State v. Rochon

• Decision Date: 25 October 2011
• Docket Number: No. 2011–KA–0009.,2011–KA–0009.
• Citation: 75 So.3d 876
• Parties: STATE of Louisiana v. Larry ROCHON.
• Court: Louisiana Supreme Court

75 So.3d 876

STATE of Louisiana

v.Larry ROCHON.

No. 2011–KA–0009.

Supreme Court of Louisiana.

Oct. 25, 2011.

James D. Caldwell, Attorney General, Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, for Appellant.

Orleans Public Defenders, Emily Voshell, for Appellee.

Robert Chase Abendroth, Esq., for Louisiana Department of Justice (Amicus Curiae).Jee Y. Park, Esq., for Orleans Public Defenders (Amicus Curiae).KIMBALL, C.J.

[2011-0009 (La. 1] This matter is before us pursuant to this Court's appellate jurisdiction over cases in which a law or ordinance has been declared unconstitutional by the trial court. La. Const. art. V, § 5(D). The district court declared Louisiana Code of Criminal Procedure article 496 unconstitutional under the Fourth and Fourteenth Amendments to the United States Constitution, as well as Article I, Section 5 of the Louisiana Constitution. For the reasons that follow, we find article 496 must be read in pari materia with La.C.Cr.P. article 202, such that a warrant may not issue on a bill of information unless an affidavit filed with the information shows probable cause for the arrest.

FACTS AND PROCEDURAL HISTORY

On October 21, 2010, the state instituted a criminal prosecution against Larry Rochon (hereinafter “defendant”), who had no prior convictions, by filing a bill of information. The state alleged defendant committed theft over $500 belonging to Gloria Welch on August 21, 2008, in violation of [2011-0009 (La. 2] Louisiana Revised Statute § 14:67(B)(1).¹ An arraignment was set for November 10, 2010. Defendant had not been arrested and may have been unaware of the state's action.² When defendant failed to appear at the arraignment, the state requested the district court issue an arrest warrant pursuant to La.C.Cr.P. art. 496. This article provides, “When an indictment has been found or an information filed against a defendant who is not in custody or at large on bail for the offense charged, the court shall issue a warrant for the defendant's arrest, unless it issues a summons under Article 497.” The district court granted the state's request by issuing an arrest warrant and setting a $25,000 cash or surety bond.

An indigent defender who was present in that section of court subsequently challenged the issuance of the arrest warrant and the constitutionality of article 496 by filing a written motion asking the district court to deny the state's request for an arrest warrant absent a judicial determination of probable cause.³ In the motion, [2011-0009 (La. 3] the indigent defender cited Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and argued the portion of article 496 that permits the issuance of an arrest warrant without a finding of probable cause should be stricken under the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 5 of the Louisiana Constitution. The indigent defender also contended this article, enacted in 1966 and never amended, is modeled on Federal Rule of Criminal Procedure Rule 9(a), which presently provides in pertinent part:

This court must issue a warrant—or at the government's request, a summons—for each defendant named in an indictment or named in an information if one or more affidavits accompanying the information establish probable cause to believe that an offense has been committed and that the defendant committed it.The requirement that an affidavit accompanying the information must establish probable cause was added to this rule in 1979.⁴ In response to the indigent [2011-0009 (La. 4] defender's motion, the district court found the article unconstitutional and recalled the warrant.⁵ The state then gave notice of its intent to seek writs and filed a writ application with this Court on January 3, 2011.

On January 11, 2011, defendant appeared in court for the first time with retained counsel and received notice of his arraignment date.⁶ On February 11, 2011, defendant appeared for his arraignment with retained counsel and pled not guilty. Defendant and counsel next appeared at a preliminary hearing held on April 27, 2011, at which the district court found no probable cause for the arrest. Trial was set for June 23, 2011, but on June 24, 2011, trial was re-set for August 5, 2011. On August 5, 2011, defendant and counsel appeared for trial and the state entered a nolle prosequi, notifying the court and defendant of possible reinstatement of the charge. The state filed a motion to dismiss the appeal, which was denied by this Court on September 1, 2011.

In its original application to this Court, the state argues the district court erred in ruling on the constitutionality of article 496 because the defendant suffered [2011-0009 (La. 5] no identifiable harm from the article's application. As there was no actual or imminent injury to the defendant, the state argues the issue is not ripe for adjudication by this Court. The state relies heavily upon this Court's discussion of “ripeness” in Ring v. State, DOTD, to argue the district court ruled prematurely and review by this Court would result in an impermissible advisory opinion. 02–1367 (La.1/14/03); 835 So.2d 423. ⁷ According to the state, defendant suffered no injury because the warrant was issued but he was never arrested. The state further argues no injury was imminent because an arrest without a prior judicial determination of probable cause does not violate the constitution as long as a probable cause determination is made within forty-eight hours of the arrest.

In the state's brief to this Court, filed on February 10, 2011, the state changes course by omitting any discussion of the propriety of the district court's action. Instead, the state contends “the issue before this Court is not justiciable because there is no injury which can be redressed by a ruling of this Court.” Again quoting extensively from Ring, the state contends a ruling on the constitutionality of article 496 would amount to an advisory opinion because the defendant has not been arrested and no arrest is imminent under the article. On this basis, the state asks the Court to vacate the district court's ruling.

Amicus briefs were filed by the Attorney General and the Orleans Parish Public Defender's Office. The Attorney General argues the district court erred because defendant lacked standing to challenge the constitutionality of the article. According to this amicus, defendant would not have standing until he was actually arrested pursuant to a warrant issued under article 496. In contrast, the Public Defender's Office argues at the time of the ruling, defendant's rights were violated [2011-0009 (La. 6] by the issuance of an arrest warrant without a probable cause determination. However, the Public Defender's Office contends the complaint has now become moot because defendant voluntarily appeared in court and no longer faces the possibility that the district court will issue an arrest warrant under the article.

Both amici also address the constitutionality of article 496. The Attorney General concedes the Supreme Court's ruling in Gerstein v. Pugh, “poses significant problems for the language of the statute dealing with a prosecutor filing a bill of information.” If this Court reaches the question of constitutionality, the Attorney General asks for a narrow ruling to preserve that portion of the statute that directs a district court to issue an arrest warrant after a grand jury indictment, which was not challenged by defendant and is constitutionally permissible. The Public Defender's Office argues the article directly violates Gerstein by mandating that a district court issue an arrest warrant solely based on the filing of a bill of information and without a determination of probable cause by a neutral judicial officer. Similar to the indigent defender's Motion to Quash, the Public Defender's Office notes article 496 was enacted in 1966, never amended, and the comments to the article refer to Fed.R.Crim.P. Rule 9(a), which also did not originally require a probable cause determination. The federal rule was amended in 1979, however, in response to Gerstein v. Pugh.⁸ Thus, the Public Defender's Office asks the Court to either dismiss the appeal as moot or, in the alternative, to find article 496 unconstitutional.

LAW AND DISCUSSIONI. Ripeness

Before we address the constitutionality of article 496, this Court, as a threshold matter, must determine whether the case presents a justiciable controversy or whether the case is no longer ripe for review by this Court. The [2011-0009 (La. 7] ripeness doctrine is a tool designed to determine when judicial review is appropriate. Matherne v. Gray Ins. Co., 95–0975, p. 4 (La.10/16/95); 661 So.2d 432, 434–35 (citing Gregory M. Stein, Regulatory Takings and Ripeness in the Federal Courts, 48 Vand. L.Rev.. 1, 11 (1995)). Generally, the ripeness doctrine is viewed as being both constitutionally required and judicially prudent. The prudential restrictions result from the fact that most courts would rather avoid speculative cases, defer to finders of fact with greater subject matter expertise, decide cases with fully-developed records, and avoid overly broad opinions, even if these courts might constitutionally hear a dispute. Id. (quoting Stein, 48 Vand. L. Rev.. at 11; Abbott Laboratories v. Gardner, 387 U.S. 136, 149–56, 87 S.Ct. 1507, 1515–1519, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 104–07, 97 S.Ct. 980, 983–85, 51 L.Ed.2d 192 (1977)). In Abbott, the Supreme Court identified two elements that are relevant in establishing the ripeness of a case: (1) the hardship to the parties if a court does not decide; and (2) the fitness of the issues for decision. 387 U.S. at 148–49, 87 S.Ct. at 1515. If a party will be significantly injured by a court's failure to decide an issue quickly, then the court is more likely to determine the dispute has...