State v. Stewart

• Decision Date: 19 January 1976
• Docket Number: No. 56931,56931
• Citation: 325 So.2d 819
• Parties: STATE of Louisiana v. Elbert STEWART.
• Court: Louisiana Supreme Court

Page 819

325 So.2d 819

STATE of Louisiana v. Elbert STEWART.

No. 56931.

Supreme Court of Louisiana.

Jan. 19, 1976.

Quintin T. Hardtner, III, Shreveport, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., for plaintiff-appellee.

CALOGERO, Justice.

Defendant Elbert Stewart was convicted of attempted second degree murder in violation of La.R.S. 14:27 and 14:30.1(1) and was sentenced to twenty years at hard labor. Approximately one month before his trial for attempted second degree murder, defendant was convicted of armed robbery arising out of the same incident. That earlier conviction is also before this Court and is the subject of our companion opinion, State v. Stewart, 325 So.2d 828 (La.1976), No. 56,932 on docket of this Court, decided this date.

On the morning of January 17, 1974, a man exhibiting a loaded pistol robbed a branch of the Louisiana Bank and Trust Company in Shreveport, Louisiana. In the course of the armed robbery, five people, including Charles Schillinger, the victim in the present case, were shot and injured by the robber, and $822.00, including $100 in currency which contained a tracking device, was taken. After getting descriptions of the robber and of the blue Volkswagon in which he left the bank, a police officer, driving a car equipped with a receiver, picked up the signal of the tracking device. The officer drove in the direction of the signal, observed a blue Volkswagon with two occupants coming from the opposite direction down Jackson Street, and noticed a zero reading on the visiual equipment as the two cars passed each other. Looking in his rear view mirror, the officer saw the Volkswagon turn into the driveway of a house. The officer called for assistance, the house was surrounded, defendant and one Thomas Randolph were called out, arrested in front of the house and taken to the police station. About noon that same day a lineup was conducted during which the defendant was positively identified as the armed robber by two bank tellers and by a woman who was at her beauty parlor across the street from the bank and who saw the defendant leave the bank and proceed to his blue Volkswagon in the parking area. The tracking device, the bills assigned to the teller who had been robbed, and a pistol were found in a deep freezer underneath some groceries in the same house about 12:30 or 1:00 p.m. that same day. In the middle of the afternoon, the defendant signed a confession which was later introduced at the two trials, one on the attempted second degree murder charge which we review here and the other on the companion armed robbery charge.

Defendant appeals his conviction and sentence, relying on four assignments of error.

ASSIGNMENT OF ERROR NO. 1.

Defendant argues that the trial court erred in denying his motion to suppress all evidence seized during a purportedly illegal search of the defendant's house and automobile.

When the police officers arrived at the home of the defendant shortly after the armed robbery, they called for those inside to come out, after which the defendant and the companion Randolph came out of the house, were handcuffed and placed under arrest. The defendant's wife and several children also vacated the house and police officers made a sweep of the inside to make sure it was empty. The house was then secured by placing guards at both the inside and outside of the front and back doors. At this point, approximately 9:30 a.m., the police officers and FBI agents involved had a discussion as to whether they should conduct a search incident to the arrest or obtain search warrants. It was decided that warrants should be sought from both state and federal authorities before the search was conducted. For the next three hours, from approximately 9:30 a.m. to 12:30 p.m., the guards remained at the doors and no one was allowed to enter except a few designated law enforcement officials. At approximately 12:30 p.m., the search warrants arrived, an official search was made, and a pistol, currency, and a money pouch containing the tracking device were found under some groceries in the deep freezer and were later used as evidence against the defendant at his trials.

During the three hours between the arrest and the arrival of the search warrants, several persons did enter the defendant's house. Police officers, FBI agents and others testified for the state that the only persons who entered the house during that time were the guards and persons using the telephone to obtain and verify information relative to probable cause and to transmit that information to the district attorney's office and the United States Attorney's Office for use in the separate applications for search warrants. The state argued that the use of the phones in the defendant's house was the most practical way to relay the information because the radios in the police cars were not equipped to contact either the state or federal prosecuting attorneys' offices. The fact that no one was allowed to enter the house except the guards and those authorized persons who used the telephone, and that no search was made either inside the house or of the car parked in the driveway before the search warrants arrived, was borne out by the testimony of sixteen police officers, FBI agents and others. The only testimony to the contrary was that of the defendant's brother who arrived at the house at about 10:15 a.m. Although he was not allowed to enter the house, he testified that he saw through windows and through the front door that drawers had been pulled out in the bedroom and that on at least one occasion the lid of the deep freezer was raised.

There are basically two issues before this Court. The first deals with the search itself, i.e., whether the search was conducted prior to the arrival of the search warrant and was thus a warrantless search, or whether the search took place only after the arrival and under the authority of the search warrants. The resolution of this issue involves the credibility of the witnesses. The second issue is, assuming the search took place after the warrants arrived, whether the fact that there were persons in the house before the warrants arrived tainted the search and seizure so as to require suppression of the evidence obtained.

The issue of credibility is easily resolved in favor of the state. A reading of the transcript of the hearing on the motion to suppress the physical evidence convinces us that the trial court was correct in disbelieving the testimony of the defendant's brother and in believing the multiple officers who testified that there was no search prior to the arrival of the warrants. This was no ordinary case. A bank had been robbed, five people had been shot by the robber, the defendant was tracked from the scene, observed pulling into his driveway and arrested immediately thereafter. Police officers, FBI agents, the police commissioner, and the Chief of Police were on the scene at the defendant's house and discussed whether or not a warrant should be obtained. Once these top level officials determined that a warrant should be secured, they took pains to see that the search was not conducted before its arrival by leaving guards on both the inside and outside of the front and rear doors and by restricting access to the house. The purpose of having guards on the inside was to prevent a premature search from taking place. To refute the statements of the defendant's brother, there was testimony by an outside guard that a person could not see through the windows of the house, by the guard at the front door that from the front door there was no view into the bedrooms, and by the rear door guard who was standing near the deep freezer that no one raised the deep freezer lid until after the warrant arrived. The evidence adduced at the hearing on the motion to suppress the physical evidence more than amply supports the trial court's finding that the search was not conducted until the warrants arrived.

The defendant here correctly states the rule that when a person is arrested outside his home, a warrantless search incident to an arrest is not justified by the belief that an article sought is concealed within the house. See Vale v. Louisiana, 399 U.S. 30, 33--34, 90 S.Ct. 1969, 1971--72, 26 L.Ed.2d 409 (1970). However, this rule is not relevant in the present case because the trial court correctly held that no warrantless search (incident to the arrest) took place. Rather the search was not conducted until the warrants were issued. It would be an unrealistic extension of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) to hold that in a case such as we have here, the placing of guards inside the doors of defendant's house and the limited use of the telephone to transmit information concerning probable cause for the issuance of search warrants so tainted the subsequent warrant search and attendant seizure that the evidence obtained must be suppressed.

This case is clearly distinguishable from State v. DiBartolo, 276 So.2d 291 (La.1973), which involved an illegal entry into a locked apartment and a warrantless search. In that case, it was information obtained after the illegal entry which gave the officers probable cause to arrest and search the defendant. Thus the illegal entry tainted the subsequent arrest so as to render the arrest illegal and the evidence seized incident thereto inadmissible in the defendant's prosecution. In the present case, the entry followed a lawful arrest and was merely to secure the house and to communicate information in order to obtain the search warrants. It was not alleged or shown that anything was found in the house which aided the police in establishing probable cause for the search warrant. Although in retrospect it might have been better to use a different telephone, perhaps that of a neighbor, we are not prepared to say that the limited...