State v. Rasheed

• Decision Date: 02 July 1965
• Docket Number: No. 47687,47687
• Citation: 248 La. 309,178 So.2d 261
• Parties: STATE of Louisiana v. Jameel RASHEED and Percy Thomas.
• Court: Louisiana Supreme Court

Page 261

178 So.2d 261

248 La. 309

STATE of Louisiana v. Jameel RASHEED and Percy Thomas.

No. 47687.

Supreme Court of Louisiana.

July 2, 1965.

Rehearing Denied Sept. 30, 1965.

Robert F. Collins, Nils R. Douglas, Lolis E. Elie, Harris David, New Orleans, for appellants.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

FOURNET, Chief Justice.

The accused, Jameel Rasheed and Percy Thomas, having been charged by information with the possession and control of a narcotic drug, to-wit, marijuana, in violation of R.S. 40:962,¹ appeal from their conviction and sentence thereunder to serve 15 years at hard labor, relying for the reversal thereof upon a number of errors allegedly committed during the course of their trial.

While 23 Bills of Exceptions were originally reserved, 10 of these have been abandoned.² The remaining 13 are not treated separately, but, instead, as forming the basis of what are termed 8 'Specification of Errors,' although, fundamentally, they present only 2 issues of law for our determination, i.e., (1) whether the Motion to Suppress certain evidence was filed too late since it was not filed prior to trial; and (2) whether certain oral statements and admissions by defendants to police officers after their arrest (concededly free and voluntary) were admissible.

The argument under the Motion to Suppress reflects it is based on the contention the evidence forming the basis thereof was seized (1) under an invalid warrant, and/or (2) pursuant to an illegal arrest.

It is true, as pointed out by defense counsel, that there is no specific provision in our criminal procedural law governing such motions, and, despite their contention to the contrary in reliance on the decision in State v. Rowan, 246 La. 38, 163 So.2d 87, no jurisprudence on this point.³ This is due to the fact that the law and jurisprudence of this state--upheld by the United States Supreme Court--was that evidence, though secured in an illegal manner, was, nevertheless, admissible against an accused in trials in this state. See, State v. Calascione, 243 La. 993, 149 So.2d 417, and the authorities therein cited, particularly that of the United States Supreme Court in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.

However, the trial judge in denying the Motion to Suppress did not, as contended by defense counsel, 'enact' ex post facto judicial legislation in violation of Section 9 of Article I of the federal constitution, for this state's previous law and jurisprudence was nullified by the United States Supreme Court in June of 1961--more than a year prior to the commission of the crime forming the basis of the charge against defendants--when it held, in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, that the guarantees of the Fourteenth Amendment to the federal constitution against unreasonable searches and seizures are applicable to trials in state as well as federal courts, and more specifically clarified this in Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, by holding that although the states may adopt workable rules governing arrests, searches, and seizures, they may not derogate from the federal constitutional standards as applied by the federal courts.

These decisions are binding on the courts of this state, and, as aptly observed in State v. Davidson, 248 La. 161, 177 So.2d 273, this day being handed down, 'since the exclusionary rule must be applied in all state criminal cases in accordance with the edict in Mapp v. Ohio, the procedural rights of the accused should also conform with the standard provided by the Federal Courts and that he (the accused) should not be accorded by the trial courts of this State any less onerous procedure than he would have if he had been tried before a Federal Court. * * * In other words, coexistent with the implementation of the exclusionary rule, it is our policy to adopt and enforce the procedural rule of the court from which the exclusionary rule has emanated.' (The information within brackets has been supplied.)

However, even prior to these decisions, Article 0.2 of our Code of Criminal Procedure provided that 'In matters of criminal procedure where there is no express law the common law rules of procedure shall prevail,' and not only the statutes of the states following the common law, but their decisions and those of the federal courts, are replete with provisions and jurisprudence governing the use of such motions for our guidance. Although there may be divergence in the holdings on this subject in the various state and federal courts, the sum and substance of the decisions of the United States Supreme Court is admittedly as codified in 18 U.S.C.A. Rule 41(e),⁴ which is to the effect that evidence secured as the result of an unlawful search and seizure may be suppressed and thus made unavailable against an accused provided the motion is made prior to trial and hearing 'unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.' See, also, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, to the effect that Rule 41(e) 'is a crystallization of decisions of this Court requiring that procedure.'

The reasons underlying this rule have been stated to be: (1) To prevent the interruption of the trial to explore collateral matter unrelated to the guilt or innocence of the accused, particularly since such interruption causes unwarranted delay and serves to confuse the jury, (2) to spare the state and accused the expense of a useless trial, and, it might be added, to also spare the accused the humiliation, stress, and strain of such a trial, and (3) failure of defense counsel to timely object lends the impression they have no objection to the use of such illegally acquired evidence. See, 2 Varon, Searches, Seizures and Immunities 661--672; the annotation at 50 A.L.R.2d 531; 84 A.L.R.2d 933; the note to Rule 41(e) in 18 U.S.C.A. p. 213; Rossini v. United States, 8 Cir., 6 F.2d 350; and State v. Haynes, 233 Or. 292, 377 P.2d 166.

There is still another reason that is possibly even more important to the cause of the accused, and that is to prevent any testimony or identification with respect to such evidence--clearly prejudicial to him--to be given in the presence of the jury prior to the filing of such a motion. The instant case furnishes its own best example of this, for we find from the record that prior to the time the Motion to Suppress was filed toward the end of the first day of the trial (1) the state, in opening argument, described the evidence sought to be suppressed under the motion and stated where it had been found; (2) the state chemist testified with respect to the contents of the envelopes containing this evidence and explained at length the tests run by him in determining these exhibits contained marijuana; and (3) three officers all testified in detail about these objects and where they had been found. All of this was in the presence of the jury and without objection from defense counsel. It was only when, near the end of the first day of the trial, the state offered the objects themselves in evidence that counsel objected and submitted the Motion to Suppress in writing, together with a memorandum of authorities. By that time the damage to the cause of the accused had been done, and the introduction of the physical objects--freely exhibited and discussed in the presence of the jury theretofore--was an anticlimax.

While it is true that such a motion may be filed at the trial or hearing under Rule 41(e) 'if opportunity therefor did not exist or the defendant was not aware of the grounds for the motion,' under the facts and circumstances of this case the denial of the motion on this ground was not an abuse of the discretion vested in the trial judge. There can be no question that an opportunity for the filing of the motion prior to trial existed and that defendants were well aware of the grounds for the motion, as was their counsel, for as early as January 2, 1963, only some 2 weeks after the commission of the crime with which they are charged, defense counsel moved for a speedy trial in their behalf, and both they and their counsel thus had knowledge of the facts surrounding the manner in which this evidence was secured from at least that time until March 19, 1963--more than 3 months--when the trial actually began. See, United States v. Romero, 2 Cir., 249 F.2d 371; United States v. Sheba Bracelets, Inc., 2 Cir., 248 F.2d 134; and United States v. Di Donato, 2 Cir....