‘‘[t]he requirement that a person be able to read and write the English language to be qualified for jury service is a reasonable and nondiscrimina- tory regulation’’
How later courts described this case
- ‘‘[t]he requirement that a person be able to read and write the English language to be qualified for jury service is a reasonable and nondiscrimina- tory regulation’’
Written by the judges who cited it.
The opinion
BARHAM, Justice
(dissenting).
Bills of Exception Nos. 4 and 14 contend that a piece of cloth and a pair of pinking shears were obtained as evidence in contravention of the defendant’s privilege against illegal searches and seizures. Bill No. 4 was reserved at the hearing on a motion to suppress the evidence, and Bill No. 14 was taken at the trial of the case when the defendant’s objection to the introduction of the evidence was overruled.
Three masked men burglarized the Arceneaux dwelling at about 5:00 a.m. on June 26, 1965. One of the men, Robert “Bobby” Elias, was shot and killed by Mr. Arceneaux as he entered the house. The second man, James Douglas Simmons, injured himself in climbing a fence as he fled, and he was soon apprehended and arrested near the house. Acting upon information that Claude Comeaux, the defendant here, was a friend of Simmons, officers sought to find and arrest him in connection with the burglary, and his residence was placed under surveillance at 7:00 o’clock in the morning, two hours after the burglary. Comeaux was arrested away from home at about 11:00 a.m. A search warrant for the search of his house was obtained at 1:00 o’clock that afternoon, and a search of the premises began immediately.
On the trial of the motion to suppress evidence on November 23, 1966, the State stipulated that it did not rely upon the search warrant as the basis for the admissibility of the “pinking shears and pieces of white cloth” which were seized from the Comeaux residence. Even if the State had not conceded the invalidity of the search warrant, from all the testimony the conclusion is inescapable that the search warrant *497 was illegal and that any evidence obtained thereunder would be inadmissible. The affidavit upon which the search warrant was issued was false, and the warrant was secured under the pretext of searching for evidence of another and separate crime, so that the officers could make a “fishing expedition” to obtain evidence connecting Comeaux with the Arcenaux burglary.
The officers searched the house from approximately 1:00 o’clock until about 3:00. Mr. Ray Herd, of the Louisiana State Police Crime Laboratory, who was one of those searching the house, observed some white cloth in the drawer of a chest. Mrs. Come-aux was present during the search and was informed that the officers were acting under a search warrant. Mrs. Comeaux was apparently arrested shortly after the officers desisted from the search, and was incarcerated in the parish jail with her husband.
A little later, while the officers were going over evidence obtained at the site of the burglary, they saw that the burglary tools were wrapped in white cloth which had been cut with pinking shears. Herd, knowing of the cloth he had previously observed at Comeaux’s home, wanted to return to the house to continue the search and retrieve this evidence. According to his testimony, he went to the jail, called Mrs. Comeaux from the jail, and told her that they intended to continue the search and would like her to accompany them to the house. She agreed to go, stating that she needed a change of clothes. Herd, two other officers, and Mrs. Comeaux returned to the Comeaux residence, where the pinking shears and the cloth were seized.
Three questions may be posed in order to ascertain the status of the seized evidence :
(1) Was it seized in fact under the illegal warrant ?
(2) If it was not seized under the search warrant, were consent and a waiver of the privilege against search and seizure obtained ?
(3) If consent was obtained, does the taint of the illegal search warrant, under which Herd admits he first observed the evidence, carry over to the seizure made under consent?
I must resolve the answers to all three questions against the State.
The testimony of the officers and the return of the search warrant clearly and conclusively show that the evidence was in fact seized under the invalid warrant. The return on the illegal search warrant includes the pinking shears and the cloth, and the return clearly indicates that they were obtained under this search warrant.
The circumstances of the prior search under guise of warrant in the presence of Mrs. Comeaux, the cessation of the search *499 for only a brief time, the in-custody approach to Mrs. Comeaux, and the language used by Herd in conversation with her (according to Herd’s own testimony) all indicate that the officers did not believe they needed consent, that they did not seek consent, and that they did not in fact receive that free and informed consent necessary for a legal search. I believe the truth to be that Mrs. Comeaux was merely requested to accompany the officers to the dwelling. Even if a stronger expression of purpose and a more pointed request for consent had been used by Herd, it would have been difficult for Mrs. Comeaux, who was then in custody and who had seen the search warrant just a few hours previously, to believe she had any choice in the matter.
The United States Constitution, Fourth Amendment, and the Louisiana Constitution of 1921, Article 1, Section 7, guarantee “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures * * * ”,
“ * * * When the State relies on consent to establish reasonableness of the search, the burden is on it to show by clear and convincing evidence that the consent was given freely and voluntarily. See State v. Penington, 244 La. 650, 651 , 153 So.2d 876 ; State v. Turner, 248 La. 141 , 177 So.2d 115 ; State v. Stokes, 250 La. 277 , 195 So.2d 267 . * * * ” State v. Andrus, 250 La. 765 , 199 So.2d 867 .
As was said in the Andrus case, the validity of consent is to be determined by the facts and circumstances of the particular: case. The rule that evidence is not admissible when obtained from an illegal search and seizure is founded upon the strong constitutional guarantee against intrusion upon the property and into the privacy of persons. Any contravention of this security of persons and property must be within the exceptions provided by the Constitution and statutes. When one objects; to evidence as having been obtained in violation of this constitutional privilege, the State must assume the burden of showing affirmatively that the search and seizure were made under one of the exceptions. Consent is one of those exceptions which make permissible a search and seizure otherwise prohibited. The State here has failed to prove that free, voluntary, informed, and intelligent consent was obtained for the search and seizure. Certainly there can be no consent unless the one consenting knows that he can refuse. The reference is not to legal knowledge, but to factual knowledge. It is apparent that Mrs. Comeaux under the circumstances here did not know as a matter of fact that she had a choice.
Finally, although I need not and do not rest my decision upon this determination, I pass upon the third question. It is difficult to believe that our constitutional' *501 guarantee would allow officers, who have searched premises under a fraudulently obtained search warrant and observed evidence or other paraphernalia on the premises, to cure such a defective and tainted search by obtaining consent without at least a full and complete disclosure.
Courts have not only excluded the evidence taken in an illegal search, but have also declined to accept evidence which would not have come to light but for illegal actions of the police. Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 . Justice Holmes in Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 , said of the doctrine popularly known as “the fruit of the poisonous tree”:
“ * * * The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all. * * * ” (Emphasis supplied.)
Therefore, even if “consent” had been obtained, the taint of the illegal warrant and search would have made this evidence inadmissible.
For these reasons I respectfully dissent.
BARHAM and McCALEB, JJ., are of the opinion a rehearing should be granted.