State v. Herbert

• Decision Date: 11 April 1977
• Docket Number: No. 58726,58726
• Citation: 351 So.2d 434
• Parties: STATE of Louisiana v. Larry HERBERT.
• Court: Louisiana Supreme Court

Page 434

351 So.2d 434

STATE of Louisiana v. Larry HERBERT.

No. 58726.

Supreme Court of Louisiana.

April 11, 1977.

On Rehearing Oct. 10, 1977.

Rehearing Denied Nov. 11, 1977.

William Noland, 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.

SUMMERS, Justice.

Diana M. Shields and Larry Herbert were charged by the Orleans Parish Grand Jury with the December 12, 1975 violation of Section 966 of Title 40 of the Revised Statutes in that they did willfully and unlawfully have in their possession with intent to distribute a controlled dangerous substance, heroin. The charge against Diana M. Shields was nolle prossed on April 14, 1976, and on that same day Larry Herbert was tried by a jury and found guilty as charged. He was sentenced "to serve life at hard labor in the custody of the Director of the Department of Corrections."

I.

Defendant asserts that the trial judge erred in not granting a continuance when the State moved to sever Diana Shields from the case and nolle prossed the charge against her on the day the case was set for trial. The State then announced that a separate bill of information would be filed against Shields for attempted possession of heroin with intent to distribute. When the trial judge granted the motion to sever, counsel for Herbert objected that the action of the State would affect his planning and preparation for trial.

When the State's attorney announced that he had informed defense counsel two weeks prior to the date of trial that this action would be taken, defense counsel countered that he had been informed that Shields would be allowed to plead, not that the State would move to sever her from the case and file a new bill of information against her.

That action, according to Herbert's counsel, would affect his presentation of evidence, and he accordingly moved for a continuance, which the trial judge denied. The trial judge was of the opinion that the nolle prosequi of the Shields charge and the motion for severance were no surprise to defense counsel since he knew approximately two weeks prior to trial that Shields would either be severed or be allowed by the District Attorney to plead to a lesser included charge. He was further of the opinion that Herbert's counsel could in no manner show where he or his client would be prejudiced.

A number of arguments advanced by defense counsel here in brief based upon facts which form no part of the record are not considered.

The essence of the defense contention on this record is surprise and, according to the trial judge and the State's attorney, there is no basis for a claim of surprise. If defense counsel was advised two weeks prior to trial that Shields would be allowed to plead, as the defense contends, the consequence of such a plea would be to withdraw Shields from the case, in any event, and the defense planning and presentation of evidence should have taken that effect of a plea into account.

No acceptable showing of prejudice was made on behalf of the defense, and there is no abuse of the discretion vested in the trial judge in such cases. La.Code Crim.Pro. arts. 707, 712.

II.

In a motion to suppress, counsel for Herbert alleged that his constitutional rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 5, of the Louisiana Constitution have been violated in that evidence to be used against him at the trial, namely a quantity of heroin, was not seized in compliance with the United States and Louisiana Constitutions.

At a hearing held on the motion to suppress on April 14, 1976 Officer David Peralta of the Tactical Patrol Section of the New Orleans Police Department testified for the State. About three o'clock in the afternoon of a clear day on December 12, 1975, he said, he was riding with Officer Jenkins who was driving a marked patrol car. They were in uniform and cruising in an area of the Sixth District when they noticed a large number of "self-admitted" narcotic addicts in the area of Washington Avenue and South Robertson Street. In the courtyard of the housing project at that location a Negro male dressed in blue was observed as he walked toward another Negro male wearing a large white, knit hat. As these men met, a small object was handed to the man wearing the white knit hat and they parted.

Officers Peralta and Jenkins decided to investigate this activity and headed the patrol car in the direction taken by the man dressed in blue. After driving around the neighborhood for a while they finally pulled into a driveway in the 2800 block of South Robertson Street. As they were pulling into the driveway, they observed a Negro male, wearing a white knit hat, later identified as Larry Herbert, and a Negro woman, later identified as Diana Shields, between two buildings in the rear of 2800 South Robertson about thirty-five feet away. It was then about 3:27 in the afternoon.

As the officers neared Herbert and Shields, Herbert was observed handing a small box to Shields. When they were ten to fifteen feet from them Herbert looked over his shoulder, noticed the police car and hurriedly handed Shields the small box. Herbert and Shields ran in opposite directions as the officers drew abreast of them, while Officer Peralta got out of the police car and went after Shields. He noticed she was trying to place a matchbox in the waistband of her slacks as he approached her. Seeing this he advised her that she was under arrest for possession of narcotics. He then seized the matchbox, opened it and found that it contained a number of tinfoil packets. Upon opening one of the tinfoil packets, it was found to contain a brownish powder which Officer Peralta believed to be heroin.

During this encounter with Shields, Officer Jenkins pursued Herbert as he fled toward one of the project buildings. He overtook Herbert and returned with him to where Officer Peralta held Shields. When Peralta told Jenkins that he had placed Shields under arrest and had seized a matchbox of heroin from her waistband, Jenkins also arrested Herbert.

The Fourth Amendment protects an individual's reasonable expectations of privacy in his person and property from unreasonable invasions of those interests by the Government. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). That which is knowingly exposed to the public is not protected. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973).

With the possible exception of the case in which private premises must be entered to make an arrest, there is presently no constitutional requirement that an arrest warrant be obtained. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). A warrantless arrest is reasonable under the Fourth Amendment where the arresting officer has probable cause to believe that the defendant is committing or has committed a felony or expected misdemeanor. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

Thus a valid arrest may occur when the circumstances known to a reasonable, prudent police officer by personal observation amount to a felony or misdemeanor committed, or attempted in his presence or view. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

Although a police officer may not arrest upon mere suspicion, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), or for "investigation", Bennett v. United States, 70 App.D.C. 76, 104 F.2d 209 (1939), he has a duty to approach, Lee v. United States, 95 U.S.App.D.C. 156, 221 F.2d 29 (1974), confront and interrogate (which may include the power to temporarily detain). It is the most useful, most efficient, and most effective method of investigation. Often it develops probable cause, Keiningham v. United States, 113 U.S.App.D.C. 295, 307 F.2d 632 (1962).

The validity of the subsequent search and seizure turns on the question of when the arrest occurred. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Henry v. United States, supra. In order for there to be an arrest it is not necessary that there be an application of actual force or manual touching of the body, or physical restraint visible to the eye, or a formal declaration of arrest. It is sufficient if the person arrested understands that he is in the power of the one arresting, and submits in consequence thereto. Kelley v. United States, 111 U.S.App.D.C. 396, 298 F.2d 310 (1961).

Furthermore, deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime they are proper factors to be considered in the decision to make an arrest. Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

Upon effecting a lawful arrest and when the accused is in police custody, the officer may search the accused's property, the possession of which is a crime, such as heroin. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1974). And under the plain view doctrine, an officer may also seize items which come into view incident to an arrest, where the officer is lawfully present, the discovery is inadvertent, and the object is incriminating. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (19...