State v. Navarro

• Court: Louisiana Supreme Court
• Writing for the Court: BARHAM; SANDERS, C.J., dissents for the reasons assigned by MARCUS; SUMMERS; MARCUS; MARCUS; SUMMERS; TATE
• Citation: State v. Navarro, 312 So.2d 848 (La. 1975)
• Decision Date: 31 March 1975
• Docket Number: No. 54888,54888
• Parties: STATE of Louisiana v. Richard D. NAVARRO.

Page 848

312 So.2d 848

STATE of Louisiana v. Richard D. NAVARRO.

No. 54888.

Supreme Court of Louisiana.

March 31, 1975.

Concurring Opinion On Denial of Rehearing May 30, 1975.

John E. Conery, Lippman, Hunter & Rawls, Franklin, for defendant-relator.

William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Bernard E. Boudreaux, Jr., Asst. Dist. Atty., for plaintiff-respondent.

BARHAM, Justice.

Relator Navarro was charged by bill of information with possession of marijuana, a violation of La.R.S. 40:966, subd. C, was convicted after a bench trial, and was sentenced to six months' imprisonment in the Parish Jail. Upon relator's application seeking review under our supervisory jurisdiction we granted writs. 301 So.2d 43 (La.1974).

At about eleven o'clock on the evening of October 28, 1973, two deputies employed by the St. Mary Parish Sheriff's office, observed a Volkswagen driven by the relator run a stop sign; thereupon the officers stopped the vehicle, ordered the occupants out of the car, and asked both the driver and the passenger for identification. After these orders had been complied with, one of the officers returned to the police vehicle to ascertain over the police radio whether either relator or the passenger was wanted for any crime. While waiting for an answer, the officer walked over to the passenger side of the Volkswagen and focused his flashlight beam inside the vehicle. On the passenger seat he observed gleanings and seeds which he believed to be marijuana. The officer reported this observation to his partner and they seized the material and arrested the two occupants of the car for possession of marijuana. An additional reason for the relator's arrest was his failure to stop for the stop sign.

Subsequent to placing the subjects under arrest the officer who first observed the alleged marijuana gleanings again focused his flashlight beam on the interior of the car. He spotted a plastic bag above the sun visor on the driver's side, which he pulled down, causing the plastic bag to dislodge and fall. When the contents of the bag could be observed they were thought to resemble marijuana. Upon making this discovery the officers inquired of the relator and his companion whether either of them 'had anything else.' Relator's companion revealed that he had marijuana concealed in his underwear; all of the material was seized. In due time, relator's prosecution for possession of marijuana commenced.

Our review of the proceedings leading to the relator's conviction and sentence reveals that the trial court erred in failing to suppress certain of the evidence sought to be introduced against the relator. We further determine that there was no Competent evidence upon which the trial court could base its finding that the relator was guilty as charged. For these reasons, the relator's conviction and sentence must be reversed.

Three distinct parcels of evidence were the subject of a motion to suppress filed by relator. The first parcel consisted of a clear plastic evidence bag containing three seeds, alleged to be marijuana seeds, which were the so-called 'gleanings' observed on (and subsequently seized from) the passenger seat of the Volkswagen. The second parcel consists of two packages of cigarette papers and a clear plastic bag containing a substance resembling marijuana, all of which is sealed in a clear plastic evidence bag. The third parcel consists of material which appeared to be marijuana sealed in a clear plastic evidence bag. It is not clear which of the contents of the latter two parcels was seized from the passenger's clothing and which fell from the sun visor when the officer pulled the visor into a 'down' position.

After a review of the record we determine that the seeds confiscated by the police officer who had sighted them in plain view were lawfully seized, it is well established that an officer who is lawfully in a place from which he obtains a view of material reasonably believed to be contraband may legally seize that material. In the instant case, the officers who observed the relator run a stop sign had a right to stop the car, ask the occupants to alight and then observe that which was in 'plain view.' However, we note that the record reveals that the crime laboratory reported that the seeds sent to it for analysis were broken and not in a condition to plant; that is, incapable of germination. The report does not show that these seeds were determined to be marijuana. La.R.S. 40:961 defines marijuana but specifies that marijuana '* * * shall not include * * * the sterilized seed of such plant (of the Genus Cannabis) which is incapable of germination.' Since these three seeds were not determined to be marijuana the trial court erred in failing to suppress them as evidence when it was shown that the crime laboratory could not identify them as marijuana. These seeds could not form the basis for this prosecution and conviction based on marijuana possession.

While we are unable to determine which parcel contained the marijuana taken from the person of relator's companion and which parcel contained the marijuana which fell from the visor, we set forth below adequate legal basis for holding both parcels inadmissible. The marijuana seized from the underwear of relator's companion obviously could not form the basis for relator's prosecution; the relator's actual or constructive possession of, or control over, this marijuana was not established at the hearing on the motion to suppress or at trial. Therefore, this marijuana could not be introduced at relator's trial. Thus the only marijuana upon which the prosecution could possibly be lawfully based would be that which was recovered when the arresting officer pulled on the car visor, causing the marijuana hidden there to fall into view; the constitutionality of the search which led to the seizure of this marijuana is therefore determinative of the issues we consider.

Since the search which led to the seizure of the marijuana hidden on the car visor was conducted without a warrant, we must decide whether the search comes within the purview of any of the well-recognized exceptions to the warrant requirement. The circumstances of the instant case require that we consider whether this warrantless search is valid under either the 'search incident to a lawful arrest' exception or the 'automobile' exception. We must also confront the issue of whether the marijuana may be deemed to have been in 'plain view' so that its recovery would not amount to a search within the terms of the Fourth Amendment.

The record reveals that when the officer directed his flashlight beam on the visor above the driver's seat, he saw a plastic bag protruding from the visor. It was the officer's unequivocal testimony that he could not see that was in the bag but could merely ascertain that the bag did contain something. Upon perceiving the bag he pulled down the sun visor and at that time the contents of the bag, which appeared to be marijuana, became visible. Under our jurisprudence the seizure of the marijuana cannot be held to be a seizure of evidence in plain view. In State v. Meichel, 290 So.2d 878 (La.1974), this Court held that an officer '* * * does not have the right to seize any object in his view in order to examine it and determine if it is or would be evidence in a criminal prosecution. An object in open plain view may be seized only where it is readily apparent that the object is contraband or evidence. * * *' The plastic bag sighted by the officer was not clearly contraband since many legal items are contained in plastic bags. This item was not seized pursuant to a 'plain view' discovery.

We next determine that the marijuana from the visor was not seized incident to a lawful arrest. Under the rule enunciated by the United States Supreme Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), a search incident to a lawful arrest must be confined to a body search to discover weapons or evidence which the arrestee may destroy and to an '* * * area from within which he might have obtained either a weapon or something that could have been used as evidence against him. * * *' The basis for the limits of the rule enunciated in Chimel was the United States Supreme Court's determination that:

'* * * When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. * * * In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. * * *'

In the present case both the relator and his companion were out of the car, under arrest and in custody at the time of the discovery of the marijuana which had been on the visor. Neither the relator nor his companion were in an area from which they could have secreted or destroyed the marijuana on top of the visor. Under these circumstances, we are constrained to find that the search was not incident to a lawful arrest because it does not come within the limits set forth in Chimel.

Finally, we must determine whether the warrantless search which led to the seizure of the marijuana on the visor may be found lawful under the 'automobile' exception to the warrant requirement. That exception contemplates probable cause to search And exigent circumstances which will justify proceeding without a warrant. See State v. Massey, 310 So.2d 557 (La.1975). The 'automobile' exception is based in part on the fact that a motor vehicle stopped on a highway, unlike a house, 'can be quickly moved out of the locality.' See Carroll v. United States, 267 U.S. 132, 45 S.Ct....