State v. Vale, 49066

• Court: Supreme Court of Louisiana
• Citation: 215 So.2d 811,252 La. 1056
• Docket Number: No. 49066,49066
• Parties: STATE of Louisiana v. Donald VALE and James Vale.
• Decision Date: 12 November 1968

Page 811

215 So.2d 811 252 La. 1056 STATE of Louisiana
v.
Donald VALE and James Vale. No. 49066. Supreme Court of Louisiana. Nov. 12, 1968.
Rehearing Denied Dec. 16, 1968.

[252 La. 1062]

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Walker H. Drake, Jr., Drake & Fernandez, Edward G. Koch, Jr., George M. Leppert, 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.

Appellants, Donald Vale and James Vale, having been jointly tried and convicted on a bill of information charging them with the wilful and unlawful possession and control of 'a narcotic drug, to-wit: Heroin,' in violation of R.S. 40:962,¹ were sentenced as multiple offenders under R.S. 15:529.1² to serve 15 years each at hard [252 La. 1063] labor in the Louisiana State Penitentiary; and, for the reversal of their conviction and sentence they rely on several alleged errors committed during the course of their trial.

The first alleged error complained of forms the basis of Bill of Exception Number 1 reserved by James Vale when the trial judge overruled his motion to suppress certain evidence that is the foundation of this prosecution, i.e., 3 capsules of off-white powder, 171 capsules found in a contraceptive, 76 clear capsules found in a Bufferin bottle and 103 small white pills, and certain paraphernalia used to administer narcotics composed of a metal spoon, glass eyedropper, plastic needle holder, and two needles, procured as a result of a search of the premises occupied by the accused and his mother. The motion was predicated upon the contention that the objects were fruits of an illegal search and seizure, [252 La. 1064] having been conducted without benefit of a search warrant and was not incidental to a valid arrest.

The fact that the objects sought to be suppressed were secured without the benefit of a search warrant does not necessarily constitute them as being illegally obtained and therefore inadmissible in evidence, as it is an unreasonable search and seizure that is prohibited by the Fourth

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Amendment to the United States Constitution³ and Article 1, Section 7 of this State's Constitution.⁴

Under the express provisions of the Code of Criminal Procedure adopted by the Legislature by Act No. 310 of 1966, 'A peace officer may, without a warrant, arrest a person when: (1) The person to be arrested has committed an offense in his presence, * * *' and '(3) The peace officer[252 La. 1065] has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer,'⁵ and '* * * take from the person arrested all weapons and incriminating articles which he may have about his person. * * *'⁶ 'Reasonable belief--or 'probable cause,' as it is termed under the federal standard--to make an arrest without a warrant exists when the facts and circumstances within the arresting officer's knowledge, and of which he had reasonable trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a felony has been or is being committed.' State v. Johnson, 249 La. 950, 192 So.2d 135; See also, State v. Green, 244 La. 80, 150 So.2d 571, State v. Aias, 243 La. 945, 149 So.2d 400; State v. Calascione, 243 La. 993, 149 So.2d 417; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.

As was very aptly observed by the United States Supreme Court in the case of United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, 'The right 'to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed's seems to have stemmed not only from the acknowledged authority to search the person, but also from the long-standing practice of searching for other proofs of guilt within the control[252 La. 1066] of the accused found upon arrest. United States v. Weeks, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652, 653. It became accepted that the premises where the arrest was made, which premises were under the control of the person arrested and where the crime was being committed, were subject to search without a search warrant. Such a search was not 'unreasonable',' citing Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. (Emphasis added.)

The only evidence adduced at the hearing held on the accused's motion to suppress was that of officers of the Narcotics Division of the New Orleans Police Department involved in the arrest, search, and seizure, and none was offered in rebuttal. According to the record, about 11:45 A.M. on April 24, 1967 Officers, Brady, Laumann, and Soule were trying to locate the defendant, Donald Vale, for whose arrest they held two capiases from the Criminal District Court for the Parish of Orleans, Division H, on two charges for violation of the narcotics act. Having information that Donald Vale was residing at 1826 Arts Street in the City of New Orleans, the three officers proceeded there in an unmarked car which they parked approximately one-half block from the residence and began a surveillance of the house from various positions[252 La. 1067] as they did not want their presence

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known until they were sure that Vale was at the location so as not to alert him to allow him to avoid arrest. After approximately 15 minutes the officers observed a green 1958 Chevrolet drive up and sound the horn and after backing into a parking place, again blew the horn. At this juncture Donald Vale, who was well known to Officer Brady having arrested him twice in the previous month, was seen coming out of the house and walk up to the passenger side of the Chevrolet where he had a close brief conversation with the driver; and after looking up and down the street returned inside of the house. Within a few minutes he reappeared on the porch, and again cautiously looked up and down the street before proceeding to the passenger side of the Chevrolet, leaning through the window. From this the officers were convinced a narcotics sale had taken place. They returned to their car and immediately drove toward Donald Vale, and as they reached within approximately three cars lengths from the accused, (Donald Vale) he looked up and, obviously recognizing the officers, turned around, walking quickly toward the house. At the same time the driver of the Chevrolet started to make his get away when the car was blocked by the police vehicle. The three officers promptly alighted from the car, whereupon Officers Soule and Laumann called to Donald Vale to stop [252 La. 1068] as he reached the front steps of the house, telling him he was under arrest.⁷ Officer Brady at the same time, seeing the driver of the Chevrolet, Arizzio Saucier, whom the officers knew to be a narcotic addict, place something hurriedly in his mouth, immediately placed him under arrest and joined his co-officers. Because of the transaction they had just observed they, informed Donald Vale they were going to search the house, and thereupon advised him of his constitutional rights. After they all entered the front room, Officer Laumann made a cursory inspection of the house to ascertain if anyone else was present and within about three minutes Mrs. Vale and James Vale, mother and brother of Donald Vale, returned home carrying groceries and were informed of the arrest and impending search. At this time Officer Laumann returned to the living room and requested James Vale accompany him into the bedroom while it was searched, and Mrs. Vale joined them. In a chifforobe in that room Officer Laumann found a wool coat which contained three capsules of off-white powder, at which time Donald Vale was called into the bedroom and in response to Officer Laumann's question as to whom these items belonged, Donald Vale volunteered that it was his. According to the testimony of Officer Brady, Mrs. Vale answered when asked who stayed in this bedroom, 'Donald does not stay at this address. He does not [252 La. 1069] stay here at all. Pat Vale (James) stays here and this is his bedroom.' James was then immediately placed under arrest by Officer Laumann and was informed of his constitutional rights. Officer Laumann then proceeded with the search and found in a brown suit in the chifforobe 171 capsules of off-white powder in a contraceptive, 76 clear capsules with powder in a Bufferin bottle and 103 small white tablets in a yellow finger stall, all of which Donald Vale volunteered belonged to him and at this time Officer Brady asked him for his narcotics paraphernalia usually used in the trade and he answered, 'You have all the rest of it, I might as well give you that too.' He then lead Officer Brady to the bathroom linen closet where he found a spoon and a narcotics outfit wrapped in brown paper containing a glass eyedropper, plastic needle holder and two needles under the towels as pointed out by Donald Vale. Following this an examination of both of the defendants' arms revealed scars resulting from injections of narcotics known as 'track marks.' All the seized items were taken to the Narcotics Division Office and defendants were booked and jailed.

Unquestionably under the facts and circumstances of this case as above related, the arresting officers were justified in

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their belief that a felony was being committed by Donald Vale and Saucier, and the arrest of the two was lawful. We are also of the opinion the officers, being well [252 La. 1070] trained in their profession and being knowledgeable of the methods and procedure of the trade, were justified in searching the house from which they had observed Donald Vale emerge under the circumstances above related in the belief that this was his place of operation and from which they...