State v. Lawrence

• Decision Date: 13 December 1971
• Docket Number: No. 51295,51295
• Citation: 255 So.2d 729,260 La. 169
• Parties: STATE of Louisiana v. James LAWRENCE.
• Court: Louisiana Supreme Court

Page 729

255 So.2d 729

260 La. 169

STATE of Louisiana v. James LAWRENCE.

No. 51295.

Supreme Court of Louisiana.

Dec. 13, 1971.

Louis B. Merhige, New Orleans, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

BARHAM, Justice.

This is an appeal from a conviction for possession of an opium derivative and the 12-year sentence imposed. ¹

Bill of Exceptions No. 1.

This bill was reserved to the overruling, after a hearing, of defendant's pretrial Oral motion to suppress. The only evidence sought to be suppressed in that hearing was a pair of trousers which were not associated with the crime for which he was tried and which were not offered in evidence in this trial. This bill has no merit since it concerns evidence not pertinent to the defendant's trial. We need not consider whether a motion to suppress can be made orally. See State v. Royal, 255 La. 617, 232 So.2d 292 (1970).

Bill of Exceptions No. 4.

This bill was taken when the State offered in evidence two hypodermic needles, an eyedropper, and a brown paper bag which a police officer testified the defendant had attempted to conceal in the police car while under arrest.

A brief statement of the circumstances of the defendant's arrest is necessary for an understanding of the arguments made by both the State and the defense. Two officers making a routine check at a bar saw the defendant seated with two companions, a man and a woman. The companions hurriedly moved to another part of the bar, and the defendant remained seated, crouched or bent over with his hands across his stomach. The defendant's general appearance anc clothing matched a description received by the officers of a man who was wanted for armed robbery. They approached the defendant and in conversation with him learned that he had no money with him and did not work, and they then placed him under arrest for vagrancy. The officers frisked the defendant for weapons, and during the 'patting down' a pair of new trousers with untailored cuffs and a department store label and price tag still attached fell out from under his coat. The officers then placed the defendant's companions under arrest for vagrancy, and drove all three to headquarters in the police car. While in the automobile one of the officers saw the defendant remove from around his waist a brown paper package which he stuffed under the back seat. After the three were booked, the officer found under the seat of the car a brown bag which contained an eyedropper and two hypodermic needles--apparently part of a narcotics 'outfit'. The examination of the residue in the eyedropper determined that it contained heroin.

The defendant contends under this bill that the evidence to which he objected was the fruit of an unconstitutional search and seizure. It is argued that the arrest for vagrancy was an illegal arrest because it was made in reliance upon an unconstitutional penal provision; ² that since the arrest was illegal, any search and any seizure resulting from the arrest were illegal. This would be a serious argument if we were to reach the constitutional issue and determine the statute under which the defendant was arrested to be null and of no effect because of its unconstitutionality.

The State has urged that we should not reach the constitutional issue. It argues that regardless of whether the arrest for vagrancy was a legal arrest, the officers had a right to stop and frisk the defendant under Code of Criminal Procedure Article 215.1 because of their prior knowledge of a description which possibly linked the defendant to a robbery. The State reasons that the right to stop and frisk existed before and after the arrest and without regard to the validity of the arrest; that the officers' patting down or frisking of the defendant was the exercise of that statutory right; that as a result when the pants fell from under the defendant's coat, there then existed additional grounds for arrest or detention; that the evidence resulting from the legal frisking established probable cause for arrest and created a situation in which the abandoned narcotics paraphernalia could be seized. The State reasons that we are therefore required to pretermit the question whether the arrest for vagrancy was a legal arrest since the circumstances in their totality show a constitutional seizure.

Again, this is an argument of serious import. For another reason, however, we have determined that we do not reach the question of whether R.S. 14:107(5) is constitutional.

The defendant here made only one motion to suppress, an oral motion, which sought only to suppress evidence having no connection with this offense. This motion therefore in no respect addressed itself to the narcotics evidence to which the defendant objected when it was proffered at the trial. He did not move to suppress the narcotics paraphernalia; he simply objected, after predicate and foundation had been laid, to the admissibility of these articles as evidence at his trial before the jury. The defendant's objection under these circumstances came too late to raise the issue of an unconstitutional search and seizure.

Code of Criminal Procedure Article 703(A) provides: 'A defendant aggrieved by an unconstitutional search or seizure may move to suppress for use as evidence at the trial on the merits, any tangible objects or other property, or documents, books, papers or other writings, on the ground that they were so obtained. A motion filed under the provisions of this paragraph must be filed no later than three judicial days before the trial on the merits begins, unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. The court in its discretion may permit the filing of such a motion to suppress at any time before or during the trial.'

The comment under that article gives Federal Rule 41(e) as a source and notes that the federal rule also limits the time for filing the motion to suppress. The comment continues: 'As interpreted by the federal courts, if the motion is not timely filed, the taint of unlawfulness is waived and the attack may not be made later during the trial by an objection to admissibility.'

Federal courts have determined that objection to evidence as being the fruit of unconstitutional search and seizure must be raised by a motion to suppress, and that simple objection at the trial before the jury comes too late. United States v. Bennett, 409 F.2d 888 (2nd Cir. 1969), cert. denied , Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101; Mesmer v. United States, 405 F.2d 316 (10th Cir. 1969); United States v. Maloney, 402 F.2d 448 (1st Cir. 1968), cert. denied 394 U.S. 947, 89 S.Ct. 1283, 22 L.Ed.2d 481; Small v. United States, 396 F.2d 764 (5th Cir. 1968); Browning v. Crouse, 327 F.2d 529 (10th Cir. 1964); United States v. Milanvich, 303 F.2d 626 (4th Cir. 1962), cert. denied 371 U.S. 876, 83 S.Ct. 145, 9 L.Ed.2d 115.

Pertinent also are two of our own cases, State v. Rasheed, 248 La. 309, 178 So.2d 261, and State v. Davidson, 248 La. 161, 177 So.2d 273, decided before the adoption of our present Code of Criminal Procedure in response to the United States Supreme Court decisions in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and following cases. In Rasheed and Davidson we held that this state would apply the federal rule that a defendant could test the constitutionality of a search and seizure only under a motion to suppress addressed to the judge alone, and that failure to raise the issue in this manner operated as a waiver of any claim that defendant's constitutional rights were violated. The jurisprudence of Rasheed and Davidson, which adopted and applied Federal Rule 41(e) to state prosecutions, was enacted into law in our presence Code of Criminal Procedure. The reasons for such a rule are to eliminate from the trial before the jury all disputes over police conduct unrelated to the guilt or innocence of the accused; to avoid unwarranted delay of the trial and confusion of the jury; to spare the State as well as the defense the expense of a useless trial in cases where a purely legal determination by the judge alone is required; to avoid the necessity of declaring a mistrial because the jury has been exposed to unconstitutional evidence, with resulting repetitive litigaion; and to afford the State and the accused advance knowledge of the rules of evidence which must be followed during the course of the trial.

The question of the unconstitutionality of a search and seizure and the admissibility of evidence seized thereunder is a legal question which should be heard by the judge alone out of the presence of the jury. Since this defendant failed to file his motion to suppress as required by our Code of Criminal Procedure Article 703(A), he could not make...