State v. Colvin
| Decision Date | 22 May 1978 |
| Docket Number | No. 60940,60940 |
| Citation | 358 So.2d 1250 |
| Parties | STATE of Louisiana v. Clark E. COLVIN, Jr. |
| Court | Louisiana Supreme Court |
Robert P. McLeod, Law Offices of Robert P. McLeod, Monroe, for defendant-relator.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Charles D. Jones, Asst. Dist. Atty., for plaintiff-respondent.
Between 8:00 and 10:00 a. m. on July 13, 1977 Sergeant Neil Wellbrink of the Ouachita Parish sheriff's office received a telephone call from a confidential informant whose information had led to at least one arrest and conviction in the past. The informant told Sergeant Wellbrink that he had seen a quantity of marijuana concealed in the glove compartment of Clark Colvin's car within the preceding twenty-four hours. The informant described the car (information already in possession of the sergeant) and told the sergeant that Colvin would be driving along a certain route later that afternoon as he returned home from work. Three to four hours after receiving the call, Sergeant Wellbrink drove to the road on which, according to the informant, the defendant would be traveling. After a wait of twenty-five minutes the defendant appeared, driving the car described by the informant. Sergeant Wellbrink followed the defendant for ten to fifteen miles, called for assistance of other officers, stopped the defendant and searched his car. The search resulted in the seizure of approximately twenty-five grams (less than an ounce) of marijuana from the glove compartment.
Defendant was arrested and charged by bill of information with possession of marijuana. A motion to suppress the marijuana was filed by the defendant and, after a hearing, was denied by the trial court. Defendant was tried before a judge, found guilty of possession of marijuana, and sentenced to pay a fine of $300.00 and court costs. We granted defendant's application for writs in order to review the constitutionality of the warrantless search and seizure.
Under the Fourth Amendment of the United States Constitution and Art. 1, § 5 of the Louisiana Constitution of 1974, warrantless searches or seizures, absent the applicability of one of the well delineated exceptions, are in themselves unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Parker, 355 So.2d 900 (La.1978). In the recent case of State v. Parker, supra, we had occasion to discuss the so-called "automobile exception" to the warrant requirement. We stated:
". . . the citizen's interest in the privacy of his automobile, because of the nature of the device, is less than his interest in the privacy of his home or other structure. Accordingly, the Fourth Amendment does not afford as great a degree of protection to that interest. But the automobile is not entirely without the protection of the Fourth Amendment.
While there are numerous cases upholding the validity of warrantless searches and seizures of automobiles, in each case there existed interests superior to those of the citizen, whether they be 'exigent circumstances' or the police interest in protection through inventory. Additionally, in each case, the initial intrusion into the protected area was justified by those interests. Therefore, it is clear that probable cause alone is not sufficient to justify a warrantless search or seizure, even where the object to be searched or seized is an automobile." 355 So.2d at 906.
The existence of probable cause to search in the present case is not seriously disputed. The officer received a telephone call on the day of the search from a confidential informant whose reliability had been established by the accuracy of his past reports. The informant said that he had personally seen the marijuana in the defendant's car within the preceding twenty-four hours and described the car in such detail as to include the license number and model. He told the officer that the defendant would be returning from work that afternoon along a certain route at a certain time. 1
The defendant argues, however, that the officer's failure to obtain a search warrant was not justified and therefore the evidence should have been suppressed. The State argues that the circumstances surrounding the case made it impracticable to obtain a search warrant and therefore the warrantless search and seizure were justified by the exigent circumstances.
Where the facts necessary to establish probable cause are known to the police, their failure to secure a search warrant may be justified only where circumstances make the obtaining of the warrant impracticable. State v. Williams, 347 So.2d 231 (La.1977); State v. Hearn, 340 So.2d 1365 (La.1976).
The State primarily relies upon the relatively short period, approximately four hours, separating the reception of the informant's tip and the time at which the defendant was expected, as justification for the failure to obtain a search warrant. In support of its argument the State cites State v. Hearn, supra, and State v. Tant, 287 So.2d 458 (La.1973), in which delays of four hours and twenty-four hours, respectively, were held not to have invalidated the searches. An examination of those cases reveals that they are distinguishable from the instant case.
In State v. Hearn, supra, an officer from the Louisiana State Police received information from a reliable confidential informant to the effect that he had seen Robert Hearn in Lincoln Parish with a quantity of marijuana in a Dodge van and that Hearn and John Pruett made frequent trips from their home in Dallas, Texas to Lincoln Parish for the purpose of selling marijuana. Officers of the State Police then went to Dallas to establish a surveillance of defendants' activities. There they saw that the van was being prepared for a trip and, later, saw the van leave Dallas on the Interstate Highway, headed for Louisiana. The officers, in combination with other Louisiana State Police troopers, followed the van until it entered Lincoln Parish. The van was stopped and searched a short time after it entered the parish. In discussing the legality of the warrantless search, we noted that:
". . . Although probable cause need not arise 'coincidentally with the occurrence of the...
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State v. Rudolph
... ... Coolidge v. New Hampshire, supra; State v. Daigre, 364 So.2d 902 (La.1978); State v. Guzman, 362 So.2d 744 (La.1978); State v. Colvin, 358 So.2d 1250 (La.1978); State v. Parker, supra. Also, the State has the burden of proving that a warrantless search and seizure was justified. State v. Wilkerson, 367 So.2d 319 (La.1979); State v. Brown, 366 So.2d 550 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977) ... ...
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...and was thus per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); and State v. Colvin, 358 So.2d 1250 (La.1978). Therefore, the seizure of private papers not specifically described in the search warrant is unlawful, and as such the evidence so ......
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