State v. Parker

• Decision Date: 06 March 1978
• Docket Number: No. 60602,60602
• Citation: State v. Parker, 355 So.2d 900 (La. 1978)
• Parties: STATE of Louisiana v. Richard W. PARKER.
• Court: Louisiana Supreme Court

Page 900

355 So.2d 900

STATE of Louisiana v. Richard W. PARKER.

No. 60602.

Supreme Court of Louisiana.

March 6, 1978.

J. Michael Stefanski, Edwards, Stefanski & Barousse, Crowley, for defendant-relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard N. Marcantel, Dist. Atty., for plaintiff-respondent.

DIXON, Justice.

On April 5, 1977 defendant Richard W. Parker was charged by bill of information with the offense of possession of marijuana with intent to distribute. Defendant's motion to suppress evidence seized from his van was denied by the trial court on August 17, 1977, and we granted certiorari to review that ruling. 351 So.2d 1208 (La.1977).

The motion to suppress was directed at a seizure of a cellophane bag of marijuana from a van parked on North Main Street in Jennings. Craig Daigle and his partner, patrolmen for the Town of Jennings, had seen the van parked (lawfully) in front of an electronics store and across the street from a lounge when they came on duty at about 10:00 p. m. March 29, 1977. The officers customarily noted the existence of automobiles on their rounds, and were not familiar with the van. At 2:36 a. m. March 30 they decided to check the van "to see if there was anyone in it, or any type of letter or anything that might show a name for possible identification." The license plate had a seven digit number. Daigle said he had been told, when trying to check such number previously, that they had not yet been "entered" in the computer, and could not be checked until the Department of Safety opened.

No other cars were parked in the area, and the lounge across the street had closed some time earlier. With his flashlight Daigle ascertained the van was unoccupied. He then began to check the dashboard, the motor console and seat. Looking through the passenger window, he saw a plastic bag protruding from under the seat, which he thought contained marijuana. The van was sparsely furnished; the only car seat was for the driver, with a "bean bag" seat on the passenger side, and no other furniture or partitions. There were only two windows, one in the door by the driver and one on the passenger side. The door on the passenger side was locked, but the driver's door was closed, but not locked.

Daigle opened the door at the driver's side, examined the package more closely, and then removed it from the van. He called for another policeman to watch the van and left for the police station at 3:19 a. m., with the marijuana. Defendant was arrested some time later when he returned to his van.

Daigle testified that he made no attempt to obtain a search warrant because of the time it would take, but "also I was under the impression that anything in plain view I was trained to believe that anything in plain view, you know, it was subject . . . to seizure."

The trial judge sustained the seizure, holding that it "does come within the plain view exception to the prohibition against warrantless searches . . ."

Strictly speaking, "plain view" is not an exception to the requirement for search warrants. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Fearn, 345 So.2d 468 (La.1977). A warrantless seizure of material in "plain view" would be an unreasonable seizure under the Fourth Amendment of the United States Constitution and Article 1, § 5 of the Louisiana Constitution of 1974, unless made with probable cause and exigent circumstances, or incident to a lawful arrest while making a genuine inventory.

It may be difficult to agree on the proper interpretation and effect of the opinion in Coolidge v. New Hampshire, supra, ¹ but Justice White, joined by Chief Justice Burger, clearly understood the narrow holding of the portion relevant to the case before us:

"The majority now approves warrantless searches of vehicles in motion when seized. On the other hand, warrantless, probable-cause searches of parked but movable vehicles in some situations would be valid only upon proof of exigent circumstances justifying the search. Although I am not sure, it would seem that, when police discover a parked car that they have probable cause to search, they may not immediately search but must seek a warrant. But if before the warrant arrives, the car is put in motion by its owner or others, it may be stopped and searched on the spot or elsewhere.

In the case before us, Coolidge's car, parked at his house, could not be searched without a valid warrant, although if Coolidge had been arrested as he drove away from his home, immediate seizure and subsequent search of the car would have been reasonable under the Fourth Amendment." (Emphasis added). 403 U.S. at 524-25, 91 S.Ct. at 2067, 29 L.Ed.2d at 617.

In 1974 this court was faced with a warrantless seizure of marijuana which officers testified they found in "plain view" on the front floor of a car. In a unanimous opinion by the Chief Justice, we held:

"Assuming, however, that probable cause did exist at the time of the search, we find no exigent circumstances justifying a bypass of the search warrant procedure. The automobile was in police custody, and the arresting officer held the key. The officers had ample time to secure a warrant, as evidenced by the fact that they did later secure one." State v. Hargiss, 288 So.2d 633 at 636 (La.1974).

Officer Daigle was faced with no exigent circumstances. Except for the inconvenience, he could have obtained a search warrant. The object of the prohibition against warrantless searches is to place the burden of decision and the protection of the citizen upon the magistrate, not the policeman.

It is axiomatic that, absent one of the well delineated exceptions, a warrantless search or seizure is, in itself, unreasonable under the Fourth Amendment of the United States Constitution and Article 1, § 5 of the Louisiana Constitution of 1974. Coolidge v. New Hampshire, supra; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Lain, 347 So.2d 167 (La.1977); State v. Fearn, supra.

All too often, lawyers and courts alike attribute greater importance to the "plain view" doctrine than it deserves: it is easy to call it an "exception," but it is not an exception to the requirement that a search or seizure must be supported by a warrant issued by a magistrate upon a finding of probable cause. Plain view serves to provide a means of securing probable cause, and, absent the applicability of one of the true exceptions to the warrant requirement, nothing more. In Coolidge v. New Hampshire, supra, the United States Supreme Court enunciated this principle in the following manner:

"The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent 'exigent circumstances.' Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Jones v. United States, 357 U.S. 493, 497-498, 78 S.Ct. 1253, 1256-1257, 2 L.Ed.2d 1514, 1518; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663." (Emphasis by author of opinion). 403 U.S. at 468, 91 S.Ct. at 2039, 29 L.Ed.2d at 584.

We recognized this principle, at least implicitly, in State v. Fearn, supra. In that case the defendant was growing marijuana plants in a ditch located on his parents' property. A neighbor notified the police and invited them onto his property to view the contraband. From their vantage point on the neighbor's property, the police could clearly view the plants and identify them as marijuana. The police then seized the plants without first obtaining a warrant. In our review of the seizure we first set out the following conditions for the applicability of the plain view doctrine ". . . (1) there must be a prior justification for an intrusion into a protected area, (2) in the course of which evidence is discovered inadvertently, and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. See also State v. Meichel, 290 So.2d 878 (La.1974). . . ." 345 So.2d at 470.

In holding that the seizure violated the defendant's expectation of privacy, we recognized that the police had a "plain view" of the contraband from the neighbor's property, but noted that this was not controlling. Instead, we stated:

". . . The intrusion into the protected area, the ditch, did not take place until after defendant was arrested. The initial view of the contraband occurred before any valid intrusion into the protected area was made, and at a time when the police could have obtained a warrant. . . ." 345 So.2d at 470-71.

From the cases we may deduce the following. When an officer inadvertently observes evidence of a crime from a vantage point that does not intrude upon a protected area or when that protected area is entered with prior justification, there is no violation of the search warrant rule because there has been no "search." See also State v. Bourg, 332 So.2d 235 (La.1976); State v. Thomas, 310 So.2d 517 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975). This does not, however, mean that the officer may, without more, seize the evidence. If the evidence is itself within a protected area, the officer may not enter that area to...