State v. James, No. 46857

CourtLouisiana Supreme Court
Writing for the CourtSANDERS; HAMITER; SUMMERS; SUMMERS; HAMLIN; FOURNET; McCALEB; SANDERS; SANDERS
Citation246 La. 1033,169 So.2d 89
PartiesSTATE of Louisiana v. Otis JAMES.
Decision Date08 June 1964
Docket NumberNo. 46857

Page 89

169 So.2d 89
246 La. 1033
STATE of Louisiana
v.
Otis JAMES.
No. 46857.
Supreme Court of Louisiana.
June 8, 1964.
Dissenting Opinion June 11, 1964.
On Rehearing Nov. 9, 1964.
Rehearing Denied Dec. 14, 1964.

[246 La. 1039]

Page 91

G. W. Gill, Sr., and George M. Leppert, New Orleans, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

SANDERS, Justice.

This is a criminal proceeding. The state charged that the defendant, Otis James, had unlawfully possessed one morphine tablet, a narcotic drug. He was tried and convicted. The court sentenced him, as a second offender, to a total of ten years in the state penitentiary. He has appealed, relying upon twenty-nine bills of exception reserved in the trial court.

Initially, the defendant filed a motion to quash the Bill of Information on the ground that LSA-R.S. 40:961 et seq., the Uniform Narcotic Act, is unconstitutional. To the overruling of the Motion to Quash, the defendant reserved Bill of Exception No. 1.

In support of the motion, the defendant asserts that LSA-R.S. 15:85 does not authorize

Page 92

bail pending appeal for an offender who has received a sentence of five years or more in a felony case. Under LSA-R.S. 40:981, the minimum sentence for the illegal possession of narcotics is five years. Hence, such a narcotic offender is denied [246 La. 1040] bail pending appeal. The denial of bail, the defendant contends, is tantamount to harsh, cruel, and unusual punishment prohibited by the federal and state constitutions and renders the Uniform Narcotic Act unconstitutional.

The defendant also contends that the statute is unconstitutional on the additional ground that it makes narcotic addiction a criminal offense. He relies upon Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, in which the United States Supreme Court struck down the addiction provisions of the California statute.

The denial of bail pending appeal to a narcotic offender based upon the length of his sentence does not constitute either cruel or unusual punishment. 1 The restriction of such bail to felony offenders receiving a sentence of less than five years is a reasonable expression of legislative policy.

The defendant, in our opinion, has no standing to attack the constitutionality of the addiction provisions of the Narcotic Law. Since he has not been charged with addiction, he is not adversely affected by those provisions. 2

The attack upon the constitutionality of the Uniform Narcotic Act must fail. We find no merit in Bill of Exception No. 1.

[246 La. 1041] Bill of Exception No. 2 has given us serious concern. It was reserved to the overruling by the trial judge of a motion to suppress the demonstrative evidence--a morphine tablet and narcotics equipment--alleged to have been unlawfully seized by the police in the defendant's residence without a search warrant. 3

The evidence discloses that on June 19, 1961, about 11:15 a.m., Officers Duffy and Warner of the New Orleans Police Department parked their unmarked automobile on Camp Street to watch the James' residence at 2013 Camp Street. The officers knew that the defendant was a narcotic addict because of a previous arrest. Shortly after the surveillance began, James left his residence and walked along Camp Street toward its intersection with Jackson Avenue. The officers followed him in their car. When he reached the intersection, he turned left on Jackson Avenue, at which time the officers lost sight of him. When the police reached the intersection, they saw James in the front seat of an automobile, driven by another man. The vehicle was leaving the curb. It crossed Jackson Avenue in a Uturn. Intending to question James and his companion, the officers forced the automobile to the curb.

As Officer Duffy stepped from the police car, James stuffed a piece of cellophane, [246 La. 1042] containing what appeared to be a white tablet, in his mouth and jumped from the automobile. He had some paper currency in his hand. Officer Duffy shouted, 'Police$ Stop$' But, James ran. The officers caught and subdued him. Apparently, he had swallowed the cellophane. The officers picked up approximately $50.00 in currency, scattered on the ground. Meanwhile, the driver of the automobile had driven away in the confusion. He was not apprehended.

Having informed James that he was under arrest, the officers drove him to his residence about two blocks away. Although

Page 93

James stated that the front door was open, they found it locked. The officers heard a sound inside the house as if someone were running. They broke open the door and entered the house. They found the defendant's wife in the bathroom.

They called for assistance to make a search of the house. Four other officers aided them in searching the small, 'shotgun' house, occupied by the defendant and his wife. The officers made an intensive search of both the house and yard. They examined the cabinets, shelves, and furniture. One officer found a morphine tablet in a chest of drawers. Another officer found an eyedropper and a pacifier (narcotic equipment) in a kitchen cabinet. [246 La. 1043] James admitted the ownership of the narcotic equipment, but denied that the morphine tablet was his. He suggested that the tablet had been placed in the chest by his brother, who had been committed to the penitentiary.

The defendant asserts that the morphine tablet and equipment were the products of an unreasonable search and seizure in violation of the Fourth Amendment of the United States Constitution and Article I, Section 7, of the LSA-Constitution. Hence, he contends that the evidence is inadmissible in this criminal prosecution under the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

The Fourth Amendment of the Constitution of the United States provides:

'The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Article I, Section 7 of the Louisiana Constitution contains language similar to that of the Fourth Amendment. 4

[246 La. 1044] The purpose of this historic provision is the protection of the right of privacy of the people in their homes and effects. It prohibits the arbitrary intrusion of the police into houses for unreasonable searches and seizures.

As a general rule, a search is unreasonable if it is not conducted under the authority of a search warrant. However, the rule is subject to the important exception that a search may be reasonably made as an incident of a lawful arrest.

In the present case, the police officers concede that they had no search warrant authorizing them to search the defendant's home. Hence, to justify the forcible intrusion into his residence, it must be established that the search was incident to a lawful arrest. Presented to us for resolution are two questions: Was the arrest lawful? If so, was the search of defendant's residence incidental to it?

We shall resolve these questions in the light of the following pronouncement of the United States Supreme Court in Ker v. California: 5

'* * * The States are not thereby precluded from developing workable rules governing arrests, searches and [246 La. 1045] seizures to meet 'the practical demands of effective criminal investigation and law enforcement' in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the

Page 94

concomitant command that evidence so seized is inadmissible against one who has standing to complain.'

LSA-R.S. 15:60, the statutory authority for arrest without a warrant in this state, provides:

'Any peace officer may, without a warrant, arrest a person:

'(1) For the commission of any felony or misdemeanor committed in his presence;

'(2) When such person has committed a felony although not in the presence of the officer;

'(3) When a felony in fact has been committed and he has reasonable cause to believe that such person has committed it;

'(4) When he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it;

'(5) When he has received positive information by written, telegraphic or other authoritative source that another [246 La. 1046] officer holds a warrant for such arrest.'

The state asserts that, at the time the officers arrested James, they had reasonable cause to believe that he was committing the offense of unlawful possession of narcotics, a felony.

Reasonable cause to make an arrest without a warrant exists when the facts within the knowledge of the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of average caution in the belief that a felony has been or is being committed. 6

The evidence discloses that the police officers knew the defendant was a drug addict from their prior contact with him. When the officers approached the automobile in which the defendant was seated, he quickly stuffed what appeared to be a white tablet in his mouth, jumped out of the automobile, holding paper currency, and ran, ignoring the call, 'Police$ Stop$'

From these facts, in our opinion, the officers had reasonable cause to believe that the defendant unlawfully possessed narcotics. Hence, the officers had the authority to arrest him without a warrant. We conclude that the arrest was lawful.

More difficult is the question of whether the search of the residence two blocks from [246 La. 1047] the arrest site is within the bounds of a search incident to the arrest.

The doctrine that a search without a warrant may be legally conducted if incident to a lawful arrest...

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8 practice notes
  • State v. Dotson, No. 50828
    • United States
    • Supreme Court of Louisiana
    • 29 Marzo 1971
    ...for resolution are two questions: Was the arrest lawful? If so, was the search of defendant's residence incidental to it?' State v. James, 246 La. 1033, 169 So.2d 89 To answer the second question above presented, the search of defendant certainly would have been 'incident' to the arrest had......
  • State v. Vale, No. 49066
    • United States
    • Supreme Court of Louisiana
    • 12 Noviembre 1968
    ...defendant. From our appreciation of the case, wherein the United States Supreme Court overruled a decision of this court, State v. James, 246 La. 1033, 169 So.2d 89, it is clearly distinguishable and inapposite from a factual as well as legal standpoint. In the James case the narcotics sale......
  • State v. Richmond, No. 53407
    • United States
    • Supreme Court of Louisiana
    • 24 Septiembre 1973
    ...is largely within the well founded discretion of the trial court. State v. Cripps, 259 La. 403, 250 So.2d 382 (1971); State v. James, 246 La. 1033, 169 So.2d 89, reversed on other grounds, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30. Under the present facts where the defense did not make a sho......
  • State v. Cooley, No. 51324
    • United States
    • Supreme Court of Louisiana
    • 17 Enero 1972
    ...shell that had been in the gun earlier, and left on his return trip to the sheriff's office in Leesville.' Defendant cites State v. James, 246 La. 1033, 169 So.2d 89, rev'd James v. Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30, and State v. Wells, 253 La. 925, 221 So.2d 50, for the p......
  • Request a trial to view additional results
8 cases
  • State v. Dotson, No. 50828
    • United States
    • Supreme Court of Louisiana
    • 29 Marzo 1971
    ...for resolution are two questions: Was the arrest lawful? If so, was the search of defendant's residence incidental to it?' State v. James, 246 La. 1033, 169 So.2d 89 To answer the second question above presented, the search of defendant certainly would have been 'incident' to the arrest had......
  • State v. Vale, No. 49066
    • United States
    • Supreme Court of Louisiana
    • 12 Noviembre 1968
    ...defendant. From our appreciation of the case, wherein the United States Supreme Court overruled a decision of this court, State v. James, 246 La. 1033, 169 So.2d 89, it is clearly distinguishable and inapposite from a factual as well as legal standpoint. In the James case the narcotics sale......
  • State v. Richmond, No. 53407
    • United States
    • Supreme Court of Louisiana
    • 24 Septiembre 1973
    ...is largely within the well founded discretion of the trial court. State v. Cripps, 259 La. 403, 250 So.2d 382 (1971); State v. James, 246 La. 1033, 169 So.2d 89, reversed on other grounds, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30. Under the present facts where the defense did not make a sho......
  • State v. Cooley, No. 51324
    • United States
    • Supreme Court of Louisiana
    • 17 Enero 1972
    ...shell that had been in the gun earlier, and left on his return trip to the sheriff's office in Leesville.' Defendant cites State v. James, 246 La. 1033, 169 So.2d 89, rev'd James v. Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30, and State v. Wells, 253 La. 925, 221 So.2d 50, for the p......
  • Request a trial to view additional results

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