State v. Aias

• Court: Supreme Court of Louisiana
• Citation: 149 So.2d 400,243 La. 945
• Docket Number: No. 46293,46293
• Parties: STATE of Louisiana v. Norbert AIAS and Ann Aias.
• Decision Date: 14 January 1963

Page 400

149 So.2d 400

243 La. 945

STATE of Louisiana v. Norbert AIAS and Ann Aias.

No. 46293.

Supreme Court of Louisiana.

Jan. 14, 1963.

Rehearing Denied Feb. 18, 1963.

George H. Fust, New Orleans, for defendants-appellants.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

HAMLIN, Justice.

The defendants, Norbert Aias and Ann Aias ¹ were charged by bill of information with a violation of LSA-R.S. 40:962, in that they did wilfully and unlawfully possess and have under their control a narcotic drug, to wit: Opium and Morphine, contrary to the form of the Statute of the State of Louisiana. They were tried by jury and convicted, and each was sentenced to serve five years in the Louisiana State Penitentiary at hard labor.

On appeal to this court, defendants present for our consideration one bill of exceptions, which applies to a reservation made upon the overruling of a 'Motion to Suppress Evidence,' (hereinafter discussed), a reservation made during trial and a reservation made upon the overruling of a motion for a new trial--the subject matter of each ruling and reservation of a bill of exceptions being the same.

The facts leading to the filing of the instant information, as deduced from the testimony attached to the bill of exceptions are to the effect that on March 2, 1961, Officers William Warner, Raymond Comstock and Larry Hand of the Narcotics Squad of the New Orleans Police Department were notified by a New Orleans physician that a lady named Johnson residing in the 1400 block of Esplanade Avenue 'continually bothered' him for paregoric prescriptions. The fficers went to the Esplanade address where they were told by the landlord that defendants and a Miss Malone, who had also lived at the Esplanade address, had moved to Elysian Fields Avenue; he did not know the house number but told the officers where Miss Lalone worked.

The officers proceeded to the La Mour Lounge, in the 800 block of N. Rampart Street, where they questioned Evelyn Malone after telling her that they were on a narcotics investigation, and she cooperated with them.

Evelyn Malone's testimony was to the effect that Ann Aias had told her that she was going to search for a larger house and that if she found one Evelyn could live with her and she would take care of Evelyn's baby while Evelyn was at work; that she and Ann found a place on Elysian Fields Avenue and the first half month's rent was paid by Ann in the name of Johnson; that she had paid rent to Ann and she and Ann rented together from the landlord; that she had a bedroom but the whole house was considered partly hers, her belongings being in the living-room, bathroom and kitchen.

Miss Malone told the officers she was living with Lynn Johnson and Norbert Aias and gave them permission to search the residence (which bears Municipal Number 1235 Elysian Fields Avenue); her employer permitted her to leave her job, and she accompanied the officers to the premises.

Officer Comstock testified ² that upon their arrival at the house he and Officer Hand went to the rear entrance; that upon reaching the rear of the house, he could smell an odor of paregoric and assumed that it was being cooked or had just been cooked; ³ that he and Officer Hand then forced the rear door open, because he felt that evidence was being destroyed. He stated that upon entering the house, he found the following evidence in the kitchen: 'On the table there was a hypodermic needle cleaner; a large glass containing a white liquid which I thought to be water; a China mug with a small piece of cotton in it; a hypodermic needle holder, a plastic affair; a roll of cotton, red cross cotton; on the mantel piece in the kitchen, some three feet from the table was a roll of Reynolds wrap encased in a box, a regular box. In the box, I found a medicine dropper and containing what appeared to be cooked paregoric.' He further testified that he and Officer Hand passed through the kitchen, seeing what they determined to be narcotic paraphernalia spread out on the kitchen table, and continued to the front of the house where he came upon Norbert Aias standing in the second room from the front. Officer Comstock stated, '* * * as I got within about two feet of him, I saw him drop a hypodermic needle to the floor Mrs. Johnson, was near the front door.' Mrs. Johnson, was near the front door.'

While Officers Comstock and Hand were conducting their investigation in the rear, Officer Warner and Evelyn Malone were at the front door.

Officer Warner testified that Miss Malone attempted to open the front door with her key, but that the door was locked with a safety lock from the inside and the key would not open the door; that Miss Malone knocked and the following events transpired:

'Yes, Lynn Ann Johnson or Ann Aias. I know her as Lynn Johnson mostly. She came to the front door and looked out the curtain and she saw Miss Malone and I was standing right next to Miss Malone so I asked her to open the door and she said, 'okay, okay I'm opening the door,' and she stood there and the door wasn't being opened and she said, 'all right, I'm opening the door.' She stood there, I guess; for two or three minutes I kept hollering, 'open the door, it's the police.' I had my folder out and she knows me well. She kept saying * * * I kept hollering, 'open the door' and so she took about two minutes or so before she opened the door. As I entered the address, the house, with Miss Malone, Lynn Ann Johnson was in the front of the house at the door, she had opened the door. Norbert Aias came to the front of the house, he was right at the second room of the house when I entered the house. Officer Comstock and Hand were immediately following Norbert Aias, they were right behind him coming through the house. The subjects were placed under arrest, Lynn Ann Johnson and Norbert Aias were placed under arrest. As I entered the house, I could smell as I got in, it was a strong odor and I had smelled this same odor before and to me it smelled like paragoric had been cooking. When I was in the front room, I could smell it. * * * A detailed search was made in the kitchen by Officers Hand, Comstock and myself in the presence of the defendants and Miss Malone; * * * At that time, we examined the subjects' arms. Lynn Ann Johnson, first. Lynn Ann Johnson had numerous marks on her arms which appeared to me to be hypodermic marks. They were also discolored, they had black and blue marks around which we notice on a lot of paregoric addicts. They have these bruises with the hypodermic needle mark in their arm. It leaves them with a large bruise on a lot of occasions. We examined Norbert Aias' arms. Norbert Aias had blood coming from one of his arms from a hypodermic needle mark and he had numerous hypodermic needle marks in his arms.' (Emphasis ours.)

No search warrant was secured by the officers before they searched the premises, confiscated evidence, and arrested the defendants. A qualitative analysis made of the cooked down paregoric disclosed that it contained opium, which when separated into some of its component parts contained morphine and codeine. The present prosecution ensued.

Before trial on the merits counsel for the defendants filed a 'Motion to Suppress Evidence,' alleging in part:

'That in this particular case, the evidence sought to be used by the State in its prosecution against the said Ann Aias and Norbert Aias was obtained by an unconstitutional search and seizure and therefore, inadmissible in the State's prosecution of this case under the Fourth and Fourteenth Amendments of the United States Constitution, as decided in the recent case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); that the Constitutional guarantee or right of privacy and the guarantee against unlawful search and seizures granted through the Fourth and Fourteenth Amendments of the U.S. Constitution is enforceable against the State through the due process clause of the Fourteenth Amendment of the U.S. Constitution, as decided by the case of Mapp v. Ohio, hereinabove cited.

'The position of the U.S. Supreme Court on the inadmissibility of the evidence obtained through an illegal search and seizure was reaffirmed in the case of William Marcus et al. v. Search Warrants of Property at 104 E. 10th Street, Kansas City, Missouri, reported in 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 Reporter.

'That the evidence sought to be used by the State in the instant case was the result of an illegal search and seizure. The provisions of the United States Constitution guaranteeing privacy against unlawful and illegal searches and seizures which the Federal authorities are obliged to follow are now binding upon all of the states in their criminal prosecutions, as decided by Mapp v. Ohio.'

The trial court denied the above motion and a bill of exceptions was reserved to its ruling.

The matter proceeded to trial, and during its course another bill of exceptions was reserved when the trial judge refused to suppress the following evidence: S--1, one bottle from Bel Vue Drugstore; S--2, plastic bag together with contents; S--3, plastic envelope containing paper towel; S--4, brown envelope containing two needles; S--5, aluminum pot; S--6, glass; S--7, Red Cross cotton; S--8, large bottle medicine; S--9, small bottle of medicine; S--10, four empty bottles, S--11, 2 black books; S--12, empty bags; S--13, brown envelope containing tinfoil; S--16, cardboard containing names of drugstores; S--17, jax bab.

In this Court defendants contend that the trial court's ruling on the Motion to Suppress Evidence and its other rulings should be overruled and reversed and the case against defendants dismissed because:

'1. The enforcement officers had abundant opportunity to obtain a search warrant. (Said officers knew when they located Evelyn Malone that they were going to the home of Norbert...