Petition — Kaercher v. Louisiana

IN THE i:

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. a8 ms 1064

STATE OF LOUISIANA

(Plaintiff)

versus

KENNETH B. WAU RCHLR

(Defendant-Petitioner)

STATE OF LOUISIANA

(Plaintiff)

versus

THOMAS W. TIGHE

(Defendant-Petitioner)

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF LOUISIANA

CAMILLE F. GRAVEL, JR.,

711 Washington Street,

Alexandria, Louisiana 71301

Attorney for Defendants-

Petitioners.

1i

INDEX Page

INDEX-- (Continued)

SL Mascon ees eas ens ed eovesteeees 1

APPENDIX D

UUMEPORGCE RUN 6 66 ose ees bee DCO Re SCORER OHM OS 2

DT coctih Aw hack nb ub eo cae 6 oes D-1

THE QUESTIONS PRESENTED... cccccccccece 3

APPENDIX E

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED. ...ccccccccccccee eeD Affidavit for Search Warrant..... E-1

© STATEMENT OF THE CASE... cccccccccccces 6

REASONS FOR GRANTING WRIT

Part 1 Warrantless Search of

WO. 6 we eke kb eewn hae wee

Part II With Regard to Validity of

Search Warrant......... ee esenes 55

CONCLUSION. «cccccccccccscsesececs eeccccces 79

CERTIPICATE...... eens cocsececesses oo «Ok

APPENDIX A

r ) Opinion of the Supreme Court of

the State of LouiSiana............ A-1

APPENDIX B

Judgment of Seventeenth Judicial

District Court on Motion to

CUPP EOSRE 6c cc kc cee eee seer en eeseeaees B-1

APPENDIX C

Judgment of Seventeenth Judicial

District Court on Motion to

BSUBTOSSR. cc cece eseeesseeseeeesevecs C=]

Ee

iii

TABLE OF AUTHORITIES

Constitutions

Fourth Amendment to the Const.

of U.S.------->- 3,5,20,43,45,55,56,60,78

Fourteenth Amendment to the :

Const. of U.S.-cererser"er%3"%"%"9""-"" 69,7

icle 1, Section 5, La.

De ik actac neues ----- 5,45,56,66,78

Louisiana Statutes

R.S. 40:962----- ee rr rrr rrr 6

isiana Code of Criminal

ha a Article 162------- 6,55,56,66

Cases

Almeida-Sanchez v. United States,

£33-G.8. 266, 269 (i973) °°°°°"?" 20,24

Cardwell v. Lewis, 417 U.S.

583 (1974) ----e meen rrr 32

Carroll v. United States,

267 U.S. 132 panei ------------ 19,26

nbers, Ellis or Cady v.

pyre hor 413 U.S. 433 (1973) ----27

Collidge v. New Hampshire, 403

443, 6962655 (197i) @0°°e*%>%"°*"°-" 5,20

Johnson v. United States, 68 S.

ee “367, 333-0.8. 29 T2S68i--*- 16,40

Katz v. United States, 389 U.S.

Bay. 2S GER T ere eee seers eerese* 16

State v. Aguillard, 357 So.

2d 535 (La. 1978) «seeeeeeee"""°""""" 47

iv

State v. Chaffin, 324 So. 2a

369 (1975) ------------------------- 66

State v. Colvin, 353 So. 2d

1043---------~------------------- 53,54

State v. Crosby, 338 :

So. 2d 584 (La. 1976) --------------- 7

State.v. Flood, 301 So. 2a

637 (1974) ------------------------- 58

State v. Franklin, 353 So. 2a

1315 (1977) ------------------~~- 46,78

State v. Gaut, 357 So. 24

913 (1978) --------------~-----~~~--~- 53

State v. Hargiss, 288 So. 2d

633 (1978) --------------------~--~-~-- 78

State v. Hearn, 340 So. 2a

1365, 1368 (1976) ------------------ 44

State v. Jones, 315 So. 2d 270,

272 (1975) -------------~------~--~~-- 53

State v. Kaercher and Tighe,

362 So. 2d 754 (1978) --------.---- 2,7

State v. Lane, 347 So. 2a 167

at 170 (1977) ---------------- 44,45,78

State v. Linkletter, 286 So.

2d 321 (1973) -----------------~----~- 66

State v. Luneau, 323 So. 2d

916 (1974) ----------------------~--~- 66

State v. Massey, 310 So. 2d 557,

560 (1975) ------------------- 40,41,44

State v. Paciera, 290 So. 2d

681 (1974) ------------------------- I

State v. Parker, 355 So. 2d

900 (1978) ---------------------- 45,78

State v. Romer, 354 So. 2a

504, 506 (1978) -------------------- 53

State v. Schmidt, 353 So.

2d 1044 (1978) --------------------- 53

State v. Segers, 355 So. 2d 238

(1978) -------------------~--~-~~- Fa,

State v. Vince, 405 So. 2a

916 (1974) ------------------------- 66

State v. Williams, 338 So.

2d 1365 (1976) -------------------~- 66

State v. Williams, 347 So. 2d

231, 234 (1977) qoeereeessees<<----"- 44

Texas v. White, 423 U. S. 67, 96

S. Ct. 304 (1975) ------------ 32,3362"

United States v. Brouillette

478 F.2d 1171 (5th Cir.) ----------- 64

United States v. Chadwick, 97 S.

Ct. 2476 (1977) ----99< 99-9 18

United States v. Ellis, 461 F.

2a 962 (2nd Cir. 1972) ------------- 24

United States v. Farnkoff, 535

F. 2d 661 (lst Cir.1976) ----- y i a

United States v. Hill, 550

F. 2d 315 (1974) -----<------------- 66

United States v. McCormick,

502 F. 2d 281, 287 (9th

Cir. 1974) ---------------------- 21,23

United States v. Payne,

424 F. 2d 169 (9th Cir.

1970) ------- 22

United States v. Robinson, 533

F. 24 578 (fn.) Bile Cae:

1976) pee rr rrr rrr rrr 34

United States v. Thomas, 489

F. 2d 664 (5th Cir. 1973) ---------- 62

United States v. Young, 489 F.

2a 914 (6th Cir. 1974) -o-<--------- 21

Miscellaneous Others

28 U.S. Code, Section 1257 (3) --------- 3

Warrantless Searches of Automobile,

87 Harv. L. Rev. 835-°<"9%9%2e%------- 28,43

The Automobile Search and the

Fourth Amendment - A Troubled

Relationship - Miles and Wefing,

4 Seton Hall L. Rev. 105, 103-

132 (1972) ------------------------- 28

ee aes ae ee ee

a

ee a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO.

STATE OF LOUISIANA

(Plaintiff)

VERSUS

KENNETH B. KAERCHER

(Defendant-Petitioner)

STATE OF LOUISIANA

(Plaintiff)

versus

THOMAS W. TIGHE

(Defendant-Petitioner)

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF LOUISIANA

Kenneth B. Kaercher and Thomas W. Tighe,

your petitioners, pray that a writ of

certiorari issue to review the judgment

and decision of the Supreme Court of the

State of Louisiana which affirmed the

denial of their motion to suppress evi-

dence in the Seventeenth Judicial Dis-

trict Court, Lafourche Parish, Louisiana.

OPINIONS BELOW

SUPREME COURT OF LOUISIANA. The

opinion of the Louisiana Supreme Court

bears the style and citation as follows:

State of Louisiana v. Kenneth B. Kaercher

State of Louisiana v. Thomas W. Tighe,

La. 362 So. 2d 754 (1978). A copy of the

opinion is appended to this petition and

made part hereof. (See Appendix A).

SEVENTEENTH JUDICIAL DISTRICT COURT,

LAFOURCHE PARISH, LOUISIANA. The trial

judge did not assign oral reasons or

render a written judgment at the time of

the ruling on the jointly tried motions

to suppress. Copies of the written Judg-

ment on Motion to Suppress in each case

ole: the tenes. me +. oa

are appended to this petition and made

part hereof. (See Appendix B and C).

Subsequently, on April 10, 1978, the

trial judge caused to be filed in the

record in the Louisiana Supreme Court

a "Consolidated Cases - Per Curiam"

which has been placed before the index

of volumn one in the Louisiana Supreme

Court record.

JURISDICTION

After an adverse ruling on the motion

to suppress in the trial court, defendants-

petitioners, with reservation of their

right to appeal that issue, entered pleas

of guilty, were sentenced, and appealed

to the Louisiana Supreme Court. The judg-

ment and opinion of the Court below (See

Appendix A) was entered on September 5,

1978. Rehearing was denied on October

5, 1978. Upon timely motion, the Hon-

orable Joe W. Sanders, Chief Justice of

the Supreme Court of Louisiana, on Oc-

tober 5, 1978, stayed all proceedings pend-

ing the filing, consideration and dispo-~

sition by the Supreme Court of the United

States of the petition and application

for writs of certiorari herein filed.

(See Appendix D).

The jurisdiction of this Court is in-

voked under the provisions of 28 U. S.

Code Section 1257(3).

THE QUESTIONS PRESENTED

I. Whether in terms of the Fourth

Amendment requirement that a search

nkeaaie be based upon an affidavit stat-

ing probable cause for its issuance,

the language "green vegetable matter"

(inferentially "green matter") is synony-

mous with the word "marijuana".

II. Whether the statement in an affi-

davit that an officer saw "what appeared

to be green vegetable matter on the tail-

gate portion of the truck" gives probable

cause to believe that the truck contains’™

marijuana.

III. Whether exigent circumstances

must exist in addition to probable

cause for a warrantless search of a

vehicle.

IV. Whether a prior unconstitutional

Warrantless search of a vehicle renders

a subsequent search of the vehicle pur-

Suant to a search warrant invalid.

V. Whether deception of the

Magistrate who issued the search warrant

for the vehicle by intentionally conceal-

ing from him the fact of the prior war-

rantless search of the vehicle consti-

tutes prosecutorial misconduct of such a

nature as to render invalid any search

warrant so obtained.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fourth Amendment, United States Constitu-

tion

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 warrant shall

issue, but upon probable cause,

supported by Oath or affirmation,

and particularly describing the

place to be searched, and the per-

son or things to be seized,

Louisiana Constitution, Article l,

Section 5

Every person shall be secure in his

person, property, communications,

houses, papers, and effects against

unreasonable searches, seizures, or

invasions of privacy. No warrant

shall issue without probable cause

supported by oath or affirmation,

and particularly describing the

place to be searched, the persons

or things to be seized, and the law-

ful purpose or reason for the search.

Any person adversely affected by a

search or seizure conducted in vio-

lation of this Section shall have

standing to raise its illegality

in the appropriate court.

Louisiana Code of Criminal Procedure,

Article 162

A search warrant may issue only upon

probable cause established to the

satisfaction of the judge, by the

affidavit of a credible person, re-

citing facts establishing the cause

for issuance of the warrant.

A search warrant shall particularly

describe the person or place to be

searched, the persons or things to

be seized, and the lawful purpose

Or reason for the search or seizure.

STATEMENT OF THE CASE

Defendants were charged by separate

Bills of Information with possession of

marijuana with intent to distribute, a

violation of Louisiana Revised Statutes

40:962. By consent of the parties and

Since both cases arose out of the same

set of facts, the court joined for hear-

ing a pre-trial motion to suppress mari-

juana urging that the seizure was war-

rantless, without consent and without the

requisite exigent circumstances or, al-

ternatively, that the warrant issued was

fatally defective. After the motion to

suppress was denied, defendants reserved

assignments of error and the trial court

permitted the defendants to enter guilty

pleas to the crime charged with reserva-

@ tion of the right to appeal the ruling on

the motion to suppress, a procedure ap-

proved in State v. Crosby, 338 So. 2d

584 (La. 1976).

The Louisiana Supreme Court, in its

opinion, upheld the validity of the search

Warrant and refused to determine the le-

gality and constitutionality of the prior ‘'

} warrantless search of the vehicle in

which the law enforcement officers dis-

covered the same identical marijuana

which they seized pursuant to the search

Warrant. State v. Kaercher and State v.

Tighe, 362 So. 2d 754 (La. 1978).

On the night of April 22, 1977, and

in the early morning hours of April 23,

1977, the Safari Club, a nightclub along.

the western side of Bayou Lafourche,

burned to the ground. The fire was out

except for a few hot spots which requir-

ed the intermittant spraying of water

from the bayou. After cars had been

allowed to pass along Louisiana Highway

l in front of the fire scene for about

one hour, a blue truck driven by Thomas

Tighe came through the area going north

at about 45 miles per hour, the posted

speed limit. Major Kenneth Doucet, the

Deputy Sheriff in charge at the scene,

hollered at Sargeant Cantrelle to stop

the truck.

First Arrest:

At a point approximately one mile

north of the scene of the fire, Deputy

Cantrelle pulled the truck over to the

EE a eT

shoulder of Louisiana Highway 1. The

driver of the truck, defendant, Thomas

Tighe, and the officer dismounted. Thomas

Tighe proceeded to the front left side

of the officer's police vehicle. Officer

Cantrelle says that he went to the front

of his vehicle, parked approximately four

to five feet behind the truck and observ-

ed green vegetable matter on the tailgate.

The driver of the truck was asked for

his driver's license which he produced.

The license identified the driver as

Thomas W. Tighe. Kenneth B. Kaercher

was a passenger in the truck and at this

time had remained in the truck. The

driver was advised that he was under

arrest. The officer asked for permission

to open the truck and the driver replied:

"Hell no, you can't". The officer was

advised by his superior to obtain a search

warrant.

« 16 «

Second Arrest:

The officer directed Thomas Tighe

to drive the truck to the parking lot of.

the Galliano Courthouse annex. This was

done and as Thomas Tighe and his passen-

ger, Kenneth Kaercher, were being led

into the police station, they were again

ordered to submit to a search of their

vehicle and again they refused. After

reaching the annex building, the defen-

dants, Kaercher and Tighe, were placed

in a civil section of the Sheriff's

office and advised by Detective Boughamer

that they were arrested for reckless

operation of a motor vehicle and given

the Maranda warning and advice of rights.

Officers obtained gleanings from the

tailgate of the truck and took samples

from the tailgate of the truck.

Third Arrest:

Detective Boughamer then advised the

o S20 w

defendants that in addition to the reck-

less operation, they were also charged

with possession of marijuana.

First Search:

Thereafter, Major Doucet, Detective

Boughamer, and Detective Lirette again

returned to the parking lot and observed

the tailgate of the truck. At this time,

Major Doucet opened the truck to observe

its contents and saw many bales of mari-

juana which was subsequently weighed at

Valentine Sugars and determined to be

12,300 pounds.

First Seizure:

Detective Boughamer took samples from

inside the truck and they field-tested

as positive marijuana. The group then

went back into the annex building where

Deputy Lirette finished assisting Deputy

Poti Some

«- 12 '«

Cantrelle in preparing the affidavit for

the search warrant.

Fourth Arrest, Securing of Search

Warrant, and Second Search:

The officers then obtained a search

warrant from Judge Wollen J. Falgout at

about 5:21 o'clock a. m. The affidavit

upon which the search warrant was issued

is appended to this petition and made

part hereof. (See appendix E) Neither

the affidavit nor the officers disclosed

to the judge issuing the warrant the fact

that they had conducted a prior warrant-

less search of the vehicle and seized

samples of its contents. After the of-

ficers obtained the warrant, they return-

ed to the Galliano Courthouse annex where

the two defendants were being held in

custody and at approximately 7:00 a. m.,

with the search warrant, conducted a se-

cond search. After the truck was search-

» 13 =

= a6 =

ed with the search warrant at 7:00 a. m., had also been arrested on reckless opera-

the defendants were advised that they tion of a vehicle (although that it was

were charged with possession of mari- ; doubtful that that is a valid arrest of ©

; j |

juana with intent to distribute. a passenger) and on a charge of possession

of marijuana. Similarly, he was not

From this analysis it is readil :

. . about to go anywhere. It was at this

apparent that the defendan Thomas W. :

Pp t, omas W time and under these circumstances that

Tighe, had been arrested three times ;

the officers warrantlessly opened the

before the search of the truck or the ‘

truck, observed its contents, removed

seizure of a sample from within the con-

. samples of the contents, and conducted

tents of the truck. The charge he was

field tests of the samples.

arrested on initially at the time of the

stopping of the truck is not entirely REASONS FOR GRANTING THE WRIT

ae ee

clear but, in any event rior th

' Y 7 P ee WARRANTLESS SEARCH OF VEHICLE:

warrantle j id i

less search and warrantless The first search was invalid in that

seizure of part of the ‘ ;

P ae ee | there existed no exigent circumstances

truck, Thomas W. Tighe was arrested on

’ justifying a warrantless search under:

She charge Of recnhes? ee A. Federal Constitutional Standards

B. The "Automobile Exception"

C. The Louisiana Automobile

Warrantless Search Doctrine

motor vehicle and possession of marijuana.

He was not about to be allowed to go any-

6 ee a a i me

where. - i

re. The co-defendant and only other The state has confessed that the first

assenger of the vehicle, Kenneth Kaercher :

: . : : search of the truck which was conducted by

a 5S <

Lt. Lirette, Capt. Boughamer, Maj. Doucet

and possibly Deputy Cantrelle (see the

statement of Lt. Lirette) was without

benefit of a search warrant.

The warrantless search occurred at

approximately 4:00 a. m. The warrant was

issued at 5:21 a. m. pursuant to the ap-

plication of Deputy Cantrelle.

A. Federal Constitutional Standards

The constitutional preference for a

warrant has been articulated by the

Supreme Court in broad and unqualified

terms. Indeed, in Coolidge v. New

Hampshire, 403 U. S. 443, 454-455 (1971),

the court described "as the most basic

constitutional rule in this area (of

search and seizure)" the principle that

warrantless searches are:

"per se unreasonable under the

Fourth Amendment -- subject only

to a few specifically established

and well-delineated exceptions."

Derik en

- 16 =

Accord, Katz v. United States, 389

U. S. 347, 357 (1967).

The wisdom of the warrant require-

ment is that it

"assures that legal inferences

anc conclusions as to probable

cause will be drawn by a neutral

magistrate unrelated to the

criminal investigative-enforce-

ment process.” South Dakota v.

Opperman, 428 U. S. 364, 370

n. 5 (1976).

Law enforcement officers are, after

all, "engaged in the often competitive

enterprise of ferreting out crime"

(Johnson v. United States, 333 U. S. 10,

14 (1948)) and cannot, consequently, be

relied upon to achieve the precision of

the neutral magistrate in sifting evidence,

separating fact from suspicion, determin-

ing dispassionately whether additional

investigation is necessary, and setting

specific and predefined limits on the

scope of the search.

In Katz v. United States, supra, the

- 18 -

» 17 =

attested to the continuing vitality of

Supreme Court specifically recognized

the warrant requirement in United States

that the agents in the case had acted "with

v. Chadwick, 97 S. Ct. 2476 (1977). In

restraint" (389 U. S. at 356) and on facts

Chadwick, the government contended that

sufficient to secure a warrant had they

the warrant requirement protects only in-

sought to do so. Nevertheless, the Court

| terests traditionally identified with the

held that this was not a sufficient sub-

home. The court however, flatly rejected

stitute for a warrant itself:

. such a suggestion and reaffirmed the cen-

"The inescapable fact is that the :

restraint was imposed by the agents tral place which the warrant plays in the

themselves, not by a judicial of-

ficer. They were not required, be- constitutional guarantee against unreason-

fore commencing the search, to pre-

sent their estimate of probable ) able searches and seizures:

cause for detached scrutiny by a

neutral magistrate. They were not

compelled, during the conduct of "We do not agree that the Warrant

the search itself, to observe pre- Clause protects only dwellings and

cise limits established in advance other specifically designated

by a specific court order. Nor | locales. As we have noted before,

where they directed, after the the Fourth Amendment ‘protects

©} search had been completed, to noti- people, not places.' Katz v.

fy the authorizing magistrate in i United States, 389 U. S. 346, F

detail of all that had been seiz- 351 (1967); more particularly,

ed. In the absence of such safe- it protects people from unreason

guards, this court has never sus- | able government intrusions into

tained a search upon the sole | their legitimate expectation of

ground that officers reasonably privacy.

expected to find evidence of a

particular crime and voluntarily Just as the Fourth Amendment 'pro

confined their activities to the tects people, not places,' the

least intrusive means consistent protections a judicial warrant

with that end." 389 U. S. at offers against erroneous govern

;

356-357. mental intrusions are effective

And, recently, the Supreme Court

- 19 -

whether applied in or out of the

home.

kkk

A fundamental purpose of the Fourth

Amendment is to safeguard individuals

from unreasonable government inva-

sions of legitimate privacy interests,

and not simply those interest found

inside the four walls of the home."

97 S. Ct. at 2481, 2482, 2483.

B. The “Automobile Exception"

In Carroll v. United States, 267 U.

S. 132 (1925), the Supreme Court upheld a

warrantless search of an automobile on

probable cause to believe that it was in

the act of transporting illegal liquor,

because the court found that the risk

that the vehicle could be moved out of the

jurisdiction made the securing of a warrant

impracticable. The "Carroll" or "automo-

bile" exception to the warrant requirement,

as it became known, was later construed by

the court as follows:

"A search warrant (is) unnecessary

where there is probable cause to

search an automobile stopped on

ee

- Se

= 96 «

the highway; the car is moveable,

the occupants are alerted, and

the car's contents may never be

found again if a warrant must ke

obtained." Chambers v. Maroney,

399 U. S. 42, 51 (19,70) .

Thus, there is no per se automobile

exception to the warrant requirement.

Carroll and its progeny stand only for the

proposition that, because of its mobility,

an automobile may present an exigent cir-

cumstance which excuses the police from

obtaining a warrant, and which justifies

a search provided the police have probable

cause. But "the word 'automobile' is not

a talisman in whose presence the Fourth

Amendment fades away and disappears."

Collidge v. New Hampshire, 403 U. S. 443,

461-462 (1971). See also Almeida-Sanchez

v. United States, 413 U. S. 266, 269

(1973) ("The Carroll doctrine does not

declare a field day for the police in

searching automobiles.") Therefore,

where there are no exigent circumstances,

» 32

the police are required to obtain a

warrant despite the fact that the target

of the search is an automobile. United

States v. McCormick, 502 F. 2d 281, 287

(9th Cir. 1974). This principle is

grapnically illustrated by the following

cases:

In United States v. Young, 489 F.

2d 914 (6th Cir. 1974), law enforcement

officers conducted a warrantless search

of a truck that had been parked for se-

veral days and which Young had used as

a dormitory. Finding that the officers

had no grounds to believe that the vehi-

cle might be moved within the few minutes

required to make application for a search

warrant, the Sixth Circuit Court of

Appeals found that there was no exigent

circumstances justifying the failure to

obtain a warrant and that, consequently,

the search was illegal:

ee ee

sr

| re 7

=» 99 «

"At times, to be sure, the fact

that the challenged evidence is

located in a motor vehicle may,

in conjunction with other cir-

cumstances, furnish the exigen-

cies that would permit a search

to be conducted without a warrant

- » »« However, the fact that the

object sought to be searched in a

motor vehicle does not, ipso

facto, create an exigency. Not

every warrantless search of a

motor vehicle is valid simply be-

cause probable cause may exist."

489 F. 2d at 916 (emphasis added).

And, in United States v. Payne,

424 F. 2d 169 (9th Cir. 1970), a war-

rantless search of a car was found in-

valid for similar reasons. The appel-

lant and three companions were camping

in Yosemite National Park over the

Memorial Day weekend. An off-duty police

officer camping nearby observed what he

suspected to be marijuana smoking and

other drug related activities connected

to the car. Together with a Forest rang-

er, the officer made a warrantless search

of the vehicle and found some seconal cap-

sules which formed the basis of the charges

- 23 -

brought. The Ninth Circuit Court of

Appeals, however, held the search uncon-

stitutional because there were no exigent

circumstances:

"There is no indication in the

record that the appellant or any

of his party were preparing to

leave, and quite to the contrary,

it is clear that appellant was

bedding down for the evening and

that there was ample time to

secure the necessary warrant for

the search of the car ..." 424

F. 2d at 172.

Thus, probable cause alone is insuffi-

cient. United States v. Farnkoff, 535 F.

2d 661 at 665-666 (lst Cir. 1976) and the

cases cited therein. The state of the

law is presently that even assuming pro-

bable cause, a warrantless car search

without exigent circumstances will fail.

We deal at length first with the need for

the exigency and the absence thereof in

the case at bar. See in particular

United States v. McCormick, 502 F. 2d at

287 (9th Cir.).

ee ee ee ee - .

~—)

The United States Court of Appeals

for the Second Circuit in United States

v. Ellis, 461 F. 2d 962 (2nd Cir. 1972),°

offers a sound starting point for our

analysis. To the warrant requirement there

is carved out the “automobile exception"

(Ellis at 966). That cars do not stand

on the same footing as a home is a verity

which needs no citation. However, as Mr.

Justice Stewart tells us in Coolidge:

"The word ‘automobile' is not a

talisman in whose presence the

Fourth Amendment fades away and

disappears." 403 U. S. at 461-

So, too, the Supreme Court stated that

"The Carroll doctrine does not declare a

field day for the police in searching

automobiles". Almeida-Sanchez v. United

States, 413 U. S. 266, 269. There is no

Support in any case decided by the Supreme

Court for the proposition for the existence

of per se exigency for a warrantless search

whenever an automobile is involved. The

« 3) =

rule is quite the contrary. See United

States v. Farnkoff, 535 F. 2d 661 at

665-666.

The Second Circuit in Ellis (at

966) set forth the "automobile exception"

as follows:

"Rather, the underlying rationale

of the ‘automobile exception' is

that exigent circumstances justify

the warrantless search of an auto-

mobile when there is probable

cause, where the opportunity to

search is fleeting ..." Chambers

v. Maroney, 399 U. S. at 5l.

In Ellis, the court found exigent cir-

cumstances in these findings and conclu-

sions: "... the opportunity to search ---

was fleeting". Only one officer came

upon the car. Had arrangements been made

for a special police detail, “police man-

power ... would have been drained" when

men were needed to apprehend the car's

former occupants. There was the danger

to the police officers and the public

generally that the robbers had left guns

ee ee ee ee ee

EL EE IO

= 26 =

in the car (at 666). There were not

enough officers available to prevent the

automobile from being ransacked or driven

away. And, what “is significant" is that

the officer "was not searching the auto-

mobile merely for evidence against suspects

already in custody" (at 966). And, this

is crucial to the facts of the case at

bar. Thomas Tighe and Ken Kaercher were

under arrest and in custody for reckless

driving and possession of a small amount

of marijuana. The only purpose of the

search was to collect further evidence.

Can the State in the case at bar,

seriously contend that the opportunity

to search the blue truck was "fleeting"?

Was it "not practicable to serve a

warrant" as in Carroll v. United States,

267 U. S. 132 (1925)? Was the scene a

dark dangerous place for a search as was

found to be the case in Chambers, supra?

« 27 &

And can it honestly be contended that with

application for a warrant already in pro-

gress and numerous law enforcement offi--

cers at the scene, the dispatch of one

agent to secure a warrant would have

dangerously "drained manpower" leaving

the parked locked vehicle unsafe and un-

secure? Unlike Chambers and Carroll, the

officers in the case at bar did not stop

a fleeing car in the process of a getaway

at a time when they were undermanned* and

there was no showing of danger to the

officers or the public as in Chambers,

Ellis or Cady v. Dombrowski, 413 U. S. 433

(1973).

In Chambers, a warrantless search of a

car securely held in government custody

was nevertheless reasonable only because

*

See e.g., United States v. Bradshaw,

490 F. 2a 1097 (4th Cir. 1974)

=» 29 «

the initial seizure had been proper due

to exigent circumstances. Chambers,

supra, 399 U. S. at 51-52. See note,

Warrantless Searches of Automobile, 87

Harv. L. Rev. 835, 843-44 (1974); Miles

and Wefing, The Automobile Search and

and the Fourth Amendment - A Troubled

Relationship, 4 Seton Hall L. Rev. 105,

130-132 (1972). The vehicle's potential

mobility has always been the crucial fac-

tor rendering the prior procurement of a

search warrant impractical. Thus, effec-

tive law enforcement requires immediate

action because "the opportunity (for the)

search is fleeting". Chambers, supra,

at 51. But there is no per se exemption

from the warrant requirement for automo-

biles, McCormick, supra, 502 F. 2d at 287.

In the case at bar, the occupants are under

arrest on the reckless operator charge and

shortly afterward on the possession charge.

» 29 « - 30 -

The “automobile exception" to the U. 8. at 153, 45 &. Ct. at 285.

warrant requirement remains as thusly What is surprising is that generally

state: : the government has taken Chambers as

"Our holding today is of course heralding the start of a new exception,

entirely consistent with the

recognized principle that, assum- | namely that probable cause alone is suffi-

ing the existence of probable

cause, automobiles and other vehi- cient and that automobiles provide a per

cles may be searched without

© warrants 'where it is not prac- _ se exigency rule. The facts of Chambers

ticable to secure a warrant be-

cause the vehicle can be guickly

moved out of the locality or

jurisdiction in which the warrant

must be sought.' Carroll v. United

States, 267 U. S. 132, 153; See

Brinegar v. United States, 338,

U. S. 160, 395 U. S&S. at 964 n. 9."

Chimel v. California, 395 U. S.

752 (1969)

do not support such a proposition, the

a

Court taking considerable pains in Chambers

to point out it was not setting such a

rule by citing Chimel, supra, and by stat-

a

——

ing at page 50-51 the following:

The above was quoted with approval Ks "Neither Carroll, supra, nor other

cases in this court require or

in Chambers, footnote at p. 50, and re- Suggest that in every conceivable

circumstance the search of an auto

@ stated in Collidge: even with probable cause may be made

without the extra protection for

privacy that a warrant affords.

But the circumstances that furnish

probable cause to search a parti-

cular auto for particular articles

are most often foreseeable; moreover,

the opportunity to search is fleet-

ing since a car is readily moveable.

When this is true, as in Carroll

and the case before us now, if an

aan “eae

"The underlying rationale of Carroll

and of all the cases which have

followed it is that there is "a

necessary difference between a

search of a store, dwelling house,

or other structure in respect to

which a proper official warrant

readily may be obtained and a

search of a ship, motorboat, wagon,

te Nc tl

Or automobile for contraband goods, effective search is to be made at any

where it is not practicable to time, either the search must be made

secure a warrant, because the vehi- immediately without a warrant for

cle can be quickly moved out of the

locality or jurisdiction in which

the warrant must be sought. 257

«. 3] «

whatever period is necessary to

obtain a warrant for the search.

In enforcing the Fourth Amendment's_

prohibition against unreasonable

searches and seizures, the Court

has insisted upon probable cause as

a minimum requirement for a

reasonable search permitted by

the Constitution. As a general

rule, it has also required the judg-

ment of a magistrate on the probable-

cause issue and the issuance of a

warrant before a search is made.

Only in exigent circumstances will

the judgment of the police as to

probable cause serve as a sufficient

authorization for a search. Carroll,

supra, holds a search warrant unne-

cessary where there is probable

cause to search an automobile stop-

ped on the highway; the car is

moveable, the occupants are alerted,

and the car's contents may never be

found again if a warrant must be

obtained. Hence an immediate search

is constitutionally permissible."

(emphasis added)

Factually the case at bar could not

be more different than Chambers insofar

as exigency is concerned. In Chambers two

officers chased and stopped armed robbers,

arresting them in the car on a dark night

when the court noted that there was proper

concern for the safety of the officers

- 39 «

were a search to have taken place at the

scene. With two officers and two defen-

dants the drain of manpower of dispatch-

ing one to secure a warrant would have

been great. The risk to the remaining

officer terribly increased. There was no

Opportunity to secure a warrant in advance

of the seizure of the moving fleeing

vehicle. All to the contrary in the case

at bar, where the truck was locked and

parked at the police annex, the keys were

in the hands of the police and the de-

fendants under arrest on other charges.

There remains two recent cases to be

discussed: Cardwell v. Lewis, 417 U. S.

583 (1974) and Texas v. White, 423 U. S.

67, 96 S. Ct. 304 (1075). In Cardwell,

the court took pains to state that nothing

was taken from the "interior" but only the

"exterior". (emphasis in opinion as to

both) And, a car owner has no expecta-

tion of privacy as to the exterior of his

vehicle parked on a public street. In

footnote 8 the court stated: "Again, we

are not confronted with any issue as to the

propriety of a search of a car's interior."

Then followed a quotation from Chambers

Supporting the need for a warrant absent

exigent circumstances. The court's

limitation to a holding dealing with a

search of the exterior of a car, i. e.,

a portion open to public view and the em-

phasized note that this in no way alters

the rule as to interior searches makes

citation of this case inavposite.

Texas v. White, Supra, is also inap-

posite. In Texas v. White, we have a flee-

ing car with two defendants leaving the

scene of the crime, stopped by two offi-

cers, who note that the defendants exactly

fit the description of the perpetrators

of the crimes. One of the defendants while

in the car makes a "furtive gesture" and

both are arrested on the open highway.

There was probable cause to arrest, a

moving fleeing vehicle, only two offi-

cers on the scene with two defendants

and the same kind of exigency as in

Chambers.

The following analysis of the state

of the law by the First, DC and 9th

Circuits which should resolve the matter

of whether exigent circumstances are re-

quired despite the presence of probable

cause in order to sustain a warrantless

car search. The bottom line is that

both are required. In United States v.

Robinson, 533 F. 2d 578 (footnote) DC

Cir. 1976) the court stated that it be-

lieved Texas v. White did not abrogate

the need to show exigent circumstances

before dispensing with a warrant despite

probable cause. What is most important

is that the court noted its disagreement

with a First Circuit Court of Appeals

holding which seemed to suggest that with

bli

» $§ =

Texas v. White, there was no longer the

need to show exigency. Following this

discussion in Robinson, the First

Circuit reconsidered its earlier stated

position and adopted the DC and Ninth

Circuits analysis of the state of the

law as to the need for showing exigency

despite probable cause in order to con-

duct a warrantless car search. See

United States v. Farnkoff, 535 F. 2d 661

at 665-666.

The court in Farnkoff stated:

"We noted in our recent decision

in Haefeli v. Chernoff, 526 F.

2a 1314, 1318 n. 9 (lst Cir.

1975), that the Supreme Court

in Texas v. White, 423 U. S. 67,

96 S. Ct. 304, 46 L. Ed. 2d 209,

44 U.S.L.W. 3327, (1975) did not

discuss the issue of exigency even

though the state court had em-

phasized the absence of exigent

circumstances. Nevertheless we

are reluctant to impute to the

Supreme Court an intention to

overrule sub silentio the require-

ment of exigency. We assume that

if a Supreme Court majority intends

to institute such a rule, and to

depart from its prior approach, it

will do so by express pronouncement

mie

= 36 «

to all concerned. United States

v. Robinson, 533 F. 2d 578, 18 Crim.

L. Rep. 2534 (DC Cir. 1976). But

see id. at 586, 18 Crim. L. Rep. at

2535 (concurring opinion of Robb,

Tamm and Wilkey, JJ.) See also

United States v. McClain, 531 F. 2d

431 (9th Cir. 1976) (a post White

decision still recognizing the exi-

gency requirement.) (Underlining

added)

See also Robinson, supra; McClain,

Supra, to the very same effect.

Federal Constitutional law defines

warrantless searches as "per se" unrea-

sonable. The Carroll doctrine sets out

one very narrow exception when it is not

practicable to obtain a warrant. Under

Carroll and its progeny, "exigent cir-

cumstances" must be found before the ex-

ception will apply. In the instant case

the following facts demonstrate clearly

the almost total lack of exigent circum-

stances.

1. The car was not a moving vehi-

cle; rather, it was locked, seized and

parked at the police annex and the police

= 9 «

already had the keys.

2. There was concededly no danger

to the many officers as they stood around

the locked vehicle, in their own baliwick.

3. There was no fear the defendants

were armed or that a weapon was in the

vehicle.

4. No proof was offered that either

the district attroney or a judge was un-

available. Indeed the proof shows a

Judge Falgout was available, since a

warrant was in fact obtained one hour and

21 minutes after the initial arrest.

5. To dispatch one agent to the

judge would not have unreasonable drain-

ed nanpower exposing the vehicle to the

risk of vandals or the loss of evidence.

There was no showing that insufficient

officers available to "guard" the vehicle.

In fact any number of officers were present

that night at the annex.

= we

6. The vehicle was not searched

as part of any inventory procedure inci-

dental to forfeiture. This was never

even contested.

7. The search was not limited to

the exterior of the vehicle.

8. There was no claim the officers

feared any armed accomplices.

9. The occupants were in custody

on marijuana possession and reckless

driving charges and had not even been pro-

cessed on those charges by the time a

warrant was obtained.

10. There was in short, no urgency

which justified bypassing the warrant

requirement. Without a showing of urgency

there were no exigent circumstances and thus,

despite the possible existence of probable

cause, the search must fail. This fact

Situation presents the classic case in

which to go for a warrant. The Louisiana

- 39 -

cases are in complete accord.

Cc. The Louisiana Automobile

Warrantless Search Doctrine

The Louisiana Supreme Court's

analysis of Automobile searches starts

with the previously cited language in

Chambers, supra, that:

"The rationale of the automobile

exception is that 'the circum-

stances which furnish probable

cause to search a particular' auto

for particular articles are most

often unforeseeable; moreover,

the opportunity for search is

fleeting ... Chambers v. Maroney,

399 U. S. 42, 50, 90 S. Ct. (1975),

1981"; State v. Massey, 310 So.

2d 557, at 560 (1975); State v.

Hearn, 340 So. 2d 1365 at 1368

(1976); State v. Lain, 347 So.

2d 167, 170 (1977); State in the

Interest of Wagster, 348 So. 2d

won OC 7542 (ise Cir. 1977).

As this Court is aware "probable

cause" alone only provides grounds for the

officer to seek a search warrant. The

"Exigent Circumstances" and the "fleeting

opportunity" must be present to search

without a warrant. See Johnson v. United

a

nls A Sr i a a al

ee

ee

- 40 -

States, 68 S. Ct. 367, 333 U. S. 10 (1948).

"Exigent circumstances justifies the

warrantless search of an automobile

stopped on the highway where there is pro-

bable cause because the car is ‘movable',

the occupants are alerted, and the car's

contents may never be obtained; the op-

portunity to search is fleeting ..."

(Emphasis supplied by the United States

Supreme Court), State v. Massey, 310 So.

2d 557 at 560 (1975) quoting Chambers,

Supra.

Massey states the Louisiana rule most

succinctly as follows:

"For a warrantless search of an

automobile to be constitutionally

valid, there must exist probable

cause to search the vehicle and

exigent circumstances which render

impracticable the application for

a warrant." State v. Massey, 310

So. 2d 557, at 559-560. (emphasis

within)

First then, there must be probable

Cause to search. This issue is discussed

= 4) «

in the warrant search section infra.

Assuming for the purpose of argument

that probable cause does exist, the next

issue is whether there are sufficient

"exigent circumstances” to justify a

warrantless search (State v. Massey,

supra, at 560).*

In the instant case, the blue truck

was stopped and its driver directed to

proceed to the Sheriff's Annex where he

was arrested. (Cantrelle, T. 739, ls.

17-26; T. 741, 1s. 6-8). At the annex

the defendants were arrested for reckless

driving and bond was set at $100. (Falgout,

T. 506, ls. 6-12)

For this argument, it is assumed,

*However, the existence of articulated

probable cause is the standard which

determines the-correctness of a search

pursuant to a search warrant not the

propriety of a warrantless search.

(Massey at 560 - emphasis within)

- 42 -

Deputy Camptrelle saw green vegetable

matter he suspected of being marijuana

on the tailgate.

This sighting and possibly a later

confirmation at the Sheriff's annex

(Cantrelle affidavit for search warrant)

led to the arrest of Thomas Tighe and

Kenneth Kaercher for the simple posses-

sion of marijuana shortly after they

arrived at the annex. (Cantrelle affi-

davit and Baughamer, T. 830, ls. 7-15,

although there is much conflict on this

point).

While Ken Kaercher and Thomas Tighe

were in custdoy being booked on the reck-

less driving and simple possession charges,

the "first" warrantless search of the

truck was conducted.

The Automobile Exception is an

attempt to resolve the conflict between

an inherent Freedom of Movement and the

iia

- 43 -

rights against unreasonable searches

suaranteed under the Fourth Amendment.

87 Harvard Law Review 835 (1974).

Based on this analysis, then, the

question is whether Tighe and Kaercher

could have gone on their way in the

truck that night but for the time it

would take a "neutral magistrate" to

review and approve a search warrant.

Their arrest on the reckless

driving charge and on the simple posses-

sion of marijuana charges made a

stay of a day or two probable. Certain-

ly, they would have to wait through the

next morning. Most certainly a stay of

no longer than the hour and 21 minutes

was necessary to obtain the warrant.

Tighe and Kaercher were advised that a

warrant was being obtained at the time of

their arrest on possession charges.

(Cantrelle affidavit). There is no

~ 66 «

question that there was sufficient time

to. obtain a warrant.

The Louisiana Supreme Court has

stated many times that the automobile

exception is allowed only where the

securing of a warrant is impracticable.

See State v. Jones, 315 So. 2d 270 at

272-3 (1975); State v. Massey, 310 So.

2d 557 at 559 (1975); State v. Hearn,

340 So. 2d 1365 at 1368 (1976); State in

the Interest of Wagster, 348 So. 2d 751

at 752 (1977); State v. Lain, 347 So. 2d

167 at 170 (1977); State v. Williams,

347 So. 2d 231 at 234 (1977).

The various arrests, searches, and

seizures described above occurred during

the late night hours of Friday, April 22,

1977, and the early morning hours of

Saturday, April 23, 1977. The judgment

overruling the motion to suppress was

signed January 3, 1978, and the judge's

«~ £5. «

formal per curiam was prepared, fiied, and

furnished to defense counsel on April 6,

1978. Sometime prior to ‘he decision

on shi motion to suppress, the Louisiana

Supreme Court began to clarify existing

Federal Constitutional Law with respect

to burden of proof in warrantless searches.

In any event, the Louisiana Supreme Court

handed down the landmark decision in

State v. Parker, 355 So. 2d 900 (La. 1978),

whichfclearly establishes not only the

dual requirement of probable cause and

exigent circumstances for a warrantless

search, but which also rejects the con-

tention that the "plain view" doctrine

authorizes an unreasonable seizure under

the Fourth Amendment of the United States

Constitution and Article 1, Section 5 of

the Louisiana Constitution of 1974.

The Louisiana Supreme Court on July

1, 1977, made clear in State v. Lain, 347

a teeter nee ee a eS

= “6 =

So. 2d 167 (La. 1977) that the prevailing

federal presumption was made applicable

to the state that warrantless searches

are "per se unreasonable" unless they

fall within a limited number of well

delineated exceptions to the warrant re-

quirement. On December 19, 1977, the

Louisiana Supreme Court fixed the burden

of proof on a warrantless search upon the

state in the case of State v. Franklin,

353 So. 2d 1315 (1977) in which it held:

"... Once the defendant makes

the initial showing at a Motion

to Suppress hearing that a war-

rantless search occurred, the

burden of proof shifts to the

State to affirmatively show that

the search is justified under one

of the narrow exceptions to

the rule reguiring a search war-

rant." State v. Franklin, 353

So. 2d 1315, 1318 (1977).

Both the Franklin and Lain cases

were approvingly quoted by the Louisiana

Supreme Court in an arrest (rather than

search) case in State v. Aguillard, 357

«» 47.

So. 2a 535 (La. 1978), in which the

court stated:

"In our recent decision in State

v. Franklin, 353 So. 2d 1315 (La.

1977), we related that a warrant-

less search and seizure is presum-

ed to be unreasonable, and tnereby

violative of both federal and state

constitutions, unless the state

meets its burden of proving that

the search was justified under one

of the narrow exceptions to the

rule requiring a search warrant.

As also stated in State v. Lain,

347 So. 2d 167, 170 (La. 1977):

‘It is clear that under the Fourth

Amendment to the United States

Constitution Article l, §5, a

warrantless search is "per se

unreasonable" unless it falls

within a limited number of well

delineated exceptions to the

warrant reguirement.'" (State

v. Aguillard, 357 So. 2d 535,

537 (La. 1978).

Thus, with respect to the warrant~

less search of the truck the state has the

burden of proof and the warrantless

search is "per se unreasonable" unless it

can be shown to be within one of the nar-

row exceptions to the federal and state

constitutional rules requiring search

warrants. The exception most discussed

ee ee ee eas

~ 46 «

in this case is the exception for

searches of vehicles on the basis of

probable cause and exigent circumstances.

Not only is the state's brief scanty

with respect to the issue of probable

cause, it is near non-existent with re-

spect to discussion of exigent circum-

stances. At best it makes a reference

to the trial judge's per curiam and then

after discussing a non-existent broccoli

merchant, comes to the bald and unsup-

ported conclusion that:

"Exhibit circumstances are present,

Kaercher and Tighe can leave and

be gone and the search proves

that there is nothing in their

eases See state's brief, p.

Nothing is further from the true

facts. One of the defendants, Thomas W.

Tighe, was under three separate arrests.

The other defendant, Kenneth B. Kaercher,

was under two separate arrests, one of

which at least was illegal. The officers

= 49 =

had, in fact, taken physical control and

custody of the truck. The defendants

were not about to be able to leave.

The law enforcement officers and

after them, the attorneys for the state

and the trial judge, were under the mis-

taken view that (1) the observation of

the officers of the vegetation near the

tailgate supplied probable cause and (2)

that the "plain view" doctrine was in it-

self an exception to the requirement for

a search warr it. Further, they mis-

takenly concluded either that a search

could be made on the basis of probable

cause standing alone or incorrectly con-

cluded that exigent circumstances existed.

The contrary, however, has been established

by State v. Parker, supra.

In State v. Parker, supra, a police

officer observed an unoccupied van ina

commercial area during late night and

a ee rE ace Le

Se ee ee

binge 2 actewate nie

early morning hours. The officer decid-

ed "to see if there was anyone in it, any

type of letter or anything that might

show the name for possible identification."

The officer shined his flashlight in the

vehicle and observed a plastic bag pro-

truding from under the seat which he

thought contained marijuana. Based on

this "plain view" observation, the offi-

cer opened the door to the vehicle on

the driver's side, examined the package

more closely, and then removed it from

the van. He made no attempt to obtain

a search warrant because he was under the

mistaken view that anything in plain

view was subject to seizure.

In suppressing the seized material,

the Louisiana Supreme Court in State v.

Parker, said:

"Strictly speaking, 'plain view'

is not an exception to the require-

ment for search warrants. Collidge

v. New Hampshire, 403 U. S. 443,

= 5) «

91 S. Ct. 2022, 20 L. EG. 24

564 (1971); State v. Fearn,

345 So. 2d 468 (La. 1977). A

Warrantless seizure of material

in 'plain view' would be an un-

reasonable seizure under the

Fourth Amendment of the United

States Constitution and Article

1, §5 of the Louisiana Constitu-

tion of 1974, unless made with

probable cause and exigent cir-

cumstances, or incident to a

lawful arrest while making a

genuine inventory."

x * &k

"It is axiomatic that, absent

one of the well delineated ex-

ceptions, a warrantless search

or seizure is, in itself, un-

reasonable under the Fourth

Amendment of the United States

Constitution and Article l, §5

of the Louisiana Constitution of

1974. Coolidge v. New Hampshire,

supra; Katz v. United States,

sos U. BS. 347, 8S &. Ct. SUT,

19 L. Ed. 2d 576 (1967); State

v. Lain, 347 So. 2d 167 (La. 1977);

State v. Fearn, supra.

All to often, lawyers and courts

alike attribute greater impor-

tance to the 'plain view' doc-

trine than it deserves; it is

easy to call it an ‘exception'

but it is not an exception to

the requirement that a search or

seizure must be supported by a

warrant issued by a magistrate

upon a finding of probable cause.

~~ inn

Plain view serves to provide

a means of securing probable

cause, and, absent the appli-

cability of one of the true

exceptions to the warrant re-

quirements, nothing more."

x * *

"From the cases we may deduce

the following. When an officer

inadvertently observes evidence

of a crime from a vantage point

that does not intrude upon a

protected area or when that

protected area is entered with

prior justification, there is

no violation of the search war-

rant rule because there has been

no 'search'. See also State v.

Bourg, 332 So. 2d 235 (La. 1976);

State v. Thomas, 310 So. 2d 517

(La. 1975); State v. Terracina,

309 So. 2d 271 (La. 1975). This

does not, however, mean that the

officer may, without more,

seize the evidence. If the evi-

dence is itself within a protected

area, the officer may not enter

that area to effect the seizure

without first obtaining a warrant,

absent exigent circumstances or

another exception to the warrant

requirement." State v. Parker,

355 So. 2d 900, (La. 1978).

In this connection, it should be

pointed out that the Louisiana Supreme

Court has recently held that upon arrest

for a traffic violation, a motorist

- 53 -

vehicle cannot, constitutionally,

solely because of the traffic arrest,

become the subject of an unlimited cri-

minal investigation in order, if possible

to charge the motorist with more serious

Crimes. See Louisiana v. Rome, 354 So.

2d 504, 506 (1978); State v. Gaut, 357

So. 2d 513 (1978); and State v. Schmidt,

353 So. 2d 1044 (1978).

The requirements for exigent cir-

cumstances in addition to probable cause

have been held applicable to warrantless

searches of an apartment (State v. Jones,

315 So. 2d 270) and a moving automobile

(State v. Colvin, 353 So. 2d 1043).

In State v. Jones, supra, the Louisiana

Supreme Court, after rejecting an inade-

quate probable cause from the officer's

Se ee ee Ee he.

hp a Oe

—_—

smelling of non-existent marijuana smoke,

held that the absence of exigent circum-"

stances alone would have precluded the

warrantless search of the apartment even

had there been probable cause. In State

v. Colvin, supra, the Louisiana Supreme

Court reviewed recent cases in which it

had upheld warrantless searches of auto-

mobiles and demonstrated the existence

of exigent circumstances in those parti-

cular cases. In the Colvin case, how-

ever, the Louisiana Supreme Court revers-

ed the conviction and ordered the evi-

dence suppressed on the ground that

there was no exigent circumstances al-

though probable cause did exist.

Thus, even a moving or movable automobile

standing alone does not supply exigent

circumstances.

» §§ «

WITH REGARD TO VALIDITY OF SEARCH WARR-

ANT.

The search warrant is invalid since:

l. The affidavit does not state facts

upon which a magistrate can base a finding

of probable cause, and,

2 The issuing magistrate was pur-

posely and intentionally deceived by the

Sheriff's Department.

(1) No Probable Cause to Search Recited

in Affidavit.

Article 162 of the Louisiana Code

of Criminal Procedures sets the standard for

a valid warrant as follows:

"A search warrant may issue only up-

on probable cause established to the

satisfaction of the judge, by the aff-

idavit of a credible person, reciting

facts establishing the cause for iss-

uance of the warrant."

The Fourth Amendment of the United States

Constitution provides:

"The right of the people to be sec-

ure in their person, houses, papers,

a ee —

A NN gtd est

Nt ea

« $6 =

and affects, against unreasonable

searches and seizures shall not be

violated, and no warrants shall iss-

ue, but among probable cause, supp-

-orted by oath or affirmation, and

particulary describing the place to

be searched, and the persons or things

to be seized."

Measured against Article 162 and its

Constitutional basis, Article 1, Section 5,

of the Louisiana Constitution and the Fourth

Amendment of the United States Constitu-

tion, the affidavit in this case can not

stand. The affidavit requesting a search

for marijuana inside the truck states that

after a traffic stop, "I observed what app-

eared to be green vegatable matter on the

tailgate..." and later, "I then returned

to the vehicle and did notice more closely

of the green matter on the tailgate and at

that time retrieved some of the green veg-

table matter from the tailgate. After ob-

taining this green matter, I proceeded to

complete a search warrant form..."

» 57 -

This is not sufficient. There must

be facts on which a neutral magistrate can

find probable cause. Even if the affidavit

said "what appeared to be marijuana" it

would be a mere prohibited suspicion. As

it is, there isn't even the bald faced

allegation of what kind of plant material

this green matter is.

Simply put, a suspicion of contraband

is not enough to sustain a valid warrant.

In State v. Paciera, 290 So 2d 681 (La.

1974), Justice Tate outlines the law as

follows:

"Under our jurisprudence, a search

warrant may not be issued upon an

affidavit reciting nothing more

than the affiant has reasonable

cause to suspect that the object

of the search is in the premises.

State vs. Wells, 253 La. 925, 221

So.2d 50 (1969). The affidavit

must recite facts establishing to

the satisfaction of the judge, not

the affiant, that probable cause

exists for issuanace of the search

warrant. State v. Holmes, 254 La.

501, 225 So.2d 1 (1969); State v.

Wells, cited above. If a search

warrant is illegally issued by

-,58 =

virtue of an insufficient affidavit,

the eviedence thereby seized is

inadmissable in a criminal prosecu-

tion. State v. Holmes and State

v. Wells, cited above; see Profess-

-or Dale Bennett, 30 La.L.Rev. 309-

10 (1969)." State v. Paciera, 290

So.2d 681 (La.1974) at 683.

The affiant's opinion, suspicion or

belief is not enough, as Judge Marcus has

obseved in State v. Flood, 301 So.2d 637

(1974):

"It is well settled that the affi-

davit must recite facts establish-

ing to the satisfaction of the judge

not the affiant, that probable cause

exists for the issuance of the search

warrant. State v. Paciera, 290 So.

2d 681 (La.1974); State v. Holmes,

254 La. 501, 225 So. 2d 1 (*1969);

State v. Wells, 253 La. 925, 221 So.

2a 50 (1969).

"The factual information which is the

foundation for the determination of

probable cause must be contained in

the affidavit. Aguilar v. Texas, 378

U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d

723 (1964); Article 162 C.Cr.P.

Mere suspicion or belief is not suff-

icient. Nathanson v. United States,

290 U.S. 41, 54 &.Ct. il, 78 L.Ed.

159 (1933); Aguilar v. Texas; State

v. Flood, 301 So.2d 637 (1974), at

641.

There is no information in the warrant

- 59 =

that would lead a reasonable man to con-

clude that marijuana was in the rear of the

truck. Four a. m. is not unusual for

truck traffic to and from the packing and

supply houses down the bayou. No one tes~

tified it was. The traffic charge was

essentially being unaware of a special cir-

cumstance. No one alleged speeding. The

driver was out of state, but did not resist

arrest, made no furtive gestures and com-

plied with all requests of the police but

for opening the tailgate. There was no

field test confirming the green matter as

marijuana. There was no statement of

experience of the officer in recognizing

marijuana. There was no admission on

defendant's part. The only reason given

for the warrant was that some undetermin-

ed member of the plant kingdom was thought

to be on the tailgate. If this warrant is

valid every jar of parsley in any grand-

mother's spice cabinet is subject to

—_—— =

crcl St eet

eae Waa

~ '60 -

seizure. The affidavit is insufficient.

The evidence is inadmissable.

(2) The Warranted Search Was Invalid in

that the Magistrate Was Intentionally

Deceived

The Fourth Amendment of the United

States Constitution would be rendered

meaningless if the State be allowed to

rectify and sanctify antecedent, invalid

and unreasonable searches by subsequent

procedures.

An analysis of the transcript of the

hearing in question shows undisputedly

that State agent Lirette participated in

the warrantless search which search was

conducted prior to the application for a

search warrant presented to Judge Falgout.

Additionally, the undisputed testimony

adduced at the hearing establishes that

state agent Lirette had actual knowledge

and in fact was present when the suspected

marijuana was field tested.

- 61-

Conspiciously and inexplicibly ab-

sent in the affidavit presented to Judge

Falgout was any mention whatseever or any

implication whatsoever that the State pri-

or to their application to Falgout or in

their application to Falgout for a warr-

ant to search the truck in question, had

not only searched the truck in question

already, absent a warrant, but had con-

ducted no less than three qualitative

analysis, i.e., so-called "field tests”

of the suspected marijuana inside said

truck.

Such an unjustified reprehensible

misrepresentation by omission to Judge

Falgout constitutes a prostitution of

the rudimentary demands of good faith and

fair play demanded by our law enforce-

ment officers through our Constitution

and way of life.

Whether or not Cantrelle actually

ee ce A -

~ 62 =

knew of the prior search is irrelevant to

the appellants' position that the State

perpertrated a fraud upon Judge Falgout.

There is undisputed evidence that clearly

reveals by virtue of state action (i.e.,

Lirette's participation in formulating

and typing the application to Falgout),

that the state purposefully and intention-

ally deceived Judge Falgout as to the pre-

sent status of the investigation in ques-

tion, at the time the State applied to

Judge Falgout for the search warrant.

The courts have spoken directly to

such reprehensible conduct as exists in

the subject case. In this regard see

United States v. Thomas, 489 F.2d 664,

(Sth Cir. 1973), specifically at 669,

to-wit:

"Therefore, we hold that affidavits

containing misrepresentations are

invalid if the error (1) was com-

mitted with an intent to deceive

the magistrate, whether or not the

error is material to the showing

o 63.

of probable cause;...

Further amplifying their above

holding the Thomas court above at 671

states:

"Without further citation of

authority we are convinced that

there would be sufficient basis

for invalidating a search warrant

if the error was intentional, even

though immaterial to the showing

of probable cause." In fact, a

warrant issued following an intent-

ional misstatement of fact by an

affiant agent would present the

clearest case for suppression...."

"Invalidating warrants pursuant to

intentional misrepresentations by

government agents is a logical

corollary of the deterrents phil-

osophy underlying the exculsionary

rule."

Where state agents knowingly and

ee

= ee -

A ee

~ Ch =

to transgressing state agents rarely

suffice, the court must protect its

integrity by invalidating the warrant.

In United States v. Brouillette

478 F.2d 1171 (5th Cir.) it was said:

"One of the prerequisities for iss-

uing a search warrant is the requir-

ment that probable cause be estab-

lished by factual information given

a neutral and detached magistrate.

In this case the agents set forth

the information sufficient only to

believe that a state crime was being

committed. Citing it with approval

its own decision in Thomas v. United

States, 242 F.Supp. 191 (S.D.N-Y.

and United States v. Ventresca,

380 U.S. 102 the court stated recital

of some of the underlying circum-

Stances in the affidavit is essential,

if the magistrate is to perform his

detached function and not serve

merely as a rubber stamp for the

police." United States vs. Broui-

llette, 478 F.2d 1171 (5th Cir.)

purposefully intentionally deceive the at 1175.

courts, the administration of justice in In Thomas the affidavit failed to

contemplation of our system of government set forth any of the underlying circum-

and Constitution demands that the integ~- stances by which the magistrate could

rity of the courts be maintained. have concluded that a Federal crime was

As has been said, mere admonitions being committed. Clearly mere conclusions

«= §5 =

without underlying circumstances are

insufficient to allow the magistrate to

determine independently, as he must, that

a crime has been or is being committed and,

in the case of federal warrants, that a

federal crime is extant.

In Brouillette the affidavit again

failed to provide underlying circumstances

upon which to conclude anything more than

state crime was being investigated. How-

ever, the warrant itself did set forth the

specific Federal Statute from which, under

Ventresca, the magistrate could have glean-

ed what crime was being investigated.

Nevertheless, the Fifth Circuit Court of

Appeals held that even this addition did

not provide underlying circumstances suff-

icient to allow the magistrate to form a

probable cause belief that a federal crime

had been or was being committed. Thus,

the sine qua non for issuance of the warr-

ee ict A

ee ee

- 2

- 66 -

ants in Thomasand Brouillette was under-

lying facts to support a conclusion that

a crime was involved. In the case at bar

the sine qua non was the underlying facts

for the conclusion that the green vegata-

ble matter on the outside of the truck was

marijuana. This is not present in the

affidavit. There was not a Single fact

stated in the affidavit which would have

provided the basis upon which the magistrate

could have inferred how the affiant reach-

ed his conclusion. See also State v.

Williams, 338 So.2da 1365 (1976), Louisiana

Code of Criminal Procedure Article 162;

State v. Chaffin, 324 So.2d 369 (1975),

State v. Luneau,323 So.2d 770 (1975);

State v. Vince, 405 So.2d 916 (1974);

Louisiana Constitution Article 1, para-

graph 5; State v. Paciera, supra; United

States v. Hill, 500 F.2d 315 (1974);

State v. Linkletter, 286 So.2da 321(1973).

« 7 <«

In summary, there is no support in

Federal or State law for a valid warrant

without facts from which a magistrate can

draw his own conclusion of probable canse.

Here no such facts are presented even if

one substitutes marijuana for every green

matter alleged. Additionally, and perhaps

ultimately more important,our system of

justice should have no place for those

who purposely deceive a magistrate. Due

process of law itself is threatened by such

misconduct.

RULING IN THE LOUISIANA SUPREME COURT:

The Louisiana Supreme Court in its

consideration of this case concluded that

the language "green vegetable matter" is

synonymous with the word "marijuana" and

upheld the validity of the search warrant.

It did not determine the issue of "bad

faith" resulting from the failure of law

enforcement officers to disclose the prior

tt sin

- 68 -

warrantless search of the vehicle to the

magistrate who issued the search warrant

and declined to consider and pass upon

defendants contention that the physical

evidence was discovered as a result of a

prior warrantless search which was uncon-

stitutional for the reason, among others,

that there was an absence of exigent

circumstances.

In reaching its conclusion in this

case, the Louisiana Supreme Court has done

principally three things:

l. determined that the term "green

vegetable matter" (inferentially,

"green matter") is snynonymous

with the word "marijuana" when

it is used in law enforcement

and judicial proceedings,

2 refused to adjudicate the issue

of law enforcement "bad faith"

resulting from the failure of

law enforcement officers (in

particular of Deputy Lirette,

the deputy assisting in pre-

paring the affidavit for the

search warrant) to disclose

to the judge issuing the search

the fact that a prior warrant-

less search had been conducted

- 69 =

of defendants' vehicle, and

3. declinedto consider defendants-

appellants’ argument that an

unconstitutional warrantless

search was conducted prior to

the search pursuant to the

warrant.

The cornerstone of the Louisiana

Supreme Court's holding in this case is

found in the following language:

"We agree with the State that the

term, 'green vegetable matter,”

is synonymous with the word, 'mari-

juana,' when it is used in law

enforcement and judicial proceedings."

Therein lies the error in the Louisiana

Supreme Court's opinion. "Green vegetable

matter" is not synonymous with "marijuana"

when used in the English language or in

judicial proceedings. Any attempt to mis-

construe the term "green vegetable matter"

and contort it into the word "marijuana"

seriously offends the Due’Process and

equal protection provisions of the United

States Constitution, Fourteenth Amendment.

Furthermore, the fact that a search warrant

was issued in no way adds to the validity

of an affidavit constitutionally insuff-

icient and inadequate for the issuanace

of the warrant. Therefore, issuance

of the search warrant in no way bolsters

the conclusion that the sighting of green

vegetable material is understood to be

Suspected marijuana.

Although courts have authority to

interpret words, they may not re-define

them. No dictionary or thesaurus will

list "green vegetalbe matter" and "mari-

juana" as synonyms. No legislative acts

defines "green vegetable matter" as "mari-

juana". In fact, quite to the contrary,

marijuana is defined as follows:

"(22) 'Marijuana' means all parts of

plants of the Genus Cannabis, whether

growing or not; the seeds thereof; the

resin extracted from any part of such

plant; and every compound, manufacture,

salt, derivative, mixture, or prepa-

ration of such plant, its seeds or

resin, but shall not include the

mature stalks of such plants, fiber

produced from such stalks, oil or

o 32 =

cake from the seeds of such plant,

any other compound, manufacture,

salt, derivative, mixture, or prepa-

ration of such mature stalks (except

the resin extracted therefrom), os

fiber, oil, or cake, or the sterili-

zed seed of such plant which is in-

capable of germination.” La. R.S.

Titlle 14, Section 961, Sub-paragraph

(22).

The affidavit requesting a search of

the truck, in its pertinent provision,

states "I observed what appeared to be

green vegetable matter on the tailgate..."

and later "I then returned to the vehicle

and did notice more closely of the green

matter on the tailgate and at that time

retrieved some of the green vegetable ma-

tter from the tailgate. After obtaining

this green matter, I proceeded to complete

a search warrant from...”

This is not sufficient. There must

be facts on which a neutral magistrate

can find probable cause. There is not

even a baldfaced allegation of what kind

of plant material the green matter is.

The Louisiana Supreme Court cites

State v. Segers, 355 So. 2d 238 (La. 1978)

as authority for upholding the affidavit

in the instant case. The differences

between the affidavit in the Seaers case

and the affidavit in the instant case are

drastic. For example, the Kaercher and

Tighe case affidavit refers to "green

vegetable matter" while the Segers affi-

Gavit refers to "marijuana gleanings".

Further, the affidavit in Segers stated

that the outside of the aircraft and Ford

U-Haul truck "smells strongly of marijuana"

while the Kaercher and Tighe affidavit

has absolutely no allegation with respect

to such an oror. Finally, the Segers

affidavit contains the affirmative alle-

gation that affiants believed the vehicles

and planes contained marijuana while there

was no such allegation of belief in the

Kaercher and Tighe affidavit. Thus, Segers

oe, - 74 -

as well as the other officers) who con-

had an affirmative allegation of belief ( )

cealed the prior unconstitutional war-

that marijuana was hidden in the describ-

rantless search of the vehicle. Deputy

ed vehicles, and showed that this belief

at Lirette, one of the officers who in fact

was based upon observation of "marijuana

. participated in or observed the warrant-

gleanings" and the detection "of the odor

less search of the vehicle and had

of marijuana" in the area. See State v.

positive affirmative knowledge of that

Secers, 355 So. 2d 238, 241 (La. 1978).

fact, assisted in preparation of the

That is a far cry from stating that "green

document which served as the basis for

vegetable matter" is synonymous with

the search warrant by typing it and there-

"marijuana".

fore, knew its entire contents. He knew,

The Louisiana Supreme Court avoided

, as a law enforcement officer, that the

the issue of the intentional deception of

' judge would be deceived by omission of the

the magistrate by directing its attention

fact of the prior warrantless search.

only to the conduct of Deputy Cantrelle

The State of Louisiana is accountable

and in such a manner placed him in a ster-

for the misconduct of any or all of its

ile cocoon by saying there is no showing

; i 8 officers in connection with the search

that Deputy Lirette who assisted him in

and not merely the one who presents the

typing the application for search warrant

, affidavit to the judce who reviews it for

revealed to Deputy Cantrelle the prior

I doing, the | its sufficiency. Otherwise, law enforce-

warrantless search. n so doing,

ment officers could conduct as many illegal

Court focused its attention on the wrong

and unconstitutional searches as they de-

target of misconduct. It is Deputy Lirette

sired and afterwards insulate themselves

from the effect of their conduct by parti-

tioning themsleves into groups of those

acting in "good faith" and those acting

in "bad faith". In reality, ALL of the

officers working on this case had an

affirmative duty to disclose to the

Judge the prior warrantless search. Deputy

Lirette breached that affirmative duty

when he knowincly permitted the affidavit

to be prepared in such a manner as to omit

a disclosure of the prior warrantless

search.

The Louisiana Supreme Court, in its

opinion, stated:

"While the actions of fellow offi-

cers in conducting a warrantless

search micht be viewed as reprehen-

sible if undertaken under circun-

stances where there is no legal

justification for their intrusion,

that issue has no bearing on our

determination that the affiant

here validly obtained a warrant

to conduct a search of the truck."

ee

ee

"Having determined the legality of

the search conducted pursuant to

the warrant, we need not consider

defendants’ arguments that the trial

court erred in determining the

warrantless search conducted by

Boughamer, Doucet and Lirette was

valid, due to the existence of

exigent circumstances at the time

Deputy Cantrelle had both truck

and driver detained on the shoulder

of Highway 1."

This is of importance. Unquestion-

ably, the warrantless search of the vehicle

was conducted prior to the issuance of the

search warrant.

It is readily apparent that the

defendant, Thomas W. Tighe, had been

arrested three times before the warrant-

less search of the truck or the seizure

of a sample from within the contents of

the truck.

There is no way that the prosecution

can contend that the marijuana was obtain-

ed as a result of conducting a search

pursuant to a warrant. They had already

searched for and observed the marijuana

- 77 -

in the truck before the warrant ever came

into being. The law enforcement officers

simply could not unlearn information that

they had learned. How does a law enforce-

ment officer unsearch a vehicle? Does he

then go to a judge and get a search warrant

for a second search and therefore unsearch

the prior search? The issue of the un-

constitutionality of the warrantless

search of the vehicle must be judicially

determined in favor of defendants for the

reason that it was the first search and

therefore the search by which the law

enforcement officers learned of the

contents of the vehicle.

By what authority can the state

possibly contend factually that it intro-

duced only the material found pursuant

to the search warrant and not the material

found pursuant to the warrantless search?

Se oe Lae

Plt ee a a ee

ee

- 978 '-

Defendants~-appellants contend that

the Louisiana Suprmee Court should have

considered and ruled upon the issue of the

warrantless search giving attention to

all of the authorities cited and parti-

cularly to the United States Constitu-

tion's Fourth and Fourteenth Amendments,

Article 1, Section 5, of the Louisiana

Constitution as well as the pronounce-

ments of that Court in State v. Parker,

355 So. 2d 900 (La. 1978), State v. Hargiss,

288 So. 2d 633 (1974), State v. Franklin,

353 So. 2a 1315 (La. 1978), State v. Lane,

347 So. 2d 167 (La. 1977).

CONCLUSION

For the foregoing reasons, it is urged

that the Louisiana Supreme Court erred

in determining defendants' Fourth Amend-

ment rights when it held that "green

vegetable material" is a synonym in judi-

cial proceedings for "marijuana" and

further, that the Louisiana Supreme Court

= 79 =

Should have heard and determined the

issue of the prior warrantless search

of the vehicle and held it to be an

unconstitutional search barring the

admissibility into evidence of that

contraband found as a result of such

unlawful and impermissible conduct.

Respectfully submitted,

GRAVEL, ROY & BURNES

=: Coteasdt 2 ae

Camille F. Gravel, Jr.

Richard V. Burnes

711 Washington Street

Post Office Box 1792

Alexandria, Louisiana

71301

(Area 318) 487-4501

BY:

Attorneys for Defendants-Petitioners

ee

Ce RIE CATAL ALT SB

I certify that a copy of the foreoing app-

lication has been served upon opposing hears

nsel: William J. Guste, Jr., Attorney Gen-

eral, State of Louisiana, State Capitol,

Baton Rouge, Louisiana; Frances Dugas, Dis-

trict Attorney, 17th Judicial District,

Lafourche Parish Courthouse, Thibodaux,

Louisiana; John J. Erny, Jr., Assistant

District Attorney, 17th Judicial District,

Lafourche Parish Courthouse, Thibodaux,

Louisiana.

Alexandria, Louisiana, boven, 1978.

AMILLE F. GRAVEL, JR.

APPENDIX "A"

362 So.2d 754

STATE of Louisiana

Vv.

Kenneth B. KAERCHER

STATE of Louisiana

Vv.

Thomas W. TIGHE

Nos. 61674, 61675.

Supreme Court of Louisiana

Sept. 5, 1978

Rehearing Denied Oct. 5, 1978

CALOGERO, Justice.

Defendants were charged by bills of

information with possession of marijuana

with intent to distribute, a violation

of La. R.S. 40:966. A pre-trial motion

to suppress the 12,600 pounds of marijuana,

urging that the seizure was warrantless,

without the requisite exigent circum-

a

A-2

stances, was denied after a lengthy

hearing. The trial court permitted the

defendants to enter guilty pleas to the

crime charged with reservation of the

right to appeal the ruling on the motion

to suppress, a precedure approved in

State v. Crosby, 338 So.2d 584(La.1976).

Upon their pleas of guilty, each defen-

dant was sentenced to serve ten years at

hard labor and pay a fine of $15,000.

The trial judge's per curiam filed

in the record notes that during the early

morning hours of April 23, 1977 a major

fire which destroyed the Safari Club in

Galliano, Lafourche Parish, was in pro-

gress. When firefighting efforts comm-

enced, Louisiana Highway No. 1, running

in front of the club, was blocked. At

about 3:55 A.M., most of the fire was out,

but hot spots in the rubble were causing

flare-ups and firefighters were responding

A-3

to the problem. There were at least

three fire engines still at the scene,

pumping water through hoses placed in

Bayou Lafourche across Highway 1 for

fighting the sporadic flare-ups. Part-

tial road blocks on Highway 1 on either

side of the Safari Club were still in effect

and fire and police units with emergency

lights activated were at the scene. Large

numbers of people, some walking on or near

the roadway, were still present. Major Doucet

of the Lafourche Sheriff's Office observed

a blue 1974 GMC truck drive through this

congested area over fire hoses at approx-

imately 45 miles per hour, the speed posted

for travel in the area under normal cir-

cumstances. Doucet instructed Deputy

Cantrelle to pursue the truck and Cantrelle

overtook the vehicle at a point about one

mile north of the fire scene. The truck

pulled over on the shoulder, the Deputy

A-4

Cantrelle parked behind the truck and em-

erged from his unit. As Cantrelle appro-

ached the truck the driver also exited his

vehicle and walked to the truck's rear to

meet the deputy. Cantrelle asked the dri-

ver to produce his license and the driver

complied. Cantrelle thereby learned that

the driver was Thomas Tighe of Minnesota.

The deputy advised Tighe that he was under

arrest. At this time Cantrelle observed

mariguana gleanings on the back of the

truck and requested permission to open the

truck. Such permission was denied. Depu-

ty Cantrelle directed Tighe to drive the

truck to the Galliano annex of the Sher-

iff's Office, where both Tighe and his

passenger, Kaercher, were apprised that

they were under arrest and given Miranda

warnings. After escorting the defendants

into the annex, Cantrelle, accompanied by

Major Doucet and Dectective Robert Boug-

hamer, again viewed the rear of the truck;

A-5

marijuana gleanings were clearly observa-

ble on the truck's tailgate and partially

sticking out from under the rear door.

A strong marijuana order was detected.

Boughamer took samples of the gleanings

from the tailgate, subjected them to field

testing and obtained positive results.

Cantrelle had commenced preparation of

the affidavit which he planned to submit

in support of his application for a search

warrant for the truck. After the field

testing Boughamer, accompanied by Doucet

and Deputy Lirette, returned to the rear

of the truck and opened the doors, obser-

ving numerous bales of marijuana within.

When Lirette returned to the annex office,

he assisted Cantrelle in completing the

preparation of the affidavit.?

l,. Lirette's assistance consisted of typing

Cantrelle's affidavit and aiding the less

experienced officer with wording of the

affidavit. Lirette made no suggestions with

regard to the affidavit's substance.

A-6

Cantrelle cbtained a warrant to search the

truck and the search was conducted at app-

roximately 7:00 A.M. Based on the 12,600

pounds of marijuana found in the truck,

defendants were advised that they were

charged with possession of marijuana with

intent to distribute.

The defendants attack the search con-

ducted pursuant to the warrant, urging that

the warrant was invalidly obtained and

Claiming that the affidavit fails to set

forth the requisite probable cause upon

which the warrant's issuance must be based.

We first examine Cantrelle's affidavit which

recited the following facts to determine

whether it sets forth the articulated

probable cause necessary to support the

search warrant.

At approximately 3:55 A.M. on April

23, 1977, while Cantrelle was working

traffic at the Club Safari fire site he

A-7

saw the vehicle for which permission to

search was sought travelling in excess of

40 M.P.H. through the congested area. As

it approached the congestion, it appeared

to maintain its speed rather than slow

down; it was noted that the truck main-

tained its rate of speed while travelling

through the area. Cantrelle pursued the

truck and overtook it after having tra-

velled a distance of about a mile. The

officer approached the truck and asked that

the driver alight and come to the rear of

the truck. The driver complied and Can-

trelle asked him for his driver's license;

while the driver sought to produce the

license, Cantrelle, glancing at the rear

of the truck, observed what appeared to

be green vegatable matter on the truck's

tailgate. Cantrelle did not remark upon

his observation, but merely accepted the

license produced, which revealed that the

A-8

driver was Tighe, a resident of Minnesota.

Cantrelle informed Tighe that he was under

‘arrest for “his offense as he proceeded

through the congested area" and instructed

him to proceed to the annex. At the annex

Cantrelle returned to the rear of the truck

and noticed more closely the green vegeta-

ble matter on the tailgate, some of which

he retrieved. Cantrelle then commenced

preparation of the affidavit and Tighe

was informed that a warrant was being

sought. The affidavit notes that the

vehicle was secured in front of the annex

in plain view, pending the issuance of the

search warrant and exploration pursuant

thereto.

Appellants protest that the affida-

vit's repeated references to observation

of "green vegatable matter" and "green

matter" fall short of a claim that mari-

juana was viewed. They urge that even if

A-9

the affidavit had noted observation of

"what appeared to be marijuana," a mere

suspicion would thereby have been related

not the conrete facts which the law requires

in an affidavit in support of a warrant

application.

It is well established in the juris-

prudence that affidavits for search warr-

ants are tested and interpreted in a com-

monsense and realistic fashion.

United

States v. Ventresca, 380 U.S. 102,85 S.Ct.

741, 13 L.Ed.2d 684(1965); State vs Boyd

359 So.2d 931(La.1978); State vs. Segers,

355 So.2d 238(La.1978); on rehearing, 357

So.2d 1(La.1978). Construing the instant

affidavit ina realistic manner, we con-

clude that it did set forth probable

cause to search. We agree with the State

that the term, "green vegatable matter," is

synonymous with the work, "mariguana", when

it is ued in law enforcement and judicial

A-10

proceedings. Moreover, the defense misap-

prehends the requirement of Article 162 of

the Code of Criminal Procedure that an

affidavit in support of a search warrant

application set forth facts when it con-

strues that requirement to mean that the

substance viewed must have been con-

Clusively identified or scientifically

proven to be a controlled dangerous sub-

stance. The fact that the search warr-

ant issueG authorized exploration for one

item only, marijuana, bolsters our con-

clusion that when sighting of green

vegetable matter is reported by a law

enforcement official, the "green vege-

table matter" is understood to be sus-

spected marijuana.

The representations set forth in the

affidavit adequately supply probable

cause upon which to base the issuance of

a search warrant for the truck defendant

A=-il

Tighe was driving. In State vs. Segers,

supra, we noted that a commonsense reading

of the affidavit revealed that the issuing

magistrate was told of the affiants' belief

that marijuana was hidden in the described

vehicles, such belief being based on the

observation of marijuana gleanings on the

outside of the vehicles and the detection

of the odor of marijuana in the area. WE

held that those facts sufficiently sup-

ported a finding of probable cause.

As in the Segers case, the affiant

was a law enforcement official..Realist-

ically, when an officer seeks a search

warrant based on his sighting of green

vegetable matter and the magistrate con-

strues the representations as a request

to search for marijuana, the settled

principle requiring that probable cause

determinations be paid great difference,

which mandates that resolution of doubt-

ful cases be largely determined by the

A-12

preference accorded warrants, dictates our

judicial approval of the affidavit's

sufficiency. State vs. Anderson, 357 So.

2d 547(La.1978).

The appellants' claim of the insuff-

iciency of the affidavit is without merit.

Appellants' argument that the search

warrant was invalidly obtained is based on

the claim that failure to apprise (in the

affidavit) of the earlier, warrantless

search constituted an unjustified and re-

prehensible misrepresentation by omission

which requires disapproval of the warrant.

The issue of affiant's knowlege of vel non

of the prior search is urged to be irrel-

evant; because Deputy Lirette, who was

present at the warrantless search, assited

Deputy Cantrelle in the preparation of his

affidavit by typing it, intentional and

purposeful deception of the judge was

wrought by means of State action.

A-13

Insofar as acquisition cf the warrant

was concerned, only the affiant, Deputy

Cantrelle, contacted and communicated with

the issuing judge. There is no represen-

tation that Cantrelle knew that a warrant-

less search had been conducted by fellow

officers, and a review of the entire re-

cord fails to establish that there was

such knowledge on Cantrelle's part. Deputy

Lirette testified that he did not advise

Cantrelle that the truck had been opened;

Cantrelle himself stated that he only

learned that the truck had been opened

without a warrant after he himself had

secured the search warrant.

The issue which the Court must det-

ermine is whether the search warrant was

invalidly procured. The record fails to

establish any deception, fraud or misrep-

resentation on the part of the affiant,

whose representations formed the basis

A-14

for the warrant's issuance. We have

determined that the contents of the

affidavit were sufficient to support

a finding of probable cause. While the

actions of fellow officers in conduct-

ting a warrantless search might be view-

ed as reprehensible if undertaken under

circumstances where there was no legal

justification for their intrusion, that

issue has no bearing on our determination

that the affiant here validly obtained

a warrant to conduct «a search of the

truck.

All of the defendants' claims re-

lating to the search warrant lack re-

versible merit. The trial court did not

err in denying defendants' motion to

suppress.

Having determined the legality of

the search conducted pursuant to the

warrant, we need not consider defendants'

A-15

arguments that the trial court erred in

determining that the warrantless search

conducted by Boughamer, Doucet and Lirette

was valid, due to the existence of exigent

circumstances at the time Deputy Cantrelle

had both truck and driver detained on the

shoulder of Highway l.

Decree

For the foregoing reasons, the defend-

ants' conviction and sentences are affirmed.

AFFIRMED.

DENNIS, J., concurs

APPENDIX "B"

STATE OF LOUISIANA 17thJUDICIAL DISTRICT

VS. NO. 78617 PARISH OF LAFOURCHE

KENNETH KAERCHER STATE OF LOUISIANA

DIVISION "A"

KKEKKKKKKKKKKKKRKKKKKKKKRKR KKK KKK KKK KKKKEK

JUDGEMENT ON MOTION TO SUPPRESS

KKKKKKKKKKKKEKKEKKKEKKKKEKKEKKKKKKR HAKKAR KK AK

These matters came to be heard by

the Court on a Motion to Suppress Evi-

dence filed by the defendant and the Court

after hearing the pleadings, the evidence,

the law and the argument of counsel ren-

dered the following judgement:

IT IS ORDERED, ADJUDGED, AND DECREED

that the motion to suppress filed by the

defendant, KENNETH KAERCHER be and it is

hereby overruled and dismissed.

JUDGEMENT RENDERED, READ AND SIGNED

this 3rd day of January, 1978, in open

B-2

court at Thibodaux, Parish of Lafourche,

State of Louisiana.

/s/_ Walter I. Lanier, Jr.

WLATER I. LANIER, JR.

JUDGE, 17TH JUDICIAL

DISTRICT COURT

PARISH OF LAFOURCHE,

DIVISION "A"

— a

—-

—e

APPENDIX "C"

STATE OF LOUISIANA 17TH JUDICIAL DISTRICT

Vs. No. 78618 PARISH OF LAFOURCHE

THOMAS W. TIGHE STATE OF LOUISIANA

DIVISION "A"

KKK KRKRKKKKKKRK KKK KK KKK KKK RRR

JUDGEMENT ON MOTION TO SUPPRESS

KKKKKKKKKKKKKKAKKKKKKKKKKAKKKKKRKKKKK KKK KKK K

These matters came to be heard by the

Court on a Motion to Suppress Evidence

filed by the defendant and the Court af-

ter hearing the pleadings, the evidence,

the law and the argument of counsel ren-

dered the following judgment:

IT IS ORDERED, ADJUDGED, AND DECREED

that the motion to suppress filed by the

defendant, Thomas Tighe, be and it is here-

by overruled and dismissed.

JUDGEMENT RENDERED, READ AND SIGNED

this 3rd day of January, 1978, in open

C-2

court at Thibodaux, Parish of Lafourche,

State of Louisiana.

/s/ Walter I. Lanier, Jr.

WALTER I. LANIER, JR.

JUDGE, 17th JUDICIAL DISTRICT

COURT, PARISH OF LAFOURCHE

DIVISION "A"

+ lt

oe et a me

APPENDIX "D"

SUPREME COURT OF LOUISIANA

STATE OF LOUISIANA

versus NUMBER 61,674

KENNETH B. KAERCHER

STATE OF LOUISIANA

versus NUMBER 61,675

THOMAS W. TIGHE

ORDER

Upon considering the foregoing applica-

tion of petitioner-defendants-appellants

herein, it is

ORDERED that all further proceedings

be stayed pending the filing, con-

sideration and disposition by the

Supreme Court of the United States

of the petition and application for

writ of certiorari to be made by

petitioners-defendants-appellants

herein, provided such petition is

filed in the Clerk's office of the

D-2

Supreme Court of the United States

not later than ninety (90) days from

the 5th day of October, 1978, the day

that their application for rehearing

in this case was refused by this

Court.

New Orleans, Louisiana, this 5th day of

October, 1978.

/s/ Joe W. Sanders,

Chief JUSTICE, SUPREME COURT

OF LOUISIANA

APPENDIX "E"

AFFIDAVIT FOR SEARCH WARRANT

STATE OF LOUISIANA

PARISH OF LAFOURCHE

17TH JUDICIAL DISTRICT COURT

BEFORE ME, the undersigned Judge of

the 17th Judicial District Court in and

for the Parish of Lafourche, Louisiana,

personally came and appeared: Deputy

Gerald Cantrelle, tLAFOURCHE PARISH SHER-

IFF OFFICE, GALLIANO, LA., who after being

first duly sworn, did depose and say:

that he requests permission and authority

to search a 1974 GMC Van Truck bearing 77

La 1903305.

The reasons and facts upon which this re-

quest for a search warrant is based are as

follows: that at aprx 3:55 AM April 23

1977, while working traffic on La Hwy l

at the scene of a fire at the Safari Club

in Galliano, La and while firefighting and

police equipment and personnel were working

E-2

to fight the fire and maintain traffic

control at the scene of the fire, the

above described vehicle was observed tra-

veling in a northerly direction on La Hwy

l and appeared to not slow fui the the on-

coming road congestion. That the vehicle

appeared to be traveling in excess of 40

MPH. Further that as the vehicle describ-

ed did approach the congested area, it was

found that the vehicle did not slow and

continued at the same rate of speed and

did pass through the congested area at the

same speed and continued going north. Up-

on observing this, I then got into the po-

lice unit and took up pursuit of the

vehicle. I did manage to stop the vehicle

at a point aprx 1 mile north of the Safari

Club on La Hwy 1. I approached the veh-

icle and asked the driver to get out of

the truck and to come to the rear ot the

truck and in front of the police unit.

E-3

The driver did as requested. Said driver

was asked for his drivers license and as he

did, X look for the drivers license, I

stood near the rear of the truck. As I

stood near the rear of the door of the

truck, I observed what appeared to be gre-

en vegatable matter on the tailgate portion

of the truck. I did not inform or ask the

driver of the truck about the green matter.

I did accept his drivers license and found

the driver to be Thomas W. Tigeh W/M of

Minnesoto. I informed the subject of his

offense as he proceeded through the con-

gested area and arrested subject. He was

informed that he could drive his vehicle

to the sheriff office and follow me as I

drove the police unit. At the sheriff

office, I had the subject park the veh-

icle in front of the sheriff office and

then brought subject into the office.

After the subject was in the office, I

E-4

then returned to the vehicle and did no-

tice more closely of the green vegatable

matter on the tailgate and at that time

retrieved some of the green vegatable mat-

ter from said tailgate. After obtaining

this green matter, I proceeded to complete

a search warrant form for the search of the

vehicle. The subject was further inform-

ed of his rights and of the charge. He

was also informed that I was attempting

to obtain a search warrant for the search

of his vehicle. Subject was then process-

ed and confined. The vehicle was secured

in front of the sheriff office at Galliano

where it was in plain view until a search

warrant could be obtained.

/s/ Gerald A. Cantrelle

AFFIANT

SWORN TO AND SUBSCRIBED BEFORE ME THIS 23rd

DAY OF April, 1977, IN LAFOURCHE PARISH,

LOUISIANA.

/s/ W. J. Falgout

JUDGE

17th Judicial Dis-

trict Court.

Division C.