
    In the Interest of Eloise MOTEN, Vanessa Lee Randall and Ramona Williams.
    No. 3990.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 1, 1970.
    On Rehearing Dec. 7, 1970.
    Luke Fontana, Robert Glass, New Orleans, for appellants; James Reif, Gary Sutton, of counsel.
    Jim Garrison, Dist. Atty., Louise Korns, Herman S. Kohlman, Asst. Dist. Attys., for Juvenile Court.
    Before SAMUEL, CHASEZ and BAR-NETTE, JJ.
   CHASEZ, Judge.

This is an appeal from a Juvenile Court proceeding in which the three appellants, Vanessa Randall, Ramona Williams and Eloise Moten were adjudged to be delinquent and released to the custody of their parents on probation.

After an analysis of the testimony and briefs of both counsel we find the facts to be as follows: The matter originated when the mother of Vanessa Randall reported to the Juvenile Bureau of the New Orleans Police Department that her daughter was a runaway and was absenting herself from home without parental consent. Mrs. Randall furnished the authorities with the address at which she believed her daughter to be. Two officers were dispatched to apprehend the child and deliver her to the Juvenile Court for appropriate action. On arriving at the address furnished by Mrs. Randall, the two officers inquired as to whether the runaway girl was there. Eloise Moten, another juvenile, who allegedly lived at that address, asked the officers if they had a warrant. When the officers stated that they had no warrant they were refused admittance to the home. The officers then went to the home of Vanessa Randall to speak to her mother in order to ascertain whether they had been given the correct address. Mrs. Randall confirmed the address and showed the officers a photograph of her daughter to assist in the identification.

The officers then returned to the address, without getting either a search or arrest warrant. They went to the back door and entered the home without permission, alleging to have seen the runaway, Vanessa Randall, through the kitchen door.

The testimony as to what actually took place after that is somewhat in conflict. The girls testified that when the two policemen entered the house they mistook Eloise Moten for Vanessa Randall and told her to “get ready-' to come with them.” The girls were attired in gym suits, which necessitated a change of clothing. At this point Vanessa Randall entered the room where the policemen and Eloise Moten were and identified herself. The girls testified that Vanessa Randall was then told to get ready too. The police officers, on the other hand, claim to have arrested Vanessa Randall immediately. In either event, Vanessa Randall was directed to change her clothing in order to make the trip to the juvenile detention facility for further action as might be directed by the Juvenile Court.

After the Randall girl had changed her clothes and was being escorted through the house, Eloise Moten, according to the police officer, became violent in that she began cursing the officer and went into the kitchen where she removed a kitchen knife from a drawer and advanced toward the policeman. At this point the officer drew his service revolver as a defensive measure and managed to subdue the girl and placed her under arrest.

Eloise Moten and Vanessa Randall were handcuffed together and then Ramona Williams began cursing the officers. The officer then advised her that she too would be taken to the Juvenile Bureau for using obscene language to which she replied, “You’re not taking my friends to jail and not taking me neither.” A struggle ensued between one of the officers and the Williams girl. He called to the other officer to aid him in subduing the child. As the second officer came to the aid of the first, the two girls who were handcuffed together attempted to escape by running from the house. They were caught by one of the officers and all three were placed in the patrol car and taken to the Juvenile Bureau.

A single petition was filed in the Juvenile Court for the Parish of Orleans by C. J. Kerber, a probation officer of the Juvenile Court, naming all three juveniles and alleging as follows:

“That the above named juveniles * * *
* * * (names of parents omitted)
and which said children are within the jurisdiction of the Juvenile Court for the Parish of Orleans, State of Louisiana, in that they were alleged to be delinquent children, R.S. 13:1570, A. (5), by violating Louisiana Revised Statutes 14:108, relative to Resisting An Officer, by intentionally opposing, obstructing and acting violently towards Patn. B. J. Suggs and Patn. T. Legett, New Orleans Police Officers, acting in their official capacity, and authorized by law, to make lawful arrest, about 9:35 A.M. January 17, 1969 at the location of 2135 Whitney Avenue, Apt. 2-A, New Orleans, Louisiana, with full knowledge that said officers were acting in their official capacity. * *

After a hearing in Juvenile Court, all three were found delinquent on the foregoing petition and were:

“* * * committed to State Industrial School for Colored Youth, with no consideration for leave or parole for two years because of behavior at Youth Study Center and in the Courtroom.”

A writ of habeas corpus to this court was denied for failure of the juveniles to exhaust all legal remedies in the Juvenile Court. Thereafter a motion for a return of the juveniles to Juvenile Court for discharge or further disposition was filed in the Juvenile Court pursuant to LSA-R.S. 13:1572. The motion was granted and further hearing was had before another division of the Court. The adjudication of delinquency as to all three was upheld, but instead of recommitment to the Industrial School, all three were placed in the custody of their parents, to remain on probation under the supervision of the Juvenile Court, subject to further orders. This appeal is taken from that adjudication and disposition.

We are constrained to reverse the adjudication of delinquency on the petition filed. We base our judgment on the fact that the alleged delinquency of resisting officers and obstructing them in the discharge of their official duties was incident to an unauthorized entry without probable cause in violation of provisions of the Constitutions of the United States and Louisiana. We are cognizant of the fact that the officers were acting at the direction of the runaway girl’s mother and that they had every reason to believe that the runaway girl was present at the address, where she was indeed found to be.

However, under the guidelines established in both the Federal and State Constitutions, as interpreted by the United States Supreme Court, we must hold that when the officess entered into the home of Eloise Moten without a warrant, they exceeded their authority and encroached on the constitutionally protected right of privacy of the individuals in the home.

It seems clear that in order for the police to legally enter a home and make an arrest, a warrant should be gotten in all but certain extreme situations. The Louisiana Constitution 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 such search or seizure shall be made except upon warrant therefor issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” La.Const. Art. 1 § 7.

The United States Supreme Court has held that Due Process and the Fourth Amendment require that when police officers enter a house to search for and arrest a person, they must have a warrant unless “exigent circumstances” require their immediate entry. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

The fact that the persons involved in this case are juveniles rather than adults does not make this requirement any less applicable, for the Constitution states that “people” will be secure against unreasonable searches and seizures and the bare rudiments of due process would seem to guarantee this safeguard to juveniles as well as to adults. Neither are there any “exigent circumstances” in this case to justify entry without a warrant.

Vanessa Randall was reported by her own mother as a runaway child, absenting herself from home without parental consent. The very fact of such behavior is so fraught with danger to a child that it requires no further comment. Because such behavior is recognized as contrary to the best interests of a child, the statute very wisely includes this as a cause which brings a child within the jurisdiction of the Juvenile Court. LSA-R.S. 13:1570, subd. A (3).

When a child is reported to the Juvenile Court in such condition or state of being, which is continuous in nature, a proceeding on a delinquency petition in the Juvenile Court is clearly authorized.

When a runaway child is reported by his parent or other custodian and the authority of the court is requested as an aid to the parent or other custodian in apprehending the child and in the interest of the child to protect him from the dangers inherent in such behavior, the officer may apprehend the child on the street or wherever he may be found without the necessity of a warrant since the nature of the delinquency is continuous and is in the process of commission wherever the child may be. The statutes covering this situation are peculiar to juveniles. There are no corresponding statutes in the criminal laws with respect to adults, but this is in a sense analogous to a misdemeanor being committed by an adult in the presence and knowledge of an officer who may then make an arrest without first obtaining a warrant. Therefore, it was not the arrest of Vanessa Randall without a warrant with which we find fault, but rather the entry into a private home in violation of the constitutional right of privacy of its occupants without sufficient showing of emergency, or the child’s need of protection, to justify entry without the proper authority of the Court.

Since the entry into the Moten house was illegal, the allegation of delinquency based on resisting an officer acting in his official capacity must necessarily fall. For the same reason the adjudication of delinquency must be held to have been erroneous and must be set aside. Had the Randall child been presented to the court on a delinquency petition, based upon her absenting herself from home without parental consent, the result might be different, at least with regard to her. She may still be subject to the jurisdiction of the Juvenile Court on such a petition if present conditions indicate; nor does this opinion preclude further proceedings in the interest of the other two juveniles if present conditions indicate that such would be in their best interest within the purpose and intendment of the Juvenile Court Statutes.

In any event, the adjudication of delinquency based on resisting an officer must be annulled and set aside.

For these reasons the adjudication of delinquency and the order of the court placing the juveniles on probation under the supervision of the probation department are annulled and set aside. It is now ordered and decreed that the juveniles, Vanessa Randall, Ramona Williams and Eloise Moten, be released from probation supervision and the petition of delinquency dismissed.

Reversed and rendered.

ON REHEARING

The present case, up for rehearing by this court, centers on the question of whether or not police officers may legally enter a private residence without a warrant or permission from its occupants to pick up a runaway juvenile who can be seen inside and whose parents have requested her return. In our original disposition of the case/ in which we answered this question negatively, we made, after a careful analysis of the testimony and briefs of both counsel, a finding of facts which need not be restated here. However, our holding at that time did not require a determination of the truthfulness of the officer’s testimony that he saw the runaway child through the kitchen door upon returning to the home. Upon reconsideration of the case, this allegation has become relevant, and we now accept it as fact. With this single exception we affirm our original factual findings.

This court, in reversing a finding of delinquency on the charge of resisting arrest, did not find fault with the warrantless arrest of a juvenile, per se. It held that R.S. 13:1570, subd. A (3) and article 213 of the Louisiana Code of Criminal Procedure clearly authorize an officer to apprehend the child in such a case. It noted that the statutes covering this situation are peculiar to juveniles'and analogized a child’s absenting himself from home to a misdemeanor being committed by an adult in the presence of an officer who may make an arrest without first obtaining a warrant. What the court did fault, however, was the unauthorized entrance by police into a private residence to make the arrest without proper authority of the court, or a sufficient showing of emergency or the child’s need of protection to justify such intrusion. Therefore, it held that the Fourth Amendment of the Federal Constitution and Article 1, Section 7 of the Louisiana Constitution had been violated. It is this holding which is now being reconsidered.

The above mentioned constitutional provisions protect the right of the people to be secure against unreasonable searches and seizures providing that no warrants for such searches and seizures shall be issued but upon probable cause. At the heart of this court’s original decision were pronouncements of the United States Supreme Court, noted particularly in McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), that due process and the Fourth Amendment require that when police authorities enter a house to search for and arrest a person they must have a warrant unless “exigent circumstances” require their immediate entry. For this reason it will be helpful to reexamine the rationale of these decisions to determine if they do, in fact, prohibit the warrantless arrest which took place in the instant case.

McDonald involved a suspected illegal lottery operation which had been under surveillance for several months. Thinking that they had detected from the outside the sound of an adding machine, the police forced their way, without a warrant for search or arrest, into a rooming house in which the defendant had rented a room. They proceeded to his room, looked through the transom and observed the defendants engaged in the operation of a lottery. They demanded and obtained entrance, arrested the defendants, and seized evidence which was in plain view. Although the Supreme Court reversed their subsequent conviction, it did not do so on the ground that the police were not justified in arresting without a warrant persons observed in the act of committing a crime in the “privacy” of their home. In fact, in his concurring opinion Justice Jackson specifically stated that had police had lawful entrance to the building they would, after observing the crime in progress, have been justified in making the arrest:

“Doubtless a tenant’s quarters in a rooming or apartment house are legally as well as practically exposed to lawful approach by a good many persons without his consent or control. Had the police been admitted as guests of another tenant or had the approaches been thrown open by an, obliging landlady or doorman, they would have been legally in the hallways. Like any other stranger, they could then spy or eavesdrop on others without being trespassers. If they peeped through the keyhole or climbed on a chair or on one another’s shoulders to look through the transom, I should see no grounds on which the defendant could complain. If in this manner they, or any private citizen, saw a crime in the course of commission, an arrest would be permissible.” 335 U.S. at 458, 69 S.Ct. at 194.

What the court did hold in McDonald was that the circumstances surrounding the suspected lottery operation were neither so urgent nor pressing as to justify police in foregoing a warrant and breaking and entering the landlady’s bedroom in order to permit them to observe the crime in operation. Noting that there was sufficient time and adequate grounds for seeking a search warrant, the court refused to allow the constitutional barrier that protects the privacy of the individual to be hurdled so easily. In the course of its decision it elaborated on the purpose of the Fourth Amendment:

“We-are not dealing with, formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not 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.” 335 U.S. at 455, 69 S.Ct. at 193.

It can clearly be seen from the above quotation and the previously cited remarks by Justice Jackson that what the Court was contemplating was a situation where an impartial magistrate should determine if there was sufficient evidence to warrant entering to determine whether a crime was being committed and not one where a crime was actually being committed in his presence.

The Louisiana case of State of Louisiana ex rel. Naylor v. Walker, 206 F.Supp. 544 (1962) cert. denied, 371 U.S. 957, 83 S.Ct. 514, 9 L.Ed.2d 504, further supports this view. There it was held that a forced entry by an arresting officer was not illegal, as the officers, from their ,keyhole observations and previously obtained information, reasonably believed that a narcotics offense was being committed. See also United States v. Lindsly, D.C., 7 F.2d 247.

The U. S. Supreme Court case of Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 is another case in point. There, police officers, after detecting the odor of burning opium in a hotel hallway, entered a room without a search warrant and without knowing who was there. The room was searched, apparatus used in smoking of opium seized, and the occupant arrested. The Supreme Court overturned his subsequent conviction on the grounds that the Fourth Amendment had been violated. There again the court makes clear that the point of the Fourth Amendment is its requirement thát a neutral and disinterested magistrate determine if the evidence warrants an intrusion into the privacy of an individual. Obviously, this test has no application where an offense is being committed in full view of an arresting officer. Further evidence that this is the case can be found in the court’s answer in Johnson, supra, to the government’s contention that the search without warrant must be held valid because incident to an arrest: “This alleged ground of validity requires examination of the facts to determine whether the arrest itself was lawful. Since it was without warrant, it could, be valid only if for a crime committed in the presence of the arresting officer or for a felony of which he had reasonable cause to believe defendant guilty” 333 U.S. 10, 15, 68 S. Ct. 369, 370. [Emphasis added] (In a footnote the Court explained, citing United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210, that state law determines the validity of arrests without warrants, and this was the Washington law.) The important point is the Court’s recognition that a warrantless arrest of an individual may be made in his private quarters if he is there observed in the commission of a crime.

And in the case of Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L. Ed. 1663, the Supreme Court held valid the warrantless arrest of one engaged in the operation of an illegal still where he had been observed through an open door by a federal agent. Significantly, it did so despite the fact that there was sufficient time to obtain an arrest warrant:

“His arrest was therefore valid on the theory that he was committing a felony in the discernible presence of an agent of the Alcoholic Tax Unit, a peace officer of the United States. The absence of a warrant of arrest, even though there was sufficient time to obtain one, does not destroy the validity of an arrest under these circumstances. Warrants of arrest are designed to meet the dangers of unlimited and unreasonable arrests of persons who are not at the moment committing any crime. Those dangers, obviously, are not present where a felony plainly occurs before the eyes of an officer of the law at a place where he is lawfully present. Common sense then dictates that an arrest in that situation is valid despite the failure to obtain a warrant of arrest.” 334 U.S. at 699, 68 S. Ct. at 1232.

In light of the foregoing discussion it seems clear that a warrantless arrest of an individual in his private quarters under certain circumstances is proper and would be violative of neither the Fourth Amendment to the U. S. Constitution, nor Art. 1 Sec. 7 of Louisiana’s Constitution. It must now be determined whether the arrest in the instant case falls within constitutionally permissible bounds.

From the outset, this case is complicated by the fact that there is no actual “crime” being committed in the technical sense of the word, this being due to the peculiar nature of the laws relating to juveniles. Nevertheless, when a child absents himself from home without parental permission he is, in fact, guilty of unlawful activity. Thus, as noted above there is no problem with his arrest. The problem is whether his “offense” warrants his being arrested prior to any type of warrant having been obtained when he is observed taking refuge in the home of another. We hold that it does.

Although this is not strictly speaking, a case involving a search or seizure, the constitutional protections of the Fourth Amendment and Art. 1 Sec. 7 of Louisiana’s Constitution nevertheless come into play as the officers were required to make, without permission, an entrance into a private residence to effect the arrests. These provisions do not prohibit all intrusions into private homes, but only those which are unreasonable. As has been shown in the above cited Supreme Court decisions “reasonableness” in the case of suspected illegal activity is dependent upon probable cause as determined by an impartial magistrate. This is subject to the exception of “exigent circumstances,” in which case the requirement of a warrant is suspended.

These decisions also clearly indicate that the above stated constitutional protections were not designed to provide a “base” on which citizens can safely flaunt violations of the law in full view of officers of the peace. Thus, an immediate arrest in such a case is not unreasonable, and the fact that it is made in a private residence, and that there may have been time to obtain a warrant is of no consequence.

In addition to the inapplicability of a search warrant an arrest warrant was equally unnecessary as well as inappropriate. Warrants of arrest, as the Supreme Court stated in Trupiano, supra, are designed to meet the dangers of unlimited and unreasonable arrests of persons who are not at the moment committing any crime. Even conceding arguendo, that being a runaway is not a “crime”, the reasons for this protection are obviously not present under these circumstances.

It has been suggested to this court that a distinction be drawn between a felony and a misdemeanor regarding the officer’s right to arrest for a violation of the latter committed in a private residence, but in the full view of an officer. As stated above, the Supreme Court has held in United States v. Di Re that state law determines the validity of arrests made without warrants. There is no question that Louisiana’s authorization under art. 213(1) of the Code of Criminal Procedure is sufficiently broad to sustain the arrest in this case, and the only question is whether the Fourth Amendment to the Federal Constitution and Art. 1 § 7 of Louisiana’s Constitution render it illegal.

This is a novel issue and has not yet been answered by the courts. Without holding that any misdemeanor would justify such an intrusion, we hold that the arrest in this case, under these conditions violates neither the spirit nor the letter of these constitutional safeguards. Just as society has a valid interest in protecting itself frcxn dangerous felons it has an equally valid interest in the protection of its juveniles. We do not accept the argument that these children were “safe” in the home of a friend, particularly since there was no adult supervision at the time of the arrests. No child who has run away from his parent’s supervision and who has taken refuge with another juvenile in the latter’s home can be considered “safe”; that such action is fraught with danger is self-evident and requires no elaboration. To sustain our original holding reversing the adjudication of delinquency would defeat the purpose of laws designed for the protection of these juveniles, needlessly tie-ing the hands of police authorities in the process, and would pervert the very constitutional safeguards behind which they so righteously hide.

Appellant also contends that article 224 of the Code of Criminal Procedure requiring the peace officer to announce his authority and purpose before entering to make an arrest was not complied with. This argument is based on the failure of the officer to make any statements before walking into the home to make the arrest. We find this inconsequential since only a short while before, on their first visit to the residence, the officers had made clear their purpose and authority and going through the ritual of restating it was simply unnecessary. The requirement of article 224 had been satisfied.

For the foregoing reasons the original judgment of this Court, dated June 1, 1970, is vacated and the Juvenile Court’s adjudication of delinquency of Eloise Moten, Ramona Williams and Vanessa Lee Randall, releasing them to the custody of their parents is reinstated and affirmed.

Original judgment vacated, adjudication of delinquency of minors affirmed. 
      
      . Article 13:1570 provides in part that the court (referring to the Juvenile Court) shall have exclusive original jurisdiction concerning any child whose domicile is within the Parish, or who is found within the Parish, and who has absented himself from home or usual place of abode without the consent of his parents or other custodian. Art. 213 provides, also in part that an officer may arrest without a warrant a person who has committed an offense in his presence, providing further that if it is for a misdemeanor it must be made immediately or in close pursuit.
     
      
      . The official Revision Comment under 213(1) states in part:
      “Instead of the phrase ‘felony, or misdemeanor’ this article contains the term ‘offense’. Art. 933 defines ‘offense’ to include both felony and misdemeanor and ‘misdemeanor’ to include violation of ordinances.”
     