Lawrence v. Henderson

• Decision Date: 03 July 1972
• Docket Number: Misc. A. No. 1642.
• Citation: 344 F. Supp. 1287
• Parties: James LAWRENCE L. S. P. #66555 v. C. Murray HENDERSON, Warden.
• Court: U.S. District Court — Eastern District of Louisiana

344 F. Supp. 1287

James LAWRENCE L. S. P. #66555 v. C. Murray HENDERSON, Warden.

Misc. A. No. 1642.

United States District Court, E. D. Louisiana.

July 3, 1972.

COPYRIGHT MATERIAL OMITTED

Louis B. Merhige, Baldwin & Merhige, New Orleans, La., for petitioner.

John Volz, Louise Korns, Maurice R. Franks, Asst. Dist. Attys., Parish of Orleans, State of Louisiana, New Orleans, La., for respondent.

HEEBE, Chief Judge:

Petitioner James Lawrence brought a writ of habeas corpus to challenge the constitutionality of his conviction for possession of a narcotics outfit. After a full evidentiary hearing, the Court granted petitioner an out-of-time appeal so that the state appellate court could consider the constitutional issues. Lawrence v. Henderson, 318 F.Supp. 230 (E. D.La.1970). After the Louisiana Supreme Court affirmed petitioner's conviction, State v. Lawrence, 260 La. 169, 255 So.2d 729 (1971), petitioner reurged his federal habeas claim and moved to show cause why he should not be released. Arguments were heard by this Court on March 1, 1972.

The Court, having evaluated the arguments of counsel and having studied the legal memoranda submitted by the parties, is now fully advised in the premises and ready to rule. For the reasons set forth below, we conclude that petitioner is held in custody in violation of his Fourth, Sixth and Fourteenth Amendment rights.

Five main issues which were raised in Lawrence's federal habeas petition but not resolved in our earlier decision form the basis of our opinion:

1. Was petitioner's arrest violative of the Fourth and Fourteenth Amendments?

2. Should the narcotic paraphernalia seized from him have been excluded at the trial as the fruit of an unlawful arrest?

3. Was he denied compulsory service of process for obtaining a witness in his favor in violation of the Sixth and Fourteenth Amendments?

4. Did the state knowingly use a police officer's perjured testimony?¹

5. Did the trial judge discuss another narcotics case with the jury so as to deprive Lawrence of his Sixth Amendment right to an impartial jury?²

Since we have based our decision on the first three issues, we have not found it necessary to reach the fourth and fifth contentions.

At the evidentiary hearing before this Court, a picture emerged of a man's arrest on the slimmest of charges—vagrancy —and his eventual sentencing to twelve years of imprisonment for possessing narcotics and narcotic paraphernalia (i. e., a .25 gauge hypodermic needle, a disposable hypodermic needle and an eye dropper). The details of this picture bear repetition here.³

On January 15, 1968, James Lawrence, John Mosby, and Ella Washington were seated in Porter's, a combination bar and pool room, at 2135 Washington Avenue in New Orleans watching a game of pool. Two policemen entered and frisked Lawrence on the grounds that he fit the description of an armed robbery suspect.⁴ No contraband or weapons were found on Lawrence's person.⁵ During the frisk, he was questioned by the officers who, upon learning that he was unemployed and had no money, arrested him for vagrancy.⁶ Washington and Mosby were arrested on the same charge, and the three were placed in a police car for transportation to Central Lockup. Because no police matron was present at the time of arrest, Miss Washington was not searched before entering the vehicle although Mosby was.

At Central Lockup Lawrence, Mosby and Washington were then booked for vagrancy. Either during or after the booking procedure one of the arresting officers searched the police car and found a narcotics "outfit" under the back seat. Since he claimed that he had seen Lawrence take the paraphernalia out of his pants and place it under the seat while the three "vagrants" were in the police car, Lawrence was additionally charged with possession of narcotics. He pled not guilty to the possession charge. After a jury trial Lawrence was convicted of possessing narcotics and was sentenced on April 8, 1968, to twelve years at hard labor. At the trial the only evidence which bore directly on the possession of heroin was testimony by John Koch, Director of the New Orleans Police Department's Crime Lab, that the eye dropper which Lawrence allegedly left in the police car contained a residue of the drug.

The state courts have refused to find merit in any of the petitioner's constitutional claims. We respectfully disagree.

I.

Since there was no probable cause for petitioner's warrantless arrest for vagrancy, his arrest was unlawful under the Fourth Amendment as made applicable to the states through the Fourteenth. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The general rule is that the validity of a warrantless arrest is to be determined by state law so long as that law comports with constitutional standards.⁷

The Supreme Court has specified that an arrest without a warrant does not violate the Fourth Amendment if it is "for a crime committed in the presence of the arresting officer or for a felony of which he had reasonable cause to believe defendant guilty." Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 370, 92 L.Ed. 436 (1948). See also, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) (Douglas, J., dissenting opinion). Although there is some ambiguity, we do not believe that this is the law in Louisiana. In this state an officer probably can arrest someone for committing a misdemeanor out of his presence if he has reasonable cause to believe the person is guilty of the crime as Article 213(3)⁸ of the Louisiana Code of Criminal Procedure provides for a warrantless arrest if a "peace officer has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer." Although the "Official Revision Comment" specifies that the term "offense" in Subsection (3) broadens the police officer's authority to make arrests for crimes committed out of his presence to include arrests for misdemeanors as well as felonies,⁹ the leading state supreme court case on warrantless arrests militates against this interpretation. Pearson v. Great Southern Lumber Co., 134 La. 117, 63 So. 759 (1913). Even though the Pearson decision preceded the enactment of the current Article 213, it was not based on any then existing statute but rather on general principles of criminal law. As the court said in Pearson:

"Every one knows or should know that no arrest for a misdemeanor committed outside of the presence of the one complaining should be made without a warrant based on proper affidavit. Bigelow on Torts (7th Ed.) p. 220, § 442; Clark on Criminal Procedure, pp. 22, 27, 34, citing State v. Bryant, 65 N.C. 327; State v. Shelton, 79 N.C. 605 (at 760)."

Here it does not matter whether we apply the standard for a warrantless arrest which the Supreme Court approved of in Johnson or the more relaxed standard in Article 213 of the Louisiana Code of Criminal Procedure because Lawrence's arrest is invalid under either test.

There is no evidence that Lawrence committed the crime of vagrancy in the arresting officers' presence, for while the police questioned him he was neither habitually drunk,¹⁰ unemployed and not seeking employment,¹¹ loitering around a public place without lawful or visible means of support¹² or in a structure without being able to explain his whereabouts.¹³

Similarly, Lawrence's arrest cannot be upheld on the grounds that the officers had reasonable cause to suspect him of having committed a felony because vagrancy is not a felony in Louisiana.¹⁴ It is immaterial that the crime for which Lawrence was convicted—possession of narcotics—was a felony.

Furthermore, there was no reasonable cause to believe that the misdemeanor of vagrancy had been committed by Lawrence out of the police officers' presence. There was no reasonable or probable cause¹⁵ to arrest petitioner until the narcotic "outfit" was found but at that time he was already under arrest and in the process of being booked for vagrancy. An illegal arrest cannot be legalized by what is discovered after the arrest. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. DiRe, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210 (1948).

A warrantless arrest should only be made in limited circumstances for, as Justice Stewart cautioned in Beck v. United States, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964):

"An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment."¹⁶

In Beck, the Supreme Court held that the defendant's arrest and the incident search and seizure was invalid under the Fourth and Fourteenth Amendments since he was arrested without probable cause. Police officers who had received unspecified information about Beck arrested him and searched the car in which he was driving. After escorting him to a nearby police station, the officers searched him and found an envelope with several clearing house slips "beneath the sock of his leg" and charged him with possession of these slips in violation of an Ohio criminal statute.

The facts concerning Lawrence's arrest are barely distinguishable from those in Beck. Like the Supreme Court in that case, we can only say that "when the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would `warrant a man of reasonable caution in the belief' that an offense has been committed. Carroll v. United States, 267 U.S. 132, 162 45 S.Ct. 280, 288, 69 L.Ed. 543," (Beck, supra, at 96, 85 S.Ct. at 228). In the case at hand we cannot say that at the moment of Lawrence's arrest the officers were in...