State v. Ranker

• Decision Date: 28 February 1977
• Docket Number: No. 58682,58682
• Citation: 343 So.2d 189
• Parties: STATE of Louisiana v. Roland RANKER.
• Court: Louisiana Supreme Court

Page 189

343 So.2d 189

STATE of Louisiana v. Roland RANKER.

No. 58682.

Supreme Court of Louisiana.

Feb. 28, 1977.

Maurice Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Lawrence J. Centola, Jr., Asst. Dist. Atty., for plaintiff-appellee.

DENNIS, Justice.

The defendant, Roland Ranker, was convicted of armed robbery, La.R.S. 14:64, and sentenced, as a multiple offender, to ninety-nine years at hard labor. On appeal he assigned numerous errors, and we find merit in defendant's first assignment.

Prior to trial defendant unsuccessfully moved to suppress as evidence a brown tank-top shirt seized by police officers at the time of his arrest. At trial the shirt was introduced, over defendant's objection, as evidence linking him to the robbery.

The facts giving rise to the seizure of the tank-top shirt, as established at the hearing on the motion to suppress, are as follows:

At approximately 10:00 a.m. on August 19, 1975, twelve days after the armed robbery for which defendant was convicted, two New Orleans police officers were fired upon by an unknown black male. Relying on a general description of the assailant as a man of 'stocky build' with an Afro hair-do and a Fu Manchu mustache, two other officers, Harry Smith and his partner, were patrolling the vicinity of the shooting looking for the assailant. At approximately 12:00 noon they received information by radio that a subject fitting the description had been sighted in the same neighborhood by another policeman. The suspect, who had eluded the officer on Duplessis Street, was then wearing a brown tank-top shirt and brown slacks.

About an hour later Officer Smith and his colleague received an anonymous phone call forwarded by police radio informing them that 'the subject who had a shoot out with the police was at 4016 Duplessis Street.' Officer Smith testified that neither he nor his partner recognized the caller, who had not identified himself. Nevertheless, based on this information, the officers, without obtaining an arrest or search warrant, went to an apartment at the stated address and upon hearing what sounded like 'movement inside the house,' entered the residence yelling 'police.'*

Once inside, after walking through the kitchen and living room, the officers heard 'some movement upstairs,' and called for 'whoever was up there' to come down. The defendant, Roland Ranker, came downstairs, and the officers, finding that his physical description matched that of the suspect sought, immediately placed him under arrest. However, the defendant was not wearing the brown tank-top shirt.

Officer Smith then conducted a search of the entire house for other occupants. None were found, but from the top of a clothes hamper in the bathroom upstairs Officer Smith retrieved the brown tank-top shirt which was the subject of the motion to suppress. The shirt was seized not only because it matched the description of the clothing worn by an individual thought to be the gunman who had fired on the other officers earlier that day, but also because it fit the description of clothing worn by the perpetrator of certain armed robberies then under investigation by the police.

The record does not reflect whether the dwelling in which the defendant was arrested belonged to him or someone else.

I.

A troublesome question presented by this case is whether the police, in non-exigent circumstances, are required to obtain a warrant before acting, not only in case of entry of a dwelling to search for property, but also in case of entry to arrest a suspect.

Louisiana Code of Criminal Procedure Article 213(3) purports to authorize warrantless arrests whenever the officer has reasonable cause to believe the person to be arrested has committed an offense. We have grave doubts whether the provision may be constitutionally applied where an officer, although having probable cause to arrest, makes an unauthorized entry of a dwelling to effect the arrest under non-exigent circumstances. Our doubts are premised on the proscriptions against unreasonable searches and seizures contained in Article I, § 5 of the Louisiana Constitution (1974), and the Fourth Amendment to the United States Constitution.

Article I, § 5 of the 1974 Louisiana Constitution provides:

'Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.'

An application of this language to the facts of the instant case would appear to have required the issuance of a warrant before the search, seizure and invasion of privacy.

The Fourth Amendment to the United States Constitution provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The United States Supreme Court has nor yet resolved the issue of whether the Fourth Amendment requires a warrant for non-exigent arrests within the home. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (footnote 6, and separate concurring opinions of Justices Powell and Stewart); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (footnote 13). Nevertheless, the Supreme Court has not been entirely silent with respect to the issue. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), a majority of the Court agreed with the following proposition:

'It is clear, then, that the notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house without a warrant are per se unreasonable in the absence of some one of a number of well defined 'exigent circumstances." 403 U.S. at 477--78, 91 S.Ct. at 2044, 29 L.Ed.2d at 589--90.

The Court further noted in Coolidge, that:

'The case of Warden v. Hayden (387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)), where the Court elaborated a 'hot pursuit' justification for the police entry into the defendant's house without a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances.' 403 U.S. at 480--81, 91 S.Ct. at 2045, 29 L.Ed.2d at 591.

However, the Court found it unnecessary to decide the question in Coolidge. The Supreme Court again failed to resolve this issue in Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), concluding that the 'validity of Johnson's arrest' was 'beside the point' because 'no evidence which might properly be characterized as the fruit of an illegal entry and arrest was used against him at his trial.' 406 U.S. at 365, 92 S.Ct. at 1626, 32 L.Ed.2d at 161. Consider, however, the colloquy at oral argument following the assertion by the attorney for the state that it would be unreasonable to require the police to obtain a warrant:

'Mr. Justice Stewart: Art you familiar with this Court's case in Warden v. Hayden?

'(Attorney for the State): Yes, Your Honor, I am.

'Mr. Justice Stewart: Well, why do you think this Court spent so long in carving out an exception if there is no general rule that you cannot enter a house without a warrant?' Y. Kamisar, W. LaFave, J. Israel, Modern Criminal Procedure, p. 311 (4th ed. 1974).

Compare, Note, The Neglected Fourth Amendment Problem in Arrest Entries, 23 Stan.L.Rev. 995, 996 (1971), which argues that a search warrant should be required in order to 'obtain a magistrate's determination that there is probable cause that the person sought is within the place to be entered and searched.'

While the United States Supreme Court has not finally resolved the question, we are aware that a significant number of federal and state appellate courts have found the protection of the Fourth Amendment of the federal constitution against violation of the right of the people to be free of unreasonable searches and seizures extends to arrests within the home, and that warrantless arrests within the home are per se unreasonable absent exigent circumstances. Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (en banc); Vance v. North Carolina, 432 F.2d 984 (4th Cir. 1970); United States v. Shye, 492 F.2d 886 (6th Cir. 1974); United States v. Phillips, 497 F.2d 1131 (9th Cir. 1974); United States v. Weinberg, 345 F.Supp. 824 (E.D.Pa.1972), aff'd in part, 478 F.2d 1351 (3d Cir. 1973), cert. den., 414 U.S. 1005, 94 S.Ct. 363, 38 L.Ed.2d 242 (1963); United States v. Rodriguez, 375 F.Supp. 589 (S.D.Tex.1974), aff'd, 497 F.2d 172 (5th Cir. 1974); People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 p.2d 1333 (1976); Commonwealth v. Forde, Mass., 329 N.E.2d 717 (1975). But see, United States ex rel. Falconer v. Pate, 319 F.Supp. 206 (N.D.Ill.1970), aff'd without opinion, 478 F.2d 1405 (7th Cir. 1973), cert. den., 414 U.S. 1094, 94 S.Ct. 726, 38 L.Ed.2d 551 (1973); State v. Perez, 277 So.2d 778 (Fla.1973), cert. den., 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 468 (1973).

There is authority in other states for the proposition that police may enter a person's house and look for him when they have grounds to arrest him, although there exists some...