State v. Andrus
| Decision Date | 05 June 1967 |
| Docket Number | No. 48363,48363 |
| Citation | 199 So.2d 867,250 La. 765 |
| Parties | STATE of Louisiana v. Crowell ANDRUS and Aaron Andrus. |
| Court | Louisiana Supreme Court |
Paul C. Tate, Mamou, for defendants-appellants.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., L. O. Fusilier, Dist. Atty., J. William Pucheu, Asst. Dist. Atty., for appellee.
Crowell Andrus and Aaron Andrus, indicted for the crime of theft of cattle denounced by R.S. 14:67.1, were placed on trial before a jury on March 7, 1966, and after trial were found guilty. Each was sentenced to serve five and one-half years in the state penitentiary. They have appealed, relying for reversal on a number of bills of exception. 1 All of the evidence adduced was made a part of the bills.
A somewhat detailed statement of fact is necessary for an understanding of the issues raised in this case. On the night of July 24, 1965, at about 9:00 o'clock a resident of Ville Platte, Evangeline Parish, who was driving along the highway, saw a light blue old-model pickup truck parked near the highway with its tailgate down and lights burning, and close to the truck was a dead calf. Coming almost to a stop near the side of the truck, he saw no one in or near the vehicle. He drove along the highway for a short distance, but, feeling that something was wrong, pulled off the highway and turned off the lights of his car. After waiting a short time, he decided to return to the place where he had seen the truck and the calf, and as he approached that place, the truck which had been parked by the highway started moving and drove past him. He drove beyond the scene for a short distance, turned around and repassed it, and noticed that the body of the calf had been moved somewhat. He continued down the highway, and not far from where he had seen the calf he noticed the same truck parked about 50 feet off the highway with its lights burning. When he returned home, he called the sheriff's office and reported to a state trooper what he had seen.
The state trooper and several deputy sheriffs of Evangeline Parish went to the scene to investigate, and at their request the witness who had reported the occurrence joined them there. When they arrived, the body of the calf was gone. The witness told the officers all he had seen, and described the truck. At the scene the officers noticed tire tracks, which they photographed, and a certain amount of blood and cow's hair. At or near this place there was a cow which was lowing or bellowing for her calf. They drove her away, but she repeatedly returned to the spot. It was shown at the trial that this cow and her calf, which grazed on the open range, each bore the brand of Everett Kelly. Kelly testified that he had seen the cow on the afternoon of July 24 with her calf, but that when he saw her the next morning, her udder was full and the calf was no longer with her.
Another witness, who was also driving on the highway at about 9:00 on the night of July 24, saw the dead calf and the light blue pickup truck parked near it, and also saw nearby the calf's mother and other cattle which he recognized as belonging to Everett Kelly. Shortly afterwards he went to the home of Kelly and told him what he had seen, and Kelly, who was shown to be the owner of the calf, accompanied him back to the place where the dead calf had been lying. There they found the officers conducting an investigation.
During the course of the officers' search for the truck that same night, one of them, a deputy sheriff, at about midnight observed lights burning at the home of the defendant Crowell Andrus and some activity at the barn there. This officer, who remembered that Crowell Andrus had a truck which fitted the description previously given of the truck seen near the calf's body, parked his car on the highway near Andrus's home, and a short while later the defendant Crowell Andrus, accompanied by his codefendant Aaron Andrus, drove his light blue pickup truck onto the highway. The officer stopped the truck about a quarter of a mile from Andrus's home. As he walked up to the truck with a flashlight, he saw in plain view an uncovered tub of meat in the rear of the truck. Another officer arrived. Some conversation took place between these officers and the two defendants, and the officers were told that the meat in the truck came from a calf belonging to Crowell Andrus which had been killed on his place and butchered in his barn. Both defendants made other remarks which we shall discuss later. Both were then placed under arrest.
The officers then requested and were readily given permission by Crowell Andrus to search his barn where he said the calf had been butchered. At this place they were joined by two other deputies. There they found evidence that a calf had been recently butchered, the entrails still being warm. However, they were unable to find the hide or the head, which Andrus stated he had given to his dogs. Crowell Andrus, who had told the officers that the meat in the truck had been sold by him to Aaron Andrus, said that the rest of the meat was in his deep freeze; and he gave his consent and permission for the arresting deputy and the trooper to enter his house, and in fact took them to the freezer and assisted them in removing the rest of the meat from the freezer.
Both Crowell Andrus and Aaron Andrus testified at the trial and denied the theft, contending that the calf butchered was the property of Crowell Andrus.
Prior to trial the accused timely filed a motion to suppress certain evidence, 2 alleging on information and belief that the evidence consisted of meat and various parts of a calf. The defendants sought to have this evidence suppressed on the ground that the search and seizure which produced these objects were illegal because there was no valid arrest of these defendants and because these objects were obtained without a search warrant from the pickup truck and the house of Crowell Andrus. Following a hearing the motion was denied, and the court ruled the evidence admissible on the ground that the State had shown it was legally seized as incident to a lawful arrest and a search with consent. Bill of Exception No. 6 was reserved to this ruling.
From the facts and circumstances within the officers' knowledge, 3 it is obvious that they were justified in stopping the defendants' truck in the course of their investigation of the felony. 4
As a deputy sheriff approached the light blue pickup truck, there was clearly visible in the rear of this vehicle an uncovered tub of fresh meat. Aaron Andrus said the meat was deer meat. Another officer, the state trooper, who arrived in a few minutes, refuted that it was deer meat, identifying it as beef, and saying it was probably from the calf killed near the highway. Crowell Andrus agreed that it was calf meat, but said it was from a calf belonging to him which had been killed on his property and butchered in his barn. He also said that if the officers would keep their mouths shut, he would gladly pay for the calf if they knew to whom it belonged. Following this statement the deputy sheriff told the defendants they were under arrest. 5 Crowell Andrus told the officers that the rest of the meat was in his freezer.
The defendants contend that an unlawful search of the truck was made because the arrest was illegal, being without a warrant. No search was required to discover the meat. It was in plain view, and its discovery violated no constitutional right of privacy of the defendants. United States v. Callahan (D.C.Minn.1964), 256 F.Supp. 739; Commonwealth v. Anderson, 208 Pa.Super. 323, 222 A.2d 495 (1966); State v. Smith (Fla.D.C. of App.1966), 193 So.2d 23; McCollum v. State (Miss.S.Ct.1967), 197 So.2d 252; State v. Bell (1967), 270 N.C. 25, 153 S.E.2d 741.
Under the law of this state a peace officer may without a warrant arrest a person when a felony has in fact been committed, or when he has reasonable cause to believe that a felony has been committed, and he has reasonable cause to believe that the person arrested committed the felony. Former R.S. 15:60.
The facts and circumstances in this case amply demonstrate that the officers had reasonable or probable cause to arrest these defendants. At the time the truck was stopped, the officers by the information given them, and by their own investigation, had reasonable cause to believe that a felony had been committed 6 and to stop the truck for investigation; and in addition to the other facts the fresh meat, clearly visible in the back of the truck, and the conflicting and unsatisfactory explanations of the defendants unquestionably gave the officers reasonable cause to believe that they had committed the theft and to arrest them. Therefore the seizure of the meat in the truck was incidental to a lawful arrest.
The defendants contend that no valid consent was given for a search of the premises because there was no intelligent waiver and no voluntary waiver of the right to refuse to submit to search without a warrant inasmuch as the officers gave no warning of the constitutional right to refuse a search before obtaining the consent and inasmuch as the defendants were under arrest at the time the consent was given. The defendants cite the recent case of United States v. Blalock (E.D.Pa.1966), 255 F.Supp. 268, to support their contention that the State must make proof of consent by showing that before the consent was sought, warning was given of their constitutional right to refuse to submit to a warrantless search.
The Fourth Amendment protects against Unreasonable searches and seizures, 7 and the burden is on the State to establish reasonableness of the search and seizure when the evidence obtained by it is objected to as inadmissible. When the State relies on consent to establish reasonableness of the search, the...
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