Opposition — Kline v. Louisiana

Office-Supreme Court, U.S.

FILED

NO. 82-1480 APR 2 1963

IN THE ALEXANDER L. STEVAS,

SUPREME COURT OF THE UNITED STATES

1983 TERM

DAVID KLINE

Petitioner,

Versus

STATE OF LOUISIANA,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF LOUISIANA

RESPONSE OPPOSING PETITION FOR

WRIT OF CERTIORARI

E. RUDOLPH MCINTYRE, JR.

Assistant District Attorney

Fifth Judicial District of Louisiana

P.O. BOX 426

Winnsboro, Louisiana 71295

Telephone: (318) 435-4205

Counsel for Respondent

ati

TABLE OF CONTENTS

Page

Statement of the Case 3

Argument 8

Conclusion 30

TABLE OF AUTHORITIES

Constitutions

UNITED STATES CONSTITUTION,

Fourth Amendment 8,15

Cases

BELL-V.-WOLFISH, 441 U.S. 520, 559,

99 S.Ct. 1861,1884,60 L.Ed.2d

447,481 (1979) 13,30

BRIENEGAR-V.-UNITED STATES, 338

U.S. 160, 69 S.Ct. 1302, 93

L.Ed. 1879 (1949) 16

CHIMEL-V.-CALIFORNIA, 395 U.S.

752, 89 S.Ct. 2034,23 L.Ed.2d

685 (1969) 21,30

CARROLL-V.-UNITED STATES, 267 U.S.

132, 45 S.Ct. 280, 69 L.Ed

543 (1925) 22,23,

25,30

CHAMBERS-V.-MARONEY, 399 U.S. 42,

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

(1970) 22,23,

25,30

affe

Page

COOLIDGE-V.-NEW HAMPSHIRE,403 U.S.

443, 91 S.Ct. 2022, 29 L.Ed.2d

564 (1971) 19,23,

30

SCHECKLOTH-V.-BUSTAMONTE, 412 U.S.

218, 93 S.Ct. 2041, 36 L.Ed.2d

854 (1973) 28, 30

UNITED STATES-V.-ROSS, 102 S.Ct.

2157 (1982) 25,30

STATUTES

LOUISIANA REVISED STATUTES,

L.R.S. 14:62 3

LOUISIANA REVISED STATUTES

L.R.S. 14:95.1 6

The defendant was convicted of the crime

of Simple Burglary in violation of Louisiana

Revised Statutes 14:62 in the Fifth Judicial

District Court, Franklin Parish, Louisiana,

on October 20, 1980. The defendant was sen-

tenced to serve for a period of three years

at hard labor under the supervision of the

Louisiana Department of Corrections which said

sentence was suspended and he was placed on

active supervised probation for a period of

three years.

Within three days prior to January 9, 1981,

Deputy Larry Crum of the Franklin Parish She-

riff's Office received information from a con-

fidential reliable informant that the defen-

dant was in the possession of a long barrel re-

volver. The informant told Deputy Crum that

the defendant carried the pistol back and forth

to work with him in his truck and in the truck

he drove for his employer. The informant stated

that the information was based on first-hand per-

-\.

sonal observation of the pistol in the posses-

sion of the defendant.

Deputy Crum was familiar with the defen-

dant, his personal truck and the pistol and

its black case having arrested the defendant

previously on the simple burglary charge and

on a possession of marijuana charge. Deputy

Crum had observed these items during the de-

fendant's prior arrests. Deputy Crum also knew

where the defendant worked.

Sometime after receiving the information

from the informant but prior to January 9, 1981,

Deputy Crum contacted the defendant's proba-

tion officer, Ezell Thomas, to determine if the

defendant was violating the conditions of his

probation by possessing a firearm. The pro-

bation officer informed Deputy Crum that the

defendant was not 2ilowed to possess a firearm.

With this information in mind, Deputy Crum,

working by himself, parked his police vehicle

a short distance down the street from where

the defendant worked and observed him drive

away in his truck from the premises at about

3:15 A.M. on January 9, 1981. The defendant's

an

truck drove past the police vehicle and Deputy

Crum pulled in behind it. The defendant then

pulled over and stopped a short distance down

the street in a parking lot without any sig-

nals from Deputy Crum. The police vehicle

pulled over and stopped near the defendant's

truck.

The defendant exited his truck at about

the same time Deputy Crum exited his police

vehicle. The defendant left his driver's door

open and the light inside the truck was shining.

Deputy Crum met the defendant at the front of

the police vehicle and near the front door of

the defendant's truck. As the two conversed,

Deputy Crum recognized the black pistol case

lying on the front seat of the defendant's

truck from the vantage point of his position

near the open door.

Deputy Crum then asked what was in the

case and the defendant stated his pistol was

in the case. As that time Deputy Crum arrested

the defendant for possessing the firearm and

advised him of his Constitutional Rights.

Deputy Crum then retrieved the case, unzipped

-6-

it and discovered the long barrel revolver in-

side.

On the way to the police station the defen-

dant, who was seated on the front seat of the

police vehicle stated, "You're going to find

it when we get to the office anyway. If you'll

reach in my back pocket, there is another pis-

tol in my back pocket." (See Transcript Page

22) Deputy Crum then reached in the defendant's

back pocket and retrieved a small concealed

-25 calibre automatic pistol.

The defendant was charged by bill of in-

formation with violating Louisiana Revised

Statutes 14:95.1 because he was in the posses-

sion of firearms after having been convicted of

simple burglary.

Prior to trial, defendant filed a Motion

to Suppress Evidence based upon the warrantless

seizure of evidence from his person and truck.

Judge John C. Morris, Jr., the trial judge,

denied the Motion to Suppress.

Subsequently, the defendant plead guilty

to the reduced charge of attempted possession

of a firearm by a convicted felon in violation

of Louisiana Revised Statutes 14:95.1 with the

reservation to appeal the adverse ruling of the

trial court on the Motion to Suppress. The de-

fendant was sentenced to serve for a period

of one and one-half years at hard labor under

the supervision of the Department of Corrections.

This sentence was to run concurrently with the

Simple burglary sentence described above. In

addition, the defendant was sentenced to pay

a fine of $500.00 and court costs. (See

Excerpts From Court Minutes, Transcript Page 4).

The defendant appealed this conviction, relying

upon one Assignment of Error relating to the

overruling of the Motion to Suppress Evidence.

(See Assignment of Error, Transcript Page 13).

-8-

ARGUMENT

MAY IT PLEASE THE COURT:

In order to properly determine whether

the trial judge erred in denying the defendant's

Motion to Suppress Evidence, several questions

must be answered. First of all, it must be

established that an unreasonable search and

seizure actually took place. Secondly, assuming

that an unreasonable search and seizure did

occur, it must be determined whether the chal-

lenged search and seizure violated an interest

of the defendant which the Fourth Amendment to

the United States Constitution was designed

to protect. Thirdly, assuming that the above

is true, it must then be established whether

the warrantless seizure was justified under one

of the exceptions to the warrant requirement.

It follows then that the first query is

whether an unreasonable search and seizure in

violation of the defendant's rights under the

Fourth Amendment to the United States Consti-

tution actually took place.

wie

First of all, it is contended by the State

of Louisiana that when an officer inadvertently

observes evidence of a crime from a vantage

point that does not intrude upon a protected

area, there should be no violation of the search

warrant rule because there has been no search.

In the case at bar, there can be no doubt

that Deputy Crum did not intrude upon the defen-

dant's protected area by standing on a public

parking lot near the defendant's open truck

door. (See Transcript Page 21). Therefore,

Deputy Crum did not conduct an unconstitutional

search of the .357 magnum long barrel revolver

located on the defendant's truck seat. In

addition, Deputy Crum did not conduct an uncon-

stitutional search of the .25 calibre automatic

pistol located in the defendant's back pant's

pocket because the defendant himself requested

that Deputy Crum secure the concealed weapon

from his person. (See Transcript Page 22).

Assuming there was not an unconstitutional search

in the case at bar, we must now determine whe-

ther the defendant's constitutional rights were

violated when Deputy Crum entered the truck and

~10-

the defendant's pocket and seized the firearms

without a warrant.

The defendant had been convicted of Simple

Burglary and was on active supervised proba-

tion at the time of the seizure of the fire-

arms. Therefore, the defendant's status as a

probationer requires that we determine whether

and to what extent he had a reasonable expec-

tation of privacy regarding the seizure of evi-

dence herein.

It is the contention of the State of Lou-

isiana that a probationer, such as the defen-

dant, should enjoy a reduced expectation of

privacy and should not have the same freedom

from governmental intrusion as the ordinary

citizen.

In the case at bar, Deputy Crum knew

that the defendant was on active supervised

probation for his simple burglary conviction.

(See Transcript Page 20). He knew that it was

a violation ofhis probation for the defendant

to own or possess firearms. (See Transcript

Page 20). He also knew that it was a violation

of law for one convicted of simple burglary to

@-11-

own or possess firearms. (See Transcript

Page 20). He had been told by a confidential

and reliable informant, whose credibility

has not been attacked in this appeal, that the

defendant carried a long barrel revolver with

him in his personal truck and in his employer's

truck. (See Transcript Page 18). The revol-

ver, its black case and the defendant's truck

were personally known by Deputy Crum. (See

Transcript Pages 18 and 19).

With this information in mind, Deputy

Crum, working by himself, parked his vehicle

near the defendant's employer's premises during

the early morning hours of January 9, 1981.

(See Transcript Page'20). The defendant drove

away from the premises at about 3:15 A.M. in

his truck and passed by Deputy Crum's police

vehicle. (See Transcript Page 20). Deputy

Crum pulled out behind the defendant's truck

and without any signal from Deputy Crum, the

defendant slowed down and parked in the adja-

cent parking lot. (See Transcript Page 21).

Deputy Crum parked his car near the driver's

door of the defendant's truck and both men

-12-

got out of their vehicles almost simultaneously.

(See Transcript Page 21).

Deputy Crum met the defendant at the front

of his police vehicle and near the open door of

the defendant's truck. (See Transcript Page 21).

The light inside the defendant's truck was

shining. (see Transcript Page 21). Deputy Crum

and the defendant talked for a few minues and,

as *hey conversed, Deputy Crum looked inside

the defendant's truck from his position on the

parking lot and observed a black pistol case,

which he had seen on prior occasions in the

possession of the defendant, lying on the truck

seat. (see Transcipt Pages 19,21,23 and 24).

Deputy Crum then asked the defendant what was

in the case and the defendant stated that his

pistol was in the case. (See Transcript Page

21). At this time Deputy Crum arrested the

defendant for the possession of the firearm

and advised him of his constitutional rights.

(See Transcript Page 22). Then Deputy Crum

entered the open truck door and retrieved the

black pisto] case. Inside the case he discov-

ered a long barrel revolver as described by the

atts

informant and the defendant and of which he

had personal knowledge. (See Transcript Page

19,21,23 and 24).

As Deputy Crum was transporting the defen-

dant to the police station, the latter said,

"you're going to find it when we get to the

office anyway. If you'll reach in my back

pocket, there is another pistol in my back poc-

ket." (See Transcript Page 22). At this, De-

puty Crum reached into the defendant's back

pant's pocket and retrieved the concealed .25

calibre automatic pistol. (See Transcript

Page 22).

It is the contention of the State of Lou-

isiana that the seizure of these two firearms

was reasonable and not in violation of defen-

dant's constitutional rights. In the case of

Bell-V.-Wolfish, 441 U.S. 520,559, 99 S.Ct. 1861,

1884 ,60 L.Ed.2d 447,481 (1979) this Honorable

Court stated the following test of reasonable-

ness for searches and seizures under the Fourth

Amendment, to-wit:

"The test of reasonableness under

the Fourth Amendment is not capa-

ble of precise definition or mech-

anical application. In each case

~14-

it requires a balancing of

the need for the particular

search against the invasion

of personal rights that the

search entails. Courts must

consider the scope of the

particular intrusion, the

manner in which it is conduc-

ted, the justification for

initiating it and the place

in which it is conducted."

[cites omitted]

Following the guidelines set forth above,

there can be no doubt that Deputy Crum did not

intrude upon the defendant's protected area

by standing on a public parking lot near the

defendant's open truck door and, from that van-

tage point, observing a black pistol case lying

on the truck seat. It is also obvious that

Deputy Crum was justified in asking the defen-

dant what was in the case based on the infor-

mation he had available and his prior knowledge

of the defendant's activities. The defendant's

statement that his pistol was in the case gave

Deputy Crum reasonable cause to initiate the

limited seizure of the .357 magnum long barrel

revolver from the defendant's truck seat. The

seizure of this firearm was, therefore, rea-

sonable under the four requirements cited above

and was not a violation of the defendant's re-

=

duced expectation of privacy as a probationer.

In addition, the four requirements under

the test of reasonableness cited above are

satisfied in Deputy Crum's seizure of the con-

cealed .25 calibre automatic pistol from the

defendant's back pant's pocket. The defendant

himself requested that Deputy Crum take the

firearm and, therefore, the scope of the parti-

cular intrusion, the manner in which it was

conducted, the justification for initiating it

and the place in which it was conducted were

all reasonable and not in violation of the de-

fendant's reduced expectation of privacy as a

probationer.

It is submitted by the State of Louisiana

that the challenged seizure of the two firearms

did not violate an interest of the defendant

which the Fourth Amendment to the United States

Constitution was designed to protect.

It follows that the final inquiry is whether

the search and seizure of the two firearms was

justified under one of the exceptions to the

warrant requirement. The State of Louisiana will]

argue the seizure of the .357 magnum long barrel

revolver from the defendant's truck seat first

-16-

before proceeding to the argument regarding

the seizure of the .25 calibre pistol secured

from the defendant's back pant's pocket to avoid

confusion.

The State of Louisiana contends, first of

all, that the seizure of the .357 magnum revol-

ver should be condoned as incident to the de-

fendant's lawful arrest and by virtue of the

plain view doctrine and the automobile excep-

tion to the warrant requirement.

Since the defendant's arrest was made

without benefit of the issuance of an arrest

warrant, we must first determine whether there

existed probable cause to arrest him.

Probable cause exists when facts and cir-

cumstances within the arresting officer's know-

ledge and of which he has reasonable and trust-

worthy information are sufficient to justify a

man of average caution in the belief that the

person to be arrested has committed or is com-

mitting an offense. Brienegar-V.-United States,

338 U.S. 160, 69S.Ct. 1302, 93 L.Ed. 1879 (1949).

The arresting officer, Deputy Crum, was

in possession of the following facts: (1) he

-17-

knew the defendant personally having previously

arrested him for simple burglary and, on another

occasion, for possession of marijuana; (2) he

knew that the defendant was on active super-

vised probation for his simple burglary convic-

tion; (3) he knew it was a violation of his pro-

bation for the defendant to own or possess fire-

arms; (4) he knew that it was a violation of

law for one convicted of simple burglary to

own or possess firearms; (5) he had been told

by a confidential and reliable informant that

the defendant carried a long barrel revolver

with him in his personal truck and in his em-

ployer's truck; (6) this information came to

Deputy Crum within three days prior to the

seizure of evidence; (7) the informant's infor-

mation was based on the latter's first-hand

personal information; (8) the revolver, its

black case and the defendant's personal truck

were personally known by Deputy Crum; (9) he

saw the defendant drive by his location in the

truck in question from the defendant's place

of employment; (10) after both vehicles stopped,

Deputy Crum visually observed the black pistol

ease, which he was familiar with, lying on the

truck seat and (11) when questioned about the

case, the defendant replied that his pistol

was in the case.

It is submitted by the State of Louisiana

that Deputy Crum's knowledge of these facts and

circumstances satisfies a basic standard for

probable cause. Given Deputy Crum's awareness

of the defendant's simple burglary conviction

and his status as a probationer, the informa-

tion he received from the confidential reliable

informant, his observations of the defendant

and the pistol case and the defendant's state-

ment that his pistol. was in the case, as a man

of average caution he was justified in believing

that the defendant was committing the offense

in question.

Assuming, therefore, that Deputy Crum did

have probable cause to arrest the defendant,

the question remains as to whether the warrant-

less seizure of the .357 magnum revolver from

the defendant's truck seat was permissible.

It is the contention of the State of Lou-

-19-

isiana that the plain view doctrine is appli-

cable in this case

In order for the "plain-view" doctrine

to be applicable,there must have been a prior

justification for an intrusion into a protected

area, in the course of which evidence was dis-

covered inadvertently, or an officer must have

inadvertently observed evidence of a crime from

a vantage point without intrusion upon a pro-

tected area, and it must have been immediately

apparent without close inspection that the items

were evidence or contraband. When an officer

observes evidence of a crime before entering a

protected area, he may not seize the evidence

without first obtaining a warrant, absent exi-

gent circumstances or another exception to the

warrant requirement. Coolidge-V.-New Hampshire,

403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971),

The record of the hearing on the Motion

to Suppress Evidence reveals that Deputy Crum,

working by himself, saw the black pistol case,

which he had seen containing a long barrel pis-

tol on previous arrests of the defendant, lying

-20-

on the defendant's truck seat. Deputy Crum

observed this evidence through the open door

of the defendant's truck. The inside of the

cab of the truck was illuminated by the over-

head light. Deputy Crum was standing near the

truck on a public parking lot and was conver-

sing with the defendant when he saw the black

pistol case. When Deputy Crum asked what was

inside the case, the defendant replied his

pistol was inside the case.

The seizure of the black case and the

-357 magnum revolver was inadvertent and the

evidentiary character of those items seized

was immediastely obvious. Deputy Crum in-

advertently observed the evidence from a

vantage point without intrusion upon a pro-

tected area. In addition, the probable

cause to arrest the defendant for the

apparent commission of the offense in ques-

tion also would give Deputy Crum probable

cause to search the vehicle for the major

object of the crime, the firearm itself.

Also, Deputy Crum's entry into the open truck

door appears justified by exigent circum-

@-21-

stances. Exigency here may be summarized

in the fact that the truck could have been

moved or the evidence lost or destroyed.

In addition, Deputy Crum's actions were in

keeping with officer safety based upon the

defendant's proximity to the firearm and

the officer's knowledge of the defendant's

previous criminal behavior. It is the State's

contention that the seizure of the evidence

was reasonable under these circumstances.

The seizure of the evidence is also

justified as one incident to a lawful arrest,

another exception to the warrant require-

ment. Chimel-V.-California, 395 U.S. 752,

89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). It

has been held by this Honorable Court that

this justification for a warrantless search

of a person arrested for a crime is within

the conceptual scope of removing any weapons

from within the possible reach of the arres-

ted person. Chimel-V.-California, supra.

The evidence seized herein was in plain

view on the seat of the truck with the driver's

door open and under circumstances in which

-22-

the defendant was standing near the truck with

its interior under his immediate control.

Therefore, it is the State's contention that

this exception to the warrant requirement

is also applicable in the case at bar.

In addition to the plain view doctrine

and the search incident to a lawful arrest

exceptions to the warrant requirement, the

State of Louisiana suggests that the seizure

of the evidence herein was also in keeping

with the automobile exception to the warrant

requirement.

This Honorable Court has recognized that

a person's expectation of privacy in an auto-

mobile or truck is léss than in a home or

office. Carroll-V.-United States, 267 U.S.

132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

It has also been held that the police may

stop a moving vehicle when there is probable

cause of criminal activity or an investiga-

tory stop may be made when the detaining

officer has articulable knowledge of speci-

fic facts that give rise to a reasonable sus-

picion of criminal activity. Chambers-V.-

-23-

Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d

419 (1970); Carroll-V.-United States, supra.

It is contended by the State of Louisiana

that, if indeed an investigatory stop was

made, Deputy Larry Crum had sufficient proba-

ble cause or at least sufficient articulable

knowledge of specific facts that give rise to

a reasonable suspicion of criminal activity

to justify the stopping of the defendant's

truck and questioning the defendant. These

specific facts within Deputy Crum's knowledge

have been previously argued in detail in this

brief. Therefore, the State contends that

the stop was lawful.

The courts have also held that once a ve-

hicle has been stopped on either ground, a

warrantless search of the vehicle will be

justified on the ground of probable cause plus

exigent circumstances. Coolidge-V. New Hamp-

shire, supra.

Once the defendant's truck had been stop-

ped, Deputy Crum obtained sufficient probable

cause and there existed exigent circumstances

for the seizure of the firearm and its case.

-24-

The probable cause factors have been previous-

ly outlined in this brief. The exigent cir-

cumstances necessitating the seizure of the

evidence include: (1) the evidence was capa-

ble of being hidden during the delay required

to get a search warrant; (2) Deputy Crum,

working by himself, had a "fleeing opportunity”

to search the truck; (3) there was no immediate

police backup to secure protection of the evi-

dence during the delay in obtaining a search

warrant; (4) the lateness of the hour (3:15

A.M.) made the securing of a search warrant

almost impossible prior to day break; (5) the

truck could have been moved during the delay

to obtain a search warrant, and (6) Deputy

Crum's actions were in keeping with officer

safety based upon the defendant's proximity

to the firearm and the officer's knowledge of

the defendant's previous criminal behavior.

Having made the investigatory stop,

Deputy Crum, through the open door of the ligh-

ted truck, saw a black pistol case on the front

seat in plain view. When Deputy Crum asked

the defendant what was in the case, the defen-

-25-

dant replied his pistol was in the case.

The defendant, to this officer's knowledge,

had been convicted of simple burglary, was

placed on active supervised probation and was

allegedly carrying firearms in the truck in

question.

It is obvious, therefore, that Deputy

Crum's observation of the black pistol case

on the front seat of the truck together with

the defendant's admission that his pistol was

in the case and the prior information given

to Deputy Crum by his informant, supplied

the officer with sufficient probable cause to

believe that a firearm was located inside the

black pistol case. It has been held by this

Honorable Court that when probable cause exists

for the searching of a vehicle and circumstances

render a warrant impractical, a warrantless

search of the automobile does not violate

the Fourth Amendment. Chambers-V.-Maroney,

supra, Carroll-V.-United States, supra.

In addition, this Honorable Court has

held in United States-V.-Ross, 102 S.Ct. 2157

(1982) that the “automobile exception" may be

-26-

extended to include the right to search

containers found in a vehicle legiti-

mately stopped by police officers under the

Carroll Doctrine.

It is therefore submitted by the State

of Louisiana that the trial judge did not

err in denying the defendant's Motion to

Suppress Evidence regarding the .357 magnum

long barrel revolver seized from the defen-

dant's truck.

Now, turning to the .25 calibre automa-

tic pistol, it is the contention of the

State of Louisiana that this firearm was

seized by Deputy Crum as the result of the

lawful consent of the defendant and as an

incident to his lawful arrest.

The following is the series of ques-

tions and answers regarding the seizure of

the .25 calibre automatic pistol found on

page 22 of the Transcript, to-wit:

"Q. And what happened at that

point?

A. At this time I talked with

Deputy Sanders on the radio.

I had asked Mr. Kline would

A.

-27-

it be alright for another

officer to drive his truck in

to save having to call a

wrecker at that time of the

morning. Deputy Sanders came

around and did drive the ve-

hicle to the courthouse for me.

On the way to the courthouse,

Mr. Kline stated to me, he

said, ‘you're going to find

it when we get to the office

anyway.' and leaned forward

and said ‘If you'll reach in

my back pocket, there is ano-

ther pistol in my back pocket.'

What did you do at that time?

I reached into his back pocket

and retrieved the weapon.

Was the weapon concealed?

Yes, sir. It was in his back

pocket and unable to see it.

What kind of weapon was this?

It was a small .25 calibre,

automatic, nickel plated."

-28-

A valid consent given by a defendant to

law enforcement officers to search is a well-

recognized exception to the requirement of a

search warrant and a search pursuant to defen-

dant's voluntary consent need not be based on

probable cause. Scheckloth-V.-Bustamonte, 412

U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The defendant in the case at bar told

the officer where the firearm could be found,

in his back pocket. In fact, the defendant

requested that the officer remove the fire-

arm which Deputy Crum did. Deputy Crum exerted

no effort to coerce or dominate the defendant

into giving his permission to seize the fire-

arm principally because he was not aware of

the firearm's presence on the defendant.

Deputy Crum could also have seized the

-25 calibre pistol from the defendant at the

moment of his arrest as an incident of the

lawful arrest for the reasons stated in de-

tail in other portions of this brief.

It is therefore submitted by the State

of Louisiana that the trial judge did not err

in denying the defendant's Motion to Suppress

=29-

Evidence regarding the .25 calibre automatic

pistol seized from the defendant's person.

Defendant apparently argues that Deputy

Crum had probable cause and sufficient time

to obtain a warrant prior to his seizure of

this evidence. He apparently contends that

because Deputy Crum did not secure a search

warrant for the defendant's truck, the sei-

zure of the evidence herein is illegal be-

cause there existed no exigent circumstances.

It is apparent to the State of Louisi-

ana, however, from a review of the Trans-

cript, that Deputy Crum did not feel he had

probable cause to secure a search warrant

until all of the facts fell into place at

the time of the seizure of the evidence.

(See Transcript Page 26). It was only then

that Deputy Crum had a reasonable belief

that the defendant was committing an offense.

The circumstances which strengthened the

informant'’s tip at the scene of the seizure

were Deputy Crum's observation of the black

pistol case and the defendant's admission

that it contained his pistol. At that

-30-

time Deputy Crum had probable cause to seize

the firearm and its case but exigent circum-

stances forced immediate action. There was

no time to secure a search warrant. The

defendant's argument is without merit.

For the reason that the decision of the

Louisiana Supreme Court in this case is sup-

ported by the Bell-V.-Wolfish, supra, and

Chimel-V.-California, supra, and Carroll -V.-

United States, supra, and Chambers-V.-Maroney,

supra, and Coolidge-V.-New Hampshire, supra,

and Scheckloth-V.-Bustamonte, supra, and

United States-V.-Ross, supra, cases, the State

of Louisiana respectfully submits that this

Honorable Court should refuse to grant a Writ

of Certiorari in this case and that the peti-

tion for Writ of Certiorari filed herein be

dismissed.

RESPECTFULLY SUBMITTED

EXud ugh Ned.

E. RUDOLPH INTYRE, JR:

Assistant District Attorney

P.0. Box 426

Winnsboro, Louisiana 71295

Telephone: (318) 435-4205