STATE of Louisiana v. Ralph JONES and Donny McManus.
No. 51755.
Supreme Court of Louisiana
Oct. 4, 1972.
267 So.2d 559
Henry C. Walker, IV, Michael R. Mangham, Shreveport, for defendants-appellants.
PER CURIAM.
Defendants were charged with theft, with alternate counts of receiving stolen goods, and, after a trial by jury, were found guilty of theft, and sentenced to three years at hard labor. Seven bills of exceptions were reserved and perfected to alleged erroneous rulings of the district court, six of which form the basis of this appeal. The seventh was expressly waived in brief.
At about 3:00 A.M. on the morning of August 20, 1970, Mrs. Daniels, who resided on Frostwood Street in Shreveport, was awakened by the barking of neighborhood dogs. She went to the window and observed a young man wearing a white shirt run from beside the newly constructed, unoccupied house across the street from her residence, get into a U-Haul panel truck, and drive slowly away.
Mrs. Daniels called the city police and reported the prowler. An officer (Officer Turner) was dispatched to her residence to investigate, and after talking for a short time with Mrs. Daniels, he put out a radio alert, reporting the description of the prowler and the truck given him by Mrs. Daniels. A few minutes later anoth
When the officer inquired as to the contents of the truck, the defendants told him that there were air conditioners in the truck. Without opening the truck, the officer peered through the back window of the truck (using his flashlight) and observed two air conditioner compressors partially covered by blankets and observed that the copper pipe connections had apparently been sawed off. The defendants told the officer that they had purchased the air conditioning units from an unknown individual at a Shreveport bar around midnight the same night and that they had
Officer Robertson radioed Officer Turner and requested that he attempt to determine if any air conditioning units had been stolen from the area in which the prowler had been reported. Shortly thereafter Officer Turner radioed Officer Robertson and reported that he had found that two units had apparently been removed from residences on Bayonne St., within several blocks of the reported prowler incident, and that the copper pipes had apparently been sawed off. Armed with this knowledge, Officer Robertson entered the U-Haul truck and obtained the serial numbers from the air conditioning units.2
The defendants were then taken to police headquarters,3 and the owners of the two residences from which air conditioner compressors had apparently been removed were called. It was learned that the serial num
Bill of Exceptions No. 1
Bill of Exceptions No. 1 was reserved to the trial judge‘s overruling of defendants’ Motion to Quash the Bill of Information to suppress evidence allegedly illegally seized.
Defendants contend that the arrest was illegal, since no warrant had been issued for their arrest, the officers were outside their jurisdiction (outside the city limits of Shreveport), and the officers did not have probable cause to believe that they had committed an offense. Hence, they contend that the two air conditioners and the hacksaw found in the truck were obtained as the result of an illegal search, since it was without a warrant and was not incident to a lawful arrest.
The State contends that the officers had permission to enter the truck (from whence they obtained the serial numbers of the air conditioners), and alternatively, that the evidence was seized as the result of a lawful arrest.
The trial judge held that the police officers had probable cause to believe the defendants had committed a felony—possession of stolen property—and hence the
It is unnecessary to determine when the arrest occurred, whether at the gas station or at the police station, since we hold that the officers had probable cause to believe that stolen air conditioners were contained in the truck and hence were entitled to search it even though defendants were not yet arrested. An automobile, unlike a house or other building, may easily be spirited away if officers are required to leave the scene and go to a judge to obtain a warrant before conducting a search of the vehicle. Hence the rule has long been that an automobile may be searched without a warrant where the officers have probable cause to believe that the automobile contains articles that they are entitled to seize. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 453 (1925); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
While more than mere suspicion is required, knowledge to an absolute certainty is not required. It is sufficient that the officer have probable cause to believe that the automobile contains articles he is en
Defendants also complain that the initial act of the police officer, after having been told by them that the truck contained air conditioning units, of looking through the rear window of the truck with his flashlight constituted an unreasonable search. We find it unnecessary to determine whether this was an unreasonable search, since we hold that this was not a search. The officer merely observed that which was in plain view. See United States v. Lee,5 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Hayden, 140 F.Supp. 429 (U.S.D.C. Maryland 1956). Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).
Defendants complain that they were arrested at the gas station, which is admittedly outside the city limits of Shreveport, and that the arrest is illegal since the officers who made the arrest were city police officers. Defendants testified they were told they were under arrest a short while after the search of their vehicle was con
We find it unnecessary to decide the factual issue of when the defendants were arrested. As we noted in Footnote 4, at the time the search of defendants’ vehicle was conducted the officers had probable cause to believe that defendants’ truck contained stolen air conditioners. Even if the officers were acting as private persons, as defendants contend, “A private person may make an arrest when the person arrested has committed a felony, whether in or out of his presence.”
Bill of Exceptions No. 2
Bill of Exceptions No. 2 was reserved to the trial judge‘s overruling of defendants’ motions for the production of evidence
The Motion for Production of Evidence and for the State‘s list of witnesses was properly denied. State v. Mitchell, 258 La. 427, 246 So.2d 814 (1971); State v. Pesson, 256 La. 201, 235 So.2d 568 (1970). This case does not involve, as in State v. Migliore, 261 La. 722, 260 So.2d 682 (1972), the possession of a substance which is criminal merely by virtue of its chemical composition.
Defendants complain of the trial court‘s action in overruling their Motion to compel disclosure of all evidence favorable to them. At the hearing on the motion, the State admitted that it had no evidence favorable to the defense. While we agree with defendants that the State cannot suppress evidence favorable to them, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), there is no indication in the record that the State suppressed any evidence favorable to defendants. Defend
Bill of Exceptions No. 3
In its opening statement the prosecution stated, “Mr. Jones stated that he had purchased the unit.” The defense objected on the ground that
The statement herein objected to is not a confession or inculpatory statement. It is not an “admission of incriminating facts“. State v. Fink, 255 La. 385, 231 So.2d 360 (1970). The statement was in fact exculpatory, since the defendant was attempting to convince the police officers that he had purchased the air conditioning units rather
Bill of Exceptions No. 4
Bill of Exceptions No. 4 was reserved when the trial court allowed the State to introduce a light meter found at the residence from which one of the air conditioners was stolen, and a handprint found on the light meter. The objection was based on the grounds that:
- the defendants were denied access to the evidence prior to trial;
- the State failed to show a complete chain of possession; and
- the identification of the handprint was improper and incomplete.
The first ground has already been discussed under Bill of Exceptions No. 2. It is without merit.
The police officer who found the light meter testified that after finding the piece of evidence at one of the residences, he placed it on the porch of the residence and continued his investigation. After he completed his investigation, he retrieved the light meter and turned it over to a fellow officer (who testified at the trial) who locked it up until the trial. The defense
This argument is frivolous. Although the officer did not have the light meter in his hands, he was at the residence completing his investigation. This was during the early morning hours, and the residence was unoccupied.
With regard to the handprint, the expert produced by the State testified that he had found nine points of identity between the handprint found on the light meter (which was found at the scene of one of the thefts) and defendant McManus‘s handprint. He admitted that some years ago the FBI required twelve points of identity in order to make a positive identification, but testified that at present the FBI required as few as six points in order to make a positive identification. He further testified that he was positive that the print on the light meter was the palm print of defendant McManus. The defense introduced no contradictory evidence.
We are unable to find that the statutes or decisions of this State require a certain number of points of identity in order for an expert to testify that the fingerprint or handprint is that of the defendant. In the absence of evidence that this witness was not competent, or was using an im
Bill of Exceptions Nos. 5 and 6
Bill of Exceptions Nos. 5 and 6 were reserved to the admission of the testimony of Mr. Ray Heard of the Northwest Louisiana Crime Lab concerning the copper filings in a hacksaw blade found in the U-Haul van and his opinion that the copper pipes on the air conditioning units were cut off with the same kind of saw or a sawing motion. The objection was based on eight grounds (as set forth in defendants’ brief):
- The saw was not shown to belong to the defendants;
- The truck was borrowed and the saw could have been the owner‘s;
- The State did not check the saw for fingerprints;
- Mr. Heard could not say that the copper from the pipes was the same as the copper in the saw blade;
- Mr. Heard could not say that the saw at issue was used on the pipes;
- The State did not keep the saw in its possession, throughout the investigation but left it for several hours in the
unlocked truck on the parking lot at City Hall; - The State did not have the air conditioners in its possession throughout the investigation but left them for several hours in the unlocked van on the parking lot at City Hall; and
- The State made no effort to check the air conditioners for fingerprints and indeed returned them to the owners immediately after the alleged crime, keeping only the copper pipes allegedly connecting the units to the system.
The hacksaw was found in the truck along with the stolen air conditioners. The copper pipes on the air conditioners appeared to have been sawed off. The evidence was relevant as tending to prove that this hacksaw, which was in the truck being driven by defendants, was used to cut the air conditioners from the residences to which they were formerly attached, and as such was admissible.
The chain of possession of the hacksaw and air conditioners was sufficiently shown. The fact that they were left for two hours at 4:00 A.M. in the unlocked U-Haul van in the police station parking lot is insufficient to break the chain of possession, in the absence of some evidence that they were tampered with.
For the foregoing reasons, the conviction and sentence of McManus and Jones are affirmed.
SUMMERS, J., concurs in the result only.
BARHAM, J., dissents and assigns reasons.
BARHAM, Justice (dissenting).
I must dissent from the majority because I find merit in Bills of Exceptions Nos. 1 and 2. Bill of Exceptions No. 1 was reserved to the overruling of the motion to suppress the two air conditioners found in the back of the U-Haul-It truck. The majority finds that the officers had probable cause to believe that stolen air conditioners were in the truck and, therefore, were entitled to search for them. Armed with this conclusion the majority finds it unnecessary to meet the issues of when the arrests
The fallacy of this conclusion is that probable cause was acquired too late under the factual sequence to authorize the search and seizure. The first officer on the scene, while attempting to act in his official capacity and on less than suspicion, detained the truck outside his jurisdiction, questioned the occupants, and peered into the back portion of the truck. Only then was there probable cause for the search. Lacking jurisdiction for the detention and incidental scrutiny of the truck which established probable cause, he could neither arrest nor seize.
While patrolling in the early morning hours, Officer Robertson had received a radio alert to be on the lookout for a U-Haul-It truck since a report had been received of a prowler leaving a subdivision in such a truck. Shortly thereafter on the edge of the city limits Robertson saw such a truck and turned in behind and followed it. He called the officers who were still investigating in the subdivision and confirmed the type of truck. After travelling about one quarter of a mile out of the city limits, the truck pulled into a gas station and stopped near a pump. Robertson notified headquarters that he was going to question the occupants, and a back-up patrol car was dispatched to the station to render as
A police officer may, under appropriate circumstances and in an appropriate manner, stop and detain a person to investigate possible criminal behavior even though he does not have probable cause for an arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Here, however, when Robertson left his jurisdictional territory, he lost his authority to act in his capacity as a policeman. Even if we were to hold that
Moreover, it would be unwise to let a police officer escape his obligations as a policeman and the apparent authority with which his uniform clothes him by allowing him to act in the role of private citizen. The relationships of a citizen to a citizen and a citizen to a policeman have too great a disparity to expect the same results from a confrontation between a citizen and a citizen and a confrontation between a citizen and a policeman. For example, few if any of us would let an ordinary citizen have our driver‘s license, detain our motor vehicle, and inspect its interior. Yet here, because of the uniforms, unauthorized policemen who had no greater authority than any citizen were able to accomplish these things.
Furthermore, a lengthy delay occurred while the police gathered information on the possible commission of a crime by the occupants of the truck, but no attempt was made to notify the proper officers with authority in that jurisdiction. When Robertson called in to check the type of truck described in the radio alert or when he called in to say that the occupants had stopped at the gas station, he should have asked
Since there was no legal arrest, there could be no warrantless search pursuant to arrest, and that which was seized should have been suppressed.
Bill of Exceptions No. 2 was reserved when defendant was denied access to physical evidence including handprints and fingerprints, which he sought in order that he might have experts of his own choosing examine it in preparation for testifying. The majority does not even meet the issue raised by this bill as presented and argued by both the defense and the State. I am of the opinion that State v. Migliore, 261 La. 722, 260 So.2d 682, permits examination of physical evidence under orders and guidance of the court for protection and preservation of that evidence. There is no reason why Migliore should be restricted to narcotics. Examination of physical evidence is not discovery. Handwriting, ballistics, and fingerprint experts differ as do most expert witnesses, and the only means by which the defendant can defend against expert testimony by the State is to offer expert testimony of his own. I am of the opinion that Bill No. 2 is good insofar as it addresses itself to denial of access to the defendant for examination of physical evidence.
I respectfully dissent.