State v. Williams

• Citation: 366 So.2d 1369
• Decision Date: 15 December 1978
• Docket Number: No. 62711,62711
• Parties: STATE of Louisiana v. Donald WILLIAMS.
• Court: Supreme Court of Louisiana

Page 1369

366 So.2d 1369

STATE of Louisiana v. Donald WILLIAMS.

No. 62711.

Supreme Court of Louisiana.

Dec. 15, 1978.

Bernard E. Burk, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Robert T. Myers, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.

DIXON, Justice.

Donald Williams and Johnnie J. Willis were charged with possessing a firearm after having been convicted of a felony, a violation of R.S. 14:95.1. A motion to suppress was denied. At trial Willis withdrew his plea of not guilty and entered a plea of guilty. Williams was convicted and sentenced to serve five years at hard labor. On appeal Williams assigns five errors; there is merit in two assignments; we do not reach the others.

Police officers Robert Anderson and Henry Sanderson were on patrol in downtown New Orleans on the evening of February 25, 1978. At approximately 9:25 p. m. they noticed a green 1970 Pontiac without tail lights in the vicinity of Calliope and Carondelet Streets. The officers decided to issue a citation to the driver and turned on their siren and light to notify him to stop. The car was stopped at the corner of Carondelet Street and Howard Avenue next to a large gasoline station, and its two occupants were ordered to get out of the vehicle. As the passenger, Johnnie J. Willis, was getting out, Officer Sanderson noticed a sawed-off shotgun on the floor between the passenger's side of the front seat and the door of the car. Willis and the driver, Donald Williams, were immediately arrested for the possession of the sawed-off shotgun, and Williams was issued citations at Central Lockup ¹ for driving without tail lights and without a driver's license.

Assignment of Error No. 1

In his first assignment of error the defendant contends that it was error for the district court to deny the motion to suppress and to admit the evidence at trial.

An important issue at the suppression hearing was the officer's authority to order both the driver and the passenger from the car during a routine traffic stop. The police report of the incident contains the notation that both occupants were ordered from the car because the officers feared for their personal safety. Officer Robert Anderson testified that he could see the occupants of the car well enough to know only that they were black males until they were ordered from the car. Anderson further stated that his partner gave the order as they approached the car, although he later qualified his statement and said that Williams was perhaps already getting out when Sanderson spoke. When asked why both men were asked to get out, Anderson first answered that such was routine procedure. However, he added that a number of factors were taken into account when deciding whether to order both driver and passenger, or either, from the car, such as the time of night, the number of occupants, the fact that they were males, and the absence of other police. Officer Anderson also stated that he and his partner had received a report of an armed robbery involving two black males in that general area, although he remembered no details, and did not stop the car for that reason.

In certain respects Officer Henry Sanderson's testimony differed from that of his partner. Officer Sanderson at one point testified that both officers gave the order, and that Williams got out and approached Anderson. At that point, he stated, he went to the passenger side of the car, and, when Willis opened the door, saw a sawed-off pump shotgun which obviously violated state and federal laws. He then arrested Willis and told Anderson to proceed cautiously with Williams, whom his partner then arrested as well. Under cross-examination, Sanderson stated that they first ordered the driver out of the car and that he then ordered Willis to step out when he recognized Williams from a previous drug arrest. However, Sanderson admitted that he did not know Willis, ² that Willis had made no threatening gesture to him, and that weapons were not involved in Williams' previous arrest. Both officers agreed that they were not investigating a crime and that they had no reason to suspect either Williams or Willis of any infraction other than the traffic offense.

Johnnie Willis, the passenger in Williams' car, also gave his version of the events in question. According to his testimony, Williams was already out of the car and talking to one of the officers when the other came to the passenger window, knocked on it to get his attention, and ordered him to get out. He was then told to go to the rear of the vehicle where Williams and the other officer were standing. As he was going there, both he and Williams were placed under arrest.

Unreasonable searches and seizures are prohibited by the Fourth Amendment to the United States Constitution and by Article I, § 5 of the Louisiana Constitution. A search conducted without a warrant is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Colvin, 358 So.2d 1250 (La.1978); State v. Parker, 355 So.2d 900 (La.1978). When the constitutionality of a warrantless search is at issue on a motion to suppress, the state bears the burden of affirmatively showing that it was justified under one of these exceptions. State v. Adams, 355 So.2d 917 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).

The prosecution relies on the "plain view" doctrine as an exception to the prohibition against warrantless searches and seizures. ³ The elements of this exception were laid out by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Three conditions must be present for the exception to apply: (1) a prior justification for the intrusion into the protected area; (2) in the course of which the evidence is discovered inadvertently; (3) where it is immediately apparent without close inspection that the items are contraband or evidence. See also, State v. Parker, supra; State v. Fearn, 345 So.2d 468 (La.1977).

To meet this first requirement the state argues that a police officer may order both passenger and driver from the automobile during a routine traffic stop where there is no reason to believe either one has committed a crime or is dangerous. The purported justification for this seizure of the person is to protect the police officers from personal injury perpetrated by the occupants of the car. Support for this position is said to be found in the recent cases of Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978) and Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). The following statement from Foley, supra, is cited by the prosecution in support of its argument:

"An arrest, the function most commonly associated with the police, is a serious matter for any person even when no prosecution follows or when an acquittal is obtained. Most arrests are without prior judicial authority, as when an officer observes a criminal act in progress or suspects that felonious activity is afoot. Even the routine traffic arrests made by the state trooper for speeding, weaving, reckless driving, absence of license plates or outdated license plates, absence of inspection stickers, dangerous physical condition of a vehicle, to describe only a few of the more obvious common violations can intrude on the privacy of the individual. In stopping cars, they may, within limits, require a driver or passengers to disembark and even search them for weapons, depending on time, place and circumstances. That this prophylactic authority is essential is attested by the number of police officers wounded or killed in the process of making inquiry in borderline, seemingly minor violation situations for example, where the initial stop is made for a traffic offense but, unknown to the officer at the time, the vehicle occupants are armed and engaged in or embarked on serious criminal conduct." 435 U.S. 291, 298, 98 S.Ct. 1067, 1071, 55 L.Ed.2d 287, 293.

Foley v. Connelie was a civil action in which a resident alien attacked a state law limiting state police appointments to citizens. It did not hold that police may require passengers to disembark on traffic stops, and the statement relied on by the prosecution is clearly Obiter dictum.

More to the point, however, is the prosecution's argument that the result of the balancing of individual privacy interests and of the state's concern for the officer's safety conducted in Pennsylvania v. Mimms, supra, applies with equal weight to the instant case. In Mimms, the Supreme Court held that a police officer's order to a driver to get out of his car did not violate the Fourth Amendment, even though the officer had no reason to suspect foul play from the particular driver. In reaching this conclusion, the court first stated that the state's justification for the intrusion, the personal safety of the officer, was both legitimate and weighty, and cited a study showing 30% Of all police shooting to have occurred when the officer approached a person seated in an automobile. The court also noted the hazard of accidental injury from passing traffic to an officer standing on the driver's side of the vehicle.

When it turned to the invasion of privacy suffered by the motorist, the court stated:

"Against this important interest we are asked to weigh the intrusion into the driver's personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only...