State v. Marks, 57964

CourtSupreme Court of Louisiana
Citation337 So.2d 1177
Docket NumberNo. 57964,57964
PartiesSTATE of Louisiana v. Oliver MARKS and Herbert Jones, Jr.
Decision Date06 October 1976

Kendall R. Moses, Jack E. Hoffstadt, Student Practitioners, Arthur A. Lemann, III, Supervising Atty., New Orleans, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, District Attorney, Louise S. Korns, Vincent C. Cuccia, Asst. Dist. Attys., for plaintiff-appellee.

MARCUS, Justice.

Oliver Marks and Herbert Jones, Jr. were indicted by the grand jury for the Parish of Orleans for possession with intent to distribute a controlled dangerous substance, to-wit: heroin, in violation of La.R.S. 40:966. After trial by jury, Oliver Marks was found guilty as charged and was sentenced to life imprisonment at hard labor. Herbert Jones, Jr. was found guilty of possession of heroin and sentenced to serve ten years at hard labor without benefit of parole, probation or suspension of sentence. 1 On appeal, defendants rely on eight assignments of error for reversal of their convictions and sentences. 2

ASSIGNMENTS OF ERROR NOS. 1, 3 AND 8

Prior to trial, defendants moved to suppress certain physical evidence on the ground that it was obtained as a result of an unconstitutional search and seizure (Assignment of Error No. 1). Defendants also objected to the admission of the evidence at trial (Assignment of Error No. 3) and moved for a mistrial at the conclusion of the trial on the ground that the evidence was obtained in an unconstitutional search (Assignment of Error No. 8). The trial judge denied defendants' motions and overruled their objection to the introduction of the evidence at trial. Defendants aver that the trial judge's rulings on each of these occasions were in error. Since the merit of each assignment of error depends on the constitutionality of the search, we will treat them together for ease of disposition.

At the hearing on the defendants' motions to suppress evidence, Officer Louis Dabdoub testified as follows:

At approximately 6:30 P.M. on that date (August 29, 1975) myself, Officer Haab was my partner, and Assistant Chief of Harbor Police Joseph Canatella met with a reliable confidential informer who has given us information in the past which has led to arrests and convictions. This informer told us that a Negro male whose name he did not know, who was big, heavy, and wearing flashy clothes and whom he thought had a gun was on the corner of Baronne and Clio. He stated this unknown Negro male was driving a red 1965 Pontiac, License No. 74L842, and the vehicle was parked on Clio just off Baronne Street. He stated the Negro male was waiting for another unknown Negro male driving a gold Pontiac to bring him two or three bundles of heroin. . . .

The record further discloses that after receiving the 'tip,' Officer Dabdoub radioed the information to other narcotics units in the area. Two units responded to the alert and assisted Officer Dabdoub in setting up a surveillance in the area of Clio and Baronne. One unit, manned by Officer Branham was stationed on Carondelet Street. Another vehicle, occupied by Officers Schultz and Martin set up surveillance on Clio Street in a position enabling them to observe the corner of Clio and Baronne. Officer Dabdoub's vehicle was stationed at the intersection of Clio and St. Charles. During the course of setting up the surveillance, the officers corroborated the informant's tip as to the location and license number of the red Pontiac. They also observed a big, heavy set Negro male (Marks) wearing flashy clothes who fit the description given to Officer Dabdoub by the informant. At about 8:40 p.m., Officer Schultz saw a gold Pontiac pull up to the intersection of Clio and Baronne. An occupant of the gold car got out and spoke to a group of people standing on the corner where the defendant Marks had been observed. As soon as the occupant of the gold Pontiac reentered the car, the defendants Marks and Jones were seen getting into the red Pontiac. With Jones as driver, they followed the gold car to Carondelet and turned left out of Officer Schultz's sight. Meanwhile, Officer Branham, who was stationed on Carondelet, saw the two vehicles and notified the other officers that they appeared to be together. He testified that he saw at least two heads in the red car as he followed the gold and red Pontiacs down Carondelet Street in his unmarked police unit. In the 1000 block, the gold car pulled over and parked alongside the curb. The red car pulled over and parked directly in front of it. Officer Branham watched as a heavy set Negro man (Marks) exited the red car and approached and met with the occupant of the gold car, who had already gotten out and was standing on the sidewalk. Officer Branham observed an exchange taking place between Marks and the driver of the gold Pontiac as he slowly drove abreast of the surveilled vehicles. He then pulled over to block a possible escape by the red car and at the same time advised the other officers by radio that he thought the drug transaction had taken place. The two other police units waiting in close proximity arrived on the scene within seconds. All of the police officers got out of their vehicles and surrounded defendants' car. Officer Dabdoub, with identification in his hand, called out: 'Police. Get out and put your hands where I can see them.' Officers Dabdoub and Branham, realizing that the gold car had escaped in the confusion, immediately drove away in search of it. Officers Schultz and Martin ordered the defendants out of the car, had them assume a 'spread eagle' position against the rear of the vehicle and proceeded to frisk them for weapons. During the course of the pat-down of the defendant Marks, Officer Schultz felt a bulge within the sock of the defendant along his left calf. The officer testified that it felt like a piece of tin foil. He then informed Marks that he was under arrest for a narcotics violation and began advising him of his Miranda rights as he retrieved the tin foil package. Upon opening the package, three smaller packages, each containing twenty-five packets of heroin, were found. He also placed Jones under arrest and advised him of his rights.

It is well settled under the fourth amendment that a search conducted without a warrant issued upon probable cause is Per se unreasonable--subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search incident to a lawful arrest made of the person and the area in his immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Such a search is justified in order to discover weapons that may threaten the safety of the arresting officer and to prevent the concealment and destruction of evidence. It has recently been confirmed that an arrest made in a public place without a warrant is valid if founded on probable cause, regardless of the presence or absence of exigent circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). But in order to justify a search as incident to an arrest, an arrest must have already occurred and the arrest itself must have been lawful.

In order to resolve the issue in this case, therefore, we must determine when the defendants were actually arrested and whether the arrest was based upon probable cause to believe that they had committed a crime.

Article 201 of the Louisiana Code of Criminal Procedure defines 'arrest' as follows:

Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.

The statutory definition of 'arrest' is keyed to the concept of restraint. In this case, the defendants' car was initially surrounded by three police vehicles, one of which pulled in front of the red Pontiac expressly to prevent its departure. The officers got out of their vehicles and closed in on defendants' vehicle. They identified themselves as policemen and removed the defendants from their car, placing them 'spread eagle' against the rear of the vehicle. At that point, the freedom of the defendants was unmistakably restrained; they were under arrest. It is the circumstances indicating an intent to effect an extended restraint on the liberty of an accused, rather than the precise timing of an officer's statement: 'You are under arrest,' that are determinative of when an arrest is actually made. State v. Warren, 283 So.2d 740 (La.1973). This principle was recognized in Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) wherein the Court noted that regardless of when Peters was 'arrested' it was clear that an arrest, for purposes of constitutional justification, had taken place before the search commenced, when the subject was grabbed by the collar and his freedom of movement curtailed on the basis of probable cause to believe that he was engaged in criminal activity. Accordingly, under the circumstances in this case we find that the defendants were lawfully arrested when they were removed from their car and before the immediate weapons frisk was begun. The fact that the defendants were not Verbally advised that they were under arrest until seconds later during the course of the pat-down alters nothing.

Article 213 of the Louisiana Code of Criminal Procedure provides in pertinent part:

A peace officer may, without a warrant, arrest a person when:

(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer; . . ..

Reasonable cause, which we have treated as consonant...

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