State v. Davidson

• Decision Date: 02 July 1965
• Docket Number: No. 47736,47736
• Citation: 248 La. 161,177 So.2d 273
• Parties: STATE of Louisiana v. Homer Lee DAVIDSON.
• Court: Louisiana Supreme Court

Page 273

177 So.2d 273

248 La. 161

STATE of Louisiana v. Homer Lee DAVIDSON.

No. 47736.

Supreme Court of Louisiana.

July 2, 1965.

Roy F. Cook, New Orleans, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Frank H. Langridge, Dist. Atty., Thomas P. McGee, Asst. Dist. Atty., for appellee.

McCALEB, Justice.

Appellant was charged, tried and convicted of the crime of simple burglary of a gasoline filling station and sentenced to serve nine years at hard labor in the State Penitentiary. He has appealed, relying for a reversal of his conviction on two bills of exceptions, both of which relate to the action of the trial judge in denying appellant's oral motion to suppress certain evidence, pertaining to the commission of the crime with which he was charged (and also another burglary), which was found in appellant's automobile after a search thereof by police officers.

The record reveals the following facts: A bill of information was filed against appellant on November 25, 1964. He was arraigned on December 10, 1964 and pleaded not guilty. On the same day the court appointed counsel to represent him and counsel requested and was granted a 15-day delay in which to file other pleadings. The trial was thereafter fixed for and held on February 2, 1965. No special pleadings were filed prior to the commencement of the trial. After the testimony of one witness had been taken, the State marked for identification certain incriminating articles which had been found by police officers after the search of appellant's automobile. At the time these articles were marked for identification, defense counsel orally moved to suppress their introduction in evidence but the court ruled that the motion was premature until such time as the State sought to offer the articles in evidence. Thereafter, the State placed certain witnesses on the stand who were shown the items (consisting of checks and other articles which had been taken from the gasoline service station) and these witnesses identified the items as those found during a search of appellant's automobile but, through inadvertence on the part of the State, the objects were not offered in evidence. Later, when an officer of the Police Department of New Orleans was giving testimony regarding appellant's arrest, defense counsel reiterated his verbal motion to suppress. At that time the court denied the motion on the ground that it came too late, the judge holding that appellant's failure to file a formal motion to suppress in advance of trial constituted a waiver of his right to question the legality of the search and seizure and to assert that it was in violation of his constitutional rights.

Counsel for appellant contends that the judge was in error in ruling the motion to suppress untimely forasmuch as, under Louisiana practice, unlike that in the Federal Courts and the courts of many other states, no provision is made for a motion to suppress and that the only requisite is a timely objection to the unlawful evidence during the trial when it, or the fruits of it, are sought to be used against the accused. To support his position, counsel relies heavily on our decision in State v. Rowan, 246 La. 38, 163 So.2d 87 (1964).

In the Rowan case, it was pointed out that in recent years some of our judges have entertained and ruled on motions to suppress evidence filed in advance of trial, defense counsel having borrowed the procedure from the practice in the Federal courts as our statutory law makes no provision for such a motion. However, said the Court, '* * * we have not yet been called upon to determine whether such a motion is cognizable under our procedural laws' since the State has not objected to this type of procedure.

In this case, the question is squarely presented as the judge has found that the filing of a motion to suppress must be made in advance of trial, when, as here, the accused has not been taken by surprise and that his failure to file such motion operates as a waiver of his right to later object to the admission of such evidence on the ground that his constitutional rights have been violated by an unlawful search and seizure. In concluding thus, the judge relied in the main on the established procedure of the Federal courts in these cases, which has been followed by a majority of those State courts having heretofore adopted the exclusionary rule respecting evidence seized in violation of the defendant's constitutional rights.

Prior to the decision in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, conflicting rules prevailed in various jurisdictions as to whether the admissibility of evidence in a criminal case was affected by the fact that such evidence was obtained by means of an illegal search and seizure. In a majority of the State courts, and in accordance with the common law rule, the view prevailed that, in the absence of a statute abrogating or modifying the rule, evidence in a criminal case was not rendered inadmissible against the accused by reason of the fact that it was obtained by means of an unlawful search and seizure.

This was the rule in Louisiana. State v. Creel, 152 La. 888, 94 So. 433 (1922); State v. Eddins, 161 La. 240, 108 So. 468 (1926); State v. Robinson, 221 La. 19, 58 So.2d 408 (1952) and State v. Mastricovo, 221 La. 312, 59 So.2d 403 (1952). Since an objection to evidence...