State v. Jackson

• Decision Date: 06 November 1972
• Docket Number: No. 52660,52660
• Citation: State v. Jackson, 263 La. 849, 269 So.2d 465 (La. 1972)
• Parties: STATE of Louisiana v. Charles Lee JACKSON.
• Court: Louisiana Supreme Court

Page 465

269 So.2d 465

263 La. 849

STATE of Louisiana v. Charles Lee JACKSON.

No. 52660.

Supreme Court of Louisiana.

Nov. 6, 1972.

Robert Glass, Ernest L. Jones, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

McCALEB, Chief Justice.

The defendant, Charles Lee Jackson, was charged, tried, and convicted of possession of heroin, in violation of R.S. 40:971. Following imposition of sentence, he prosecuted this appeal, relying on two bills of exceptions for a reversal of his conviction.

The first bill was reserved when the trial judge overruled defense motion to suppress evidence obtained from defendant's person, and the second when the judge admitted the evidence during the trial. A proper consideration of these bills requires a detailed statement of the facts.

According to the record two police officers, patrolling in the vicinity of the St. Bernard Housing Project in the lower section of New Orleans around 8:50 p.m., saw a 1963 maroon Buick Riviera, with tail and parking lights on, standing near a corner on a side of the street where no parking was allowed, the car being the only one parked on that side. The officers decided to check the license number of the car, as they had recovered several stolen Buicks in that vicinity in the previous two weeks. Finding that they were unable to see the number from the side while passing in the patrol car, the officers made a 'U' turn at the corner; but, after they had done so and were approaching the car, they noticed a man leave a nearby house, get in the car, and drive toward them. Seeking to check the license and also issue a traffic citation for a standing violation, the officers made another 'U' turn and pursued, but were unable to locate the car after it turned into a cross street.

About an hour later, they saw the same car again illegally parked in the same spot, although headed in the opposite direction. They sought again to maneuver to a place that would permit a check of the license but, as they approached, they saw the defendant leave the front porch of a house at that corner, get into the vehicle, and drive away. This time the officers were directly behind and turned on their blue lights as they pursued the car. The defendant stopped.

The officers approached the car and asked the defendant to get out and give them his driver's license and registration paper, the latter disclosing the car was registered to a female. ¹ One officer was checking these while the other, standing directly in front of the defendant, who was fully illuminated by the spot light on the police car, began to question him about ownership of the car. As thus positioned, the officer almost immediately saw a cellophane wrapper, with that resembled glassine envelopes inside, partially protruding from the front of defendant's shirt, at the bottom of the zipper opening, the whole being bound around tightly with a rubber band. The flat rectangular object (approximately two and a half inches long and half an inch wide) was snagged on a chain around defendant's neck, from which hung a small heart-shaped medallion.

The officer asked the defendant what was in the package, and simultaneously recognizing--from experience in narcotic work and arrests made in the vicinity in connection therewith--that the bundle was the same length and width as the envelopes in which heroin is usually packed, reached for it. He was successful in removing the package from the shirt front despite defendant's effort to grab it first. Opening the package he found it contained three glassine envelopes, each containing a white powdered substance that he believed to be heroin. He immediately placed the defendant under arrest. ² As they were walking to the police car, the defendant endeavored to wrest the package from the officer's hand, and a struggle ensued, but the defendant was unsuccessful in the attempt.

Decribing the manner in which he noted the package, the officer said at the trial on the motion to suppress: '* * * he had a shirt on exactly like the one he has on now, except that it was red; the zipper and the brass ring on it. The zipper was pulled down all the way to the bottom of the zipper, which would be about the second button on a shirt. The packet was half in and half out of the shirt, as if hastily stuck in. And it was snagged on a gold chain that was around his neck with a heart.'

As to the manner in which he obtained the package, the officer testified: While the defendant was being questioned about his possession of a car registered to someone else, * * * I was looking at the subject, I noticed a cellophane package sticking out of his shirt. And I reached for the package, and as I did, he did, and my hand got there before his did.' When testifying during the trial he put it this way: 'It was a suspicious package and I asked the defendant what it was. I asked: What is this? And I was reaching for it; he was reaching for it; and I grabbed it before he did.'

The first bill of exceptions is predicated on the contention that the search and seizure of the cellophane wrapper was illegal because it was not incidental to a lawful arrest, and argument in this Court is of the same tenor. As stated in the bill, at the time the officer '* * * grabbed for the cellophane-wrapped packet he noticed in defendant's shirt, He had no probable cause to arrest; that the search was not therefore incidental to a lawful arrest; and that an illegal Search which discloses probable cause cannot justify an antecedent arrest.' (The emphasis is supplied.)

There is no merit in this bill, or in the second one, which is based on the same contention. It is evident under the facts that no search was made for the evidence. There was only a seizure, for that which is in plain view is not the subject of a search. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; State v. Alexander, Or., 495 P.2d 51; Alcorn v. State, Ind., 265 N.E.2d 413; and McCormick on Evidence, 2nd Edition, at page 389. Consequently, the law with respect to probable cause to arrest in connection with alleged illegal searches and seizures has no application here. ³ As stated in McCormick on Evidence: 'Under current interpretation the applicability of the warrant requirement to seizures differs significantly from its application to searches.'

The evidence was clearly admissible under the 'plain view' doctrine, which is an exception to the warrant rule governing searches and seizures. As stated in the annotation at 29 L.Ed.2d 1067, where the cases in the United States Supreme Court on this point are collected and analyzed, under the 'plain view' doctrine '* * * the observation of objects in 'plain view' has been regarded as distinct from 'search' for purposes of the Fourth Amendment's prohibition against 'unreasonable searches and seizures,' and it has been held that at least under certain circumstances, objects falling in the 'plain view' of a law enforcement officer who has the right to be in the position to have that view are subject to seizure and may be introduced in evidence.'

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the United States Supreme Court discussed extensively the 'plain view' doctrine, although the case involved both a search and a seizure. With respect to evidence admissible under this doctrine the court said:

'It is well established that under certain circumstances...