Petition — Wilbourn v. Louisiana

Supreme U unt, U, 2. \

FILE 3

|

MAR 13 1979

” WIGHAG. GOUAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

€8"1402

HUGH C. WILBOURN,

Petitioner,

versus

STATE OF LOUISIANA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT FOR THE STATE OF LOUISIANA

EDWARD S. BOPP

A LAW CORPORATION

6725 St. Claude Avenue

Suite 102

Arabi, Louisiana 70032

(504) 271-6242

BRUCE C. ASHLEY, II

Counsel for Petitioner,

Hugh C. Wilbourn

March 13, 1979

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

INDEX

Page

i ke 's kw b's sce cau ees 2

UG i gcse oaks bccscsscvcess 2

COMER PPOrs PRESENTED .....5.....055,.0..5. 2

STATUTORY PROVISIONS INVOLVED ........ 3

sie ho ewncccccsccensce 3

REASONS FOR GRANTING THE WRIT ........ 5

1. The search conducted herein violated

the Fourth Amendment to the U.S.

ee a yas kb yk ok sss s 0000. 5

2. The seizure of the petitioner's

automobile violated the Fourth

Amendment to the U.S. Constitution ..... 14

3. The New Orleans Police lacked

jurisdiction and/or legal. right to

search and seize the petitioner’s

EN dud bd'nG bods ene csees 15

4. The jury selection process herein

violated the Sixth and Fourteenth

Amendments to the U.S. Constitution .... 16

ER Lass Guay g@ dnc vnvacssveesicae 19

EEE nS 20

APPENDIX

La. Supreme Court Judgment and Opinion ..... la

Application for Rehearing .................... 8a

CITATIONS IN THE

CASES: Penk SUPREME COURT OF THE UNITED STATES

i OCTOBER TERM, 1978

Adams v. Williams, 92 S.Ct. 1921, 407 U.S.

OE: SRE nN i IAI Se EE on eee 11

Aguillar v. Texas, 84 $.Ct. 1509, 378 U.S. 108 : No.

BASRA SORA, Oe ah oRreeee e ee aa 11

Carroll v. U.S., 45 S.Ct. 280, 267 U.S. 132 HUGH C. WILBOURN,

BURN fhe 5 9 ARG Fae 8 | hiiiiickiin

Coolidge v. New Hampshire, 91 S.Ct. 2022, 403 |

Shi. DONTE Cus Ohik cd bk pare keke ek 8,9,10,15 versus

Draper v. U.S., 79 S.Ct. 329, 358 U.S. 307

OOO Walden ci bebe aac hel aenee so 11,12

STATE OF LOUISIANA,

Katz v. U.S., 88 S.Ct. 507, 389 U.S. 347 (1967) ..... 6 Respondent.

Mapp v. Ohio, 81 S.Ct. 1684, 367 U.S. 643

FUE acon eee eras Perr aue sua 9 14

— on te weed ey ore ae eee eam PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT FOR

State v. Gibbs, 355 So.2d 1299 (La. 1978) ....... 18 THE STATE OF LOUISIANA

State v. Hoffman, 345 So.2d 1 (La. 1977) . ..17,18,19

State v. Wilbourn, 364 So.2d 995 (La. 1978)..2,15,17

The petitioner, Hugh C. Wilbourn, respectfully

Taylor v. U.S., 286 U.S. 1, 76 L.Ed. 951, 52 prays that a Writ of Certiorari issue to review the judg-

S.Ct. 466 (1926) 2... .ccsccccsccscceces coess 15 ment and opinion of the Supreme Court of the State of

Vale v. Louisiana, 90 $.Ct. 1969, 399 US. 30 Louisiana entered in this proceeding on November 13,

RRR locas har ae ee Fan te oe oe 5 1978.

2

OPINION BELOW

The petitioner herein was convicted of three counts

of negligent homicide, La. R.S. 14:32, on March 31,

1977, by a jury in the Criminal District Court for the

Parish of Orleans, Louisiana. A motion for a new trial

was denied. Subsequently, petitioner filed a timely mo-

tion for appeal and provided assignments of errors. The

Louisiana Supreme Court entered judgment affirm-

ing the conviction on November 13, 1978 and its opin-

ion appears in 364 So.2d 995. A timely petition for

rehearing was denied on December 14, 1978.

JURISDICTION

The petition for certiorari was filed within ninety

(90) days of the December 14, 1978, date. The petition

for rehearing was denied. This Court's jurisdiction is

invoked under 28 U.S.C. Section 1254.

QUESTIONS PRESENTED

1.) Did the search in the present case violate the 4th

Amendment of the United States Constitution?

2.) Did the seizure in the present case violate the 4th

Amendment of the United States Constitution?

3.) | Did the New Orleans Police have any jurisdiction

and/or legal right to search and seize petitioner's

automobile?

3

4.) Did the jury selection process in this case violate

petitioner’s 14th Amendment rights of due

process and equal protection?

STATUTORY PROVISIONS INVOLVED

The 4th Amendment of the United States Constitu-

tion.

The 6th Amendment of the United States Constitu-

tion.

The 14th Amendment of the United States Constitu-

tion.

Louisiana Code of Criminal Procedure Article 784.

STATEMENT OF FACTS

On September 21, 1975, three men were killed in an

alleged hit-and-run incident on the Bayou Bievenue bridge.

The petitioner, Hugh C. Wilbourn, was arrested and

charged with the offenses.

On Monday, September 22, 1975, at about 4:15 P.M.,

St. Bernard Parish Deputies, B. Emmons and L.

Gagliano were on routine vehicular patrol when they

received radio dispatch to proceed to 513 Norton

Avenue, Arabi, Louisiana and check for a brown late

model Ford suspected of being involved in a hit and run.

The source of this information was an anonymous

telephone call received by the radio dispatcher.

4

At approximately 4:30 P.M., Deputies Emmons and

Gagliano arrived by vehicle and stopped at the premises

located at 513 Norton Avenue. Upon arriving, the of-

ficers observed a two-tone (white top, brown bottom)

1974 Ford parked under the carport. The right rear tire

of the vehicle in the carport was flat, and its right rear

bumper appeared to be damaged. The car was parked

with its rear facing Norton Avenue. (See defense ex-

hibits D-3 and D-4). The car and carport appeared to be

empty.

The officers then entered the carport in order to ob-

tain a view of the front of the vehicle in an effort to

determine if the vehicle had in fact been involved in a

hit and run. Once in the carport, the officers walked to

the front of the vehicle and observed what appeared to

be blood stains and damage on the front of the car. The

front of the vehicle could not be seen from either the

street or sidewalk. |

Thereafter, the vehicle was impounded, without a

search warrant, determined to be owned by defendant,

Hugh C. Wilbourn. It was also determined that the

defendant resided at 513 Norton Avenue.

Prior to entering the premises of 513 Norton

Avenue, the police had neither an arrest warrant nora

search warrant. (MTS tr. pp. 12, 13 and 27). Evidence

taken from the exterior of the car, and submitted to

scientific analysis, was used at the trial of petitioner

herein and was relied upon exclusively in order to

prove his guilt.

5

REASONS FOR GRANTING THE WRIT

1.) The search conducted herein violated

the Fourth Amendment to the U.S. Constitu-

tion.

It is now well settled under the Fourth Amendment

to the United States Constitution that a search

conducted without a warrant issued upon probable

cause is per se unreasonable subject only to a few

specifically established and well delineated exceptions,

to-wit: searches made incident to a lawful arrest, so-

called “plain-view” searches, made when an officer is

where he has a right to be, consent searches, and

“searches made under exigent circumstances or in close

pursuit. Vale v. Louisiana, 90 S.Ct. 1969, 399 U.S. 30

(1970). Because the instant search and seizure was

nonconsensual (MTS tr. pp. 7, 8 and 27), was not made

pursuant toa lawful arrest (MTS tr. pp. 14 and 15), and,

in fact, involved no form of “close pursuit” (MTS tr. 18

and 27), the issue before this Honorable Court is

whether the search can be upheld due to the existence

of exigent circumstances or under the “plain-view”

doctrine.

It should be noted initially that the specific issue

before this Court is whether the police had the right to

be where they were when they observed the alleged

evidence on the exterior of the car. This is to say that

because the front exterior of the vehicle could not be

seen from the street or outside the boundaries of 513

6

Norton (MTS tr. pp. 8, 9 and 26; def. exh. D-3 and D-4),

the officers must have had the right to enter the car-

port and place themselves in front of the vehicle prior to

viewing the evidence.

With respect to the officers’ right to enter the carport

without a warrant, the first question that must be dis-

cussed is that of the application of Fourth Amendment

protection to an area adjacent to a house. It is, of

course, well settled that it is an individual’s right to

privacy, not a specific place, which is protected by the

Fourth Amendment. Katz v. United States, 88 S.Ct. 507,

389 U.S. 347 (1967). The central question to be asked is:

What was the defendant's expectation of privacy? The

facts in the instant case demonstrate that the position

of the carport and car were such that anyone so park-

ing the car could reasonably expect the carport to be

free from police intrusions.

The car and carport in question were clearly on the

premises of 513 Norton. (MTS tr. pp. 12 and 31) Anex-

amination of defense exhibits D-3 and D-4

demonstrates that the carport was recessed such that

the front boundary of the carport was farther from the

street than was the front of the house. Moreover, the

carport was fully connected to the house on one side

and enclosed by a cement fence on the other. The car

itself was parked such that its front bumpers were as

close to the back wall of the carport as possible thus

positioning the vehicle completely within the confines

of the carport.

7

It should be noted that the carport was used only by

the residents of 513 Norton and was not part of an

apartment complex. Furthermore, it was not necessary

to walk through the carport in order to enter the front

door of the residence. (See def. exhibit D-2). This is to

say that the carport was not used as a passageway for

entrance to the house itself. The Louisiana State

Supreme Court erroneously held as a matter of fact

that the side door was an entranceway into the house.

In point of fact, this side door opened into a utility shed,

and, as such, was not used, nor intended to be used by

the members of the public.

Additionally, the evidence found on the exterior of

the car was positioned so that it could not be seen by

one merely walking to the front door of the house;

rather, the evidence was on the right front of the vehicle

and could only be seen by standing between the car and

the rear of the carport. (Tr. p. 12, see def. exhibits D-3

and D-4). Clearly, if a lay person entered any part of the

carport without permission, much less the area at the

rear of the carport, possible charges of attempted

burglary, criminal mischief, etc. would lie. Under these

circumstances, there should be no question but that the

protections of the Fourth Amendment to the United

States Constitution applied to the car parked in the car-

port at 513 Norton Avenue. The next issue, therefore,

is whether exigent circumstances existed so as to

justify the officers’ warrantless entrance into the

constitutionally protected area.

8

In Carroll v. United States, 45 S.Ct. 280, 267 U.S. 132

(1925), this Honorable Court established a more relax-

ed warrant requirement for vehicles than for homes or

buildings as the former, due to their mobility, can be

quickly moved out of the jurisdiction or locality where

the warrant is sought. The Court felt that if a police of-

ficer has probable or reasonable cause to believe that a

vehicle contains contraband, he should not be required

to obtain a search warrant if to do so would risk the loss

of the evidence. This risk of loss, i.e., exigent circum-

stances, negates the need for a warrant.

However, the Court made it clear in Coolidge v. New

Hampshire, 91 S.Ct. 2022, 403 U.S. 443 (1971), that the

mere fact that an automobile is the object of a search

does not mean that a search warrant will never be re-

quired. In Coolidge, the police had known for some time

of the probable role of the car in the crime, and the

defendant had had ample opportunity to destroy any

evidence that might have been in the car. Furthermore,

the defendant in Coolidge had no access to the vehicle at

the time of his arrest, and the objects sought by the

police were neither stolen, contraband, nor dangerous.

The Court ruled that under those circumstances, the

police were required to obtain a search warrant before

searching the vehicle as no exigent circumstances

existed that would negate the need for a warrant.

Factors to be considered regarding the existence of

exigent circumstances are a suspect’s access to the

vehicle, the extent and practicality of policy observa-

9

tion of the car, and the length of time prior to the

search in which the officers had to secure a warrant.

See Coolidge, supra. An examination of the case at bar

demonstrates that no exigent circumstances existed so

as to justify a warrantless search.

Wher the police first arrived at 513 Norton, they ob-

served that the car in the carport did not exactly fit the

description given by the informant; that is, the infor-

mant had described the vehicle as being merely brown,

whereas the car in the carport was brown and white.

(MTS tr. pp. 7 and 24). As a result of this discrepancy,

the police officers neither suspected the car’s involve-

ment in the offense nor knew that the car was in fact

the one described by the informant. (MTS tr. pp. 8, 9

and 28). Moreover, prior to entering the premises, the

officers observed that the vehicle had one flat tire and

that no one was ..: the vicinity of the car. (MTS tr. pp. 7,

14, 26 and 17) When these facts are coupled with the

fact that the police were not looking for contraband

that could be easily hidden or destroyed (MTS tr. pp. 18

and 27), it becomes readily apparent that no exigent

circumstances existed so as to negate the need for a

warrant. This is to say that because the officers lacked

probable cause to believe that the vehicle was the one

involved in the crime, the vehicle could not be readily

moved, and there was no imminent danger of the vehi-

cle or evidence being tampered with or destroyed the

police were under a constitutional obligation to obtain a

search warrant. The defense submits that under the in-

stant facts, this constitutional requirement would have

10

imposed absolutely no burden on the police as the

premises could have easily been placed under sur-

veillance while a warrant was obtained. The question

then becomes whether the instant search was justified

by the plain-view doctrine.

Under the plain-view doctrine, an officer can seize

incriminating evidence which he observes in plain-view

if he has a right to be where he is when he observes the

evidence. But the Court has consistently held that in

order for an officer to seize an object in plain-view, that

object must be clearly contraband or evidence. More-

over, the jurisprudence is clear that planned warrant-

less searches can never be validated on plain-view

grounds. Coolidge v. New Hampshire, 91 S.Ct. 2022; 403

U.S. 443 (1971).

When the officers in the instant case arrived at 513

Norton, they saw the vehicle in question parked in the

carport but, as was previously stated, they did not

believe this car to be the one referred to in the tip.

(MTS tr. pp. 8, 9 and 28). In fact, it was not until after

they had entered the carport and observed the front of

the car that they suspected that it had been involved in

a hit and run. Thus, prior to the officers’ entering of the

carport, the car was not clearly contraband, with the

result that the officers did not have the right to enter

the property and seize the car and evidence based only

on their observations from the street. The final matter

that needs to be discussed, therefore, is the possibility

that the officers’ search of the carport can be justified

solely on the basis of the anonymous tip.

11

This Court has been called upon on many occasions

to rule on searches made pursuant to information

provided by either confidential or anonymous infor-

mants. See Adams v. Williams, 92 S.Ct. 1921, 407 U.S.

143 (1972); Spinelli v. U.S., 89 S.Ct. 584, 393 U.S. 410

(1969); Aguillar v. Texas, 84 S.Ct. 1509, 378 U.S. 108

(1964); Draper v. United States, 79 S.Ct. 329, 358 U.S. 307

(1959). In each case, the central question was the

degree of reliability of the information.

In Adams, supra, a police officer was told by a reliable in-

formant that an individual seated in a nearby car was

carrying narcotics and had a gun at his waist. When the

officer approached the suspect, the individual acted

suspiciously, so the officer reached for and found the

hidden gun. In upholding the search and seizure, the

Court stated:

“(W)e believe that Sergeant Connolly acted

justifiably in responding to the informant’s

tip. The informant was known to him per-

sonally and had provided him with informa-

tion in the past. This is a stronger case than

obtains in the case of an anonymous telephone

tip. The informant here came forward per-

sonally to give information that was im-

mediately verifiable at the scene.” Adams,

supra. S.Ct. 1923, U.S. 146.

In Spinelli, supra, the Court was faced with the ques-

tion of the validity of a search warrant that was based

12

in large part on information provided by a “confiden-

tial” reliable informant. The affidavit in Spinelli,

however, failed to specify why the informant had re-

ceivec' his information. The Supreme Court, in revers-

ing the conviction, noted that “in the absence of a state-

ment detailing the manner in which the information

was gathered, it is especially important that the tip

described the accused’s criminal activity in sufficient

detail that the magistrate may know that he is relying

on something more substantial than a casual rumor

circulating in the underworld or an accusation based

merely on an individual's general reputation.” Spinelli,

supra, at S.Ct. 589, U.S. 416.

In Draper, supra, the Court upheld a search that was

based on information that was supplied by an infor-

mant and that was verified by police observation. In

Draper, a“ special employee” of the Bureau of Narcotics

had provided Agent Marsh with accurate and reliable

information for about six months. He informed Marsh

that one Draper would be arriving in Denver by train

on a given date and that he would be carrying three

ounces of heroin. He further gave Marsh a detailed

physical description of Draper and the clothes he would

be wearing and said that Draper habitually walked real

fast. Upon placing the train station under surveillance,

the police observed an individual fitting the exact

description and having all of the physical char-

acteristics of the suspect described by the informant.

Accordingly, the police stopped and arrested Draper. In

upholding the arrest, the Supreme Court found par-

13

ticularly persuasive the facts that the informant had

been reliable in the past and that the information lead-

ing up to the arrest was verified by the police.

It should be clear that in the case now before this

Court, the officers had absolutely no reason to believe

that the information was reliable, and they made no

attempt to Verify the tip prior to conducting the search.

As was previously stated, the information that lead the

police to 513 Norton was provided by an anonymous in-

formant, with the result that the officers did not know

whether or not the informant had ever provided infor-

mation, reliable or unreliable, in the past. Moreover,

the information provided, that is, that a brown Ford

was parked in the carport at 513 Norton, was not en-

tirely correct as the car was in fact brown and white.

This discrepancy confused the officers as to whether

the car was the one referred toin the tip. (MTS tr. pp. 8

and 28). Finally, the tip did not specify what the hit and

run vehicle had allegedly been involved in and did not

indicate how the informant had come upon the infor-

mation. (MTS tr. pp. 5, 17 and 24). Thus, under the

principle enunciated by the Court, the instant tip did

not constitute sufficient probable cause to justify a

‘search of the premises at 513 Norton.

The petitioner submits that for the reasons dis-

cussed above, the search and seizure now before this

Honorable Court violated the defendant-appellant’s

rights under the Constitution of the United States to

be free from unreasonable searches. As such, all

14

evidence obtained as a result of the seizure must be

excluded at trial. Mapp v. Ohio, 81 S.Ct. 1684, 367 U.S.

643 (1961). Because the vehicle and evidence here in

question served to link the defendant to the crime

charged, the Trial Court’s error in denying the Motion

to Suppress Evidence can in no conceivable way be

deemed harmless. For these reasons, the petitioner

respectfully urges this Honorable Court toissue a Writ

of Certiorari to the Louisiana State Supreme Court re-

versing his conviction and/or suppressing any and all

evidence obtained from the instant search.

2.) The seizure of the petitioner's

automobile violated the 4th Amendment of

the United States Constitution.

Several hours after the St. Bernard police officers

first saw the petitioner’s automobile in the carport, the

vehicle was seized by New Orleans officers and remov-

ed to the New Orleans police laboratory, still without

the officers having obtained a warrant and/or judicial

authority to do so. This warrantless seizure, according

to the Louisiana State Supreme Court, was justified by

exigent circumstances. These circumstances consist of

a hurricane alert at the time, instanced by overcast

skies, and the testimony of the officer in charge that,

should the hurricane strike, the evidence on the ex-

terior of the automobile might be damaged or

obliterated by the rain, even though covered by plastic

and even though the vehicle was in a carport.

15

The most obvious fallacy with this reasoning is that

the New Orleans police officers had several hours before

the questioned seizure to obtain « search warrant. Cer-

tainly, the “exigent circumstances” existed during this

period of time, yet, the officers failed to obtain the req-

uisite warrant. See Taylor v. U.S., 286 U.S. 1, 76 L.Ed.

951, 52 S.Ct. 466 and Coolidge v. U.S., supra.

More important, the imminent hurricane, relied on

to complete the “exigent circumstances,” should have

convinced the prudent police to keep the car in the

protection of the carport and obtain a warrant for its

seizure. (See Justice Dixon’s dissentiry opinion, State v.

Wilbourn, supra, et 997.)

The petitioner submits that the warrantless seizure

herein was unjustifiable and illegal. The police claim

that it was necessary to seize the automobile from an

enclosed, protected area and move it into the very face

of the impending storm is both illogical and un-

reasonable. The explanation for the seizure and the

seizure iiself violates petitioner's Fourth Amendment

right to be secure against unreasonable search and

seizures.

3.) The New Orleans police lacked

jurisdiction and/or legal right to search and

seize the petitioner’s automobile.

The petitioner’s automobile, when first sighted by

law enforcement officials, was parked in Arabi, Loui-

16

siana, St. Bernard Parish. After the initial search of the

vehicle by St. Bernard Parish officials, the petitioner’s

automobile was seized by New Orleans Police Officers,

and transported over parish lines without judicial

warrant and/or legal authority. In the New Orleans

Police Department Crime Laboratory the exterior of

the car was scientifically examined. Petitioner respect-

fully submits that the results of these scientific ex-

aminations were illegally obtained and should be sup-

pressed, as the New Orleans Police Department had no

authority to seize the car and transport it across parish

(i.e. county) lines.

The automobile in question was clearly outside of the

jurisdiction of the New Orleans Police. It was parked in

St. Bernard Parish. There is no question of “hot pur-

suit.”

The New Orleans Police have no jurisdiction in St.

Bernard Parish nor do the St. Bernard Parish police

have any authority to release an automobile parked in

St. Bernard Parish and belonging to a St. Bernard

Parish citizen, to the police from another authority

without judicial authority.

4.) Thejury selection process violated the

due process and equal protection clauses of

the 6th and the 14th Amendments of the

United States Constitution.

The Louisiana Code of Criminal Procedure Article

784, entitled “Method of Selecting Panel”, provides:

17

“In selection a panel, names shall be drawn from

the petit jury venire indiscriminately and by

lot in open court and in a manner to be deter-

mined by the court.” (emphasis added)

There is no doubt that the trial court in this case

failed to select the petit jurors by lot in open court as re-

quired by La. Code of Criminal Procedure Article 784.

Instead, the order of calling the petit jurors venire had

allegedly been determined by lot, but this was in the

jury pool room instead of in open court.

The Louisiana State Supreme Court, in State v. Hoff-

man, 345 So.2d 1 (LA. 1977) held that while this

‘procedure was invalid it would only apply this ruling to

jury panels selected after the finality of the decision of

the court in Hoffman. (See State v. Wilbourn, supra, at 997).

The petitioner respectfully submits that this

prospective application of La. Code of Criminal

Procedure Article 784, violates the due process and

equal protection clauses of the Fourteenth Amend-

ment to the United States Constitution. A

chronological sequence of the two cases, i.e. Hoffman

and Wilbourn, demonstrates the violation.

The instant case was tried, and timely objection was

made, to the petit juror venire by the petitioner, on

March 31, 1977. Petitioner’s written motion for appeal

was filed on April 7, 1977. The final decision in Hoffmann

was handed down on April 26, 1977. Petitioner submits

18

that, at the very least, his motion for appeal was

submitted to the Louisiana Supreme Court before its

decision in Hoffmann. (See State v. Gibbs, 355 So.2d 1299

at 1302 (La. 1978). Accordingly, his case is one in which

the application of the law should be made.

Most importantly, the Louisiana State Supreme

Court in Hoffmann found that the trial court’s failure to

select a jury panel as mandated by Louisiana Code of

Criminal Procedure, Article 784 was a serious defect

and constituted reversible error.

The same considerations that prompted the State

Supreme Court to make such a ruling apply to the in-

stant case with equal force. Further, while the instant

case preceded the Hoffmann decision by only one month,

it is nevertheless entirely possible that this brief could

have been timely submitted for appellate review had

there been no delays on the part of the trial court

reporter of Section “I” of the Criminal District Court

for the Parish of Orleans, in transcribing the trial and

hearings and if counsel had realized that time was of

the essence for filing the brief. Accordingly, to limit the

application of Hoffman so as to exclude those cases in

which a motion for appeal had been filed prior to Hoffman

and in which timely objection to the jury selection had

been made at the trial, would be to violate all Notions of

fundamental fairness and due process of law.

The petitioner submits that he was denied his rights

to due process of law and a fair trial when the jury for

his trial was selected in violation of C.Cr. P. Article 784.

19

Moreover, petitioner submits that he was denied

equal protection of the laws when the application of the

Louisiana State Supreme Court's decision which would

reverse his conviction is applied prospectively only.

Petitioner had filed his motion weeks before such a

decision. The error in his case was just as defective as

the error in the Hoffman case. For this reason, petitioner

respectfully urges this Honorable Court to issue a writ

of certiorari to the Supreme Court of the State of

Louisiana.

CONCLUSION

For these reasons, a Writ of Certiorari should issue

to review the judgment and opinion of the Louisiana

Supreme Court in State v. Wilbourn, reported in proceed-

ings No. 62,005 of the Supreme Court of Louisiana.

Respectfully submitted,

EDWARD S. BOPP

A Law Corporation

6725 St. Claude Avenue

Suite 102

Arabi, Louisiana 70032

BRUCE C. ASHLEY, Il

20

CERTIFICATE

I hereby certify that three copies of the above and

foregoing have been served on Hon. Harry Connick,

District Attorney and Dennis Waldron, Criminal

Courts Building, 2700 Tulane Avenue, New Orleans,

Louisiana 70119, by U.S. Mail, postage prepaid, this

day of March, 1979.

BRUCE C. ASHLEY, II

la

APPENDIX

SUPREME COURT OF LOUISIANA

STATE OF LOUISIANA,

Appellee

versus No. 62,005

HUGH C. WILBOURN,

Appellant.

Dated: Nov. 13, 1978

Appeal from the Criminal District Court, Orleans

Parish; Honorable Israei M. Augustine, Jr., District

Judge, Presiding.

TATE, Justice.

The defendant was convicted of three counts of

negligent homicide, La. R.S. 14:32, and sentenced to

five years imprisonment on each count, the sentences

to run concurrently. The defendant’s appeal relies

upon two assignments of error.

Assignment of Error No. 1 presents a substantial

issue. It concerns the denial of a motion to suppress cer-

tain evidence obtained as the result of a warrantless

and allegedly unconstitutional search and seizure.

2a

Context Facts

The accused is charged with the deaths of three per-

sons injured by a hit and run motorist on September 21.

On the following day at about 4:15 p.m., the police re-

ceived an anonymous telephone tip that a brown Ford

believed to be involved in a hit and run accident on

Paris Road was located in a carport in the vicinity of

Norton Street at Paris Road.

The dispatcher radioed to two police officers who

were cruising in the vicinity. They saw a brown Ford

with a white top parked in a carport at 513 Norton

Street. Only the rear of the car was fully visible from

the street.

The officers entered the carport to look at the car.

When they came to its front, they saw blood and par-

ticles of hair on the right font. They radioed their find-

ings, and other officers came and took pictures, then

taped a covering on the front of the vehicle.

The automobile belonged to the defendant, who was

a tenant at 513 Norton Street. Subsequently, the

owner of the premises came home and identified the ac-

cused as the vehicle’s owner. Neither the accused nor

the home owner authorized the search of the vehicle,

nor its subsequent impounding (when it was removed

to a police laboratory).

The police officer’s entry in the carport to look at the

front of the vehicle was admittedly made without a

3a

warrant, as was the subsequent removal of the vehicle

to the police laboratory.

Legal Issue

The ultimate issue is whether the police officers’ en-

try into the carport to look at the vehicle violated any

reasonable expectation of privacy on the accused’s part

that is constitutionally protected. State v. Lamar-

tiniere, ____ So.2d (docket no. 61,621); State v.

Fearn, 345 So.2d 468 (La. 1977); State v. Nine, 315

So.2d 667 (La. 1975). These decisions indicate that the

test is not only whether the person had an actual (sub-

jective) expectation of privacy, but also whether the

defendant’s expectation of privacy is of a type which

society at large is prepared to recognize as being

reasonable.

Our resolution of this issue is not free from doubt.

Under some circumstances, and with the physical

layout of some carports, the individual’s reasonable ex-

pectation of privacy might be violated by an un-

authorized entry into a carport to look at its contents.

However, it is a particular individual’s right to

privacy, not a particular place, which is protected by the

constitution. Thus, it is appropriate to take into con-

sideration the particular facts and circumstances, the

total atmosphere of the case, in determining whether

the constitutional right to privacy has been violated by

an unauthorized entry into a part of the premises

4a

which is open to the public. State v. Nine, cited above,

at 315 So.2d 671.

Under the particular circumstances of this case, we

do not find that either the accused’s subjective expecta-

tion of privacy, or else what society would consider a

reasonable expectation of privacy, were offended by

the police officers’ entry into the unenclosed carport to

look at the front of the vehicle, which had been report-

ed (although by a tip of unverified reliability) as having

been involved in a hit and run accident the day before.

The carport was on the side of the house, not enclosed

from the street, and only partially enclosed on one side:

Persons entering the side-door of the house, or those

knocking at the side-door to find out if someone was

home or to deliver or sell something, could readily view

the front of the vehicle parked alongside. That sort of

entry into this carport by members of the public

(including police officers on an investigatory mission) is

deemed to have been reasonably within the contempla-

tion of the accused, when he left property in the semi-

public premise available for public view.

We therefore find no unconstitutional invasion of

the accused’s right to privacy resulted when the police

officers entered this particular carport to look at the

vehicle, and no unconstitutional taint in their record-

ing the information they observed there.

Nevertheless, a further troublesome issue is raised

by the accused. A couple of hours after the first visit,

5a

the vehicle was seized by officers and removed to the

police laboratory, still without the officers having ob-

tained a warrant and judicial authority to do so. The ac-

cused contends, with considerable force, that, at least,

the results of the laboratory testing consequent to this

warrantless seizure should be suppressed.

The laboratory testing was limited to findings based

on an examination of the exterior of the vehicle. Cf.

Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464 (1978).

We are not faced with a warrantless search of the in-

terior or trunk of the car, following a warrantless

seizure. If we were, our conclusion might well be

different than the following:

With some reservations, we finally conclude that the

trial court did not err in finding that the warrantless

seizure was justified by exigent circumstances, insofar

as it was immediately necessary to protect evidence on

the vehicle’s exteriar. The circumstances consist of the

hurricane alert at the time, instanced by overcast skies,

and the testimony of the officer in charge of the sub-

stantial possibility that, should the hurricane strike,

the evidence of blood and hairs on the automobile

might be damaged or obliterated by rain, even though

covered by plastic and even though the vehicle wasina

carport (which, however, was open at the side and toits

rear). |

6a

Conclusion .

The other assignment of error concerns the failure

to select the petit jurors by lot in open court as required

by La.C.Cr.P. art. 784. See State v. Hoffman, 345 So.2d

1 (La. 1977). Here, the order of calling the petit juror

venire had indeed been determined by lot, but in the

jury pool room instead of in open court.

The present case was tried before Hoffman had held to

be invalid the latter procedure utilized by the Criminal

District Court of Orleans Parish. However, Hoffman

specifically limited the effect of its ruling tojury panels

selected after the finality of the decision of the court in

that case.

Accordingly, for the reasons assigned, we affirm the

convictions and sentences.

AFFIRMED.

ls} FAB

Is} FWS

Is! AT, Jr.

Is} PFC

Is| WEFM

ls} JLD

DIXON J., dissents with reasons.

7a

SUPREME COURT OF LOUISIANA

No. 62005

STATE OF LOUISIANA

versus

HUGH C. WILBOURN

DIXON, Justice (dissenting)

I respectfully dissent.

True, there was no expectation of privacy, and the

initial intrusion into the carport was not illegal. But no

adequate reason is suggested to justify the failure of

the police to obtain a warrant for the seizure of the car.

The imminent hurricane, relied on to complete the “ex-

igent circumstances,” should have convinced prudent

police to keep the car in the protection of the carport

and obtain a warrant for its seizure.

8a

SUPREME COURT OF LOUISIANA

NO. 62005

STATE OF LOUISIANA

VERSUS

HUGH C. WILBOURN

APPEAL—FROM THE CRIMINAL DISTRICT

COURT, PARISH OF ORLEANS, STATE OF

LOUISIANA, SECTION “I”, NO. 253-070, THE

HONORABLE ISRAEL M. AUGUSTINE, JR., JUDGE

PRESIDING

APPLICATION FOR RE-HEARING

ON BEHALF OF HUGH C. WILBOURN,

DEFENDANT-APPELLANT

Submitted By:

EDWARD S. BOPP

A LAW CORPORATION

Suite 102 - 6725 St. Claude Avenue

Arabi, Louisiana 70032

ls} BRUCE C. ASHLEY, II

Bruce C. Ashley, II

Attorney for Hugh C. Wilbourn

9a

TABLE OF CONTENTS

PAGE

STATEMENT OF JURISDICTION .............. 1

Sprecumenre: OF THE CASE 22... cc ccc cccsens 1

Ne ae oh cee asad) Cas soaked Cobe oe 2

SFEC ATION OF ERROR 2... ccc ccccccecvck 2

SE SEC. veces Wabi eee lea ok vams 2

ng ERO REE SRS ES PE ene eee ea 3

RE NEED Ahk Ns Cwen Seca elne diab i nskees 4

10a

[1] STATEMENT OF JURISDICTION

The defendant-appellant, Hugh C. Wilbourn, was

charged with and convicted of three (3) counts of

violating L.R.S. 14:32, relative to the offense of

negligent homicide. He was sentenced to serve five (5)

years in the custody of the Louisiana Department of

Corrections, with credit for time served, on each of the

three (3) counts, the sentences to run concurrently. On

November 13, 1978, this Honorable Court affirmed the

defendant’s conviction. This Honorable Court has

appellate jurisdiction over this cause by virtue of Rule 9

of the Louisiana Supreme Court Rules.

STATEMENT OF THE CASE

On September 21, 1975, three men were killed in an

alleged hit-and-run incident on the Bayou Bienvenue

Bridge. The defendant-appellant, Hugh C. Wilbourn,

was arrested and charged with the offenses.

On January 13, 1976, the Orleans Parish Grand Jury

returned a true bill of indictment charging the

defendant-appellant with three counts of negligent

homicide. Trial was held on March 31, 1977, at which

time, the defendant was found to be guilty as charged

on all three counts.

On April 5, 1977, the defendant filed a Motion for

New Trial which was denied, and was sentenced to

serve five years in the custody of the Department of

Corrections on each count, with credit for time served.

The sentences were to run corcurrently.

lla

Of the objections noted at trial, only two have been

assigned as error for the purposes of appellate review.

The first error deals with the Trial Court’s denial of

counsel’s Motion to Suppress Evidence following the

hearing held on such Motion on January 4, 1977.

Defense counsel applied for remedial writs attacking

the denial of the Motion to Suppress, but said applica-

tion was denied. The second error now submitted for

review concerns the jury selection procedure used at

trial.

This matter came before this Honorable Court on

October 12, 1978 for oral argument. On November 13,

1978, this Court, in an opinion authored by Justice

Tate, affirmed defendant's conviction by a vote of six to

one, with a singular dissent by Justice Dixon.

[2] SYLLABUS

A search conducted without a warrant issued upon

probable cause is per se unreasonable subject only toa

few specifically established and well delineated excep-

tions.

SPECIFICATION OF ERROR

The trial court erred when it denied defense

counsel’s Motion to Suppress Evidence.

12a

ARGUMENT

In this Honorable Court's original decision, it made

the factual determination that the protection afforded

by the Fourth Amendment to the United States Con-

stitution did not apply in this particular case.

This Honorable Court based its findings on the

following findings of fact:

1) “... the carport was on the side of the

house, not enclosed from the street, and

only partially enclosed on one side.”

(Supreme Court Opinion p. 3; App. p 4a)

2) “Persons entering the side-door of the

house, or those knocking at the side-door

to find out if someone was home or to

deliver or sell something, could readily

view the front of the vehicle parked

alongside. That sort of entry into this car-

port by members of the public (including

police officers on an investigatory mis-

sion) is deemed to have been reasonably

within the contemplation of the accused,

when he left property in the semi-public

premise available for public view.”

(Supreme Court Opinion p 3; App. p 4a)

The defendant respectfully avers that this

Honorable Court misconstrued the physical lay-out of

the carport in question for the following reasons:

13a

1) The “side-door” was actually in front of the

automobile, recessed at the farthest point of the car-

port.

2) The door was not an entranceway into the

house, but only into the utility shed, and as such, was

not used by members of the public.

[3] CONCLUSION

The defendant respectfully requests that this

Honorable Court reconsider its opinion of November

13, 1978 in which it affirmed defendant's conviction

because it made an erroneous finding of fact relative to

the “side-door” and the defendant’s expectation of

privacy within the area in question.

[4] CERTIFICATION

I hereby certify that the foregoing Application for

Re-Hearing on behalf of Defendant-Appellant has

been duly served on Appellee by placing two copies of

same in the United States mail, postage prepaid,

properly addressed to Mr. Dennis Waldron, Assistant

District Attorney, Criminal Courts Building, 2700

Tulane Avenue, New Orleans, Louisiana, 70119.

Arabi, Louisiana, this 27th day of November, 1978.

/s/

14a

EDWARD S. BOPP

A Law Corporation

Suite 102

6725 St. Claude Avenue

Arabi, Louisiana 70032

(271-6242)

BRUCE C. ASHLEY, II

Bruce C. Ashley, II

Counsel for Defendant-

Appellant, Hugh C.

Wilbourn

a ail