State v. Calascione
Decision Date | 14 January 1963 |
Docket Number | No. 46266,46266 |
Citation | 149 So.2d 417,243 La. 993 |
Parties | STATE of Louisiana v. Frank Joseph CALASCIONE. |
Court | Louisiana Supreme Court |
Sam Monk Zelden, Max Zelden, New Orleans, for defendant-appellant.
Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Jim Garrison Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.
The accused, Frank Joseph Calascione, having been charged with the unlawful possession of fifteen marijuana cigarettes in violation of R.S. 40:962, 1 appeals from his conviction and sentence thereunder to serve ten years at hard labor.
For a reversal of his sentence and conviction, the defendant relies upon three bills of exception, 2 all involving the same issue, i.e., whether the cigarettes upon which the state based its case were admissible in evidence, it being the defendant's contention that they had been obtained illegally in that they were secured without a search warrant as required by R.S. 40:972, 3 and in violation of his constitutional rights to be secure in his person and effects from unreasonable searches and seizures, guaranteed by the Fourth Amendment to the Constitution of the United States 4 and by Article I, Section 7 of the Constitution of Louisiana. 5
Under the holdings of the federal courts since the Supreme Court's decision in weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, the right of a man to be free from invasions of his home and privacy by arbitrary police intrusion has been well established and evidence seized in the absence of a search warrant has been recognized as being inadmissible and suppressed by motion timely filed by the accused. This practice has also obtained in the tribunals of many sister states; but up to the present time, the jurisprudence of this state is replete with decisions holding that relevant evidence, although secured illegally, is nonetheless admissible in evidence in the trial of a criminal case. City of Shreveport v. Marx, 148 La. 31, 86 So. 602; State v. Tuggle, 152 La. 747, 94 So. 377; State v. Creel, 152 La. 888, 94 So. 433; State v. Eddins, 161 La. 240, 108 So. 468; State v. Alvarez, 182 La. 908, 162 So. 725; State v. Shotts, 207 La. 898, 22 So.2d 209; State v. Robinson, 221 La. 19, 58 So.2d 408.
The right of a state to permit the introduction of such evidence was recognized by the United States Supreme Court in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 and it continued to do so until its recent decision in the case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, where it ruled otherwise and held that all evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in a criminal trial in a state court, reasoning:
The question posed for our determination is whether under the facts of this case the officers were authorized under the law to arrest the defendant and to search the premises of his home. The fact that the fifteen marijuana cigarettes were secured without the benefit of a search warrant does not necessarily constitute them as being illegally obtained and therefore inadmissible in evidence as it is an Unreasonable search and seizure of property that is prohibited by the Fourth Amendment to the United States Constitution and Article 1, Section 7 of this state's Constitution.
Under the express provisions of the Code of Criminal Procedure, 'Any peace officer may, Without a warrant, arrest a person * * * (4) (w)hen he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it,' 6 and '* * * the officer making the arrest shall inform the person arrested of his authority and the cause of the arrest * * *' 7 and '* * * take from the person arrested, all offensive weapons or incriminating articles which he may have about his person * * *' 8 (Emphasis supplied) 9
The defendant, in support of his motion to suppress, adduced his own testimony and his wife's, in addition to that of the arresting officers, Favalora, Loisel and Lindsey, all members of the Narcotics Squad of the New Orleans Police Department. In substance, the officers testified that in the course of their duties they had secured a 'tip' that narcotics were being distributed from 722 North White Street, the residence of the defendant. In consequence thereof, they placed a 'stake-out' or surveillance of the house from 1:30 p.m. until the defendant's arrest at 6:00 p.m. on March 9, 1961, concealing themselves in a panel body truck about sixty feet from the defendant's residence. Two other officers were in an...
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