State v. Nine
| Decision Date | 23 June 1975 |
| Docket Number | No. 55882,55882 |
| Citation | 315 So.2d 667 |
| Parties | STATE of Louisiana v. Eric NINE. |
| Court | Louisiana Supreme Court |
Robert Glass, J. Philip Stein, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
Eric Nine and four others were charged and convicted by the trial judge of possession of a controlled dangerous substance, marijuana, in violation of R.S. 40:966. The other defendants have failed to appeal their convictions and only that of Eric Nine is before us. On February 27, 1973 the defendant was sentenced to pay a fine of $500 or to serve fifty-five days in parish prison and to serve four months in parish prison, and costs.
At the time of sentencing, defendant filed a motion for an appeal; an order of appeal was not signed by the trial court. Subsequently, the trial court amended (on its own motion) the sentence on March 25, 1974, by reducing the fine from $500 to $300; all other provisions of the sentence were unaffected. The defendant again filed two motions for appeal, one to the Supreme Court, the other to the appellate division of the Criminal District Court for the Parish of Orleans. The trial court denied the motion for appeal to the Supreme Court and granted the order of appeal to the appellate division. On October 21, 1974 the appellate division #1 of the Criminal District Court dismissed the appeal, finding that the trial judge had reduced the fine solely for the purpose of depriving this court of jurisdiction; the appeal was then transferred to this court pursuant to the appellate division's order.
Initially, the State contends that this court is without jurisdiction to hear this appeal under Art. VII, § 10(7), La.Const. (1921), since the sentence was reduced to $300, and appellate jurisdiction of this case therefore is vested in the appellate division of the Criminal District Court under Art. VII, § 83, La.Const. (1921). While the trial court had the authority under C.Cr.P. 881, 913(B) and 916 to modify the sentence prior to and after the ordering of the appeal, the trial court could not affect the jurisdiction of this court.
C.Cr.P. 915 instructs the trial court that it shall order an appeal when a motion for an appeal has been properly made. The language of C.Cr.P. 544 of 1928, the predecessor to C.Cr.P. 915, read as follows:
'There is no appeal until there is an order of appeal, but no person who has made his motion within the legal delay can be deprived of his right to such order by any fault or omission on the part of the trial judge.'
Article 915 broadened this language to provide that: 'When a motion for an appeal has been timely filed, the appeal shall not be affected by any fault or omission on the part of the trial court.' Therefore, while the trial court retains authority to modify or correct a sentence after the order of appeal is signed under art. 916(3), its failure to sign an order of appeal to which defendant is entitled to have signed immediately, cannot affect the defendant's appeal. At the time of the defendant's first motion for appeal, the sentence imposed was in excess of a fine of $300 and jurisdiction over the case was vested in this court. The trial court's failure to sign the order of appeal could not affect defendant's appeal by divesting this court of jurisdiction over it.
To the extent that State v. Washington, 252 La. 359, 211 So.2d 290 (1968), is contrary to this opinion, it is overruled.
The opinion of the appellate division of the Criminal District Court is correct. The appeal is properly before this court.
The defendant by a motion to suppress attempted to prevent the introduction of marijuana which was found both outside and inside the house. The trial court denied the motion, holding that the marijuana inside the house and outside the house had been legally seized.
At the hearing on the motion to suppress Detective Charles Farrell of the juvenile division of the New Orleans police department testified:
Lieutenant Charles Rodriquez, also of the juvenile division, testified that their purpose in going to the house was to 'inquire about two juvenile girls we had no knowledge of any other violations and it has been procedure to inquire if a person is there, a run-away, and if the person says no we have no legal right to enter unless we have a search or arrest warrant.'
Upon arriving at the house the police were in the company of Mr. Montalbano and a Mr. Butler. When the latter two persons approached the front door, Lieutenant Rodriquez remained back off the porch on the right side of the steps. While standing at this position he observed a side door, approximately forty feet to the rear on the right side of the house, open and close quickly. Lieutenant Rodriquez mentioned the opening of the door to Detective Farrell, who with Mr. Montalbano went down the side yard on the left side of the house. About fifteen to twenty feet from the front of the house three parcels of green leafy substance fell around Detective Farrell, one hitting him on the shoulder. He recognized the material in the clear bags as being marijuana and returned to the front, by which time Lieutenant Rodriquez had entered the premises. Eric Nine, who had opened the door, was arrested immediately upon Detective Farrell's return; then the officers with defendant Nine went to the dining room where the other defendants were arrested.
The house was checked to see if other persons were present, but there was not a search for weapons until the officers called from the narcotics division arrived twenty to twenty-five minutes later. Upon their arrival the area in the immediate vicinity of the dining room table and the entire house was searched and other bags of marijuana were found within four to six feet of the defendants. Detective Farrell testified that all the marijuana was found within 'about two feet, 'arm's length" from the immediate area of the defendants. Some, apparently, was found in a sack of garbage either under the table or very near it.
Defendant contends that the seizure of the three bags of marijuana by Detective Farrell while in the side yard was the product of an illegal search in violation of the Fourth Amendment. As his presence in the side yard was not by virtue of a search warrant, we must determine whether the officer's presence may be justified under one of the limited exceptions to the requirements of a search warrant. It is defendant's contention that the officer was illegally present in an area within the 'curtilage' and therefore the 'plain view' doctrine cannot be applied to this situation. The legality of the officer's presence cannot be determined on the basis of the definition of 'curtilage,' a concept of common law property, and its application to this situation. 1 Instead, we must view the actions of the officer under the particular circumstances and determine whether his presence violated the defendant's privacy. It is defendant's right to privacy, not a specific place, which is protected by the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). 2
In United States v. Fisch, 474 F.2d 1071, cert. den. 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973), the Ninth Circuit upheld the admissibility of conversations overheard by government agents in an adjoining motel room without the use of electronic equipment, and stated this standard:
'The test applied as to society's tolerance of the search rests, as it has for years, upon 'the facts and circumstances--the total atmosphere of the case.' There is no ready formula, 'each case is to be decided upon its own facts and circumstances.' What we undertake, actually, is a balancing process, a weighing of the social factors involved. Or, as Judge Duniway put it in the pre-Katz case of Smayda v. United States, 352 F.2d 251 (9th Cir. 1965), cert. denied 382 U.S. 981, 86 S.Ct. 555, 15 L.Ed.2d 471 (1966), 'The public interest in its privacy, we think, must, to that extent, be subordinated to the public interest in law enforcement.'' 474 F.2d 1071, at 1077--78.
The question is whether, under the circumstances, the intrusion of Detective Farrell into the side yard was an intrusion into an area in which the defendant had a justified expectation of privacy. 3 There is not any question that the marijuana was within plain view of Detective Farrell as was the issue in State v. Meichel, 290 So.2d 878 (La.1974).
The police officers understood that they were looking for runaway juvenile girls at the request of a relative. The girls had been found at the residence on a previous occasion. When they went to inquire at the front door, a side door toward the rear of the house opened and closed quickly and movement in the house was heard. It was reasonable for them to conclude that the persons for whom they were searching might be leaving by a rear door. The only way to ascertain the possibility was to investigate the rear by the quickest route available, in this instance, by the left side yard. There was not any unreasonable intrusion into the area where the defedant had a reasonable expectation of privacy which society would consider reasonable under these circumstances; the side yard, while enclosed, was used as a passageway. It was not an area where the defendant had a reasonable expectation of privacy. See Cohen v. Superior Court, 5 Cal.App.3d 429, 85 Cal.Rptr. 354 (1970).
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