State v. Jones

• Decision Date: 04 October 1972
• Docket Number: No. 51755,51755
• Parties: STATE of Louisiana v. Ralph JONES and Donny McManus.
• Court: Louisiana Supreme Court

Page 559

267 So.2d 559

263 La. 164

STATE of Louisiana v. Ralph JONES and Donny McManus.

No. 51755.

Supreme Court of Louisiana.

Oct. 4, 1972.

Henry C. Walker, IV, Michael R. Mangham, Shreveport, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., for plaintiff-appellee.

PER CURIAM.

Defendants were charged with theft, with alternate counts of receiving stolen goods, and, after a trial by jury, were found guilty of theft, and sentenced to three years at hard labor. Seven bills of exceptions were reserved and perfected to alleged erroneous rulings of the district court, six of which form the basis of this appeal. The seventh was expressly waived in brief.

At about 3:00 A.M. on the morning of August 20, 1970, Mrs. Daniels, who resided on Frostwood Street in Shreveport, was awakened by the barking of neighborhood dogs. She went to the window and observed a young man wearing a white shirt run from beside the newly constructed, unoccupied house across the street from her residence, get into a U-Haul panel truck, and drive slowly away.

Mrs. Daniels called the city police and reported the prowler. An officer (Officer Turner) was dispatched to her residence to investigate, and after talking for a short time with Mrs. Daniels, he put out a radio alert, reporting the description of the prowler and the truck given him by Mrs. Daniels. A few minutes later another Shreveport police officer (Officer Robertson) observed a U-Haul panel truck drive eastward on Flournoy-Lucas Road and enter La. Highway #1. ¹ The officer followed the truck until it stopped at a gas station. The officer then pulled into the gas station and requested identification from two passengers of the U-Haul van. (The officer did not see the third occupant) They produced identification, and upon being asked if anyone else was with them, they told the officer that a third occupant of the truck had gone to the restroom.

When the officer inquired as to the contents of the truck, the defendants told him that there were air conditioners in the truck. Without opening the truck, the officer peered through the back window of the truck (using his flashlight) and observed two air conditioner compressors partially covered by blankets and observed that the copper pipe connections had apparently been sawed off. The defendants told the officer that they had purchased the air conditioning units from an unknown individual at a Shreveport bar around midnight the same night and that they had borrowed the U-Haul truck from their next door neighbor. Meanwhile two other officers had arrived at the scene and had looked in the restroom for the third member of defendants' group. They were unable to find him in the area.

Officer Robertson radioed Officer Turner and requested that he attempt to determine if any air conditioning units had been stolen from the area in which the prowler had been reported. Shortly thereafter Officer Turner radioed Officer Robertson and reported that he had found that two units had apparently been removed from residences on Bayonne St., within several blocks of the reported prowler incident, and that the copper pipes had apparently been sawed off. Armed with this knowledge, Officer Robertson entered the U-Haul truck and obtained the serial numbers from the air conditioning units. ²

The defendants were then taken to police headquarters, ³ and the owners of the two residences from which air conditioner compressors had apparently been removed were called. It was learned that the serial numbers on the units in defendants' truck matched the serial numbers of units belonging to the owners of the residences on Bayonne Street. The defendants were then formally arrested and advised of their rights.

Bill of Exceptions No. 1

Bill of Exceptions No. 1 was reserved to the trial judge's overruling of defendants' Motion to Quash the Bill of Information to suppress evidence allegedly illegally seized.

Defendants contend that the arrest was illegal, since no warrant had been issued for their arrest, the officers were outside their jurisdiction (outside the city limits of Shreveport), and the officers did not have probable cause to believe that they had committed an offense. Hence, they contend that the two air conditioners and the hacksaw found in the truck were obtained as the result of an illegal search, since it was without a warrant and was not incident to a lawful arrest.

The State contends that the officers had permission to enter the truck (from whence they obtained the serial numbers of the air conditioners), and alternatively, that the evidence was seized as the result of a lawful arrest.

The trial judge held that the police officers had probable cause to believe the defendants had committed a felony--possession of stolen property--and hence the evidence was seized pursuant to a lawful arrest.

It is unnecessary to determine when the arrest occurred, whether at the gas station or at the police station, since we hold that the officers had probable cause to believe that stolen air conditioners were contained in the truck and hence were entitled to search it even though defendants were not yet arrested. An automobile, unlike a house or other building, may easily be spirited away if officers are required to leave the scene and go to a judge to obtain a warrant before conducting a search of the vehicle. Hence the rule has long been that an automobile may be searched without a warrant where the officers have probable cause to believe that the automobile contains articles that they are entitled to seize. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 453 (1925); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

While more than mere suspicion is required, knowledge to an absolute certainty is not required. It is sufficient that the officer have Probable cause to believe that the automobile contains articles he is entitled to seize. In the case before us we agree with the trial court that at the time Officer Robertson entered the truck and conducted the search he had probable cause to believe that it contained stolen air conditioners. ⁴

Defendants also complain that the initial act of the police officer, after having been told by them that the truck contained air conditioning units, of looking through the rear window of the truck with his flashlight constituted an unreasonable search. We find it unnecessary to determine whether this was an unreasonable search, since we hold that this was not a search. The officer merely observed that which was in plain view. See United States v. Lee, ⁵ 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Hayden, 140 F.Supp. 429 (U.S.D.C. Maryland 1956). Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

Defendants complain that they were arrested at the gas station, which is admittedly outside the city limits of Shreveport, and that the arrest is illegal since the officers who made the arrest were city police officers. Defendants testified they were told they were under arrest a short while after the search of their vehicle was conducted. The officers, while admitting that they were outside their jurisdiction at the gas station, testified that the defendants were not arrested until they were taken downtown and it was positively ascertained that the air conditioning units were stolen.

We find it unnecessary to decide the factual issue of when the defendants were arrested. As we noted in Footnote 4, at the time the search of defendants' vehicle was conducted the officers had probable cause to believe that defendants' truck contained stolen air conditioners. Even if the officers were acting as private persons, as defendants contend, 'A private person may make an arrest when the person arrested has committed a felony, whether in or out of his presence.' La.C.Crim.P. Art. 214. ⁶ The officers had probable cause to believe the defendants were in possession of two stolen air conditioning units, which is a felony, La.R.S. 14:69, and it was subsequently proven on the trial below that defendants committed the theft of the air conditioners, worth more than $100.00, which is felony theft. La.R.S. 14:67.

Bill of Exceptions No. 2

Bill of Exceptions No. 2 was reserved to the trial judge's overruling of defendants' motions for the production of evidence and confessions; to compel disclosure of all evidence favorable to the defendants; for a list of witnesses; and for production of confessions and statements. Defendant admits that the Motion for Production of Confessions and Statements is moot, since the State did not have confessions from any of the defendants.

The Motion for Production of Evidence and for the State's list of witnesses was properly denied. State v. Mitchell, 258 La. 427, 246 So.2d 814 (1971); State v. Pesson, 256 La. 201, 235 So.2d 568 (1970). This case does not involve, as in State v. Migliore, 261 La. 722, 260 So.2d 682 (1972), the possession of a substance which is criminal merely by virtue of its chemical composition.

Defendants complain of the trial court's action in overruling their Motion to compel disclosure of all evidence favorable to them. At the hearing on the motion, the State admitted that it had no evidence favorable to the defense. While we agree with defendants that the State cannot suppress evidence favorable to them, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), there is no indication in the record that the State...