State v. Tant

• Decision Date: 03 December 1973
• Docket Number: No. 53860,53860
• Citation: 287 So.2d 458
• Parties: STATE of Louisiana v. James TANT and Carolyn Moffett.
• Court: Louisiana Supreme Court

Page 458

287 So.2d 458

STATE of Louisiana v. James TANT and Carolyn Moffett.

No. 53860.

Supreme Court of Louisiana.

Dec. 3, 1973.

Rehearing Denied Jan. 11, 1974.

Murphy W. Bell, Director, Baton Rouge, Vincent Wilkins, Jr., Lake Charles, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Frank J. Gremillion, Asst. Dist. Atty., for plaintiff-appellee.

CALOGERO, Justice.

The defendants, James Tant and Carolyn Moffett, were charged by Bill of Information with violation of R.S. 40:966(A)(1), possession of a controlled dangerous substance with intent to distribute. A jury found the defendants guilty, and they were sentenced to be committed to the custody of the Louisiana Department of Corrections, Tant to be confined for a period of three and one-half years, Moffett for a period of five years. Defendants rely upon three perfected bills of exceptions to obtain a reversal of their sentence and conviction. All three bills relate to the legality of a search and seizure in which marijuana was found. A hearing on a motion to suppress was held and the trial court ruled that the evidence seized was admissible. To this ruling, Bill of Exceptions No. 1 was taken.

Bill No. 2 was taken when the allegedly illegally obtained evidence was admitted at trial, and Bill No. 3 was taken to the denial of defendants' motion for a new trial. Dispositive of all three bills is the determination of the validity of the search of the car.

On the night of September 21, 1972, Officer Michael R. Barnett, Deputy Sheriff, East Baton Rouge Parish, Narcotics Division, received information from an informant (whom Barnett said was reliable) that the automobile belonging to Carolyn Moffett contained some drugs. Officer Barnett testified that on this information he believed he could have secured a search warrant. However, he chose instead to place the car under surveillance for a period of time, this being the policy of the office after receiving information on drugs. He testified that he spent some time on the night of September 21, 1972 watching the car. Surveillance was reinstituted the following afternoon. After three hours of watching the vehicle on the afternoon of September 22, 1972 two officers saw the defendants get into the automobile. The defendants drove to a service station, had the vehicle serviced and filled with gas, giving the officers the impression the defendants were about to leave on a trip. The officers followed defendants out the Interstate and had them stopped by a marked patrol car about four miles from the parish line, as they feared the defendants were going to escape their jurisdiction. The defendant Tant, who was driving, was told to open the trunk. After getting no response to his query as to whether he was under arrest except the repeated order to open the trunk, Tant complied. In a closed suitcase belonging to Moffett, the officers found seven one ounce bags of marijuana and only then placed the defendants under arrest. Subsequent to this arrest, Miss Moffett's purse was searched and five marijuana cigarettes were found.

The sole question that we must decide is whether or not the search under the instant set of facts was constitutionally valid. The general rule is that a search conducted without a warrant is per se unconstitutional. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and authorities cited therein. The rule is in compliance with the Fourth Amendment of the United States Constitution.

'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.'

However, that rule is not without exceptions. See e.g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948); Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Warden Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

One exception to the general rule is that a moving vehicle may be stopped and searched where 'exigent circumstances' make the securing of a search warrant impracticable. State v. McQueen, 278 So.2d 114 (La.1973); United States v. Childez-Castro, 430 F.2d 766 (7th Cir. 1970); Brinegar v. United States, Supra; and Carroll v. United States, Supra.

Two recent cases have dealt with the exception:

In Chambers v. Maroney, 399 U.S. 42, 48--52, 90 S.Ct. 1975, 1980--1981, 26 L.Ed.2d 419 (1970), the Court said of the 'exigent circumstances' exception:

'Neither Carroll, supra, nor other cases in this Court require or suggest that in evey conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords. But the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; . . .' (Emphasis ours)

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Court reiterated that exigent circumstances justify the warrantless search of an automobile stopped on a highway, adding that the opportunity to search must be fleeting.

These cases clearly indicate that a warrantless search of a vehicle may be valid when there exists probable cause for a search and the circumstances dictate that the search should be made immediately. Further, in construing the above language, it is apparent that in all cases it is not necessary that the probable cause which gives rise to the search arise coincidentally with the occurrence of the exigent or unforeseeable circumstance.

In the case at hand the officer believed that he had sufficient knowledge to establish probable cause to the satisfaction of a magistrate, some 24 hours before the vehicle was stopped and searched. And, rather than moving immediately to secure a search warrant the officer chose rather to institute a surveillance. During the surveillance, it became obvious that unless prompt action was taken the defendants and any drugs in the defendants' possession would escape the jurisdiction of the police. Therefore, under these exigent circumstances the police were faced with either allowing the defendants to drive four miles into another parish or stopping them when it became obvious that the situation called for such action. Our review of the case convinces us that there were in fact 'exigent circumstances' permitting the police to stop the defendants' vehicle and search it for illegal drugs.

Having decided that the warrantless search was justified by exigent circumstances, we must answer the more narrow question of whether the police, having allowed 24 hours to pass without securing or attempting to secure a search warrant are precluded from relying upon the 'exigent circumstances' exception to the general rule that warrantless searches are unconstitutional.

Neither the Constitution of the United States nor the jurisprudence requires that a police officer immediately obtain a search warrant upon his gaining probable cause for its issuance. Nor for that matter is there any impropriety as far as a defendant's constitutional rights are concerned if an officer with probable cause desists indefinitely from securing a warrant, absent an illegal search and seizure.

The only pertinence, to the issue at hand, of delay in the procurement of a warrant is that it would be a violation of constitutional rights if a police officer deliberately set up a motor vehicle surveillance awaiting an 'exigent circumstance' for warrantless search in order to circumvent the requirement that an impartial magistrate pass upon the probable cause.

Here, only twenty-four hours elapsed from the time the police were told that the defendants' vehicle contained drugs and the search. It is not unreasonable, and accordingly it is permissible for police to exercise discretion in not immediately obtaining a search warrant in numerous hypothetical circumstances among which is the effort to uncover further violations of the law. This is in keeping with the general aims and needs of law enforcement. Furthermore, by purposely imposing this restraint, the police afford themselves more time to gather information with which to convince an impartial magistrate that a search warrant should issue. Under the facts of this case a delay of 24 hours is neither unreasonable nor indicative of improper motive. Because the warrantless search here falls within the warrantless cumstance exception to the general rule that warrantless searches are unconstitutional, we find no violation of the defendants' rights in this case.

For the foregoing reasons the convictions and sentences are affirmed.

BARHAM, J., concurs.

TATE, Justice (dissenting).

In the case at hand, the arresting police officers had received word from a reliable informant that the defendants' automobile contained some marijuana. The officers kept the automobile, which was mostly parked outside the defendants' residence, under surveillance for over twenty-four hours in an effort to discover from whom they had purchased the alleged drugs. (Their testimony convincingly shows that during this time no use or disposition was made of the drugs in the locked trunk of the automobile.)

I.

I think that under the circumstances the warrantless search was not authorized. It is well settled that a search conducted without a warrant is per se unconstitutional, subject only to a few specific and well delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). One of these exceptions was recognized in ...