State v. LainState v. Lain
On July 8, 1976 Frank J. Lain was charged by bill of information with possession of marijuana with intent to distribute in violation of
Assignments of Error Nos. 1 and 2
In Assignment of Error No. 1 defendant argues that the trial judge erroneously ruled that there was probable cause for the search. The second assignment of error presents for review the existence of an exception in this case justifying the warrantless search. At the hearing on the motion to suppress, the following facts were established.
At approximately 11:00 p. m. on April 3, 1976, Detective Jimmy Chevalier of the Alexandria Police Department, received a call from a police informant. The informant related that an individual known as Frank Lain supposedly had a “large quantity” of marijuana in the trunk of his green 1968 or 1969 Pontiac GTO. After extensive examination by both sides, Detective Chevalier candidly admitted that he could not remember whether the informant had claimed to have seen the “large quantity” of marijuana in the trunk of defendant‘s car. However, he was certain that the informant told him that shortly before the call the informant had seen a “quantity” of marijuana “in the car” and that there was “supposed to be a large quantity of marijuana in the trunk.”
At the time he received this information, Detective Chevalier was off duty. However, since the informant told Detective Chevalier where he thought the vehicle might be located, Detective Chevalier called Officer Lamkin, also of the Alexandria Police Department, and conveyed the information to him. Officer Lamkin drove to the part of town where the suspect GTO was allegedly located. At approximately 12:15 a. m. on April 4, 1976 Officer Lamkin noticed the suspect vehicle and began to follow it. The driver, Frank Lain, stopped the car, got out, and walked back to the officer‘s vehicle. At that point Officer Lamkin exited his car, identified himself as a police officer, and stated: “I [have] probable cause to search [your] car for narcotics.” Lamkin then instructed Miss Tracy Lolan, a passenger in the defendant‘s vehicle, to get out of the car and he searched the passenger compartment.
In the ash tray Lamkin found five “roaches.” He then placed defendant under arrest for possession of marijuana and advised him of his Miranda rights. Officer Lamkin then asked defendant for a key to the trunk, saying: “Well, I‘m going to have to get into your trunk because, you know, I‘m looking for a large quantity of narcotics and they were not in the front and I‘m going to get into the trunk of your car.” Defendant claimed to not have a key to the trunk. A number of people began to gather around the scene (a residential neighborhood), several backup police units had arrived and their red lights were flashing. Officer Lamkin then determined to have the defendant‘s car towed to the police station where it could properly be searched.
Defendant was taken by the police to the station, and after being booked, was placed
Probable Cause
Defendant contends that the informant did not relate sufficient facts to Detective Chevalier in order to establish the reliability of his information. (It is conceded that this informant had been proved reliable by giving reliable information in the past). He argues that the allegation that marijuana was “supposed to be in the trunk” is not a sufficient statement of fact upon which probable cause can be determined.
Defendant‘s argument overlooks the chronology of the search. The informant had related that he had seen a quantity of marijuana in the car. Not more than an hour after this information was related to the police, the passenger compartment was searched based upon this assertion of fact, clearly establishing the reliability of his information. This information was sufficient to give the police probable cause to believe that at least in the passenger compartment defendant had a quantity of marijuana. The discovery of the five “roaches,” when coupled with the informer‘s assertion that a “large quantity” of marijuana was “supposed to be in the trunk,” sufficiently corroborated the reliability of the information. Therefore, after the discovery of the “roaches,” the officers had probable cause to search the trunk for marijuana.
Warrantless Search
The closer issue presented is whether a search warrant was required either at the time of the initial search of the passenger compartment or at the time of the search at the police station. It is clear that under the
In this case it is clear that at the time of the search of the passenger compartment, the opportunity to search was fleeting and, thus, there were exigent circumstances justifying the warrantless search. However, it is strongly contended that once the defendant was arrested and the automobile was in police custody at the station, there ceased to exist exigent circumstances, and the police could have obtained a warrant. (That the second search might be unconstitutional is important;
“Exigent circumstances” normally exist when a moving vehicle is the subject of a search because of its mobility and the possibility that it could quickly be removed from the jurisdiction and the evidence destroyed. Faced with these possibilities, police armed with probable cause are justified in stopping the vehicle. At this point, in order to preserve the evidence and make an effective search, the police must either immediately search the car or seize it until a warrant can be obtained. Since both the warrantless seizure and the warrantless search constitute significant invasions of privacy, it may be difficult to ascertain which is the “lesser” intrusion. Chambers v. Maroney, supra; State v. McQueen, 278 So.2d 114 (La.1973). Normally, however, if the police decide to hold the car under police custody so that a warrant can then be safely obtained, there is no justification, after custody is effected, for a later warrantless search. See State v. Jones, supra; State v. Massey, supra; State v. Hargiss, supra. Cf. State v. Gordon, 332 So.2d 262, 265 (La.1976) (the warrantless search was authorized “while it [the automobile] was still located on the highway“); State v. Thomas, 310 So.2d 517 (La.1975).
Under exceptional circumstances it has been held that if there is a reasonable basis for moving the vehicle from the place where it was initially stopped, and at the time of the arrest the police had the legal right to search where the police eventually searched, and a relatively short time elapses between the decision to move the vehicle to a safer location and the ultimate search, then the search is constitutional. Chambers v. Maroney, 399 U.S. 42, 52 n. 10, 90 S.Ct. 1975, 1981 n. 10, 26 L.Ed.2d 419, 429 n. 10 (1970); State v. Thomas, supra; State v. McQueen, supra. Cf. also, Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975) (dissenting opinion). The search under these circumstances is said to be constitutional. State v. McQueen, supra.
All of the important factors are present in this case. The car was stopped late at night (12:15 a. m.), in a residential neighborhood; people were gathering, flashing lights on a number of police cars were creating a disturbance, and defendant claimed not to have a key to the trunk. Thus, the police acted reasonably in taking the car to a calmer, better lighted location with the hope of avoiding breaking the trunk open. The car trunk could have been searched where the car had originally stopped, and at the time of the arrest for possession of marijuana the police could have searched the trunk in connection with that charge. Finally, less than two hours elapsed between the decision to move the car and the ultimate search (a substantial part of which was due to the unexpected delay in towing the car to the station and the defendant‘s father‘s delay in securing the trunk key). Under these circumstances, the subsequent search of the trunk, as the initial search of the passenger compartment, was made under “exigent circumstances” and was constitutional.1
For the foregoing reasons, the conviction and sentence are affirmed.
SANDERS, C. J., concurs in the decree.
CALOGERO, J., dissented and filed an opinion in which DENNIS, J., concurred.
MARCUS, J., concurs.
DENNIS, J., dissents and assigns reasons.
CALOGERO, Justice, dissenting.
I disagree with the majority‘s holding that probable cause existed for the search of the trunk of defendant Lain‘s automobile,
DENNIS, Justice, dissenting.
I respectfully dissent for the reasons assigned by CALOGERO, J.