
    236 So.2d 782
    STATE of Louisiana v. Judith K. ROACH.
    No. 49844.
    Jan. 20, 1970.
    On Rehearing June 8, 1970.
    
      J. Philip Stein, Robert J. Stamps, New Orleans, for appellant.
    Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.
   HAMITER, Justice.

Judith K. Roach (the defendant herein) and one Pairlee M. Serio were jointly charged in a bill of information with illegal possession of a narcotic drug. The latter pleaded guilty and is no longer involved in this proceeding.

Judith K. Roach pleaded innocent. She was then tried before a jury which returned a verdict of guilty. Thereafter, she was sentenced to serve five years in the state penitentiary.

She is appealing from the conviction and sentence.

Although numerous bills of exceptions (reserved during the proceedings in the district court) were perfected appellant relies on nine to obtain a reversal. (Only these are discussed in the brief and mentioned in oral argument here. We presume, therefore, that the others have been abandoned.)

The bills discussed overlap and present only three issues. These are set forth in the defendant’s brief (and in oral argument) as three “Assignments of Error”, with reference in each to the appropriate bills. They will be so treated in this opinion.

Assignment of error No. 1 involves bills of exceptions Nos. 1, 2, 11 and 12. These bills were reserved when the trial court overruled Roach’s and Serio’s pretrial motions to suppress certain evidence, hereinafter discussed, and to the court’s overruling of Roach’s objection to the introduction of that evidence during the course of the trial.

The evidence consisted of certain narcotic substances, and also paraphernalia said to be used in the administration of the drugs, found in the apartment of the defendant Roach located at 1014 Terpsichore Street in New Orleans. She urges, that the objects were obtained as a result of an illegal search of her apartment without a search warrant and were, therefore, not admissible in evidence against her. The state, on the other hand, contends that they were validly obtained as the result of a search made as an incident to the arrest of one Cleon Mixon and that, therefore, the court’s rulings were correct.

Briefly, the evidence taken on the motion to suppress, as well as at the trial, reveals that the objects were obtained under the circumstances which we detail as follows. The search and seizure occurred on the afternoon of April 17, 1967. One of the officers who effected them, a Patrick Lampard, previously had received information through his superiors that there was an arrest warrant outstanding for Mixon for forging narcotic prescriptions in Baton Rouge, and that he frequented the apartment mentioned above on Terpsichore Street, receiving mail there. When this information was obtained is not definitely established by the record, but it appears to have been some time before the date in question because the officer testified that prior to April 17, 1967 he had kept a periodic surveillance of the house to see if Mixon was at the said address.

Although numerous prior trips to the house proved fruitless, in the afternoon of April 17, 1967 Lampard, in the company of Officers Clinton E. Lauman and Frederick A. Soule, went again to 1014 Terpsichore Street for the purpose of seeing if Mixon was there. At that time they observed Mixon’s car, occupied by his mother and her dog, parked outside the residence. Lampard testified that he knew Mixon and that “I knew the automobile; I know his mother; and I know how he operates. He doesn’t leave his mother too far from him. He doesn’t leave her for a second.”

Lauman was stationed outside at the rear door of the apartment while Lampard and Soule went to the front. Lampard testified that they knocked on the door; that it was opened by Pairlee M. Serio; that he identified himself; and that he was permitted by the Serio woman to enter the house. He asked her where Mixon was, and she said that she did not know any Cleon Mixon. At this time he saw Mixon sticking his head out of the kitchen door at the rear of the apartment. He said that when Mixon recognized him the former ducked back into the kitchen, and that then he and Soule ran in and arrested Mixon, searched his person, as well as the drawers of the kitchen and the rest of the house. On finding the articles above referred to in the kitchen’s sink drawer, as well as a metal bottle cap (which appeared to be burned) on top of the refrigerator, he also arrested the defendant and the Serio woman.

The state contends that under the decision of the United States Supreme Court in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, which has been subsequently overruled by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (decided June 23, 1969), the search was legal; but that even under the Chimel decision the search was valid as being incident to' a lawful arrest, inasmuch as the officers had the right to search the arrestee’s person, as well as the area within his reach and control from which he might obtain weapons or evidence for the purpose of destroying it.

The United States Supreme Court has not yet rendered any definitive pronouncement as to whether it will apply the Chimel decision retroactively; and if so at what point of time — whether to the date of the search, the date of the trial, or to cases such as this one which are still under judicial consideration, although the trial here was held before the rendition of Chimel. In view of this we will not undertake to give the case any retroactive effect.

Nevertheless, a careful review and analysis of the evidence adduced in connection with the motion to suppress and during the trial leads us to conclude that the search was not proper even under the jurisprudence as it existed prior to Chimel. As will be hereinafter shown, we are of the opinion that it was an unreasonable and unwarranted intrusion into this defendant’s right to the security and privacy of her home guaranteed by the Fourth Amendment of the United States Constitution.

In arguing the issue presented, the state contends that when the officers entered the kitchen Mixon was standing in front of the kitchen drawer by the sink, consuming a chocolate drink “as if to wash something down”; and that, therefore, it was reasonable for them to assume that he might have secreted some of the fruits of his alleged crime, or a weapon, in the drawer. It further avers that “of course no search was necessary to discover the burned bottle cap which was in plain view on the tray on top of the refrigerator.” And it says that having found these items in the kitchen it was proper for them to arrest this defendant and to search her entire apartment in connection with her arrest.

As we appreciate the evidence, it simply does not bear out the state’s contention. It should be pointed out that the testimony referred to by the state with regard to Mixon’s position when the officers entered the kitchen is that of Officer Lampard. But this is in conflict with other parts of his testimony which supports the testimony of the defendant and Mixon that this defendant was in front of the sink when the officers entered and that Mixon was near the table. Thus, on the hearing of the motion to suppress Lampard specifically stated that when he entered the kitchen Mixon was “Right by this table going towards the door.” Later he stated that “As soon as we got into the kitchen she was sitting with her back to the wall here * * *. She was facing toward the cabinet where Soule had first gotten her. When she was over at this cabinet. That is why he got her away from there.” (Italics ours.)

During the trial Lampard again testified on cross examination as follows:

"Q. After you arrested Cleon Mixon, what caused you to search the rest of the house?
A. Freddie (Soule) finding this narcotics paraphernalia right where this girl was.
Q. Wasn’t that a product of the search ?
A. Wasn’t that what?
Q. Wasn’t that a product of the search ?
A. It was immediate to our going in there; he walked to where she was and he found this narcotics, and they were advised that they were under arrest for possession of narcotics.” (Italics ours.)

A portion of Officer Lauman’s testimony was as follows:

“Q. What was your reason for searching?
A. All subjects’ arms were examined.
Q. Their arms were examined?
A. They were all dope fiends. Mix-on was wanted and I felt like we were obligated to search; not only had the right but obligated.”

It is true that Soule, on the trial, also stated that he first saw Mixon standing near the sink in the kitchen; and that he searched where Mixon was standing. But we find it interesting and important that he was not even called to testify on the pretrial hearing to support such a vital factual issue.

Nor does the evidence support the assertion that the “burned bottle cap” (said to be used as a “cooker” by narcotic addicts) was in “plain view”. Officer Lauman, who found it, did not testify unequivocally that it was burned. Rather, he said that “to the best of his knowledge” it was burned and that he was sure it was because he would not have taken it if it had not been. Moreover, he said that he did not know it was in the bowl on the refrigerator until he started looking. He further testified that he did not remember whether it was in plain sight or whether he had to get up on “tip-toes” to look for it. Upon being asked whether it was readily available to be seen when he first went in, the court stated that he did not have to answer the question because he had already stated that he did not remember. Lauman also testified that he had been let into the apartment by the back door from his station outside; that when he came in Mixon was nearer the ice box than the sink drawer; and that he was in the apartment “some minutes” before the searching began.

As we read the testimony in its entirety we cannot but conclude that the arrest of Mixon was made in such a manner as to effect entry into this defendant’s home for the purpose of searching it, because the officers suspected the presence of narcotics therein but that they had insufficient reliable information to obtain a search warrant.

The officers testified that they had such suspicions but no specific information. Likewise, they said they had no reason to believe that Mixon, on April 17, 1967, was still in possession of any fruits of the alleged crime with which he was charged, that act having been committed sometime prior to the date of the arrest. (The date of the act appears to have been April 3.)

And at one point, when Lampard was asked why he did not wait to arrest Mixon when he came out of the house, he replied : “Because we wanted to go into this house. From past experience we know that there was narcotics activity in and out of this house.”

Further tending to disprove the state’s contention that the officers were searching the drawer under the control of Mixon for weapons or fruits of this alleged crime is the fact that when they found the narcotics and paraphernalia they arrested for possession not only Mixon but also the occupants of the apartment.

Also fortifying our conclusion that the arrest was made for the purpose of gaining entry to the apartment is the fact that the state does not in any way show why, between the day they were notified of the warrant issued in Baton Rouge and the date of the arrest, they did not make an attempt to arrest him at his own home or that of his mother. One of the officers stated that he knew where Mixon lived; and the record abundantly establishes that he was constantly with his mother.

We are of the opinion, therefore, that the warrantless search of this defendant’s apartment was unreasonable; and it was one falling squarely within the prohibition of Go-Bart Importing Company v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed 374 and United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877.

In Go-Bart Importing Company government officials with sufficient information to justify the arrest of the accused without a warrant went to their place of business to arrest them for conspiring to commit a nuisance by unlawfully possessing, transporting, selling, etc., intoxicating liquor. (Actually, they had an arrest warrant, but the court found it invalid; however, it was held the arrest itself nevertheless was valid because of the information that the crime was being then committed.) Following the arrests they searched the persons of the accuseds, their desks and safe, and seized papers, account books, etc. pertaining to their dealings. The court pointed out that the officers had had ample time to have obtained a search warrant, and that the general searching and rummaging in the place without a warrant constituted an unreasonable search and seizure despite the contemporaneous arrest.

The court reinforced its decision in Lefkowitz, supra. There the government official obtained an arrest warrant on information that the defendant and other persons conspired to sell, possess, etc. intoxicating liquors, and that part of the conspiracy was effected from Room 604 of a given address. The officers went to the stated place, arrested the accused, searched his person, desks, and cabinets and seized papers, books and other .articles, all without a search warrant. The United States Supreme Court approved a district court ruling that had suppressed the evidence. The government there argued that since the arrests were lawful, the search of the place (in the possession and under the control of the accuseds) where they were made was also lawful. The court dismissed the argument saying: “The only question presented is whether the searches of the desks, cabinet, and baskets and the seizures of the things taken from them were reasonable as an incident of the arrests. And that must be decided on the basis of valid arrests under the warrant. Save as given by that warrant and as lawfully incident to its execution, the officers had no authority over respondents or anything in the room. The disclosed circumstances clearly show that the prohibition agents assumed the right contemporaneously with the arrest to search out and scrutinize everything in the room in order to ascertain whether the books, papers or other things contained or constituted evidence of respondents’ guilt of crime, whether that specified in the warrant or some other offense against the Act. Their conduct was unrestrained. * * *

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“Here, the searches were exploratory and general and made solely to find evidence of respondents’ guilt of the alleged conspiracy or some other crime. * * *

“This case does not differ materially from the Go-Bart Case and is ruled by it. An arrest may not be used as a pretext to search for evidence. * * * ” (Italics ours.)

We do not believe that later the court in the Rabinowitz case, supra (relied on here by the state), intended to override Go-Bart Importing Company and Lefkowitz. Rather, as will be shown, it distinguished them on the facts.

In Rabinowitz the government officials had received reliable information that the accused had obtained from the informer a large number of stamps bearing forged overprints. Thereafter a special agent went to the retail stamp store of the accused and purchased four stamps found to bear such forgeries; and on this evidence, as well as on the knowledge that previously the accused had pleaded guilty to a charge of illegally overprinting postage stamps, the agents obtained a warrant for his arrest. On the basis of the warrant they went to the accused’s retail store, a one-room office open to the public, and arrested him. At the same time they searched a desk, safe and file cabinet and found a large number of stamps on which it was later determined that forgeries had been made. He was charged with selling four forged and altered stamps and in a second count with possession of forged and altered stamps. The United States Supreme Court held that the search and seizure was valid under the particular circumstances existing there. The court posed the particular question thusly: “ * * * Even if the warrant of arrest were not sufficient to authorize the arrest for possession of the stamps, the arrest therefor was valid because the officers had probable cause to believe that a felony was being committed in their very presence. * * *

“The arrest was therefore valid in any event, and respondent’s person could be lawfully searched. Could the officers search his desk, safe and file cabinets, all within plain sight of the parties, and all located under respondent’s immediate control in his one-room office open to the public?” (Italics ours.)

In ruling as it did the court observed: “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’ 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 of the accused found upon arrest. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L. Ed. 652, 655, L.R.A. 1915B, 834, Ann.Cas. 1915C, 1177. 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’ * * *

* * *

“What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are ‘unreasonable’ searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374. * * * ” (Italics ours.)

In distinguishing Go-Bart Importing Company and Lefkowitz the court said: “ * * * Those cases condemned general exploratory searches, which cannot be undertaken by officers with or without a warrant. In the instant case the search was not general or exploratory for whatever might be turned up. Specificity was the mark of the search and seizure here. There was probable caztse to believe that respondent was conducting his business illegally. The search was for stamps overprinted illegally, which were thought upon the most, reliable information to be in the possession of and concealed by respondent in the very room where he was arrested, over which, room he had immediate control and in which he had been selling such stamps unlawfully. * * * (Italics ours.)

The court in Rabinowitz set up the five particular conditions existing there (on which it based its conclusion) that the search was reasonable, as follows: “ * * (1) the search and seizure were incident to a valid arrest; (2) the place of the search was a business room to zvhich the public, including the officers, was invited; (3) the room was small and under the immediate and complete control of respondent; (4) the search did not extend beyond the room used for unlazvful purposes; (5) the possession of the forged and altered stamps was a crime, * * (Italics ours.)

The differences between the circumstances existing in that case and the instant one are so immediately obvious that it would serve no useful purpose to detail them. Suffice it to mention one important difference between this case and all of the others cited — the arrestee here (Cleon Mixon) was not even the person who had control and charge of the apartment. We do not believe that the ¿rrest of a person, under the circumstances here, should be used as the excuse for a general search and rummaging throughout the home of a third party merely because he happens to be arrested there. We think that the search was illegal, a violation of defendant’s constitutional rights; and that the fruits thereof should have been suppressed and were improperly admitted into evidence.

Although the error in the court’s rulings on which the above discussed bills were based will require the granting of a new trial we, nevertheless, will review the issues presented in the other two assignments inasmuch as the errors complained of therein will probably be raised on a new trial.

Assignment of error No. 2 encompasses bills of exceptions Nos. 6, 7, 21 and 22. These bills were reserved to the court’s failing to suppress, and permitting to be introduced into evidence, certain inculpatory statements made by the defendant to the arresting officers.

We have read the evidence taken in connection with these bills and find that they amply sustain the trial court’s conclusion that prior to the introduction of the statements the state had laid the foundation to show that they were freely and voluntarily given and that the defendant had been advised of her constitutional rights in accordance with the rules set forth in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694. In fact, the accused herself acknowledged that she had been informed as to her right to counsel; and during the laying of the predicate it appeared that the primary aim of the defense was to show that she had made no statements — not that she had not been fully advised of her rights. The question of whether she did, in fact, make them is one for the jury.

In assignment of error No. 3 the defendant urges that it was error for the court to permit testimony of the arresting officers concerning the “conduct” of Pair-lee Serio when they entered the defendant’s apartment. Defendant contends that “Conduct, as well as speech of a third person not called as a witness, under oath, and subject to cross examination should be excluded as hearsay.”

We find no authority for the proposition put forth. When a witness describes what a person did (not what he said) that is evidence of what the witness saw and is clearly not hearsay. There is no merit in the bill.

(We note, incidentally, that the defendant in the brief indicates that the third assignment encompasses bills of exceptions Nos. 9 and 10. However, our examination of the bills themselves reveals that it pertains only to the ruling made in connection with bill of exceptions No. 10. Bill of exceptions No. 9 was reserved to an entirely different and unrelated ruling which occurred during the state’s opening statement. The issue presented therein was not briefed or argued and is presumed to have been abandoned.)

For the reasons assigned bills of exceptions Nos. 1, 2, 11 and 12 are sustained and the conviction and sentence are annulled and set aside. The case is remanded for a new trial consistent with the views herein expressed.

SUMMERS, J., dissents.

SANDERS, Justice

(dissenting).

In the execution of an arrest warrant held by another law enforcement agency for a narcotics offense, police officers entered the defendant’s apartment to arrest Cleon Mixon, whose car was parked in front of the apartment. They arrested the fugitive in the kitchen and in a search found narcotic equipment in a drawer and on top of the refrigerator in the kitchen, a few feet from where the arrestee was standing at the time of arrest. Some of the equipment was coated with narcotic substances. After seizure of this contraband, the officers also arrested the defendant for possession of narcotics.

The trial judge overruled the motion to suppress the seized contraband. The majority has reversed, and set aside the conviction. I dissent.

The Fourth Amendment of the United States Constitution, as well as the Louisiana Constitution, prohibits unreasonable searches and seizures. It is well established, however, that a warrantless search of the place of arrest, if incident to a lawful arrest and reasonable in scope, does no violence to the constitutional guarantee. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; James v Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 685; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.

The rule allowing a search incident to an arrest is justified by the need to seize weapons and prevent the destruction of evidence. Preston v. United States, supra.

In the present case, the officers had reliable information that a warrant had issued for the arrest of Cleon Mixon, This fact is undisputed. Hence, both the entry into the house and the arrest were legal. C.Cr.P. Arts. 213, 224.

The officers seized all of the narcotic equipment in the kitchen, where the arrest occurred. When the officers entered the kitchen, Mixon was moving away from the area of the sink and drawers with a drink in his hand. The evidence is somewhat conflicting as to whether Mixon was standing by the sink or kitchen table at the actual moment of arrest. In my opinion, it makes no difference. The defendant acknowledged he had been by the sink earlier. Accepting either location, the officers found the contraband in the same room, where he had moved about immediately before the arrest.

In a well-written Per Curiam, the trial judge correctly disposes of the factual and legal issues arising from the search:

“I believe it was reasonable upon completing the arrest of Cleon Mixon and under the circumstances of the arrest, considering what he did when first seen and what he was observed doing at the time the officers entered the kitchen, gave the officers the right at that moment to not only search the defendant but search the area where the defendant had been standing in an attempt to ascertain whether he had attempted to secrete any narcotics or narcotic paraphernalia in that area of the kitchen. As such, I believe that the officers had reasonable grounds to make the search and seize the evidence as they did in this case. This further coupled with the track marks on the arms of both this defendant and her co-defendant amply indicated, especially because of the recent inflamed marks on the arms of the defendant Roach, that there was narcotic activity being engaged in in this house. The search was no more than an incidental one to the arrest of Mixon. The defendants cannot complain of narcotics found in their house in the near vicinity of a person wanted for a felony and being aided by them in his attempt to avoid arrest by permitting him not only to come to that house but to receive his mail there. They cannot now say that because a fugitive was captured in their house that any narcotics confiscated in connection with that arrest on their premises is in violation of their constitutional rights.
“Further, as the officers stated, to leave at that time in an attempt to get a search warrant would have permitted Cleon Mixon and any other persons engaged in any illegal activity in this house to destroy the evidence by flushing same down the toilet. It should be remembered that the officers were not on an exploratory search of the defendant’s house, but their prime, main and sole function at the time of knocking on the door was to ascertain if the fugitive was in the house and if he was to place him under arrest and turn him over to the proper authorities.
“It was the action of Mixon and other persons in the house in running about when the officer was seen as well as Mixon’s attempt to hide from the officers which prevented the officers from merely placing him under arrest and taking him off. It was their duty and obligation as officers to see whether this wanted fugitive had secreted any illegal narcotics or paraphernalia in the kitchen after his attempt, upon seeing them, to move out of sight in hopes that he was not recognized. Reasonable police work would require no less.”

Even under the restrictive rule of Chimel v. California, supra, handed down on June 23, 1969, the search in the present case fell within proper limits. The United States Supreme Court said:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the .area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
“There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.”

The Chimel decision, however, is not -retroactive. Hence, under the more liberal rule accepted as applicable by the majority, the reasonableness of the search and seizure in the kitchen is beyond question. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.

The present holding conflicts with our decision in State v McIlvaine, 247 La. 747, 174 So.2d 515 (1965), in which we upheld a search of broad scope in a narcotic search and established a rule of reason for such searches. There, we said:

“The law has not ordained hard and fast rules for the determination of reasonableness. The facts and circumstances of each case must be judged separately, with wide latitude accorded the trier of facts. That determination should not be overturned unless there is clear error. With these basic considerations in mind, we think it is entirely probable that inferences and conclusions from facts may be made in a narcotics case which may conceivably offend standards of reasonableness in another case. The very nature of narcotics transactions, the places where they occur and the parties involved dictate that a different standard should apply if common sense and reason are to play a part in the determination of reasonableness.”

The majority has based its judgment on other grounds. First, it holds that the later search of other rooms in the apartment converted the search into a general exploratory search of the entire apartment. Second, it holds that a search incidental to the arrest was unauthorized since Mixon was in the apartment of a third party and did not have “control and charge of the apartment.”

The first basis for the decision is easily answered. No contraband or evidence was seized in the other rooms of the apartment. As we have observed, the seizure took place in the kitchen, only a few feet from the arrestee. The defendant suffered no trial prejudice from the later search of other rooms. Hence, the search of those rooms is not an issue in this case.

The majority likewise erred in holding that when a person is arrested on the premises of a third person, no incidental search of the immediate surroundings is authorized. Apparently, the majority takes the word “control” found in some of the decisions and equates it to ownership or lease rights. Such an equation, in my opinion, is unwarranted.

The United States Supreme Court has rejected the importation of property concepts into search and seizure law. In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the Court held that a person “legitimately on the premises” of a third party had standing to complain of an unconstitutional search. In so doing, the Court made it clear that the refinements of property law had no application to search and seizure. Property rights are irrelevant to the purpose of a search incidental to an arrest. Such a search is designed to discover weapons and incriminating evidence in the area immediately surrounding the person arrested. The ownership of the surrounding area is immaterial.

More specifically, the Court in Chimel v. California, supra, defined within his immediate control to mean the area in which the arrestee might gain possession of a weapon or destructible evidence.

In the present case, the record reflects that the arrestee frequented this apartment and received his mail there. That he lived elsewhere, and had no lease on the premises should not deprive the officers of the right to search. He was there as a fugitive with the consent of the owners.

The search of a defendant’s premises incident to the arrest of another person is not new to this Court. In State v. Christiana, 249 La. 247, 186 So.2d 580 (1966), this Court upheld the seizure of a pistol in a search of a desk in defendant’s office incident to the arrest of a felon there. The present case conflicts with that holding. See also Clifton v. United States, 224 F. 2d 329, cert. denied 350 U.S. 894, 76 S.Ct. 152, 100 L.Ed. 786.

It is common knowledge that narcotic offenders attempt to destroy the evidence against them. See State v. Johnson, 250 La. 85, 193 So.2d 794 (1967). The restrictive decision here affords the house occupant the opportunity for such destruction. In so doing, it greatly handicaps the enforcement of the narcotics laws. Unfortunately, the decision adds no substantial protection to the right of privacy. Under the circumstances to which the holding applies, the privacy, of the occupant has already been broken by the officers in making an arrest. With no adequate basis in legal theory and no substantial benefit to the right of privacy, the decision represents an unwarranted departure from the jurisprudence of this Court.

For the reasons assigned, I respectfully dissent.

ON REHEARING

FOURNET, Chief Justice.

This case is now before us for consideration on rehearing granted on the application of the State in order to review the majority decision of this court, reversing the conviction and sentence of the defend and on the ground that the trial court erroneously overruled defendant’s motion to suppress certain evidence based on the contention that it was secured as a result of an unreasonable search and seizure of defendant’s residence without a search warfant.

The facts of the case, insofar as pertinent to this matter, as reflected by the record may be succinctly stated, as follows : Officer Lampard had been informed by Lieutenant Giarrusso of the narcotics division of the New Orleans Police Department that he had been contacted by Lieutenant Norman Paxton of the Baton Rouge police, who advised him that there was an arrest warrant outstanding for Cleon Mixon for forging a narcotic prescription, and also advised him he was receiving his mail at 1014 Terpischore, the defendant’s residence. A surveillance was set up of that house and on the afternoon of April 17, 1967 Mixon’s car was seen parked in front of the residence, in which was seated his invalid mother and her dog, whereupon Officers Lampard and Soule went to the front door of defendant’s residence while Officer Lauman went to cover the rear door. In response to Lampard’s knock, he and Soule were admitted into the front door by one of the women who lived there and immediately observed Mixon looking down the hallway from the kitchen door, and then ducking out of view; the officers then ran to the kitchen and grabbed Mixon, who was seen drinking a chocolate drink, placing him under arrest. Officer Lampard let Lauman in through the back door and then searched Mixon, finding nothing. Thereafter the officers began a search of the entire house, beginning in the kitchen, resulting in the discovery by Soule of certain narcotic paraphernalia in a kitchen drawer near the sink and a bottle cap was located by Lauman in a tray on the top of the refrigerator which he thought had been used as a “cooker”, and upon finding “track marks” on the arms and legs of the two women, they were placed under arrest for possession of narcotics.

The basic issue presented for our consideration is if the search of the house, under the circumstances hereinabove referred to, was within the permissible scope of the Fourth Amendment.

Although the question of the reasonableness of a search depends upon the total facts and circumstances of a case, the question remains as- to - what criteria will these facts and circumstances be applied. It necessarily follows that they must be considered in the light of the established safeguards afforded by the Fourth Amendment.

The guarantee of an individual against unreasonable intrusions into their private lives requires that police officers must, wherever reasonably practicable, secure a search warrant in order to search and seize articles from an individual’s premises. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828. The obvious reason for this rule allows the individual the protection of having a judge, rather than the police officers, determine the justification for a search and what limitation should be placed upon such activities. The United States Supreme Court in the case of McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, pointed out,. “This was not done to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals.”

To conduct a search or seizure without a warrant has always been strictly limited. There is no question that when an arrest is made, that it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that he might conceal or destroy that is connected with the crime for which he was arrested. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. The courts have further recognized the reasonableness of the arresting officer to search the immediate area where the crime was being committed and under the control of the person arrested to find and seize things connected with the crime as its fruits or as the means by which it was committed. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877; Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145. However, except under such limited situations, there is no justification for a search without the authority of a search warrant. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889; Preston v. United States, supra; Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663. As aptly observed by the United States Supreme Court in the latter cited case, “ * * * There must he something more in the way of necessity than merely a lawful arrest(Emphasis added.)

We think the evidence on the motion to suppress clearly supports the conclusion reached in our original opinion that the search of the defendant’s house was unreasonable. The arrest of Mixon therein was used by the arresting officer as a pretext for their search of the premises in order to obtain evidence in support of their suspicion of narcotics traffic existing therein. This is made clear by Officer Lampard who admitted they had neither personal knowledge nor any reliable information of any narcotics violations in defendant’s house prior to their entry therein, and when questioned as to why they did not wait until such time as Mixon left the house to arrest him, unhesitatingly responded, “Because we wanted to go into this house.”

The case of State v. Christiana, 249 La. 247, 186 So.2d 580, which is relied upon by the State is inapposite from a factual as well as a legal standpoint and, therefore, is not controlling in the case at bar. I|i that case the defendant was arrested and charged as an accessory after the fact under the following circumstances: Officers were pm-suing one Thomas Williams, an armed felon fleeing the robbery of a finance company, having been identified by employees of the finance company from photographs, and who had been reported to have been seen entering the defendant’s hail bond office which was located across the street from the police station. Immediately upon entering the defendant’s office, one of the police officers saw Williams seated at a desk and the defendant, with his right hand outstretched over the desk holding a large sum of bills which he shoved into his right pants pocket, and observed his other hand over two $10 bills on the desk. Williams was immediately placed under arrest and his person searched, revealing eight .380 caliber automatic cartridges in his shirt pocket, but no gun or money. A search of the desk, toward which he was leaning, revealed the .380 caliber pistol he had used in the robbery, the ownership of which was at first claimed by the defendant, then denied. Following further questioning of Williams and the defendant as to the ownership of the currency and the pistol, the defendant was placed under arrest and searched, resulting in the production of $635 from his pants pocket that the oficers had seen him place there. The money and gun were the principal subjects of the motion to suppress. This court concluded under this factual situation the officers had probable cause for defendant’s arrest and the search was a reasonable one to secure evidence incidental to and in connection with the arrest for a crime that had just taken place.

For the reasons assigned our original judgment reversing the conviction and sentence of the defendant is reinstated and made the final judgment of this court.

SUMMERS, J., dissented.

SANDERS, Justice

(dissenting).

The decision on rehearing is based upon a single ground: The arrest was used by the arresting officer as a pretext for a search of the premises. In so holding, the majority has eliminated the following additional grounds included in the original decision: (1) the search of the kitchen was too broad in scope, and (2) no incidental search of premises is authorized unless the arrestee owns or leases the premises. I, of course, heartily approve the rejection of these grounds. As demonstrated in my former dissent, they have no foundation in law.

The majority makes no finding that the officers had passed up prior opportunities to arrest the fugitive. No such finding could be made from the evidence. The evidence reflects that Mixon was aware he was wanted by the law enforcement authorities and was moving around to avoid arrest. Nonetheless, the majority concludes the officers used the arrest as a pretext for the search, because they could have deferred the arrest until after the fugitive left the house.

The holding, in my opinion, is unsound. Because of the outstanding warrant, the officers had the duty of making the arrest. C.Cr.P.Art. 213. That they did so at their first opportunity should not be questioned by the court. The holding puts the courts in the business of second-guessing policemen as to the proper time to make an arrest. Thus, it represents another obstacle thrown in the path of law enforcement officers in their efforts to suppress crime.

If a reason other than the warrant is required to explain why the oficers made the arrest in the house, it is found in the evidence. They were afraid that Mixon, a known narcotic addict, would dispose of all narcotics in his possession. For example, when Officer Lampard was asked why the police did not wait until Mixon returned to the car to make the arrest, he replied:

“Because we didn’t want to take any chances of him getting rid of narcotics. Anybody looking out that door would have saw us. They would have flushed those narcotics and got rid of it as they had done.”

It is common knowledge that addicts attempt to dispose of the narcotics in their possession when threatened with arrest. State v. Johnson, 250 La. 85, 193 So.2d 794 (1967).

If “something more * * * than merely a lawful arrest” is required for an incidental search without a search warrant, it is also found in the evidence of record. The arresting officers observed fresh “track marks” on the arms of both the fugitive and the present defendant, indicating to them recent use of narcotics. They also observed the fugitive move quickly away from the sink and cabinet drawers.

The seizure of the narcotics in the present case falls well within the guidelines of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), wherein the United States Supreme Court stated:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seizure any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”

For the reasons assigned, I respectfully dissent. 
      
      . Tr. 201-202.
     
      
      . The defendant, Judith K. Roach, was charged by bill of information with possession of a narcotic drug.
     
      
      . At the time of the trial, Oleon Mixon was confined to Angola Penitentiary for having obtained narcotics by fraudulent prescription.
     
      
      . There is a conflict in the testimony as to whether Mixon was by the sink or by the table when the officers entered the kitchen.
     
      
      . The testimony is in conflict as to whether the women were placed under arrest immediately after the discovery of the narcotie paraphernalia in the kitchen or after a search of the entire house revealed a bottle of Saccharin tablets the officers thought were narcotics.
     
      
      . The Fourth Amendment provides : “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, hut upon prohahle cause, supported hy Oath or affirmation, and particularly describing the place to he searched, and the persons or things to ha seised.” (Emphasis added.)
     
      
      . The officers had been informed by a confidential informer that Williams, then out on a bond for armed robbery, was planning “to make a big score” to obtain money to pay bis bondsman.
     
      
      . Narcotics found on Mixon’s person or under his constructive possession or control could have been used to prove the crime for which he was being arrested, forgery of a narcotic prescription. Even if they were not acquired with the forged prescription, they were admissible to show guilty knowledge and intent. They could have also been used to prove an independent crime. See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
     
      
      . Unfortunately, the majority resurrects the quoted language from Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), expressly and partially overruled in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). The majority apparently assumes that the historical review of this decision in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) reinstates all of its pronouncements. In my opinion, this assumption is unwarranted.
     