State v. Roach

• Decision Date: 20 January 1970
• Docket Number: No. 49844,49844
• Citation: 256 La. 408,236 So.2d 782
• Parties: STATE of Louisiana v. Judith K. ROACH.
• Court: Louisiana Supreme Court

Page 782

236 So.2d 782

256 La. 408

STATE of Louisiana v. Judith K. ROACH.

No. 49844.

Supreme Court of Louisiana.

Jan. 20, 1970.

On Rehearing June 8, 1970.

J. Philip Stein, Robert J. Stamps, New Orleans, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim

Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

HAMITER, Justice.

Judith K. Roach (the defendant herein) and one Pairlee M. Serio were jointly charged in a bill of information with illegal possession of a narcotic drug. The latter pleaded guilty and is no longer involved in this proceeding.

Judith K. Roach pleaded innocent. She was then tried before a jury which returned a verdict of guilty. Thereafter, she was sentenced to serve five years in the state penitentiary.

She is appealing from the conviction and sentence.

Although numerous bills of exceptions (reserved during the proceedings in the district court) were perfected appellant relies on nine to obtain a reversal. (Only these are discussed in the brief and mentioned in oral argument here. We presume, therefore, that the others have been abandoned.)

The bills discussed overlap and present only three issues. These are set forth in the defendant's brief (and in oral argument) as three 'Assignments of Error', with reference in each to the appropriate bills. They will be so treated in this opinion.

Assignment of error No. 1 involves bills of exceptions Nos. 1, 2, 11 and 12. These bills were reserved when the trial court overruled Roach's and Serio's pretrial motions to suppress certain evidence, hereinafter discussed, and to the court's overruling of Roach's objection to the introduction of that evidence during the course of the trial.

The evidence consisted of certain narcotic substances, and also paraphernalia said to be used in the administration of the drugs, found in the apartment of the defendant Roach located at 1014 Terpsichore Street in New Orleans. She urges that the objects were obtained as a result of an illegal search of her apartment without a search warrant and were, therefore, not admissible in evidence against her. The state, on the other hand, contends that they were validly obtained as the result of a search made as an incident to the arrest of one Cleon Mixon and that, therefore, the court's rulings were correct.

Briefly, the evidence taken on the motion to suppress, as well as at the trial, reveals that the objects were obtained under the circumstances which we detail as follows. The search and seizure occurred on the afternoon of April 17, 1967. One of the officers who effected them, a Patrick Lampard, previously had received information through his superiors that there was an arrest warrant outstanding for Mixon for forging narcotic prescriptions in Baton Rouge, and that he frequented the apartment mentioned above on Terpsichore Street, receiving mail there. When this information was obtained is not definitely established by the record, but it appears to have been some time before the date in question because the officer testified that prior to April 17, 1967 he had kept a periodic surveillance of the house to see if Mixon was at the said address.

Although numerous prior trips to the house proved fruitless, in the afternoon of April 17, 1967 Lampard, in the company of Officers Clinton E. Lauman and Frederick A. Soule, went again to 1014 Terpsichore Street for the purpose of seeing if Mixon was there. At that time they observed Mixon's car, occupied by his mother and her dog, parked outside the residence. Lampard testified that he knew Mixon and that 'I knew the automobile; I know his mother; and I know how he operates. He doesn't leave his mother too far from him. He doesn't leave her for a second.'

Lauman was stationed outside at the rear door of the apartment while Lampard and Soule went to the front. Lampard testified that they knocked on the door; that it was opened by Pairlee M. Serio; that he identified himself; and that he was permitted by the Serio Woman to enter the house. He asked her where Mixon was, and she said that she did not know any Cleon Mixon. At this time he saw Mixon sticking his head out of the kitchen door at the rear of the apartment. He said that when Mixon recognized him the former ducked back into the kitchen, and that then he and Soule ran in and arrested Mixon, searched his person, as well as the drawers of the kitchen and the rest of the house. On finding the articles above referred to in the kitchen's sink drawer, as well as a metal bottle cap (which appeared to be burned) on top of the refrigerator, he also arrested the defendant and the Serio woman.

The state contends that under the decision of the United States Supreme Court in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, which has been subsequently overruled by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (decided June 23, 1969), the search was legal; but that even under the Chimel decision the search was valid as being incident to a lawful arrest, inasmuch as the officers had the right to search the arrestee's person, as well as the area within his reach and control from which he might obtain weapons or evidence for the purpose of destroying it.

The United States Supreme Court has not yet rendered any definitive pronouncement as to whether it will apply the Chimel decision retroactively; and if so at what point of time--whether to the date of the search, the date of the trial, or to cases such as this one which are still under judicial consideration, although the trial here was held before the rendition of Chimel. In view of this we will not undertake to give the case any retroactive effect.

Nevertheless, a careful review and analysis of the evidence adduced in connection with the motion to suppress and during the trial leads us to conclude that the search was not proper even under the jurisprudence as it existed prior to Chimel. As well be hereinafter shown, we are of the opinion that it was an unreasonable and unwarranted intrusion into this defendant's right to the security and privacy of her home guaranteed by the Fourth Amendment of the United States Constitution.

In arguing the issue presented, the state contends that when the officers entered the kitchen Mixon was standing in front of the kitchen drawer by the sink, consuming a chocolate drink 'as if to wash something down'; and that, therefore, it was reasonable for them to assume that he might have secreted some of the fruits of his alleged crime, or a weapon, in the drawer. It further avers that 'of course no search was necessary to discover the burned bottle cap which was in plain view on the tray on top of the refrigerator.' And it says that having found these items in the kitchen it was proper for them to arrest this defendant and to search her entire apartment in connection with her arrest.

As we appreciate the evidence, it simply does not bear out the state's contention. It should be pointed out that the testimony referred to by the state with regard to Mixon's position when the officers entered the kitchen is that of Officer Lampard. But this is in conflict with other parts or his testimony which supports the testimony of the defendant and Mixon that this Defendant was in front of the sink when the officers entered and that Mixon was near the table. Thus, on the hearing of the motion to suppress Lampard specifically stated that when he entered the kitchen Mixon was 'Right by this table going towards the door.' Later he stated that 'As soon as we got into the kitchen she was sitting with her back to the wall here * * *. She was facing toward the cabinet where Soule had first gotten her. When She was over at this cabinet. That is why he got Her away from there.' (Italics ours.)

During the trial Lampard again testified on cross examination as follows:

'Q. After you arrested Cleon Mixon, what caused you to search the rest of the house?

A. Freddie (Soule) finding this narcotics paraphernalia Right where this girl was.

Q. Wasn't that a product of the search?

A. Wasn't that what?

Q. Wasn't that a product of the search?

A. It was immediate to our going in there; he walked to where She was and he found this narcotics, and they were advised that they were under arrest for possession of narcotics.' (Italics ours.)

A portion of Officer Lauman's testimony was as follows:

'Q. What was your reason for searching?

A. All subjects' arms were examined.

Q. Their arms were examined?

A. They were all dope fiends. Mixon was wanted and I felt like we were obligated to search; not only had the right but obligated.'

It is true that Soule, On the trial, also stated that he first saw Mixon standing near the sink in the kitchen; and that he searched where Mixon was standing. But we find it interesting and important that he was not even called to testify on the pretrial hearing to support such a vital factual issue.

Nor does the evidence support the assertion that the 'burned bottle cap' (said to be used as a 'cooker' by narcotic addicts) was in 'plain view'. Officer Lauman, who found it, did not testify unequivocally that it was burned. Rather, he said that 'to the best of his knowledge' it was burned and that he was sure it was because he would not have taken it if it had not been. Moreover, he said that he did not know it was in the bowl on the refrigerator Until he started looking. He further testified that he did not remember whether it was in plain sight or whether he had to get up on 'tip-toes' to look for it. Upon being asked whether it was readily available to be seen when he first went in, the court stated that he did not have to answer the question because he had already stated that he did not remember. Lauman also testified that he had been let into the apartment by the back door from his station outside; that when he came in Mixon was nearer the ice box than the sink drawer; and that he was in the apartment...