State v. Franklin
| Decision Date | 19 December 1977 |
| Docket Number | No. 60182,60182 |
| Citation | 353 So.2d 1315 |
| Parties | STATE of Louisiana v. Frederick FRANKLIN, Jr. |
| Court | Louisiana Supreme Court |
Robert Glass, Martzell & Montero, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
Defendant, Frederick Franklin, Jr., was convicted by a jury of possession of heroin with intent to distribute, a violation of La.R.S. 40:966A(1). He was sentenced to life imprisonment at hard labor. La.R.S. 40:966B(1). On appeal, he relies upon two assignments of error.
In July and August of 1976 two New Orleans police officers received information from a reliable confidential informant, whose information in the past led to arrests and convictions, that defendant was engaged in the wholesale distribution of heroin from several addresses, one of which was the Lawrence Creek Apartments, Court 6, Apartment 112. The informant said that defendant drove a '73 or '74 black Thunderbird. From July 1976 through September 9, 1976, the officers conducted periodic surveillance of Franklin with negative results except they observed defendant driving a 1972 black Thunderbird.
On September 10, 1976, at 3:30 p. m., the officers received information from a second informant, whose information in the past had led to arrests and convictions, that the defendant was presently in possession of a large quantity of heroin and was distributing it in large form. According to the second informant, Franklin sold one bundle of heroin for $175.00 to a third person when the informant was present. 1
The officers proceeded to Apartment 112 and began surveillance of the apartment and the 1972 black Thunderbird. At 7:15 p. m., defendant left the apartment in his automobile and the officers, assisted by other police personnel, followed and watched the defendant. At one point when defendant stopped for a traffic light, a male pedestrian stepped up to the vehicle from the neutral ground, and Franklin handed him a brown paper bag. At another site within the city, the defendant got out of his vehicle and handed a brown paper bag to another man while entering a business establishment. The officers followed Franklin back to Apartment 112, arriving at approximately 8:30 p. m., and continued surveillance of the apartment and the Thunderbird automobile. At 9:35 p. m. a man and a woman arrived in separate automobiles and entered Apartment 112. About five minutes later defendant left the apartment, walked to his Thunderbird, and opened the passenger side door. After bending down briefly in the glove compartment area, he stood up and started to close the door. According to the officers nearest the Thunderbird, one of whom was observing defendant with field glasses, Franklin looked in their direction, a shocked expression came over his face, and he slammed the car door as he turned and ran. At this time he was carrying an unidentified object in his hand. Other officers who were stationed near the front of the apartment identified themselves as police and advised Franklin to stop and that he was under arrest. He did not stop, and the officers gave chase. By the time the first policeman reached the apartment door, it had been closed, but the officer used force to gain entry. At this moment the officer saw Franklin coming out of a closet in the living room area with his hand in the pocket of a jacket. Upon seizure of the defendant and search of the pocket, the police found a plastic bag containing heroin and a large sum of money. Other officers proceeded to search the rest of the townhouse apartment, including a kitchenette fifteen to twenty feet from the closet, where they found cut-up tinfoil, a blender and materials commonly used for the dilution of heroin.
Defendant moved to suppress all of the evidence resulting from the arrest, search and seizures. The trial judge denied the motion to suppress and filed a per curiam stating that the defendant failed to meet his burden of proving grounds for suppression by a preponderance of the evidence.
Defense counsel astutely points out that the trial judge applied an incorrect standard in allocating the burden of proof in this case involving a warrantless search. Paragraph C of La.Code of Criminal Procedure article 703 provides:
"On the trial of a motion to suppress filed under the provisions of this article the burden of proof is on the defendant to prove the grounds of his motion, except that the state shall have the burden of proving that a purported written confession or written inculpatory statement was made freely and voluntarily and was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises."
The Official Revision Comments to article 703 explain that "Paragraph C states the general rule as to burden of proof, and continues the specific exception of R.S. 15:451." That statute provides that before a confession can be introduced into evidence, the State must affirmatively show that it was made free and voluntary. The comment to article 703 then provides, "No attempt has been made to deal with other possible exceptions to the general rule of burden of proof." (emphasis added).
Defense counsel did not point out nor were we able to find any Louisiana cases in which the issue of who bears the burden of proof at a motion to suppress hearing involving a warrantless search was squarely presented before this Court. In State v. Welch, 256 La. 1, 235 So.2d 72 (1970), for example, this Court stated that the State had carried its burden of showing that consent to search was given freely and voluntarily. Again, in State v. Dupuy, 319 So.2d 299 (La.1975), we stated that "the State bore its burden of proving by clear and convincing evidence" that consent to a warrantless search was freely given. However, in State v. Wood, 262 La. 259, 263 So.2d 28 (1972) and State v. O'Conner, 320 So.2d 188 (La.1975), cases also dealing with warrantless searches, this Court indicated that the burden of proof upon the motion to suppress is on the defendant. Thus, while Welch and Dupuy, supra, implicitly recognized that in warrantless search cases the burden of proof shifts to the State to justify the search, the contrary pronouncements in Wood and O'Conner, supra, illustrate that the law in this area is unsettled and confused.
We are of the opinion that article 703 must be construed in light of pronouncements by the United States Supreme Court that in the case of a warrantless search, the burden of proof rests on the State to show that an exception to the requirement of a search warrant is applicable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1945).
While the United States Supreme Court apparently has never been squarely confronted with the issue of which party has the burden of proof in suppression hearings, 2 the lower federal courts take the position that once the defendant shows that the search was conducted without a warrant the burden then shifts to the government to prove that the search fits within an exception to the search warrant requirement. The Fifth Circuit in United States v. DeLaFuente, 548 F.2d 528 (C.A.5 1977), succinctly stated:
* * * "
See also, United States v. Lee, 541 F.2d 1145 (5th Cir. 1976); United States v. Moody, 311 F.Supp. 756 (S.Car.1970); United States v. Carignan, 286 F.Supp. 284 (Mass.1967); United States v. O'Brien, 265 F.Supp. 953 (Mass.1967).
In accordance with these views, we hold that once the defendant makes the initial showing at a motion to suppress hearing that a warrantless search occurred, the burden of proof shifts to the State to affirmatively show that the search is justified under one of the narrow exceptions to the rule requiring a search warrant. Cf. State v. Lain, 347 So.2d 167 (La.1977); State v. Manso, et al., 352 So.2d 1282 (La.1977), docket No. 61,136.
Police entry into a residence in "hot pursuit" is one of the exceptions to the warrant rule. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). However, in order for this exemption to apply, the officers must have had probable cause to arrest a culprit before pursuing him. Therefore, the initial inquiry is whether the officers had probable cause to arrest Franklin before entering Apartment 112.
In State v. Thomas, 349 So.2d 270, 272 (La.1977), we set forth the applicable principles:
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