State v. Marchetti

• Decision Date: 29 March 1965
• Docket Number: No. 47484,47484
• Citation: 173 So.2d 531,247 La. 649
• Parties: STATE of Louisiana v. Robert James MARCHETTI.
• Court: Louisiana Supreme Court

Page 531

173 So.2d 531

247 La. 649

STATE of Louisiana v. Robert James MARCHETTI.

No. 47484.

Supreme Court of Louisiana.

March 29, 1965.

Smith, Waltzer, Jones & Peebles, Jack Peebles, New Orleans, for defendant-appellant.

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

HAMLIN, Justice:

The defendant, Robert James Marchetti, was charged with and convicted of the crime of armed robbery; ¹ he was sentenced to serve fifteen years at hard labor in the Louisiana State Penitentiary. He appeals to this Court from his conviction and sentence, presenting for our consideration Bill of Exceptions No. 3, which was reserved to the trial court's overruling his motion for a new trial.

The defendant was jointly charged with Alex Carineo and Leonard Flanagan by bill of information with the crime of armed robbery. Carineo and Flanagan withdrew pleas of not guilty previously entered and then entered pleas of guilty as charged; they were sentenced to serve terms of ten and fifteen years, respectively, at hard labor in the State Penitentiary. Marchetti proceeded to trial, and the present conviction ensued.

The facts of record connected with the instant bill reflect that Detective Meyers of the New Orleans Police Force instructed Officer Fred Williams and Detective Brugier to be on the lookout for a 1960 Pontiac, bearing an Illinois license, and its owner, Leonard Flanagan, who was being sought in connection with an investigation being conducted through a prior arrest of said Flanagan.

On November 9, 1963, between 2:00 and 2:15 A.M., the car was spotted by said officers in the 200 block of Bourbon Street in the heart of the New Orleans French Quarter. They had also determined that Flanagan, the owner, had quarters in a hotel located near his parked car; his landlady had cooperated with the officers in their attempt to locate him to the extent of removing the doorknob from his door. About fifteen or twenty minutes after Flanagan's car had been placed under surveillance, Marchetti approached the automobile; he unlocked the trunk of the automobile and removed something from inside the trunk which he placed inside his coat pocket.

The evidence is clear that the officers thought that Marchetti was Flanagan; they approached him and questioned him, and he identified himself as Marchetti; when asked whether he knew where Flanagan could be located, Marchetti said that he did not know him. The officers, still thinking that Marchetti was Flanagan, asked him what he was doing going into the trunk of the automobile; they did not believe his reply that he had been given $20.00 by another person to remove the clothes from a hotel room in the 200 block of Bourbon Street and put them in the automobile and then put the keys in the car and leave. The record before us does not disclose whether Marchetti did or did not have clothing in his possession.

After a very short time, Marchetti was arrested. He was brought around the corner and placed in the officers' parked car; a district car, summoned by police radio, took him to the police station. A relief team arrived to continue the surveillance of the Flanagan vehicle, and the arresting officers proceeded to the police station to question Marchetti. Marchetti's identity had become a little dubious; he was booked under his own name with a violation of LSA-R.S. 14:107, ² investigation of armed robbery. In point of time, this was some forty-five minutes or an hour after arrest. Officer Williams testified:

'We asked him again as to any knowledge he had of where Flanagan could be located and he said, 'Well, I just as soon get it off my chest,' he said, 'It's been bothering me anyway,' he said, 'I know Flanagan; we were in the penitentiary together in Illinois and I met him down here in New Orleans on Bourbon Street about three weeks ago and a few nights ago, a few days ago, we robbed a bar on the other side of Canal Street in the commercial area.' We asked him to clarify this and he said that himself, Flanagan and another boy, which at this time he didn't identify, went into the bar, this bar on the other side of Canal Street in the commercial area, and when he walked in, they sat at the bar; he ordered a beer, went to the rest room in the back, when he came back, he sat down. Flanagan told him to close the door. He got up, closed the door. When he turned around and was walking back, he noticed Flanagan and this other subject holding guns on the barmaid and about this time a colored porter was walking from the rear and there was a comment made as to 'Get in the back' and he walked in the back with the porter and this other subject and the porter and the barmaid were put into a storeroom. They walked out and when they were coming back, Flanagan was--he saw Flanagan behind the bar and shortly thereafter they walked out. Flanagan and this other subject got into the automobile and he walked in another direction.' ³

Subsequent to the above questioning, the booking of the defendant was changed to Armed Robbery of the Bon Soir Bar (the bill of information charges robbery of Lillyan Ferrara); the instant prosecution concerns that crime.

The trial judge decided affirmatively that defendant's arrest was valid, and that the confession and/or statement and/or admission was free and voluntary and was admissible in evidence; it was admitted in evidence over the objection of counsel for the defendant. Bill of Exceptions No. 3 (although other bills had been taken and withdrawn), concerning the ruling of the trial judge, was perfected in connection with the overruling of the motion for a new trial. Bill of Exceptions No. 3 avers in part:

'* * * subsequent to the conviction of the defendant, he filed a Motion for a New Trial. Part II of said Motion argued on March 13, 1964, and the overruling by the Court of this part of the motion, forms the basis for this Bill of Exception:

'That at the hearing on the Motion for a New Trial, counsel for the defendant attempted to show:

'1. That in the early morning of Saturday, November 9, 1963, Officers Williams and Brugier were in the French Quarter looking for a 1960 Pontiac with Illinois license plates, allegedly the property of Leonard Flanagan who was being sought by the police;

'2. That the Officers observed the defendant go to this vehicle, open the trunk and remove something;

'3. That the defendant was then confronted by the Officers and restrained from his liberty, and was thereby arrested;

'4. That Officer Williams testified that he arrested the defendant for violating a Section of Louisiana Revised Statutes 14:107 (Vagrancy) while the record discloses no factual basis for that arrest;

'5. That there was therefore no probable cause for the arrest required by Louisiana Law and by the Constitution of the United States;

'6. That the police were not looking for this defendant and had not at the time of arrest wanted this defendant for anything, and had no probable cause to believe that a crime had been committed; and that defendant had committed it. (Officer Williams testified, in effect, that there was no basis for the arrest other than suspicion on his part);

'7. That in addition to arresting this defendant without proper cause, the arresting Officers failed to take this defendant before a committing magistrate without delay, as required by Louisiana Law;

'8. That defendant's right to prompt production before a magistrate did not lapse for failure to request such production, for as a layman defendant had no knowledge of this right and defendant had not been apprised of his right to counsel;

'9. That therefore, counsel for the defendant then and there objected, for the reason, it is maintained, that the Court admitted testimony containing evidence obtained by the police subsequent and incident to this unlawful arrest, and thereby deprived defendant of due process of law in contravention of the Fourteenth Amendment to the Constitution of the United States and the laws of the State of Louisiana. Specifically this evidence includes All oral and written statements made by the defendant, as well as any and all identifications made by defendant subsequent and incident to his arrest.'

Counsel for the defendant argues in this Court that defendant was arrested Without probable cause, and his confession and/or admission against interest was the fruit of that unlawful arrest and should not have been admitted in evidence; he urges that the defendant was prejudiced by such admission.

LSA-R.S. 15:60 provides that 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 officer holds a warrant for such arrest.'

Defendant having challenged the constitutional validity of his arrest, it is our function to determine whether the facts available to the arresting officers at the moment of the arrest would have warranted a man of reasonable caution to believe that an offense had been committed. Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. Likewise, 'It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, see Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134, though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause--evidence which would 'warrant a...