# State v. Lampkin

> Supreme Court of Louisiana · January 20, 1969 · 253 La. 337

URL: https://www.frixlaw.com/law-library/cases/9527545

## Case

- **Full name:** STATE of Louisiana v. Clarance LAMPKIN
- **Court:** Supreme Court of Louisiana
- **Decided:** January 20, 1969
- **Citations:** 253 La. 337; 218 So. 2d 289; 1969 La. LEXIS 3137
- **Precedential status:** Published
- **Opinion:** Dissent by Barham
- **Judges:** Hamlin, Barham, McCaleb, Butler, Lacroute, Rogers, Scruggs, Procedure
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9527545

## Opinion text

BARHAM, Justice
(dissenting).
I find that the majority has erred in four respects in this appeal. First, on the basis of a single casual statement in the State’s brief that the defendant who took the appeal in this matter had escaped from the parish jail and was a fugitive, and with no showing in the record that such was a fact, the majority has considered the defendant a fugitive and determined the procedure to be followed now that former R.S. IS :54s, 1 which called for the dismissal of a pending appeal if the defendant was a fugitive from justice, is repealed and has no counterpart in the present Code of Criminal Procedure.
In the first reported case on this subject, State v. Wright, 32 La.Ann. 1017 (1880), it was stated: “ * * * we are not prepared to say that upon a mere suggestion of such escape or reported escape we would be justified in dismissing his appeal * * Much more recently, in State v. Jugger, 217 La. 687 , 47 So.2d 46 (1950), Mr. Justice McCaleb speaking for the court said: “It is also well established that, when the motion to dismiss is supported by an affidavit of the sheriff of other officer last having custody of the appellant that he is a fugitive, it will be accepted by this Court as sufficient proof of the statements contained therein if they are not denied. State v. Scruggs [ 192 La. 297 , 187 So. 673 ], State v. Butler [ 132 La. 597 , 61 So. 682 ], and State v. Lacroute [ 134 La. 3 , 63 So. 603 ], supra.”
The State did not file a motion to dismiss this appeal or file an affidavit from *355 the official last having custody of the ■defendant establishing the fact of his escape, and' it is error to pass upon the status of the defendant’s appeal before this court on the mere suggestion in the State’s brief that he is a fugitive. Since there is now no positive legislative enactment on this matter, it is most unwise for this court to attempt to establish a rule of law upon this important subject without benefit of brief and argument presenting all aspects of the question.
Although I consider it obiter dictum, since the majority has made the enunciation upon this important matter I feel compelled to point to the majority’s error in the conclusion and result reached. The dismissal procedure incorporated in the 1928 Code (former R.S. 15:548) had been the law by judicial pronouncement as early as 1884, and the practice of dismissing a pending appeal when the appellant was a fugitive at the time his appeal was to be heard was judicially undeviating. State v. Edwards, 36 La.Ann. 863 (1884); State v. Mansfield, 38 La.Ann. 563 (1886); State v. Porter, 41 La.Ann. 402 , 6 So. 337 (1889); State v. Craighead, 44 La.Ann. 968 , 11 So. 629 (1892); State v. Butler, 132 La. 597 , 61 So. 682 (1913); State v. Lacroute, 132 La. 3 , 63 So. 603 (1913). See also State v. Scruggs, 192 La. 297 , 187 So. 673 (1939), and State v. Jugger, supra (1950), which were decided after the 1928 enactment of the Code.
The new Louisiana Code of Criminal Procedure, which became effective January 1, 1967, omitted a provision for dismissal of appeals when the appellant is a fugitive from justice, and under Article 919 of that Code a comment is made giving the reason for and expected effect of the omission. 2 While comments may be persuasive, they are not binding upon the court, and the rationale expressed in this particular comment is unsound and even contrary to a pronouncement by the United States Supreme Court. Allen v. Georgia, 166 U.S. 138 , 17 S.Ct. 525 , 41 L.Ed. 949 , which has since been cited and relied upon by the Supreme Court and state courts, said:
“We cannot say that the dismissal of a writ of error is not justified by the abandonment of his case by the plaintiff in the writ. By escaping from legal custody, he *357 has, by the laws of most, if not all, of the states, committed a distinct criminal offense; and it seems but a light punishment for such offense to hold that he has thereby abandoned his right to prosecute a writ of error, sued out to review his conviction; otherwise he is put in a position of saying to the court: ‘Sustain my writ, and I will surrender myself, and take my chances upon a second trial; deny me a new trial, and I will leave the state, or forever remain in hiding.’ We consider this as practically a declaration of the terms upon which he is willing to surrender, and a contempt of its authority, to which no court is bound to submit. It is much more becoming to its dignity that the court should prescribe the conditions upon which an escaped convict should be permitted to appear and prosecute his writ than that the latter should dictate the terms upon which he will consent to surrender himself to its custody.”
Such a court-originated rule as this which is effective in maintaining the dignity of the court and protecting the interest of the State is not necessarily discarded because of its omission from the new Code. The better practice is to recognize the interest of the judiciary and in the absence of specific repugnant legislation to maintain and invoke the rule enunciated by the courts. 3
The majority has committed the third error by reviewing the bills of exception though brief was not filed nor an appearance made on behalf of the defendant. Counsel for defendant, who the minutes show was retained and' not court-appointed, perfected the bills of exception and is still counsel of record, but he neither briefed nor argued the matter. It has been the steadfast rule of this court that where the defendant makes no appearance, the bills of exception are considered abandoned, and the court acts in accord with Article 920(2) of the Code of Criminal Procedure 4 by reviewing only errors which are evident or “patent” on the face of the record. State v. Weaver, 222 La. 148 , 62 So.2d 255 (1952); State v. Perry, 239 La. 131 , 118 So.2d 130 (1960); State v. Wessinger, 245 La. 409 , 158 So.2d 594 (1963); State v. Brown, 245 La. 442 , 158 So.2d 605 (1963); State v. Montera, 250 La. 753 , 199 So.2d 534 (1967). I would therefore not review *359 the bills of exception in this case. Finding no error discoverable by mere inspection of the pleadings and proceedings, I conclude that, if the appeal is not to be dismissed, the verdict and sentence should be affirmed.
Finally, although I have expressed valid grounds for dismissing the appeal or, alternatively, for affirming the trial court, because the majority has considered the bills of exception I must discuss what I believe to be the fourth error in the opinion, correction of which would require reversal of the conviction and sentence.
Bill of Exception No. 1 was reversed to the trial court’s overruling of the defendant’s motion to suppress evidence allegedly recovered under an illegal search warrant. This bill has merit for two reasons: The affidavit for the warrant does not contain facts and information sufficient to support probable cause for the issuance of the warrant, and the affidavit and the warrant fail to clearly and particularly designate the premises to be searched.
Article 1, Section 7, of the Louisiana Constitution states: “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.” (Emphasis supplied.) This is the same language found in the United States Constitution, Amendment IV, and the United States Supreme Court has held in Ker v. California, 374 U.S. 23 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 , that the standards set forth in the Fourth Amendment in this regard are applicable to and enforceable against the states through the Fourteenth Amendment.
Before a magistrate or judge may issue a search warrant he must be able to find probable cause for the search from information contained in the affidavit submitted to him. The warrant may not be issued merely on the affiant’s stated opinion that there is probable cause. The affidavit must itself contain sufficient factual information for a magistrate to make an independent finding of probable cause. “Under the Fourth Amendment, an [judicial] officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance or belief or suspicion is not enough.” Nathanson v. United States, 290 U.S. 41 , 54 S.Ct. 11 , 78 L.Ed. 159 (1933); see also Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960).
The very requirement for á search warrant is founded upon the need to interpose between the police officer and the citizen *361 .a neutral, detached magistrate or judge who shall determine and pass upon whether probable cause exists for the issuance of the warrant. He must determine for him.self the persuasiveness of the facts relied upon by a complaining officer to show prob.able cause and cannot accept without question the complainant’s mere conclusions. And finally, if ever there was doubt that the factual information which is the foundation for the determination of probable ■cause must be contained in the written and ■executed affidavit, Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), put the matter at rest conclusively. 'That case held that the necessary information for establishing probable cause must •exist in the affidavit, and that subsequent proof that the information was available .at the time of 1he issuance would not cure •the defective affidavit. United States v. Ventresca, 380 U.S. 102 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965), citing Aguilar, supra, stated: “This is not to say that probable •cause can be made out by affidavits which .are purely conclusory, stating only the affiant’s or an informer’s belief that probable ■cause exists without detailing any of the 'underlying circumstances’ * * Our own state law is equally clear, concise, and •demanding in this regard. Article 162 of •our Code of Criminal Procedure states in part: “A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.” (Emphasis supplied.)
Now, in the light of these pronouncements, consider the affidavit executed in the instant case. The essence of the affidavit is that affiant “suspects and believes” Clarance Lampkin stole and concealed items of clothing. There are no facts to support or lend credence to affiant’s opinion. This affidavit, executed on a printed form on which the particular information was filled in by hand, is here reproduced, the underlined words being those written in.
“AFFIDAVIT FOR SEARCH WARRANT
“(STOLEN PROPERTY)
“MUNICIPAL COURT, CITY OF RUSTON, WARD ONE, LINCOLN PARISH, LOUISIANA
“BEFORE ME, the undersigned authority, personally came and appeared Edward L. Lester, who on first being duly sworn, deposes and says:
“That on or about the 17 day of Sept., 1967, in the parish of Lincoln, State of Louisiana, certain personal property belonging to S & L Laundry of the value of $20.00 was feloniously stolen and taken from S & L Laundry “that deponent suspects and believes that one certain Clarence Lampkin stole or *363 took said property, and that said property (or a part'thereof) is concealed on or about the premises of -Barbara Fowler in said Parish and State; said property being described as follows:
Items of Clothing
“WHEREFORE, deponent prays for process to search the premises of said Clarence Lampkin and Barbara Fowler as provided by law.
“Edward L. Lester”
As already stated this bill of exception has merit for the additional reason that the affidavit and the warrant fail to clearly describe the premises to be searched.
The Louisiana constitutional requirement that a warrant issue “particularly describing the place to be searched * * * ” is repeated in Article 162, Code of Criminal Procedure, with the words “ * * * it shall designate the place to be searched”. Again, it is obviously necessary that the magistrate or judge make an independent determination and name the particular place to be searched after considering the affidavit which is before him. The premises to be searched must be designated with such certainty that they are readily and easily identifiable by any officer qualified to execute the warrant. The particularity required in affidavit and warrant is recognized in Steele v. United States, 267 U.S. 498 , 45 S.Ct. 414 , 69 L.Ed. 757 (1925), and Berger v. New York, 388 U.S. 41 , 87 S.Ct. 1873 , 18 L.Ed.2d 1040 (1967). But see also State v. Lee, 247 La. 553 , 172 So.2d 678 (1965), in which we held a warrant invalid where the executing officer by telephone informed the issuing judge that the address in the warrant was. incorrect but that he knew the correct address and the proper premises to be searched, and the officer was given permission by the judge to change the municipal number. We said, quoting from 79' C.J.S. Searches & Seizures, § 82, p. 896 r “ * * * Thus, a warrant is invalid if it is amended by the executing officers, even on the consent of the issuing officer, or on a telephone communication from him. Moreover, the issuing officer cannot amend the warrant unless the affidavit itself is so amended as to conform to the proposed change or unless the original affiant performs some corporal act which would constitute an oath. * * * ” See also State v. Chargois, 245 La. 647 , 160 So.2d 231 (1964), where a writ applied for by the State was denied because the search warrant was executed at a place other than that described in the warrant. In that case the warrant was issued to search the premises of 5100 Laurel Street. There were two entrances to this building, a business fronting on Laurel Street and a residence on Soniat Street. Although access could be had from the business portion to the residential area by door, we affirmed the *365 ruling of the trial court suppressing the •evidence recovered under the search warrant because entrance was made through the residence on the side street and it, not the business establishment, was searched. We said that “ * * * the search warrant was executed at a place other than that •described in the warrant”.
It is now well established under both Louisiana and federal law that the oath -or affidavit required by the Constitutions must be in writing and must contain all the necessary information for a judicial •officer to make the required judgment for issuance of the search warrant. Search warrants are to be strictly construed, and the premises to be searched must be designated with “particularity” by the issuing •officer on the basis of information contained in the affidavit. The designation of the premises to be searched in the present case as “the premises of said Clarence Lampkin and Barbara Fowler” is not a description of such particularity as is required by our Constitutions, and the warrant relied upon was fatally defective.
As previously stated, I do not consider this bill properly before us, but since the majority has passed upon the bill, I must express my opinion that it has erred in failing to reverse the conviction and sentence because of the merit specified.
I respectfully dissent.
McCALEB, Justice, is of the opinion that the appeal should be dismissed, as it is well settled that, if a person convicted of a criminal offense becomes a fugitive from justice, his appeal will be dismissed. State v. Butler, 132 La. 597 , 61 So. 682 ; State v. Lacroute, 134 La. 3 , 63 So. 603 ; State v. Rogers, 150 La. 1080 , 91 So. 518 ; and State v. Scruggs, 192 La. 297 , 187 So. 673 . The omission of R.S. 15:548 from the new Code of Criminal Procedure does not effect an overruling of the established jurisprudence of this Court.
. Former R.S. 15 :548 provided: “If the appellant be a fugitive from justice on the return day or on the day fixed for the hearing of his appeal, the appeal will be dismissed.”
. The comment reads : “Former R.S. 15 :- 548 provided that if the appellant was a fugitive from justice on the return day or the day fixed for hearing on his appeal, the appeal would be dismissed. The provision is omitted from this Code, because it is unfair to the defendant. For example, if a man has appealed from a death sentence and ho escapes, under the provisions of former R.S. 15:548, the effect is to make the escape a capital offense, since he loses his right to appeal. Furthermore, the more frightened a convicted defendant is, the more likely he is to attempt to escape, and he should not be denied his right to an appeal because of such circumstances.”
. The comment that “ * * * it is unfair to the defendant” to dismiss an appeal simply because he is a fugitive from justice does not meet my understanding of fairness and due process. However, I do not foreclose the possibility of subscribing to a procedure whereby we would merely refuse to consider the appeal so long as the defendant was a fugitive, reserving the riglit of appeal upon bis return to authority and the jurisdiction of this court. See State v. Wright, 32 La.Ann. 1017 .
. Article 920(2) describes such an error as “Any error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence”.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9527545. Public record. Not legal advice.