State v. TatumState v. Tatum
Defendant was charged by bill of information with one count of possessiоn of marijuana,
The State claims that the lower courts erred in suppressing the cocaine because the police officers were entitled to search the vеhicle immediately after, and incident to, defendant‘s arrest. The State also contends the police had probable cause to search the entirе automobile after finding the gun and the marijuana on the front seat.
It is not questioned that the defendant was the subject of a lawful stop and subsequent custodial arrest on a charge of possessing marijuana.
At issue is the legality of the subsequent search by the police under defendant‘s front seat which revealed an openеd leather pouch containing cocaine. This occurred after defendant had been arrested and handcuffed outside the car.
The Fourth Amendment to the United States Constitution1 and Article 1, § 5 of the Louisiana Constitution of 19742
There are two widely recognized exceptions tо the warrant requirement involving searches of automobiles. One is known as the “automobile exception” and is based on probable cause and exigent сircumstances; the other is the search as an incident of a lawful arrest. If there was probable cause to search under the seat for either drugs or a weapon, we find it unnecessary to make a determination of whether the search was also valid as an incident of a lawful arrest.3
The “automobile exception” has recently been upheld in U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). There, the U.S. Supreme Court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it, may conduct a warrantless search of the vehicle as thoroughly as a magistrate could authorize. The scope of the warrantless search of an automobile is not defined by the nature of the container in which the contraband is secreted, but rather, is defined by the object of the search and the places in which there is probable cause to believe it may be found. U.S. v. Ross, supra.
Applying these principles to the instant case, we find that thе search revealing the leather pouch was legally supported by the probable cause the officer had suggesting there might be other weapons оr drugs under the seat. Not only had the officer found a gun and marijuana in plain view on the seat, but he had also observed the defendant reaching down as if to retrieve or store an object beneath him.
For constitutional purposes, there is no difference between on the one hand, seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment and the Louisiana Constitution. Carrol v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Ross, supra; State v. Chaney, 423 So.2d 1092 (La.1983).
Furthermore, prior Louisiana jurisprudence has held that a search warrant is not necessary where there is probable cause to search an automobile for contraband or evidence of a crime and there are exigent circumstances requiring an immediate search. State v. Chaney, supra; State v. Guzman, 362 So.2d 744 (La.1978).
Exigent circumstances has been defined as the impracticability of obtaining a warrant due tо the possibility that the car
Applying this test to the instant set of facts, the search was constitutional. The vehicle was parked on a public highway accessible to anyone who might have a reason to move it or remove evidence from within. State v. Redfearn, 441 So.2d 200 (La.1983); State v. Edsall, 385 So.2d 207 (La.1980). This test neatly fits the one set forth in Ross, supra. The rationale behind that case drew strongly from Carroll v. United States, supra, which held that only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search.
For these reasons, we conclude that the lower courts erred in granting the motion to suppress the cocaine.
DECREE
For the above and foregoing reasons, the ruling of the lower courts granting the motion to suppress is reversed and this matter is remanded for further рroceedings.
REVERSED AND REMANDED.
Notes
Amendment IV
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 tо be searched, and the persons or things to be seized.
Art. 1, § 5, Right to Privacy
Section 5. Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oаth or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.
For support of the search as an incident of a lawful arrest, the state relies on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) and police testimony that when the defendant wаs stopped, the officers observed him bend down as though to place something under the seat.
On the other hand, the defendant argues that the rationale which enabled the officer to conduct a warrantless search of the vehicle in Belton [to protect the evidence and deny the defendant access to a weapon] is not present in this case because the defendant was handcuffed and isolated from the automobile by the two policemen.