State v. Hernandez

• Decision Date: 01 March 1982
• Docket Number: No. 81-KA-2044,81-KA-2044
• Citation: 410 So.2d 1381
• Parties: STATE of Louisiana v. Michael HERNANDEZ.
• Court: Louisiana Supreme Court

Page 1381

410 So.2d 1381

STATE of Louisiana v. Michael HERNANDEZ.

No. 81-KA-2044.

Supreme Court of Louisiana.

March 1, 1982.

Rehearing Denied April 5, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Aubert D. Talbot, Dist. Atty., Abbott J. Reeves, Ralph Tureau, Asst. Dist. Attys., for plaintiff-appellee.

Michael J. Matthews, Gonzales, for defendant-appellant.

DENNIS, Justice. ^*

As he alighted from his car parked in the driveway of his house, defendant, Michael Hernandez, was arrested for DWI and reckless operation of a motor vehicle by two police officers. The arresting officers had given chase after noticing defendant's reckless operation and dangerous speed through the city of Gonzales. A third officer, Sam Pasqua, who had been summoned by radio, arrived just as his two colleagues were departing with the defendant in their patrol car. Defendant's parting words to Pasqua were that he did not want anyone to drive his car. Nevertheless, in accordance with what the officers said was their policy, a wrecker was ordered by radio to tow the car away. While he was waiting for the tow truck Pasqua went back onto the private property upon which the car was parked and inspected its interior, including the glove compartment. He discovered in open view two marijuana cigarettes and surgical forceps on the console between the two front seats and another marijuana cigarette on the left floorboard. Pasqua seized these items as evidence.

Before trial defendant moved unsuccessfully to suppress the marijuana seized from his car. After a judge trial on multiple charges, defendant, Michael Hernandez, was convicted of reckless operation of a vehicle, La.R.S. 14:99, driving while intoxicated, La.R.S. 14:98, and possession of marijuana, La.R.S. 40:966. He was sentenced to fines amounting to a total of $750, and subjected to a total of nine and one-half months in jail in default of payment. Defendant appealed and assigns as error the trial court's refusal to grant his motion to suppress.

1.

A search and seizure conducted without a warrant is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1974); State v. Banks, 363 So.2d 491 (La.1978); State v. Fearn, 345 So.2d 468 (La.1977). Once a defendant makes an initial showing 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. State v. Banks, supra; State v. Franklin, 353 So.2d 1315 (La.1978).

It is undisputed that the search was not authorized by a warrant. The state contends, however, that the officer's conduct was justified and came within the "plain view" exception. In order for a warrantless seizure to come under the plain view rule, three conditions must be satisfied: (1) there must be a prior justification for an intrusion into a protected area; (2) in the course of which evidence is inadvertently discovered; and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. State v. Gibson, 391 So.2d 421 (La.1980). State v. Banks, supra; State v. Parker, 355 So.2d 900 (La.1978).

The state clearly failed to carry its burden of proving that the officer who conducted the search had a prior justification for his intrusion into a protected area. There was no showing that officer Pasqua had justification for entering defendant's private property and approaching defendant's car after defendant's full custodial arrest and removal from the scene. The record indicates that defendant parked and exited from his vehicle in a driveway on private property before the police arrived. Immediately thereafter, the officers drove up, arrested the defendant, searched him, and removed him from the scene in handcuffs. Well after his fellow officers had departed with defendant in custody, Pasqua reentered the property and conducted a search of the automobile. Consequently, when Pasqua seized the items of evidence from the automobile he lacked one of the essential underpinnings for a plain view seizure, namely, justification for an intrusion into a protected area, State v. Banks, supra.

Nevertheless, the state contends that Officer Pasqua was justified in reentering the property and inspecting the car in preparation for towing it to the stationhouse. There is nothing in the record, however, which indicates that it was necessary to impound the vehicle. The defendant informed the officers that the vehicle was parked in front of his residence, and instructed them not to drive it. The vehicle was not on a public highway and posed no danger of either obstructing traffic or causing accidents. If a person is arrested in or at his place of residence and his car is parked in the garage or lot or other place where that person ordinarily leaves his car, then the police cannot justify seizure of the car on the ground that such action is needed for the protection of the vehicle and its contents. See People v. Siegel, 95 Mich.App. 594, 291 N.W.2d 134 (1980); State v. Simpson, 95 Wash.2d 170, 622 P.2d 1199 (1980); United States v. Squires, 456 F.2d 967 (2d Cir. 1972); State v. McCranie, 137 Ga.App. 369, 223 S.E.2d 765 (1976); W. LaFave, Search and Seizure, § 7.3 at n. 51 (1978 and Supp.). Accordingly, Officer Pasqua's re-entry upon defendant's private property cannot be justified on the basis of preparing the vehicle for impoundment. State v. Banks, supra; State v. Jewell, 338 So.2d 633 (La.1976). ¹

In the recent case of New York v. Belton, --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the United States Supreme Court held that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile, including the contents of any containers from within the passenger compartment. A bare majority of the closely divided (5-4) court reasoned that: "the protection of the Fourth and Fourteenth Amendments 'can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement,' " 101 S.Ct. at 2863; "no straighforward rule has emerged from the cases respecting the question involved here," 101 S.Ct. at 2863, which has caused the courts difficulty and placed appellate cases in disarray; former cases suggest "that articles within the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within 'the area into which an arrestee might reach in order to grab a weapon or evidentiary item,' " 101 S.Ct. at 2864; and thus the workable rule required by this category of cases is best achieved by holding that a policeman may, as a contemporaneous incident of a lawful custodial arrest of an occupant of an automobile, search the passenger compartment of the automobile and the contents of any containers found within the passenger compartment. See W. LaFave, supra, § 7.1 p. 133 (1982 Supp.)

Belton is inapposite to the present case. Officer Pasqua did not search the automobile "as a contemporaneous incident of (defendant's) arrest." Pasqua did not commence his search until well after the defendant had been arrested, handcuffed and taken to the police station. Although Belton was justified by a majority of the high court on the proposition that it is often advantageous to both privacy interests and law enforcement interests if rules of police conduct are stated in terms of easily understood standardized procedures which may be routinely followed, it is clear that the holding must bear some reasonable relation to Fourth Amendment principles if it is to survive. ² The only rational basis for the Belton rule seems to be the notion that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within the area into which an arrestee might search in order to grab a weapon or evidentiary item. Thus, the Belton rule can have no application after an arrestee has been handcuffed and removed from the scene, foreclosing even the slightest possibility that he could reach for an article within the vehicle.

Furthermore, the search of the defendant's automobile, without probable cause, and in the absence of any of the circumstances which have been recognized by this court as justifying a narrow exception to the warrant requirement, plainly constituted an unreasonable search, seizure or invasion of privacy in violation of Article 1, § 5 of the 1974 Louisiana Constitution. Although the Belton case is distinguishable and therefore inapplicable here, it should be noted that we do not consider it to be a correct rule of police conduct under our state constitution. We, of course, give careful consideration to the United States Supreme Court interpretations of relevant provisions of the federal constitution, but we cannot and should not allow those decisions to replace our independent judgment in construing the constitution adopted by the people of Louisiana. See La.Const. of 1974, Preamble; Art. 1, § 1. Our state constitution's declaration of the right to privacy contains an affirmative establishment of a right of privacy, explicit protections against unreasonable searches, seizures or invasions of property and communications, as well as houses, papers and effects, and gives standing to any person adversely affected by a violation of these safeguards to raise the illegality in the courts. La.Const. 1974, Art. 1, § 5. This constitutional declaration of right is not a duplicate of the Fourth Amendment or merely coextensive with it; it is one of the most conspicuous...