Petition — Bible v. Louisiana

80-1080

B

‘ Sarees Court. U.S. ——

wm FILED

DEC 29 1980

MICHAEL RODAK, JR., CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

1980 TERM

”

VERNA BIBLE, ROBERT STEVEN MEZIERE AND

BILLY W. MOORE,

Petitioners,

Versus

STATE OF LOUISIANA,

Respondent.

’

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF LOUISIANA

PETITION FOR WRIT OF CERTIORARI

~

ELLIS & ELLIS

Carey J. Ellis, Jr., Esquire

P. O. Box 688

105 South Julia Street

Rayville, Louisiana 71269

Phone 318-728-2043

Counsel for Petitioners

Verna Bible, Robert Steven Meziere, and

Billy W. Moore, Citizens of the State of

Louisiana and of the United States, pray

that a Writ of Certiorari issue to review

the Judgment of the Supreme Court of the

State of Louisiana on September 3, 1980,

affirming the conviction and sentence of

your petitioners in a criminal case.

Questions Presented for Review

(1) Does a tip received by peace offi-

cers prior to the arrival of a

car suspected of transporting

marijuana, even though followed

by probable cause, authorize the

removal and opening of a closed

suitcase from the trunk of said

vehicle without obtaining a search

warrant therefor?

(2) Do the facts of this case (as set

out hereinafter) coincide with

those facts in Chadwick vs. United

States, 433 U.S. l, 97 S. Ct. 2476

(1977) sufficiently to require a

reversal of conviction because of

warrantless search?

(3) Did the Louisiana Supreme Court

err in failing to apply the exclu-

sionary rule pronounced by this

Honorable Court in the Chadwick case

(supra) to the instant case which

occurred subsequent to the date

of the Chadwick case?

List of Parties to Proceeding

Verna Bible, Robert Steven Meziere, and

Billy W. Moore - Petitioners.

State of Louisiana - Prosecuting au-

thority and Respondent

Honorable Lowen B. Loftin, District

Attorney in and for the Fifth District

Court, State of Louisiana, Parish of

Richland.

Honorable William R. Coenen, Jr. Assis-

tant District Attorney in the above

district.

TABLE OF CONTENTS

Questions Presented

List of Parties to Proweedings

Official Report of Case

Grounds on which Jurisdition of

United States Supreme Court

is Invoked

Consitutional Provisions Involved

Statement of the Case

Argument

TABLE OF AUTHORITIES

Statutory

28 U.S.C. 2101

Cases

Arkansas v. Sanders, 99 S. Ct.

2586

Carroll vs. United States, 267

U.S. 132 :

Chambers vs. Maroney, 399 U.S.

42

United States vs. Chadwick, 433

Gees 1 3

United States vs. Peltier, 422

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Official Report of Case

The Opinion of the Louisiana Supreme

Court sought to be reviewed herein is

reported at Vol. 389, Southern Reporter

(2nd series) Page 42, the decision on

rehearing having been entered on October

31, 1980.

Grounds on which Jurisdiction of

United States Supreme Court Invoked

The Louisiana Supreme Court affirmed

the conviction of the three defendants of

the offense of Possession of Marijuana

with Intent to Distribute on original

opinion and judgment entered September 3,

1980. An Application for Rehearing was

timely filed and was denied on October 31,

1980, followed by a 60 day Stay Order of

Execution rendered November 6, 1980. The

jurisdiction of this Honorable Court is

invoked under 28 U.S.C. Sec. 1257 (3) and

28 U.S.C. Sec. 2101.

Constitutional Provisions Involved

The principal consitutional provision

involved in this case is the Fourth Amend-

ment to the United States Constitution

requiring a warrant based on probable

cause for the search and seizure of a per-

son's belongings.

Statement of the Case

This case involves a warrantless arrest

of defendants and a warrantless seizure

and search of a suitcase locked in the

trunk of their car, after the car had been

stopped and detained by peace officers.

The officers had stopped and detained de-

fendants car on a public highway on the

basis of a tip received six (6) hours

before from a confidential informant to

the effect that the car described would

arrive at a certain trailer park in

Rayville, Louisiana at a certain time

with a quantity of marijuana. Not find-

ing anything on the person of any of the

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defendants or inside the car proper, the

»fficers then proceeded to unlock the

trunk of the car, remove a closed suit-

case therefrom, open the same and find

a quantity of marijuana inside. A local

district judge was just a phone call away,

yet no effort was made to obtain a search

warrant to enter the trunk of defendants

car and to open the suitcase.

On the basis of the above facts, coun-

sel for defendants filed in limine a

Motion to Suppress all evidence in the

hands of the State by virtue of the above

related warrantless search and seizure

based upon the ground that the same vio-

lated defendants constitutional rights

vouchsafed to them by the Fourth Amend- ~

ment to the United States Constitution.

This Motion was tried prior to trial on

the merits, and was overruled by the dis-

trict judge, to which ruling counsel for

defendants objected and reserved the right

Ce Comey nd eae ee) SSR ee ee Nigh een CR. aE Ratan y vy ae 7 oh »

to file an Assignment of Error in the

event of conviction.

After a jury trial held subsequent to

the Motion to Suppress Hearing, the defen-

dants were convicted and sentenced. An

Appeal to the Louisiana Supreme Court

was taken by defendants and timely filed

therein. Included in the record of that

appeal was an Assignment of Error filed

by counsel for defendants based upon the

trial judge's overruling of defendants

Motion to Suppress prior to trial.

ARGUMENT

May It Please the Court:

As set out in the facts of the case

hereinabove, this case presents the ques-

tion of the validity of a warrantless

search of a person's luggage serteliena

from an automobile at a time when the

occupants of the car (and the owner of

the suitcase) were outside the vehicle

under detention after the stopping of the

)

,

car, and the police were in complete con-

trol. Your Honors have held in at least

two cases that the search of unopened

luggage under such circumstances violates

the Warrant Clause of our Constitution.

United States vs. Chadwick, 433 U.S. l,

97 S. Ct. 2476 (1977) and Arkansas vs.

Sanders, 99 S. Ct. 2586 (1979). This

case, in all salient respects, presents

practically the same facts and circum-

stances of the Chadwick and Sanders cases,

including:

(1) Tip from a confidential informant

advising the anticipated transport of

contraband to a particular destination

and the means of transportation;

(2) Surveillance by police at the

site of the predicted arrival of the

offender (s) ;

(3) The unfolding of events completely

corroborating the information given by

the confidential informant;

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(4) The stopping of vehicle and de-

tention of the parties involved;

(5) The removal of luggage from the

vehicle involved and seizure thereof

by the police;

(6) The opening and searching of said

luggage without a warrant and discovery

of contraband therein.

As a matter of fact, in his concurring

opinion to the original opinion of the

Louisiana Supreme Court on September 3,

1980, Justice Calogero (under the erron-

eous impression that the date of the

offense in this case occurred prior to

the Chadwick and Sanders cases) commented

on the identity of the factual features

of this case to the above mentioned cases

in the following manner:

"I concur because I agree that Sanders

and Chadwick, supra, are not to be

given retroactive application. I do

able

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however, find them indistinguish

from the instant case." (see Appendi:

pp. xxi; emphasis supplied).

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Somehow, the author of the original

opinion (Justice Lemmon) in setting out

the facts of the case stated that this

offense occurred on March 2, 1977 whereas

the correct date was March 2, 1979. (It

is this writer's understanding that at

our Supreme Court's conferences after the

writing of opinions, the members of the

Court assume that the facts are correctly

set out in the respective opinions pre-

sented by Justices assigned to each case

and that the conferences therefore deal

only with the legal issues involved in

each case). The original opinion there-

fore concluded that the date of the al-

leged offense in this case ante-dated

both the Chadwick case (June 21, 1977)

as well as the Sanders case (June 20,

1979). The original opinion therefore

held that neither the Chadwick nor the

Sanders case could be given retroactive

effect by virtue of Your Honors’ holding

11

in United States vs. Peltier, 422 U.S.

531, 95 S. Ct. 2313 (1975) to the effect

that cases extending the exclusionary

rule should not be given retroactive

effect. (See Appendix pp. xix-xx)

An Application for Rehearing was

timely filed pointing out the Court's

error in this very important factual as-

pect of the case. The Application for

Rehearing was denied on October 31, 1980

by way of a PER CURIAM wherein the Court

attempted to rationalize the result of

its previous decision, notwithstanding

that it now realized the Chadwick case

was handed down some two years prior to

the date of the offense in this case.

(see Appendix pp. xxiii-xxiv) To this

PER CURIAM, Justice Calogero then filed

a vigorous dissent, partially quoted from

as follows:

° « « « « In light of the

correction in the date of the search

and the effect of the Chadwick case,

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e this case being indistinguishable from

2 Chadwick, I am of the opinion that de-

fendants' convictions should be revers-

| ed. In Chadwick, the United States

es Supreme Court stressed that luggage is

x intended as a repository of personal

effects and that the contents are not

- open to public view. Consequently a

person's expectation of privacy regard-

ing personal luggage is substantially

greater than in an automobile. When

no exigency is shown to exist, support-

ing the need for an immediate search,

a warrant is required to validate the

search of luggage. 433 U.S. at 13-15.

"For this reason I would grant a

rehearing” (See Appendix pp. -xxv-

xxvi).

Justice Dennis, who had dissented from the

majority original opinion of September 3,

1980, also indicated that he would grant

a rehearing, thus in effect joining the

dissent of Justice Calogero.

In Chadwick, the container of the con-

traband was a 200 pound footlocker which

was seized by surveilling officers immed-

iately after it was placed in the trunk

of automobile. It was taken to the sta-

tion house and later opened without obtain-

ing a warrant and the same yielded a con-

13

siderable quantity of marijuana. In hold- ?

ing this search in violation of the War- |

rant Clause, Your Honors went through the

"treadmill" of reviewing the many pre-

vious cases involving warrantless seizures

and searches. The opinion discussed par-

ticularly the exception to the Warrant

Clause in automobile cases commencing with

the prohibition case of Carroll vs. United

States, 267 U.S. 132, 45 S. Ct. 280, 69 L.

Ed. 543 (1925) which at that time most re-

cently had been affirmed and followed in

the case of Chambers vs. Maroney, 399 U.S.

42, 90 S. Ct. 1975, 26 L.Ed. (2d) 419

(1970). In sum, after thorough review,

this Honorable Court distinguished com-

pletely the automobile cases per se from

luggage which might be found therein and

retrieved by the police after the car has

been immobilized. The following excerpt

from Chadwick demonstrates the conclusion

arrived at by Your Honors:

14

"The factors which diminish the pri-

vacy aspects of an automobile do not

apply to respondents’ footlocker.

Luggage contents are not open to pub-

lic view, except as a condition to a

border entry or common carrier travel;

nor is luggage subject to regular in-

spections and official scrutiny on a

continuing basis. Unlike an automobile,

whose primary funcution is transporta-

tion, luggage is intended as a reposi-

tory of personal effects. In sum, a

person's expectations of privacy in

personal luggage are substantially

greater than in an automobile.

"(6,7) Nor does the footlocker's mo-

bility justify dispensing with the

added protections of the Warrant Clause.

Once the Federal Agents had seized it

at the railroad station and had safely

transferred it to the Boston Federal

Building under their exclusive control,

there was not the slightest danger that

the footlocker or its contents could

have been removed before a valid search

warrant could be obtained. The initial

seizure and detention of the footlocker,

the validity of which respondents do

not contest, were sufficient to guard

against any risk that evidence might

be lost. With the footlocker safely

immobilized, it was unreasonable to

undertake the additional and greater

intrusion of a search without a warrant."

Two terms after the decision in Chad-

wick, this Honorable Court took up on

Writ of Certiorari the case of State of

15

Arkansas vs. Sanders (citation supra) on

application of the prosecution. The

Arkansas Supreme Court had directed that

a Motion to Suppress timely filed in the

trial court be sustained, and reversed

the conviction of the defendant. This

case, like the case a quo, involved the

retrieval of a suitcase from the trunk

of a taxicab, after the taxicab was

stopped by tl: : police based upon probable

cause to search. It was stated by this

Court that this case was taken up to re-

solve some apparent misunderstanding as

to the application of the decision in

Chadwick. In the opinion delivered by

Mr. Justice Powell, it was pointed out

that although the general principles

applicable to claims of Fourth Amend-

ment violations are well settled, liti-

gation over requests for suppression of

highly relevant evidence continues to

occupy much of the attention of courts

. 1%,

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16

at all levels of the State and Federal

judiciary. (See 99 S. Ct. 2586, 2589).

It was further pointed out that appar-

ently small difference in the factual

situation frequently is viewed as a

controlling difference in determining

Fourth Amendment rights. Then the deci-

sion went on to say:

", « »« « The present case presents

an example. Only two Terms ago, we

held that a locked footlocker could

not lawfully be searched without a

warrant, even though it had been

loaded in the trunk of an automobile

parked at a curb. United States vs.

Chadwick. In earlier cases, on the

other hand, the Court sustained the

constitutionality of warrantless

searches of automobiles and their

contents under what has become known

as the ‘automobile exception' to

the warrant requirement. See, e. g.

Chambers vs. Maroney (supra); Carroll

vs. United States (supra). We thus

are presented with the task of deter-

mining whether the warrantless search

of respondent's suitcase falls on the

Chadwick or the Chambers/Carroll side

of the Fourth Amendment ee Al-

though in a sense this is a line-draw-

ing process, it must be guided by

established principles."

In Sanders, this Honorable Court fol-

17

lowed and approved the rationale of Chad-

wick, holding that the warrantless search

of the green suitcase taken from the trunk

of the Sanders' car was in violation of

Fourth Amendment rights. The following

excerpt from Sanders clearly indicates

that a definite and mandatory policy of

complying with the Warrant Clause require-

ment must be followed in "luggage in auto-

mobile" cases:

". . . « eA lawful search of luggage

generally may be performed only pur-

suant to a warrant. In Chadwick we

declined an invitation to extend the

Carroll exception to all searches of

luggage, noting that neither of the

two policies supporting warrantless

searches of automobiles applies to

luggage. Here, as in Chadwick, the

officers had seized the luggage and

had it exclusively within their con-

trol at the time of the search. Con-

sequently, ‘there was not the slightest

danger that the luggage or its con-

tents could have been removed before

a valid search warrant could be ob-

tained’ 97 S. Ct. at 2484. And as we

observed in that case, luggage is a

common depository for one's personal

effects, and therefore is inevitably

associated with the expectations of

oe Ibid" See 99 S. Ct. 2586,

2592.

ee

18

The loud and clear directive of this

Honorable Court as expressed in Chadwick,

and as reaffirmed in Sanders, must be com-

plied with by all State Courts. We sub-

mit that the decision of the Louisiana

Supreme Court in this case, indistinguish-

’

:

able factually from these two latest deci-

sions (as attested to by Justice Calogero)

should be reversed, and that the Motion to

Suppress timely filed herein should be

sustained and the case remanded with pro-

per instructions.

CONCLUSION

For the reasons set forth above, it is

respectfully submitted that this petition

for Writ of Certiorari should be granted.

Respectfully submitted,

ELLIS & ELLIS

Carey J. Ellis, Jr.

Counsel for Petitioners

P.O. Box 688

105 S. Julia St.

Rayville, La. 71269

Pho. 318-728-2043

a

Sep. 3, 1980

SUPREME COURT OF LOUISIANA

NO. 66,584

STATE OF LOUISIANA

VERSUS

VERNA BIBLE, ROBERT STEVEN MEZIERE and

BILLY W. MOORE

Appeal From the Fifth Judicial District

Court for the Parish of Richland

Honorable John C. Morris, Jr., Judge

LEMMON, Justice

Defendants, Verna Bible, Billy Moore

and Robert Meziere, have appealed their

conviction of possession of marijuana with

intent to distribute, the sole assignment

of error being the trial court's refusal

to grant their motion to suppress the evi-

dence seized after a warrantless search.

I.

State Trooper Warner received informa-

tion from a confidential informant on

Dixon, C.J. concurs w/reasons

Calogero, J. concurs and assigns reasons

Dennis, J. dissents w/reasong

Watson, J. concurs in the result.

_ ba dai

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ii

March 1, 1977 that Moore would be travel-

ing from Texas in a blue and white Monte

Carlo and would arrive at the J'Cal Trail-

er park in Rayville during the early

morning hours of March 2, 1977 to deliver

marijuana to a person named Lingefelt.

Trooper Warner knew the informant, who

had previously made a controlled purchase

of narcotics under Warner's supervision.

Although the informant had never previous-

ly given Warner information which led to

a narcotics arrest, he had given Warner

drug-related information which Warner in-

dependently verified.

Later that evening Trooper Warner and

two other officers went to the J'Cal Motel

to establish a surveillance. From the

motel room they observed Lingefelt in a

trailer behind the motel. At about 12:15

a.m. (in the early morning hours of March

2, 1977) they saw a blue and white Monte

‘Carlo arrive at Lingefelt's trailer.

eri

iii

Trooper Payne recognized one of the passen-

gers to be Billy Moore, having known him

from Moore's prior involvement in illegal

drug dealings. In fact Payne had previ-

ously purchased marijuana from Moore as

an undercover agent during the closing

months of 1976.

Defendant Meziere, the driver of the

Monte Carlo, went to Lingefelt's trailer,

and when Lingefelt came to the door, Moore

opened the trunk of the Monte Carlo, took

out a suitcase and a brown paper sack and

took these articles into Lingefelt's trail-

er. After a period of less than fifteen

minutes, Moore left the trailer with the

suitcase and replaced it in the trunk of

the Monte Carlo. Moore and Meziere then

entered the Monte Carlo and drove away

in an easterly direction on Highway 80.

Shortly thereafter Lingefelt left the

trailer, carrying what appeared to be the

same brown paper sack which Moore had pre-

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iv

viously brought into the trailer, and

drove off in a truck, also heading east

on Highway 80.

In the meantime Trooper Payne and -the

other officer, at Trooper Warner's in-

struction, had followed the Monte Carlo

and set up a roadblock about three-fourths

of a mile east of the motel. When the

officers stopped the car, they ordered

the occupants (Moore, Meziere and Miss

Bible) to get out and advised them of

their rights, but told them they were not

under sikelts Trooper Warner had in-

structed the officers not to search the

vehicle, but merely to hold it and the

defendants pending his arrival.

When Lingefelt left the motel, Trooper

Warner followed him and stopped him before

he reached the roadblock. Trooper Warner

1 The males were frisked by the officers.

No evidence was produced by the frisk,

and its validity is not an issue here.

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observed a brown paper sack on the front

seat next to Lingefelt, which had the same

appearance as the sack he had seen Moore

bring to the trailer. Warner took posses-

sion of the sack and opened it, finding a

cellophane bag that contained one pound of

marijuana.

Armed with this additional information,

Trooper Warner placed Lingefelt under

arrest and proceeded immediately to the

location where the defendants were being

detained. Upon arrival at the Monte Carlo

(which the evidence established was only

a few minutes after the initial stop),

Warner told the defendants that he intend-

ed to search the car. He obtained the

keys, opened the trunk, and found and

opened the suitcase, finding the marijuana

which was the target of the defendants’

motion to suppress.

II.

In determining whether probable cause

e ers

vi

may be found based on information from an

unidentified informant, this court has

followed the analysis outlined in Aguillar

v. Texas, 378 U.S. 108 (1964), and State

v. Paciera, 290 So. 2d 681 (La. 1974).

The facts must establish the informant's

credibility as well as the reliability of

the information supplied. The decision

in State v. Tassin, 343, So.2d 681 (La.

1977), noted that (1) the factors which

support the credibility of an unidentified

informant include prior accurate reports

or any specific independent corroboration

of the accuracy of the instant report and

(2) the factors which support the relia-

bility of the reported information include

direct personal observation by the infor-

mant or, if the information came indirect-

ly to the informant, detailed reasons with

which to evaluate and credit the relibil-

ity of both the indirect source and of the

indirectly obtained information.

vii

As to the reliability of the informa-

tion in this case, the tip did not repre-

sent the observation of an eyewitness, but

it was sufficiently detailed to indicate

that it was more than a “casual rumor cir-

culating in the underworld". See Spinelli

v. United States, 393 U.S. 410 (1969);

State v. Wilson, 366 So. 2d 1328 (La.1978).

The tip, as corroborated by surveillance,

accurately described the autombile, the

place to which the vehicle would deliver

the marijuana, the person to whom the mari-

juana wovld be delivered, the person who

would deliver the marijuana (a person

known to the officers to be a drug dealer),

and the approximate time of day when the

transaction was to occur.

As to the credibility of the informant,

Trooper Warner testified that the infor-

mant had previously supplied him with accu-

rate information which, although not lead-

ing to an arrest, had been independently

viii

verified. While the informant's partici-

pation in controlled buys does not alone

pertinently establish credibility, the

combination of all factors is sufficient

to support an inference of credibility.

See State v. Tassin, above. Significantly,

this case is not one in which the sole

basis for believing the information was

his participation in a single controlled

purchase.

Furthermore, the tip in this case was

independently verified by surveillance

prior to the search of the Monte Carlo.

As the surveillance progressed, the offi-

cers watched the infermant's tale unfold

before their eyes just as it had been told.

While it is conceded that the conduct ob-

served was consistent with innocent be-

havior, the tip gave the conduct the color

of criminal activity. The defendants’

behavior, together with Moore's known

previous involvement with illegal drugs,

ix

added credibility to the informant's tale.

By the time Meziere drove the Monte

Carlo away from the J'Cal Motel, the offi-

cers were certainly justified in stopping

it, and even if they did not yet have pro-

bable cause to search, they certainly had

enough information to justity stopping the

car and temporarily detaining its occu-

pants. At that point the officers unques-

tionably had an articulable basis for their

suspicions, thereby justifying the initial

stop. See State v. Jernigan, 377 So.2d

1221 ° (La.1979); State v. Jefferson, 284

So.2d 882 PTS ae

III

When the search complained of occurred,

2 As the court held in the Jernigan case,

above, even tips which are deficient under

the standards of Aguilar v. Texas, above,

and State v. Paciera, above, may justify

an investigatory stop if the tip carries

sufficient “indicia of reliability, such

as specificity of the information corrob-

orated by independent police work". 377

So. 2d at 1222.

Trooper Warner had developed almost conclu-

sive corroboration of the tip, namely, the

marijuana found in Lingefelt's truck.

After the discovery of Lingefelt's mari-

juana, probable cause clearly existed to

search the Monte Carlo when Trooper Warner

arrived on the scene. The question is

whether the marijuana seized from Linge-

felt can be considered in determining pro-

bable cause to search the car.

La. Const. Art. I, Sec.5 (1974) accords

to an accused the right to object to the

admissibility of illegally seized evidence,

even though the search does not invade the

accused's own legitimate expectation of

privacy. State v. Hebert, 351 So.2d 434

(La.1977). ess Rakas v. Illinois,

435 U.S. 922. Nevertheless, in State v.

3 If the court were dealing solely with

the Fourth Amendment standards, there

would be no question concerning the appro-

priateness of use of the marijuana dis-

covered in Lingefelt's truck in connection

with the defendants' case either to sup-

eae”

ei 2

Cullotta, 343 So.2d 977 (La.1977), this

court recognized that the laudatory deter-

rent purpose served by the Louisiana exclu-

sionary rule does not mandate that illegal-

ly seized evidence cannot be considered

in support of probable cause. This obser-

vation is particularly pertinent in a case,

such as this one, in which the illegally

seized evidence merely corroborates infor-

mation that was legally obtained. As in

the Cullotta case, this case does not

involve a situation in which the possibly

illegal evidence was the sole basis for

establishing probable cause. The evidence

produced by the questionable seizure from

Lingefelt's truck merely served to corro-

borate other information and to provide

an additional basis for the determination

that the other information came from a

port guilt or to establish probable cause.

See Rawlings v. Kentucky, U.8. (1980)

(No. 79-5146, decided June 25, 1980); Wong

Sun v. United States, 371 U.S. 471 (1963).

xii

credible source. Therefore, although the

validity of the seizure from the truck

presents a close question, Lingefelt's

marijuana may nevertheless be considered

in support of Trooper Warner's probable

cause to search the Monte bacabt.

The use of the possibly illegal evi-

dence for consideration in support of pro-

bable cause is particularly logical when

viewed in light of the purpose of the ex-

clusionary rule. The rule should not pre-

clude the use of evidence seized from a

vehicle in which defendants had no reason-

able expectation of privacy, when the

evidence was used merely to corroborate

other information to support a finding of

probable cause. The "deterrent policies

and individual protection” expressed by

Louisiana's Constitution are not violated

4 The marijuana found in Lingefelt's truck

was introduced at defendants’ trial without

objection. Thus, its admissibility to prove

guilt is not before the court on this appeal.

xiii

under such circumstances. See State v.

Cullotta, above, at 983.

We therefore conclude that when Trooper

Warner arrived at the place where the

Monte Carlo had been detained, he clearly

had probable cause to believe that defen-

dants were involved in illegal activity

involving marijuana and that the Monte

Carlo had been used to transport mari-

juana. However, further inquiry is neces-

sary because Trooper Warner thereafter

conducted his search of the truck of the

automobile and of the suitcase without

obtaining a EEO

In cases of searches of automobiles,

the Supreme Court of the United States

and this court have held that officers

acting with probable cause may stop and

5 “In cases of warrantless searches the

state bears the burden of proving the va-

lidity of the search and hence the admis-

sibility of evidence seized pursuant to

the search. State v. Franklin, 353 S0.24

1315 (La.1977).

= e4

: xiv

"

;

search moving vehicles. Carroll v. United

States, 267 U.S. 132 (1925); Chambers v.

Maroney, 399 U.S. 42; State v. Tant, 278

So.2d 458 (La.1974). This position has

been adopted, despite the usual preference

: for a judicial determination of probable

cause prior to a search, in part because

of the diminished expectation of privacy

in an automobile. When probable cause

exists, the courts have not required offi-

cers merely to stop vehicles and detain

them pending the issuance of a search war-

rant. Texas v. White, 423 U.S. 67 (1°75).

We therefore conclude that Trooper

Warner's action in having defendants’ ve-

hicle stopped and in opening the trunk of

the vehicle was lawful despite the absence

of prior judicial approval.

The warrantless search of the suitcase

presents a more difficult problem. In

Arkansas v. Sanders, 99 S. Ct. 2586 (1979),

‘

the court declared illegal the warrantless

search of a suitcase taken from the trunk

of a taxicab that had been legally stopped,

despite the fact that the officers had

probable cause to believe the suitcase con-

tained marijuana. The court refused to

extend the rationale of the Carroll and

Chambers cases to luggage being carried in

a vehicle.

In the Sanders case the officers had

probable cause to believe that defendant

would arrive at the Little Rock Airport

with a green suitcase containing marijuana.

They saw the defendant disembark from an

aircraft carrying a green suitcase and

leave in a taxi. They then stopped the

taxi and seized and searched the suitcase.

The court found that "a suitcase taken

from an automobile stopped on the highway

is not necessarily attended by any lesser

expectation of privacy than is associated

with luggage taken from other locations."

Once the suitcase was immobilized and

:

De

ee

xvi

taken into police custody, the court found

no justification or greater need for a

warrantless search of luggage taken from

an automobile than of luggage taken from

any other location. See Chadwick v. United

States, 433 U.S. 1 (1977).

In a concurring opinion in the Sanders

case, Chief Justice Burger opined that the

decision did not bar the warrantless search

of luggage located in a vehicle under all

circumstances. The opinion noted, for ex-

ample, the case in which officers have pro-

bable cause to believe that the contraband

is located somewhere within a stopped ve-

hicle, but do not know whether it is lo-

cated in a piece of luggage, or in the

glove compartment, or elsewhere in the car.

In the present case, although the offi-

cers conducting the surveillance (based

on a tip) had seen the suitcase taken into

Lingefelt's trailer and later replaced in

the trunk, the tip did not directly men-

FS

ates oe

Ri.

oS ee

xvii

tion or describe a suitcase, as did the

tip in the Sanders case, but rather des-

cribed a blue and white Monte Carlo. The

only place in the vehicle that the officers

in the Sanders case had probable cause to

believe that marijuana might be found was

in the defendant's green suitcase, and,

indeed, the officers arguably did not

have probable cause to seize the taxicab

and take it to the station. Here, the

officers had probable cause to search

the entire vehicle, and although the suit-

case was one likely place to look, the

probable cause was not focused on a par-

ticular location within the vehicle, in-

cluding the suitcase, and the taking of

the suitcase to the station to obtain a

warrant before the search (as suggested

in the Sanders decision) would not have

removed the exigency of mobility associ-

6

ated with the automobile.

6 The Sanders decision discussed and re-

, a

a 5 ae,

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xviii

$

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Se sf

i 5, eh

Thus, we distinguish the Sanders case,

in which the officers had probable cause

only to search the suitcase and in which

exigent circumstances no longer existed

after the suitcase was taken into custody,

from this case, in which exigent circum-

stances continued to exist, whether or not

the officers found marijuana in the suit-

case. Furthermore, the officers in this

case clearly had probable cause to search

the entirety (including the luggage, the

trunk, the glove compartment, and other

areas) of the vehicle they had legally

stopped, while the officers in the Sanders

case arguably did not have probable cause

cognized that the societal cost of an in-

flexible requirement to obtain a warrant

to search a legally stopped automobile out-

weighed the value of presenting probable

cause to a neutral magistrate, stating:

". . »« In Chambers, if the Court had

required seizure and holding of the

vehicle, it would have imposed a cons-

titutional requirement upon police

departments of all sizes around the

country to have available the people

2

er Cet

sa AS

¢ “ee

xix

to search a public taxicab apparently un-

rela-ed to defendant or to the tip from

the confidential informer.

There is still another reason to find

the Sanders decision does not require sup-

pression of the marijuana seized from the

Monte Carlo. The search here took place

in March of 1977, over two years before

7

Sanders was decided. Cases extending

the exclusionary rule should not be given

retroactive effect to bar admissibility

of evidence which officers seized in gcod

faith relying on existing standards. See

and equipment necessary to transport

impounded automobiles to some central

location until warrants could be se-

cured. Moreover, once seized automo-

biles were taken from the highway the

police would be responsible for provid-

ing some appropriate location where

they could be kept, with due regard to

the safety of vehicles and their con-

tents, until a magistrate rules on the

application for a warrant. Such a con-

stitutional requirement therefore would

have imposed severe, even impossible,

burdens on many police departments."

7 Arkansas v. Sanders, above, was decided

on June 20, 1979.

.

xx

United States v. Peltier, 422 U.S. 531

(1974). Several courts have refused to

order exclusion of evidence when, as here,

the search of an article or luggage occur-

ed prior to the date of the Sanders and

8

Chadwick decisions. See Kimmer v. State,

598 S.W. 2d 403 (Tex.Cr.App.1979); United

States v. Calandrella, 605 F.2d 236 (6th

Cir.1979); United States v. Stewart, 595

F.2d 500 (9th Cir.1979); and United States

v. Montgomery, 538 F.2d 311 (5th Cir.1977).

For the foregoing reasons, the convic-

tions and sentences are affirmed.

AFFIRMED.

8 Chadwick v. United States, above, was

decided on June 21, 1977, almost four

months after the date of this search.

The Chadwick case involved a warrantless

search of a footlocker taken into police

custody. Although officers had probable

cause to believe marijuana was contained

in the footlocker, the court found no

justification for their failure to obtain

prior judicial approval before opening

the locker to seize its contents. Whether

the Chadwick decision may have forecast

the decision in Sanders is of no conse-

quence here because the search here occur-

ed before both decisions.

4 5

Rae I

xxi

SUPREME COURT OF LOUISIANA

STATE OF LOUISIANA

VERSUS NO. 66,584

VERNA BIBLE, ROBERT STEVEN

MEZIERE and BILLY W. MOORE

CALOGERO, Justice, concurring

I concur because I agree that Sanders

and Chadwick, supra, are not to be given

retroactive application. I do, however,

find them indistinguishable from the

instant case,

xxii

SUPREME COURT OF LOUISIANA

STATE OF LOUISIANA

Versus No. 66584

VERNA BIBLE, ROBERT STEVEN

MEIZERE and BILLY W. MOORE

DIXON, Chief Justice (concurring)

I respectfully concur in the result,

because there was probable cause to search

both the trunk and the automobile after

the police saw the transfer of the ma-

terial taken from the car. There was

therefore no illegally seized evidence,

and no possibly illegal detention of the

automobile.

se 7 ee

xxiii

Oct. 31, 1980

SUPREME COURT OF LOUISIANA

NO. 66,584

STATE OF LOUISIANA

VERSUS

VERNA BIBLE, ROBERT STEVEN MEZIERE and

BILLY W. MOORE

On Application for Rehearing

PER CURIAM,

The application for rehearing correctly

points out that we erroneously listed the

date of the seizure as March 2, 1977,

when the seizure in fact occurred on

March 2, 1979. The seizure was therefore

before the Sanders decision, but after

of the Chadwick decision.

Nevertheless, the non-retroactivity

of the Chadwick and Chambers decisions

Calogero, J., dessents with reasons

(attached)

Dennis, J., would grant a rehearing.

4

i.

, ipsa

Me

a oe hal sae

‘s xxiv

was only an alternate ground for affirm-

ing the denial of the motion to suppress, :

E- and the validity of the other grounds ‘

; still stands. Moreover, the fact that

this search occurred after the Chadwick

decision is not of great significance,

since the rationale of the Chambers deci-

sion was unaffected by the Chadwick deci-

sion. See United States v. Oches, 595

F.2d 1247 (2d Cir., 1979). Compare United

States v. Dien, 609 F.2d 1038 (2d Cir.

1979), on rehearing, 615 F.2d 10 (2d Cir.

1980). Therefore, at the time of this

search the Chambers rationale had not

been limited or modified, and the search

pursuant to that rationale was valid.

The application for rehearing is denied.

oy APPL,iCATION DENIED.

a Sa

SUPREME COURT OF LOUISIANA

STATE OF LOUISIANA

VERSUS NO. 66,584

VERNA BIBLE, ROBERT STEVEN

MEZIERE and BILLY W. MOORE

CALOGERO, Justice, dissenting

Relying upon the majority's assertion

that the search occurred on March 2, 1977,

prior to United States v. Chadwick, 433

U.S. 1, 97 S.ct. 2476, 53 L.Ed.2d 538

(1977), I concurred in the majority ex-

pression that Chadwick not be given retro-

active application. In light of the

correction in the date of the search and

the effect of the Chadwick case, this

case being indistinguishable from Chacwick,

I am of the opinion that defendants' con-

victions should be reversed. In Chadwick,

the United States Supreme Court stressed

that luggage is intended as a repository

of personal effects and that the contents

i

ow

xxvi

are not open to public view. Consequently, te

a person's expectation of privacy regarding a

personal luggage is substantially greater

than in an automobile. When no exigency

is shown to exist, supporting the need for

an immediate search, a warrant is required

to validate the search of luggage. 433

U.S. at 13-15.

For this reason, I would grand a

rehearing.

xxvii

SUPREME COURT OF LOUISIANA

NO. 66,584

STATE OF LOUISIANA

VERSUS

VERNA BIBLE, ROBERT FILED: , 1980

STEVEN MEZIERE and

BILLY W. MOORE

APPLICATION AND ORDER FOR

STAY OF EXECUTION

UPON MOTION of VERNA BIBLE, ROBERT

STEVEN MEZIERE and BILLY W. MOORE, defen-

dants-appellants in the above styled and

numbered cause, through their undersigned

counsel, and on suggesting to this Honor-

able Court that its decree of September 3,

1980 affirming the verdict and sentence

of the Fifth District Court in and for the

Parish of Richland is now final, this

Court having refused an Application for

Rehearing on October 31, 1980, and on fur-

ther suggesting that the defendants are

desirous of applying to the Supreme Court

of the United States for a Writ of Certio-

oe

ETN

Ms.

pe

&@

,

hs re

4.

xxviii

rari to review the decision of this Hon-

orable Court upon the Constitutional issue

raised in said cause and as shown by the

record of the same: |

IT IS ORDERED That petitioners, VERNA

BIBLE, ROBERT STEVEN MEZ IERE and BILLY W.

MOORE, be granted a Stay of Execution of

the Decree of this Honorable Court for a

period of 60 days from this date.

DONE AND SIGNED In Chambers on this

the 6th day of November, 1980.

s/ John A. Dixon

S

New Orleans, Louisiana

Supreme Court of Louisiana

Filed Nov - 6 1980