESE, Judge.
Plaintiff, Bronel Hebert, filed suit for damages against Defendants, City of New Iberia, Quinten Adcock, and Scott Davis.
On August 10, 2002, Officer Davis received information from a confidential informant (CI) that an individual named Darrel had received a large amount of marijuana at a residence located at 113 Doris Street, New Iberia, Louisiana. The CI told Officer Davis that Darrel declared to him that he planned to quickly move the marijuana from the residence to avoid detection. Officer Davis relayed this information to Officer Adcock. Officer Adcock prepared an affidavit for a search warrant, which was presented to and signed by Judge Keith Comeaux.
The search warrant was executed upon the residence located at 113 Doris Street, New Iberia, Louisiana. Mr. Hebert claims he was injured during the police officers' entry into his residence. Mr. Hebert filed suit against the City of New Iberia, Officer Davis, and Officer Adcock for damages to his person and property. Defendants denied Mr. Hebert's claims and asserted immunity pursuant to the provisions of La.R.S. 9:2798.1.
A bench trial was held on April 22, April 24, and May 8, 2009. The trial court issued written Reasons for Judgment on October 12, 2009, wherein it ruled, in pertinent part:
The following issues are presented by Defendants for review:
On appeal, Defendants raise the following assignments of error:
Saine v. City of Scott, 02-265, p. 2 (La.App. 3 Cir. 6/12/02), 819 So.2d 496, 498.
Mr. Hebert argues that the search warrant was improvidently obtained. In brief, he alleges that Officers Davis and Adcock "recklessly disregarded the law by giving flawed information to a judge, intentionally mischaracterizing the reliability of an informant in order to obtain a warranty and using that faulty warrant to invade the property and privacy of an innocent citizen." Mr. Hebert further asserts that "the primary issue at trial was whether the officers breached the duty to establish probable cause for a warrant and whether a reasonably competent police officer would have applied for a warrant given these circumstances."
Defendants assert that there was probable cause for the warrant to be issued based on information from a CI: (1) that he had accompanied an individual to 113 Doris Street, New Iberia, on the day of the incident at issue herein; (2) that the individual dropped off a large quantity of marijuana to Darrel at that residence; and, (3) that Darrel said that he planned to move the marijuana from the residence to avoid detection. Defendants contend that because they were acting upon a valid search warrant, they are insulated from liability by the immunity provided in La.R.S. 9:2798.1.
Citing Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the trial court found that Defendants were not immune from liability under La.R.S. 9:2798.1 because La.Code Crim.P. art. 162
The trial court concluded that Officers Davis and Adcock hastily procured the search warrant; thus, "[t]he actions and omissions of Officers Davis and Adcock constitute reckless conduct."
In this case, the evidence shows that Officer Davis obtained a tip from a CI. Officer Adcock received this information from Officer Davis and prepared an affidavit in support of a warrant to search the residence at 113 Doris Street, New Iberia. The affidavit was presented to and signed by Judge Comeaux. The search warrant was executed; however, no drugs were found, nor was Darrel present at the residence that was the subject of the search. Instead, while the search was being conducted, the owner of the residence, Mr. Hebert, claims to have suffered emotional distress and injury to his toes when a police officer, presumably Officer Davis, either kicked or stepped on his foot. Though no drugs were found, Mr. Hebert testified at trial that an individual named Darrel had been at his home earlier that day. According to Mr. Hebert, Darrel occasionally mowed his lawn and had, on the morning of August 10, 2002, knocked on his door, asking for water and use of his telephone. Mr. Hebert initially refused Darrel's requests, but ultimately relented and gave Darrel some water and allowed him to use his telephone. However, Mr. Hebert stated that Darrel had never lived at his residence and that he did not have any knowledge of Darrel allegedly receiving a delivery at his residence that day.
The trial court relied heavily on the facts and procedure used by the officers in the procurement of the warrant and found that there was no probable cause for the issuance of the warrant. However, the legal issue in this case is whether any defects in the search warrant, curable or otherwise, were the proximate cause of Mr. Hebert's injuries. The appropriate question is not whether, in hindsight, the officers could have investigated more; rather, it is whether the issuance of the search warrant is what proximately caused injury to Mr. Hebert. We find that it was not. Though the issuance of the search warrant was a cause in fact of Mr. Hebert's injury, the proximate cause of Mr. Hebert's injury was the implementation of the search itself. Having so found, we reverse the trial court's finding of fault against Officers Davis and Adcock only as
To prevail on a negligence claim, Mr. Hebert must prove that Defendants owed a duty to him, that Defendants breached the duty, that the breach was the cause of his injuries, and that he sustained damages. See Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. A police officer owes a duty of reasonableness when executing a search warrant. See La.Code Crim.P. art. 164; Coutee v. Am. Druggist Ins. Co. of Cincinnati, 453 So.2d 314 (La.App. 3 Cir.), writ denied, 458 So.2d 477 (La.1984). Defendants assert that their entry into and search of Mr. Hebert's home was reasonable; therefore, they are immune from liability pursuant to La.R.S. 9:2798.1. Contrarily, Mr. Hebert contends that the forced entry into his home was unreasonable, and thus, Defendants were negligent and thereby answerable in damages.
Mr. Hebert testified that he was taking a nap in his bedroom when Defendants barged into his home without giving him a chance to answer the door. According to Mr. Hebert, Defendants broke his door frame when they forced his door open and entered his home with their guns drawn. At some point during the fracas, Mr. Hebert's foot was injured.
As held by this court in Saine, 819 So.2d at 500:
At trial, there was conflicting testimony as to how the search warrant was executed. Officer Davis testified that he knocked, waited a few seconds, then kicked the door down when instructed to do so by his supervisor, Major Claude Hills. According to Officer Davis, Major Hills was standing beside him. Major Hills testified and categorically denied giving Officer Davis the order to kick down the door. In fact, Major Hills stated that he witnessed the no-knock entry of Officer Davis from a vehicle because he had arrived at the scene just moments before. According to Major Hills, Officer Davis did not knock. Officer Adcock corroborated Officer Davis' testimony that he did knock before kicking down the door soon thereafter.
Louisiana Code of Criminal Procedure Article 224 governs forcible entry when
La.Code Crim.P. art. 224.
There was no evidence presented that Mr. Hebert refused admittance, nor was there any evidence that announcing the officer's authority would imperil the search. It is clear that the trial court relied heavily on Major Hills' testimony, and the court was well within its discretion to do so. See Goings v. State of La., Through Dep't of Pub. Safety and Corrs., 94-1386 (La.1/17/95), 648 So.2d 884. The trial court also found that the decision, or choice, to gain entry into Mr. Hebert's home by kicking down the door was made unilaterally by Officer Davis. We find no manifest error in the trial court's conclusion that there was no justifiable basis for a no-knock entry into Mr. Hebert's home; therefore, the conduct of Officer Davis in entering Mr. Hebert's home and his subsequent "protective sweep" of Mr. Hebert's home is not immune from liability under La.R.S. 9:2798.1 because that statute does not protect against legal fault or negligent conduct at the operational level. Officer Davis' failure to give Mr. Hebert sufficient time to answer the door constitutes negligence that caused Mr. Hebert's injuries, thereby entitling him to damages for the destruction of his property and damages for his personal injury and mental distress. Accordingly, we affirm the trial court's finding of negligence against Officer Davis as it pertains to his negligent entry into Mr. Hebert's home. However, no evidence was presented establishing any negligence on the part of Officer Adcock relative to the entry and search of the premises; therefore, we find Officer Adcock free from fault and not legally responsible for the damages sustained by Mr. Hebert. The trial court's judgment as to Officer Adcock, and Adcock alone, is reversed.
A careful review of appellants' assignments of error and specification of issues reveals that they only seek a review of the trial court's judgment relative to liability. Appellants do not seek a quantum of damage review. Consequently, the issue of damages, vel non, is not before this court and is, therefore, not considered.
For the reasons stated above, the trial court's judgment is reversed only with respect to its finding of liability on the part of Quinten Adcock. In all other respects, the trial court's judgment is affirmed. All costs of this proceeding are assessed against Defendants/Appellants, City of New Iberia and Scott Davis, in accordance with La.R.S. 13:5112, in the amount of $19,636.80.
