State v. Dunbar

• Court: Louisiana Supreme Court
• Writing for the Court: CALOGERO; DENNIS
• Citation: State v. Dunbar, 356 So.2d 956 (La. 1978)
• Decision Date: 06 March 1978
• Docket Number: No. 60634,60634
• Parties: STATE of Louisiana v. John DUNBAR and Jason Gordon.

Page 956

356 So.2d 956

STATE of Louisiana v. John DUNBAR and Jason Gordon.

No. 60634.

Supreme Court of Louisiana.

March 6, 1978.

Rehearing Denied April 6, 1978.

Bruce S. Kingsdorf, New Orleans, for Jason Gordon.

Roy A. Raspanti, Chalmette, for John Dunbar.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Brian Meissner, Asst. Dist. Atty., for plaintiff-appellee.

CALOGERO, Justice.

Defendants John Dunbar and Jason Gordon were charged by bill of information with the armed robbery of one Willie Brown (count one) and of one Eldridge Sheppard (count two), both in violation of R.S. 14:64. They pled not guilty and, after trial, the jury returned verdicts of guilty as charged as to both counts for both defendants. Thereafter, both defendants were determined to be multiple offenders; Dunbar was sentenced to forty nine and one-half years at hard labor with credit for time served; defendant Gordon was sentenced to thirty-three years at hard labor with credit for time served. On appeal, defendants rely upon four assignments of error for reversal of their convictions and sentences.

FACTS

On April 28, 1976 between 2:30 and 3:00 p. m., high school students Willie Brown and Eldridge Sheppard were approached by two men around the 3000 block of Thalia Street in New Orleans, approximately two blocks from their school. One of the two men pulled out a gun which was partially wrapped in a purple bandana, took the boys' hats and watches, and demanded their money. The other man exposed a gun in his waistband, also wrapped in a bandana, but never pulled it out. Brown gave them 40 cents in pocket change. As the men commanded, the students began to run in the direction of Claiborne Avenue, while the armed men ran in the opposite direction.

Brown and Sheppard immediately proceeded to the Sixth District Police Station and reported the incident to Officers Leufray and Wilson. They provided the following description of the two men: two black men, aged 20-22 years; one man with a darker complexion, heavier than the other, with plaited hair in rubber hands, wearing green short pants and a green striped shirt; the other with a lighter complexion, a slim build, wearing a bandana around his head. Sheppard stated that he had recognized the slimmer man.

The officers left in their patrol car taking the boys with them, drove first to the location of the incident, and then in the direction the men had run. Upon arrival at the 3300 block of Thalia Street in the Calliope Housing Project (about three blocks from where the robbery had occurred), Officer Wilson saw a man wearing green short pants and a green tank top, who had been sitting on an apartment porch, quickly jump up and run into the building at 3316 Thalia Street, apparently having seen the police car. Brown then identified a hat which was on the porch steps as that taken from him in the robbery. Officer Wilson radioed for back-up units and entered the building from the back. He announced his purpose in investigating an armed robbery to a woman (who was later determined to be defendant Dunbar's mother) at Apartment D and, according to Officer Wilson's testimony at trial, was allowed to enter. The two defendants were found sitting in the living room, one wearing green short pants and a green shirt. As Officer Wilson opened the front door of the apartment to admit another officer, he discovered a loaded revolver outside the apartment door in the hallway of the building. The defendants were advised they were under suspicion for armed robbery, handcuffed, escorted downstairs and identified as the perpetrators of the robbery by the victims, Brown and Sheppard. The defendants were placed under arrest. Following the arrest, the officers seized a purple handkerchief from defendant Dunbar and a second handkerchief from defendant Gordon. ¹

After removing the defendants from the apartment, Officer Wilson returned to Apartment D with two other officers and, according to Wilson, obtained consent to search the apartment. Wilson found a chrome watch wedged in the cushion of a chair where one of the men had been sitting, and another officer located a green striped shirt in the bathroom of the apartment.

ASSIGNMENT OF ERROR NO. 1

Defendants contend, on various grounds, that the trial court erred in denying a motion to suppress evidence obtained pursuant to a warrantless arrest and warrantless search.

Defendants first contend that the police officers' entry into Apartment D of 3316 Thalia Street was unlawful and, therefore, all the evidence seized as a result of that illegality (a green and white striped shirt, a purple handkerchief, a pistol, the chrome watch, and identifications by the victim) must be suppressed.

Article 213(3) of the Code of Criminal Procedure authorizes a warrantless arrest whenever an officer has reasonable cause to believe the person to be arrested has committed an offense. In the instant case, Officer Wilson observed a man fitting a description given by the victims of the robbery spring to his feet from a porch where he had been sitting and race into a four-plex at 3316 Thalia. This occurred within one-half to three-quarters of an hour following the robbery and within three blocks of where the offense was committed. In addition, lying on the steps of the porch where the man had just been sitting was a cap which was positively identified at that time by one of the victims as that taken from him during the robbery.

A warrantless arrest can only be made if it is based on probable cause which exists when facts and circumstances within the arresting officer's knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. See State v. Herbert, 351 So.2d 434 (La.1977) and citations therein. Probable cause to arrest the man existed from the time the officer saw him running. The man's apparent flight from apprehension does not in and of itself indicate guilt, see State v. Herbert, supra; however, combined with the description of the robber, his close proximity to the scene of the offense both in time and location, and the presence of property taken in the robbery, the flight would indicate to a reasonable man that the fleeing man had some involvement with the crime. The policeman's pursuit of defendant into the dwelling was made with probable cause and in "hot pursuit" so that entry into the apartment building without a warrant did not violate state or federal constitutional guarantees. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); State v. Franklin, 353 So.2d 1315 (La.1978).

Defendants concede that the existence of probable cause and exigent circumstances warranted the officers' entry into the apartment building; they argue, however, that there was no such probable cause for entry specifically into Apartment D where defendants were found. In support of this argument they cite a federal appellate court case, United States v. Scott, 520 F.2d 697 (9th Cir. 1975). In Scott, police officers pursued four black male armed robbers to an apartment building containing approximately twenty units. On the basis of certain information the officers were able to narrow their search to seven suspected apartments and eventually found the defendants in the last-searched apartment. The court affirmed the trial court's denial of a motion to suppress on the basis that the officers had probable cause to believe the men were in the apartment where they were found. The officers had already eliminated the other six suspected apartments and at the seventh the officers knocked for a few minutes, announced their identity, got no response, and heard scuffling noises from the interior. In the course of the opinion the court stated:

"Accepting that pursuit here had brought the officers to the apartment house, this did not render each apartment in it subject to search. The occupants of each apartment had their independent right to be free from unreasonable search. No apartment was subject to entry in the absence of probable cause to believe that the robbers were present in that particular apartment." 520 F.2d at 700.

The testimony at the hearing on the motion to suppress in the case now before us is unclear as to how or exactly when the police officers determined that Apartment D contained the suspect. Officer Wilson testified that the officers "began searching each of the apartments for the fleeing subject" and then went on to state that when they reached Apartment D they entered through the rear and found the two defendants. The testimony does not reveal if certain noises were heard emanating from the apartment or if the other three apartments had already been checked. ² Therefore, it is not possible to determine with certainty whether the entry into Apartment D was made with probable cause to believe that the suspects were inside that particular apartment. For that reason, we cannot hold that warrantless entry was justified because made with probable cause and in hot pursuit, nor unjustified because made without probable cause. Warden v. Hayden, supra; United States v. Scott, supra.

Instead, we find that entry was legally made on the basis of consent. In that regard, the state argues that entry into Apartment D was initially obtained through the permission of Mrs. Dunbar, John Dunbar's mother. But at the hearing on the motion to suppress, as defendants correctly point out, the state offered no evidence to show that permission to enter was secured. The state responds that the record of the hearing on the motion to suppress is silent on the question of initial entry into the apartment since the issue at that hearing was the later entry, made after defendant's arrest, for the purpose of searching for evidence.

At a motion to suppress hearing, once the defendant makes the initial...