State v. Gibson

• Decision Date: 10 November 1980
• Docket Number: No. 66657,66657
• Citation: 391 So.2d 421
• Parties: STATE of Louisiana v. Freddie J. GIBSON, Jr.
• Court: Louisiana Supreme Court

Page 421

391 So.2d 421

STATE of Louisiana v. Freddie J. GIBSON, Jr.

No. 66657.

Supreme Court of Louisiana.

Nov. 10, 1980.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Patrick C. Leitz, Asst. Dist. Attys., for plaintiff-appellee.

Robert L. Marrero, Gretna, for defendant-appellant.

DENNIS, Justice.

We are called upon to decide when this Court may regard as harmless error the introduction in a criminal trial of evidence obtained by an unreasonable search or seizure. Defendant, Freddie Gibson, Jr., was convicted of armed robbery and sentenced as a multiple offender to serve fifty years at hard labor. Despite defendant's motion to suppress and timely objection at trial, the prosecution was permitted to introduce an unlawfully seized coat which, along with other legally obtained evidence, convincingly linked Gibson with the robbery. On appeal, we affirm. Although the coat should have been suppressed as evidence, its introduction was harmless error because the state has carried its burden of demonstrating that there is no reasonable possibility that the evidence complained of might have contributed to the conviction. Accordingly, we are able to declare our belief that the error was harmless beyond a reasonable doubt.

Early in the evening of December 27, 1977, a man entered the Chateau Drug Store in Metairie, Louisiana and ordered a pack of Rolaids. When the cashier rang up the sale, he brandished a pistol and ordered the cashier to empty the register. The robber fled the store in a 1965 blue Chevelle carrying $300 in cash. Within one or two blocks of the drugstore, he abandoned the car and proceeded on foot to the apartment of Nancy Schmitt, who was entering her apartment just at the time the robber approached. He moved her inside the apartment and held her at gunpoint for approximately one hour without harming her. Before leaving, he locked Mrs. Schmitt in the closet and took her car keys; he then absconded with her blue Volkswagen. Shortly thereafter, Schmitt's husband came home, learned what had happened, and reported the events to the police.

About midnight on February 10, 1978, Officer Wilben Tank went to the La Quinta Motel in East New Orleans to pick up his wife who was completing her shift as night clerk. Mrs. Tank hold her husband that the occupant of room 222 had made a number of long distance phone calls and that she was concerned he intended to leave without paying for them. The officer looked at the registration slip and discovered that the person registered in the room was Melvin Bounds. As the Tanks drove home, Mrs. Tank pointed out to her husband a Volkswagen in the parking lot which she had seen the occupant of room 222 driving. Officer Tank took down the license number with the intention of checking it out later.

Upon running the license number through the police computer, Officer Tank discovered that the car was stolen. He and another police officer returned to the motel to question Bounds about the automobile. The officers were unaware, however, that it was the vehicle which had been taken by an armed robber in December.

When Officer Tank knocked on the door of room 222, Melvin Bounds answered, but identified himself as Freddie Gibson. The officer, without identifying himself, asked Bounds to accompany him to the motel office to check on the telephone bill. While the officer stood in the hall outside the room, he saw through the partially open door Bounds place what appeared to be a gun in a closet to the left of the door. At this time, the gun did not cause the officer any concern. Bounds came out of the room and went to the office with the officer, all the while contending that his name was Freddie Gibson and that he was not registered for the room.

At the office, Tank pulled the registration slip showing that Melvin Bounds was the occupant of room 222. He asked for Bounds' identification, which Bounds produced, and the document demonstrated he was Melvin Bounds, not Freddie Gibson. Bounds then admitted his true identity, but contended that Freddie Gibson had checked in using Bounds' name. Tank advised him that he was a police officer investigating the theft of a blue Volkswagen parked in the motel lot near the room. Bounds protested that he owned a Datsun, not a Volkswagen, and asked Tank to inspect his Datsun registration papers.

Bounds led Tank and his fellow officer back to the motel room and showed them his Datsun papers. However, the officers noticed some Volkswagen keys lying on a television set. Convinced that they had probable cause, the officers arrested Bounds for receiving a stolen vehicle and advised him of his rights. They seized the keys and the gun they knew was in a closet roughly five feet from Bounds. Tank called his wife to determine if Bounds matched the description of the man she was concerned about.

When Mrs. Tank replied that the person they arrested did not resemble the driver of the blue Volkswagen, Tank and his partner concluded that there was another occupant of the motel room. They took Bounds to Central Lockup and returned to the motel with three or four other police officers to wait for the other person to arrive. While they waited inside the motel room, they received information that the stolen Volkswagen was connected with the December armed robbery. The officers waited inside the motel room from 1:00 a. m. to 4:30 a. m., at which time Freddie Gibson arrived and was arrested for armed robbery. Sometime during the waiting period, the officers observed a black leather coat in the closet which their information indicated might be involved in the robbery; the coat was seized and later used as evidence at trial.

Defendant unsuccessfully moved to suppress the pistol and coat before trial and futilely objected to their introduction during trial. He now urges two assignments of error stemming from the use of this evidence. He argues that his conviction should be reversed because it was based on evidence obtained by unreasonable searches and seizures.

Any person adversely affected by an unreasonable search, seizure or invasion of privacy proscribed by our constitution may assert the invalidity in court. La.Const. art. I, § 5; State v. Culotta, 343 So.2d 977 (La.1976). Warrantless searches and seizures are unreasonable, absent compliance with one of the specifically defined exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1974); State v. Banks, 363 So.2d 491 (La.1978). Once a defendant makes an initial showing that a warrantless search occurred, the burden of proof shifts to the state to affirmatively show that the search is justified under one of the narrow exceptions to the rule requiring a search warrant. State v. Banks, supra; State v. Braud, 357 So.2d 545 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1978). Here, the state relies on the search incident to an arrest exception to validate the seizure of the pistol, and it asserts the plain view doctrine to justify the seizure of the coat.

A search incident to an arrest is one of the exceptions to the warrant requirement. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Essentially, the justification for the warrantless search of a person arrested for a crime is based upon the exigency of removing any weapons and of preserving any evidence within the immediate reach of the arrested person. Chimel, supra; State v. Blanchard, 374 So.2d 1248 (La.1979); State v. Breaux, 329 So.2d 696 (La.1976).

The officers had entered the motel room with the consent of Bounds, one of its occupants. Considering the information given them by Mrs. Tank, they had probable cause to believe that Bounds had taken or received the stolen Volkswagen when they saw its keys in his room. The arrest, therefore, was valid. The pistol the officers seized was in a closet about five feet from Bounds when he was arrested. It is unclear whether the closet door was open or shut, but Tank knew the weapon was there and apparently believed it was within Bounds' reach. The trial judge found that the pistol was within Bounds' immediate reach and ruled that the officers were entitled to seize it to insure their safety. We conclude that the evidence rationally supports his ruling.

As for the coat, however, the prosecution's effort to justify its warrantless seizure falls short. In order for a warrantless seizure to come under the plain view rule, three conditions must be satisfied: (1) there must be a prior justification for an intrusion into a protected area; (2) in the course of which evidence is inadvertently discovered; and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. State v. Banks, 363 So.2d 491 (La.1978); State v. Parker, 355 So.2d 900 (La.1978). In this case, the officers' intrusion into the motel room that they knew to be occupied by someone besides Bounds was not justified after his arrest. They had gained access only by Bounds' consent for the purpose of inspecting his Datsun papers. Accordingly, their initial justification was limited by the scope of Bounds' consent. United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971); LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 8.1, 628 (1978). Although they obtained and duly exercised additional authority to seize the weapon within Bounds' reach upon arresting him, the officers were not justified in occupying the motel room after completing the arrest and seizure. It was well after the arrest of Bounds before the officers received information indicating that the black jacket was evidence of armed robbery. Consequently, when the officers seized the jacket upon receipt of the information, they lacked one of the essential underpinnings for a plain view seizure, viz., justification for an intrusion into a protected area. The seizure of the black...