Record and brief — Thompson v. Louisiana

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FROCEEDINGS AND ORDER MPATEs 120784

ASE NER $—-1-06775 Sy

HORT TITLE Thompson, Lillian DUCK ETED: May 21 17°84

VERSUS Louisiana

Date rime ‘dings and Order

May 21 17284 Fetition for writ of certiorari and motion for lea |

proceed in forma pauperis filed.

lun 21 19784 DISTRIBUTED. September 4a, 1LVE4

N41 12 1754 Response requested

fg is ive4 Grief of respondent Louisiana in op ition file

Li>t YY I?vs4 REDISTRIBUIED. Orteber 12, 1784

Met 18 19784 REDISTRIBUTED. Oeteober ¢ ved

let 2 1724 cord requested.

Nee S i724 Record filed

Mav 13 1784 REDISTRIBUTED. November 21, 17°84

Nev 26 1784 Petition ItRANTED., ludgment REVERSED and case REI

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‘4425465554

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llirilamn.

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COPY

BEST AVAILABLE

i ——

PETITION

FOR WRIT OF

CERTIORARI

83-6775-

AL | :

SUPREME COURT OF THE UNITED STATES

IN THE

LILLIAN THOMPSON, Petitioner

vs.

STATE OF LOUISIANA, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT, STATE OF LOUISIANA

Samuel 5. Dalton

Attorney for Pet.tioner

2001 Jefferson Hwy.

Jefferson, Louisiana 70121

(504) 835-4289

AND

Attorney for Petitioner

1226 N. Broac Street

New Orleans, La. 70119

(504) 821-1135

QUESTION PRESENTED

MAY A STATE, IN ORDER TO AVOID THE WARRANT REQUIREMENT

AND ESCAPE THE EXCLUSIONARY RULE, UNDER THE FOURTH AMENDMENT, AND

IN THE FACE OF MINCEY V. ARIZONA, 437 U.S. 385, 98 S.Ct. 2408, 57

L.ED.2d 290, ADOPT AN EXCEPTION TO THE RULE PREMISED UPON

CREATING AN IMAGINARY POSTHUMOUS CONSENT BY THE "DEAD PERSON” TO

SEARCH THE HOME OF THE PETITIONER AND THEREBY ALLOW THE POLICE TO

CONDUCT A DETAILED SEARCH OF PETITIONER'S HOME FOR THE SPECIFIC

PURPOSE OF DISCOVERING EVIDENCF OF CRIME, WHEN:

a) AT THE TIME OF THE SEARCH THERE WAS NO PLAIN VIEW

PREMISE INVOLVED; and,

b) AT THE TIME OF THE SEARCH THERE WAS NO EXIGENT

CIRCUMSTANCES OUTSTANDING: and,

c) BY THE POLICE AUTHORITY'S OWN ADMISSION THERE WAS

TIME TO SECURE A WARRANT?

INDEX OF AUTHORITIES .

QUESTION PRESENTED . .

OPINION BELOW.

TABLE

OF CONTENTS

STATEMENT OF JURISDICTION. ..

CONSTITUTIONAL PROVISIONS INVOLVED...

STATEMENT OF CASE. . .

REASONS FOR GRANTING THE

ARGUMENT .. .

CONCLUSION . .

CERTIFICATE OF

APPENDIX "A"

APPENDIX "B" .

APPENDIX "C” .

APPENDIX "D" .

APPENDIX "E" .

SERVICE

-ii-

INDEX OF AUTHORITIES

CASES NO.

PAGE:

MINCEY V. ARIZONA, IN THE

-S. , 98 S.Ct.2408,

57 L.Ed.24.290 (1978) . . . 2. 2 © «© © © © © © 46253,4,5,8,9 SUPREME COURT OF THE UNITED STATES

ROOT V. GAUPER, OCTOBER TERM, 1983

. 361 (Oth Cis.3971) .. 2. ee ceseecse &

LILLIAN THOMPSON, Petitioner

SAMPLE V. EYMAN,

. 19 (9th Cir. 1972). . . «eee ee 9 vs.

STATE V. SUTTON, STATE OF LOUISIANA, Kespondent

rar, S.W. 2a 494-495. . . . . . . . . . . . . . 4

STATE V. THOMPSON,

2d o Ga. 19806). . 2 eo we oe ew wo ow & Agd PETITION FOR A WRIT OF CERTIORARI

STONE V. POWELL, T) THE SUPREME COURT, STATE OF LOUISIANA

42€ U.S.465, 96 S.Ct. 3037,

49 L.E@.24 1067 (1976). . 2. «© ees es ee eee 4

THE petition of Lillian Thompson respectfully prays that a

OTHER AUTHORITIES Writ of Certiorari issue to review the judgment and opinion of

28 USC $1257(3). ~~ es we se we we we we eee see ee 2 the Louisiana Supreme Court entered in these proccedings on

Fourteenth Amendment to the February 27, 1984, rehearing denied on 23rd day of March, 1984.

United States Constitution. . . . . «6 « © «© 2y5,€

Fourth Amendment to the

United States Constitution. ...- aus « « « « 492,3,6,5,6,8 OPINION BELOW

THE opinion of the Louisiana Supreme Court is cited as

So2da ,(La.1994), unreported as of the time of filino

this petition, bearing Docket No. 82-KK-2859, appended hereto as

Appendix "A", page 12 hereof and the denial of rehearing datec

23rd day of March, 984 is appended hereto as Appendix "B", page

13__hereof.

JURISDICTION

THE judgment of the Louisiana Supreme Court was entered on

February 27,1984. See State v. Thompson, So2d °

(La. 1984), (Appendix "A", page 12 hereof). A timely petition

for rehearing was filed, and the Louisiana Supreme Court denied

such rehearing on 23rd day of March, 1984. See State v. Thompson

So2d » (La. 1984), (Appendix "B", page 13 hereof).

-iii-

This petition for Certiorari to the Supreme Court, State of

Louisia’' a is filed herein within Sixty days of the denial of

rehearing below. This Court's jurisdiction is invoked under 28

U.S.C. § 1257(3) and Mincey v. Arizona, 437 U.S. 385, 98 S.Ct.

2408, 57 L.Ed.2d 290 (1978).

CONSTITUTIONAL PROVISIONS INVOVLVED

THE Fourth Amendment to the United States Constitution

provides:

" The right of the people to be secure in their

persons, houses, papers and effects egainst

unreasonable searches and seizures, shall not be

violated and no warrants shall issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be

searched, and persons or things to be seized."

THE Fourteenth Amendment to the United States Constitution

provides, in pertinent part:

" 4.2. No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any state

deprive any persor of life, liberty, or property

without due process of law; nor deny to any person

within its jurisdicition of equal protection of

the laws. "

STATEMENT OF THE CASE

On May 18, 1982, several deputies from the Jefferson Parish

Sheriff's Department arrived at defendant's home in response to a

report by the defendant's daughter of a homicide. The deputies

entered the house, made a cursory search and discovered

defendant's husband dead of a gunshot wound in a bedroom and the

defendant lying unconscious in another bedroom due to an apparent

drug overdose. According to the defendant's daughter, the

defendant had shot her husband, then ingested a quantity of pills

in a suicide attempt, and then, changing her mind, called her

daughter, informed her of the situation and requested help. The

daughter then contacted the police. Upon their arrival, the

daughter admitted them into the house and directed them to the

rooms containing the defendant and the victim. The deputies

immediately transported the then unconscious defendant to a

hospital and secured the scene. Thirty-minutes later two members

of the homicide unit of the Jefferson Parish Sheriff's Office

arrived and without the consent of anyone and without a warrart

and by their own description commenced a "general exploratory

search for evidence of a crime". By the deputies' own testimony

at the hearing on the motion to suppress they had time to secure

a warrant and there was no exigent circumstances outstanding (See

transcript of suppression hearing, dated September 23, 1982,

Appendix "C" page 14 hereof).

As a result of such search the deputies discovered and

seized the following items, sought to be used as evidence againt

petitioner:

a) a .25 caliber pistol inside a closed chest of

drawers; and,

b) in the bathroom, a torn up note was found in the

wastepaper basket; and,

c) in another bedroom one of the deputies picked a

christmas card off a dresser, discovered a four folded

sheets of paper upon which was an allegec suicide note.

(See Transcript of suppression hearing, Appendix "C", page 14 P

hereof).

Subsequent to petitioner's indictment of Second Decree

Murder she moved to suppress the evidence discovered by the

homicide detectives and the trial court suppressed the .25

caliber pistol and the suicide letter found in the Christmas

card. The Louisiana Supreme Court granted writs of review on

behalf of the State and in its decision dated February 27,1984,

rehearing denied on the 23rd day of March, 1984, Numbered

82-KK-2859 on its docket, reversed the trial court treating the

constitutionality of the search under the Fourth Amendment of the

Constitution of the United States of America and holding that

Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290

was distinguishable and the search was constitutional under the

Fourth Amendment and such evidence is admissible.

And, now, petitioner timely files this Petition For

Certiorari To The Louisians Supreme Court, in the Honorable, the

U.S. Supreme Court of the United States within Sixty Days of the

denial of rehearing by the Supreme Court of Louisiana.

REASONS FOR GRANTING THE WRIT

PETITIONFR WILL HAVE NO OTHER REALISTIC REMEDY. UNDER THE

LIMITATIONS OF Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49

L.Ed.2d 1067(1976), AND UPON TRIAL AND CONVICTION PETITIONER

WOULD BE PUT THROUGH A VAIN AND USELESS ACT IN SUBMITTING THIS

QUESTION TO THE STATE SUPREME COURT UPON APPEAL, SIMPLY TO

REAPPLY HEREIN UPON ANOTHFR APPLICATION FOR CERTIORARI. AS

JUSTICE MARSHAL POINTED OUT WITH HIS CONCURRING OPINION IN Mincey

v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2c€ 290, TO-WIT:

"With regard to the Fourth Amendment issue,

however, we had little choice but to grant reveiw,

because our decision in Stone v. Powell, 426 U.S.

465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976),

precludes federal habeas consideration of such

issues. In Stone the Court held that, ‘where the

State has provided an opportunity for ufll and

fair litigation of a Fourth Amendment claim, a4

state prisoner may not be granted federal habeas

corpus relief on the ground tht evidence obtained

in an unconstitutional search or seizure was

introduces at his trial.' Id., at 494, 96 S.Ct.,

at 3052(footnotes omitted). Because of this

holding, petitioner would not have been able to

present to a Federal Habeas Court the Fourth

Amendment claim that the Court today unanimously

upholds.” Mincey v. Arizona, 98 S.Ct. 2408, at

2418.

THIS HONORABLE COURT SHOULD AND OUGHT TO GRANT THE WRIT OF

CERTIORARI TO THE LOUSIANA SUPREME COURT, APPLIED FOR HEREIN,

OTHERWISE THE FOURTH AMENDMENT WILL BE REDUCED IN DIGNITY, FORCE

AND RESPECT.

ARGUMENT

"There was no indication that evidence would

be lost, destroyed, or removed during the

time required to obtain a search warrant.

Indeed, the police guardat the apartment

minimized that possibility. And there is no

suggestion that a search warrant could not

easily and conveniently have been obtained.

We decline to hold that the seriousness of

the offense under investigation itself

creates exigent circumstances of the kind

that under the Fourth Amendment justify a

warrantless search.” Mincey v. Arizona, 98

S.Ct. 2408, at 2414,

Justice Blanche, writing for the majority of the Louisiana

Supreme Court, uses the following premises to distinguish Mincey

v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.EG.2d 290, to-wit:

"Mr. Thompson had authority over the premises

wherein he was killed and, had he survived

until the police arrived, could have

consented to their search even over the

protests of the defendant. United States v.

Matlock, 415 U.S. 164(1974); State v.

Dowling, 387 So2d 1165 (La. 1980); State v.

Dupuy, 319 So2d 299 (Ile. 1975). Additionally,

the two hour, same day search conducted at the

Thompson residence was far less aggravated

than the four day intensive investigation

that was the subject of the Mincey opinion.

For these reasons, we find the instant case

distinguishabie from Mincey." Pace 8, slip

opinion, appendix "A" page hereof.

It is respectfully submitted that the Majority of the

Louisiana Supreme Court, through Justice Blanche, should not be

constitutionally allowed to create an assumptive, presumptive,

posthumous free and voluntary consent to search for the simple

reason that it creates a conclusive presumption thereby shifting

the burden of proof to the defendant concerning the waiver of a

Constitutional Right. A warrantless search based solely upon the

speculative, assumed, and presumed posthumous consent of a deac

man should not have any standing under the Fourth and Fourteenth

Amendment of the Constitution of the United States of America.

"The State argues that justification can be found

by the consent given by Sutton to enter the house.

Both the Missouri Supreme Court anc the District

Court rejected this contention, and we think

properly so. In the first place, any consent which

Sutton may conceivably have given to enter his

home was given, not to the police officers, but to

the commercial ambulance operator. Sutton did not

call the police, never talked to them, and so far

as the record shows never even had any knowledce

that they were on the way to his house or intended

to enter it. In the second place, any consent

which waives Fourth Amendment rights must be

freely and intelligently given. Drummond v. United

States, 350 F.2d 983, 988 (8Cir. 1965), cert.

denied, Castaldi v. United States, 384 U.S. 944,

86 S.Ct. 1469, 16 L.Ed.2d 542." Root v. Gauper,

438 F.2d 361 (8 Cir. 1971).

The Eighth Circuit, in Root v. Gauper, supra., adopted the

language of Judge Seiler in his dissent in State v. Sutton, 454

S.W.2c at 494-495, "But where entry is justified, it must be on

a basis other than a fictionally contrived consent.” (See Root v.

Gauper, 438 F.2d 361 at 364.

It seems clear that the Louisiana Supreme Court's imaginary

posthumous consent by the decedent does not fit under any of the

recognizec exceptions to the warrant requirement of the Fourth

Amendment.

Justice Blanche puts forth the concept of a some type of

less aggravating search standard. The warrant requirement of the

Fourth Amendment, as applied to the State through the Fourteenth

Amendment is not excused because a search is less aggravating

than others.

The transcript of the testimony of the Deputies, at the

suppression hearing, clealy shows that no exceptions to the

warrant requirement of the Fourth Amendment was in existence at

the time of the search, to-wit:

" Q. Officer, did you or any one to your knowledge

obtain a search warrant for the premises at 32

Caribou Court?

A. No. "*

(See Appendix "C", page j4 hereof, trans. page 7, line 14

thru 17).

" Q. Now the evidence your spoke of was seized and

taken after she was transported to Baptist

Hosptial?

A. Correct."

(See Appendix "C", page ]4 _, hereof, trans. page 7, line 27

thru 29).

Was the evidence seized or taken from the

residnce after the children were removed from

the house?

Correct.

The house you mentioned was guarded, I think

you said secured by the police when the

evidence was seized?

Correct.

How long did the investigation of the premises

take approximately?

I'd say we spent at least an hour and half or

two hours.

At the residence?

Yes.

Certainly enought time to obtain a search

warrant?

Correct.

And the evidence was seized, no one other than

the police were in that house, is that correct?

Yes.

You did not receive the consent to search the

home from either of the children?

No.

Did you fear for your life or nay of your

fellow officers when you went through the

residence?

No. n

(See Appendix "C", page j4 hereof, trans. page 8.).

The gun that you mentioned was found inside the

chest of drawers?

Yes.

And that was closed, correct?

Correct.

The gun therefore was not in plain view?

That's correct.

-7j-

) | '

Q. eee ; . « « « « « Im the instant case, none of the conditions

essential to a plain view seizure were met. ... - The

A. cee note was not discovered inadvertently, but was found

during this intentional detailed search for evidence. .

Q. The note found inside a Christmas card was one

folded in it, wasn't it? . « « « Therefore, it is clear that the detectives dic

not respond to an emergency situation but engaged in 4

A. Correct.” deliberate warrantless search for evidence which is

(See Appendix "C" page j4 hereof, trans. page 9.) proscribed by the Fouth Amendment. The initial entry by

the other officers was unquestionably a lawful response

" QO. Would it be fair te say sir that you were to an emergency situation. But, the general warrantless

exploring the entire residence for evidence cf search by the two homicide detectives who arrived at

a crime when you went throught it? the murder scecne after the victim had been discovered,

the defendant had been taken to the hospital, a search

A. Correct. for other occupants had been made, anc the scene had

been secured, was clearly illegal and unjustified

©. Did anyone while you were present in the because of the absence of any emergency or exigency.

residence and before the evidence was actually Mince supra. at 393, 98 S.Ct. at 2413-2314... .

seized by the police, could any have taken that °ee¢e ether the victim was slain in s own home or

evidence and destroyed it, misplace it, elsewhere is not relevant. Nor is the intensity or

confiscated it in some manner? aggravated nature of the search, if the intrusion is

not authorized by an emergency situation. Therefore,

A. No, sir.” since the evidence is clear that there was no emergency

(See Appendix "C", page 14 hereof, trans. page 10.). at the time the search complained of in the present

case was conducted, the intrusion was plainly

Justice Dennis of the Louisiana Supreme Court in his unjustified anc the trial court was correct in

suppressing its fruits as evidence.” Dissent of

dissenting opinion correctly declares that the search concerned ; Justice Dennis, Appendix "D", page ]5 hereof.

herein was in violation of the Fourth Amendment and Mincey v. Chief Justice Dixon's dissent says it all: “I RESPECTFULLY

Arizone, supra., is not distinguishable. Justice Dennis' dissent DISSENT. ALL IT WOULD TAKE TO MAKE THIS SEARCH LEGAL IS A

is respectfully submitted in support of this petition for WARRANT". (See Chief Justice Dixon's Dissent, Appendix "E", page

Certiorari (See Appendix "D", page ]5 hereof). The following 16 hereof).

excerpts from Justice Dennis’ dissent points up the weaknesses of In Sample v. Eyman, 469 F2d 819 (9th Cir. 1972), a case

the majority opinion, to-wit: wherein a domestic killing took place in the couple's home the

7 Applying these precepts, it is clear that the Court puts it very simply, to wit:

trix’. judge correctly suppressed the gun and the

suicide note as products of an unlawful warrantless The search was not conducted contemporaneously

tearch. with the arrest, thus distinguishing this case

The deputies first summoned to the murder scence from Vale v. Louisiana, 399 U.S. 30, 90 S.Ct.

were entitled to make, and did make, a prompt warrant-~- 1969, 26 L.Ed.2c 409(1969), and there was no

less search of the premises to see if there were other danger that evidence would be secreted or

victims of persons in need of immediate eid of ifa destroyed since the empty dwelling was being

killer was still on the premises. Their search was guarded by a policeman. The appellee having given

strictly confined to these purposes. no reason why a warrant could not be obtained, we

The search conducted by the homicide detectives find the failure to have done so constitutional

which resulted in uncovering the gun and suicide note, error. " Sample v. Eyman, supra. at 469 F2d 819 at

however, was not a response to an emergency situation 822.

because the detctvies could not have reasonably

believed that there was anhone within the house who was

a victim, culprit or a person in need of aid. As the

detectives were aware, before they began their search,

their fellow officers had surveyed the premises for

other persons, removed the occupants and secured the

house against intruders. The detectives frankly

testified that they nad ample time to obtin a warrant,

but chose not to do so, and that the suicide note was

discovered during a systematic seach for evidence.

CONC

LUSION

For the reasons set out he

ana ought to issue its Writ

rein this

Certitorari

Honorable Court should

to review

and opinion of the Louisiana Supreme Court, concerned

RESPECTFULLY SUBMITTED.

4 ny

SAMUEL S. DALTON,

Attorney for Petitioner

2001 Jefferson Hwy.

Jefferson, La. 70121

(504) 835-4289

AND

CLI

Attorney for Petitioner

1126 N. Broad Street

w Orleans, Louisiana 70119

-10-

the judoment

herein.

SUPREME COURT F LOUISIANA

versu

LILLIAN THONPSON <

On Writ of Certivrari UV

to tlie

Court of Appeal, Fitth Circuit

search alu Selcure caSe, we granted Clit

¢ ication to conSider whether the triad UU

4 prope j evidence discovered by police officer:

‘Stigation at a Mhurduel Ce €c

On May 18, 1982, Several deputies trom the Jefter

Sheriff's Department arrive at detendant's | i

APPENDIX "A"

e to a repurt | the dete ant’ le ter of a

STATE V. THOMPSON, So. 2d » (La. 1984).

icide., The deputies entered tie house, wade @ curso!

JUDGMENT OF LOUISIANA SUPREME COURT

>h anu discovered defendant's husband dead of a@ gunshot

ENTERED ON FEBRUARY 27, 1984

WOUnNG lh a DbeUrOOmW ald Lhe defendant dying unconscious ili

CONSISTING OF PAGES 1 TPRU i3

aneuthe bedrvunm due to an apparent drug overuose. Accorudl! t

the defendant's daughter, the defendant had shot her husband,

then inyested a quantity of pills in a Suicide attempt, and

then, changing her mind, called her daugliter, intormed her ot

the Situation and reyuested help. The daughter then contacted

the police. Upon their arrival, the daughter admitted ther

into the house and directed them to the rooms containing the

defendant and the victim. The deputies immediately transpor

he then unconscious defendant to a hospital and secured the

iS La C4 CCe a>" 6 ‘ gt ©? ¢ - \

( ee th te

-12- Kae) 7) 2 a

BEST COPY AVA! ALE

State v. Lillian Thompson

No. 82-KK-2859

scene. Thirty-five minutes later two members of the homicide

unit of the Jefferson Parish Sheriff's Office arrived and

cunducted a follow-up investigation ot the homicide and

attempted suicide.

The homicide investigators entered the residence and

commenced what they described at the motion to suppress hearing

as a “general exploratory search for evidence of a crime."

During their search, which lasted approximately two hours, the

detectives examined each room of the house. In the room where

the victim was found, the investigators discovered a .25

caliber pistol inside a chest of drawers. During their search

of an adjacent bathroom, a torn up note was found in the

wastepaper basket. Another letter, an alleyed suicide letter,

was discovered in the bedroom from which defendant had been

removed. The investiyating officer entered the room and

noticed a red Christmas card lyiny on top of a chest of

drawers. Considering a Christmas card lying in the open during

the month of May to be suspicious, the officer opened the card

and discovered four folded sheets of paper upon which the

alleged suicide messaye was written.

Following the defendant's indictment for the second

degree murder of her husband, she moved to suppress the

evidence discovered by the homicide detectives. The

investigating officers testified at the motion to suppress

hearing that they had had time to secure a varrant prior to

commencing their search, but did not. The detectives further

testified that the deputies had searched for victims and

suspects prior to their arrival and that theirs was a

deliberate search for evidence. Upon hearing the evidence, the

trial court initially denied defendant's pretrial motion.

Subsequently, defendant requested a reconsideration by the

trial court in light of several decisions by this court and by

the United States\ Supreme Court. The trial court granted her

motion for recongideration and partially reversed its original

decision by suppressing two pieces of evidence, the gun and the

Suicide letter found in the Christmas card. The Court of

Appeal denied the state's application for a writ of review.

We granted the state's application for writs to

determine two questions:

(1) Whether the trial court had the

authority to reconsider its earlier denial

of the motion to suppress; and, if so,

(2) Whether the trial court properly

suppressed the evidence seized by the

officers as fruits of an illegal search.

Initially, the state contends that the trial court

erred when it reconsidered the original denial of the

defendant's motion to suppress.

Ordinarily, if the ruling on a motion to suppress is

adverse to the defendant, he can reserve a bill ot exceptions

for use in a regular appeal of the case. See La. C.Cr.P. art.

703, Comment (f). However, nothing in the Code of Criminal

Procedure prohibits the action taken in the present case.

In Louisiana, a ruling on a motion to suppress prior

to trial is binding at the trial. La. C.Cr.P. art. 7U3F.

However, the implication of this limitation is that a ruling on

a motion to suppress is not binding until trial begins.

Out of a concern for the expeditious treatnent of a

motion to suppress and because of other fairness and policy

considerations, we have limited the “not binding before trial"

implication of the Code. In State v. Landry, 339 So.2d 8 (La.

1976), we held that the State may not seek a rehearing of the

grant of a motion to suppress in order to put on new evidence

to support the constitutionaliity of a search. Landry suygests

further that a defendant may not seek a rehearing to introduce

new evidence once a trial court denies his motion to suppress.

In the present case, however, the defendant did not

seek to introduce additional evidence upon rehearing. Instead,

he sought reargument and reconsideration of his motion based

upon the evidence previously introduced. Thus, the concerns

for time-consumption and the implications of possible

unfairness addressed in Landry are not present in the instant

case. The reconsideration by the trial judge of the applicable

jurisprudence produced ino delay in these proceedings. Although

such reconsiderations should be sparingly made and limited to

instances when the trial judye firmly believes that his prior

decision was leyally infirm, such reconsiderations do not

hamper, but actually promote, judicial efficiency.

Therefore, we conclude that the trial court did not

abuse its discretion in reconsidering, for reargument without

additional evidence, its earlier denial of the defendant's

motion to suppress,

The second issue in this case is whether the

warrantless search of the murder victim's residence was

reasonable under the federal and state constitutional

restrictions governing searches and seizures.

In order to decide whether this evidence must be

Suppressed, we must examine the purpose behind the Fourth

Amendment protection and the reasons behind its creation. From

such an examination, we can determine whether, in light of

these purposes and reasons, the

search conducted by the police in this case was "unreasonable".

The United States and Louisiana Constitutions

expressly proscribe all “unreasonable searches and seizures."

U.S. Const. amend. IV, XIV; La. Const. art. I, §5.

Specifically, the Fourth Amendment to the United States

Constitution assures the “ight of the people to be secure in

their persons, houses, papers, and effects, against

unreasonable searches and seizures." The Amendment was

primarily a reaction to the evils associated with the use of

the general warrant in England and the writs ot assistance in

the Colonies,2 and was intended to protect the "“Sanctity of a

man's home and the privacies of life" trom searches under

unchecked general authority. Boyd v. United States, 116 U.S.

616 (1886). Thus, the purpose of the Amendment was to protect

a citizen against unbridled and unjustified governmental

invasions of the citizen's privacy interests, specifically his

own person, house, papers or effects.

The United States Supreme Court has expressed time and

time again that the mandate of the Fourth Amendment, made

applicable to the many states through the Fourteenth Amendment,

requires adherence to judicial process and “that searches

conducted outside the judicial process, without prior approval

by judge or magistrate, are per se unreasonable under the

Fourth Amendment - subject only to a few specifically

established and well delineated exceptions." Katz v. United

States, 389 U.S. 347 (1967) (Footnotes omitted); see also

Nincey v. Arizona, 437 U.S. 385 (1978); United States v.

1 See generally LaFave, Search and Seizure, a

Treatise on the Fourth Amendment, §1.1 (1978); J. Landynski,

Search and Seizure and the Supreme Court (1966); N. Lasson, The

History and Development of the Fourth Amendment to the United

States Constitution (1937).

Natlock, 415 U.S. 104 (1974); Terry v. Ohio, 392 U.S. 1 (1968);

Camera Vv. Municipal Court, 387 So.2d 1073 (La. 1982); State v.

white, 399 So.2d 172 (La. 1981); State v. Dowling, 387 So.2d

1165 (La. 198U). This “per se" rule has been recently

reaffirmed by the United States Supreme Court in Mincey v.

Arizona, Supra, and “nited States v. Ross, _— U.S. __, 1U2

S.Ct. 2157 (1982). Yet the Court has never applied this rule

automatically without an examination of the factual

circumstances Surrounding the search. The Court has

consistently recognized that:

{T]he constitutionality of a particula:

search is a question of reasonableness and

depends on "a balance between the public

interest and the individual's right to

personal security free from arbitrary

interference by law officers." Mincey v.

Arizona, 437 U.S. at 406 (Rehnquist, J.,

concurring), quoting United States v.

Brignoni-Ponce, 422 U.S. 873, 878 (1975).

The “public interest" involves the societal costs

incurred due to the exclusion of evidence seized in violation

of the Fourth Amendment. Such evidence usually forms the basis

of the caSe against the accused because it is factual, tangible

evidence of the most reliable nature. Its exclusion results in

a harm to society by interfering with the truthseeking function

of a criminal trial. Society must absorb the cost of the

exclusion's result - that a violent criminal is returned to

freedom within society. Thus, there is a public interest in

bringing the criminal element of our society to justice.

The intrusion into the “sanctity of a man's home and

the privacies of life", Boyd v. United States, supra, must be

balanced with the public interest in bringing criminals to

justice and with the societal costs involved in releasing a

criminal back into society in determining whether a search is

"unreasonable*., This balancing must be made by an examination

of the totality of the circumstances surrounding the alleged

illegal search to determine whether that search was

*"unreasonable® under the Fourth Amendment. cf. United States

v. Brignoni-Ponce, supra; Terry v. Ohio, 392 U.S. 1 (1968);

Camera v. Municipal Court, 387 U.S. 523 (1967). . Common sense

dictates that reasonableness varies with the circumstances of

the search. Preston v. United States, 376 U.S. 364 (1964).

Whether a particular search is unreasonable is something to be

determined by the facts of a given case. Sclimerber v.

California, 384 U.S. 757 (1966); see also Justice Black's

dissent in Vale v. Louisiana, 399 U.S. 30, 36 (1970).

befendant contends that Mincey v. Arizona, 437 U.S.

385 (1978), dictates that evidence seized during a warrantless

search of a murder scene must be suppressed as the fruit of an

illegal search. We find Mincey distinguishable from the facts

vol this case. In Mincey, an undercover policeman was shot and

killed during a drug raid on the defendant's apartment. The

police secured the scene and then conducted an intense

investigation of the scene without a warrant. The search

lasted four days during which two to three hundred objects were

examined, inventoried, and seized. The United States Supreme

Court found that this extensive warrantless search was not

justified under any exception to the warrant requirement, and

as such, was unreasonable and illegal. The Court expressly

found that the Arizona Supreme Court's “murder scene"® exception

was inconsistent with the Fourth and Fourteenth Amendments

because it left too much discretion with the police in

determining the reasonableness of the search.

The Mincey case, however, involved a victim killed on

another's property. The policeman killed had no privacy

interest in the apartment that was searched. In the case

afe

before us, the victim was killed in-his own home. While the

policeman shot in Mincey could not have consented to the search

of the apartment he was shot in, as he had no authority over

that apartment, Mr. Thompson had authority over the premises

wherein he was killed and, had he survived until the police

arrived, could have consented to their search even over the

protests of the defendant. United States v. Matlock, 415 U.S.

164 (1974); State v. Dowling, supra; State v. Dupuy, 319 So.2d

299 (La. 1975). Additionally, the two hour, same day search

conducted at the Thompson residence was tar less aggravated

than the four day intensive investigation that was the subject

of the Mincey opinion. For these reasons, we find the instant

case distinguishable from Mincey.

Additional facts in this case evidence a diminished

privacy expectation by the defendant. The defendant herself

telephoned her daughter, informed her of the situation and

requested assistance. The daugliter then called the police, met

them at the defendant's residence, and let them in. The

defendant was found in an unconscious state. The police were

faced with @ Situation where both parties with authority over

the premises were either dead or unconscious and in an

apparently grave condition. A third party, defendant's

daughter, portraying an apparent authority over the premises

through the defendant's request for assistance, met and

admitted the police to the premises. Thus, the defendant's

privacy interests under these Lacts are greatly diminished from

those of the defendant in Mincey.

The need for Fourth Awendment protection is lessened

as the privacy interest in an area is diminished. The reasons

for preserving the sanctity of the home and the privacies of

life find less support when the citizen claiming the right has

exhibited a diminution of their privacy interest. At the sane

time, the public interest remains the same. In balancing this

minor intrusion into the defendant's diminished privacy

interests against the public interests, we come to the

conclusion that the same day investigation conducted by the

police was not unreasonable under the Fourth Amendment. We

tind that the intrusion by the police in conducting a two hour

search, during which the .25 caliber handgun and the four page

Suicide letter were seized, when examined under the totality of

the circumstances, was not SO pervasive as to constitute an

"unreasonable® search under the Fourth Amendment to the United

States Constitution. Any privacy interest held by the victim

passed with his death. The victim has no privacy interests to

protect. The defendant, who Shared a privacy interest in the

premises with the victim, exhibited a voluntary diminution in

her privacy interest when she herself summoned help. Under

these facts, the search conducted by the police in this case

was reasonable.

For these reasons, we find the seizures made by the

police under these facts were reasonable. AS such, the

defendant's motion to Suppress any evidence gained through such

a search should have been overruled.

DECREE

For the reasons stated, the ruling of the trial court

is reversed and the case is remanded for further proceedings

consistent with this opinion.

REVERSED AND REMANDED

»\¥

SUPREME COURT OF LOUISIANA

NO. 82-KK-2859

STATE OF LOUISIANA

VERSUS

LILLIAN THOMPSON

CALOGERO, Justice, concurring

The United States and Louisiana Constitutions

proscribe all unreasonable searches and seizures. U.S. Const.

awend. XIV; La. Const. 1974 Art. I, Sec. 5. The search in this

case by police officers called to the scene and admitted to the

premises by the daughter of a couple, one dead, and the other

unconscious, was not unreasonable.

~~,

FEB 2? iggy

SUPREME COURT OF LOUISIANA

NO. 82-KK-2859

STATE OF LOUISIANA

versus

LILLIAN THOMPSON

LEMMUN, Justice, Subscribing to the majority opinion and

assigning additional concurring reasons.

Although I fully subscribe to the majority opinion,

I add these additional reasons why it would be

unreasonable for this court to hold that the search was

“unreasonable” under either La. Const., Art. 1 §5 (1474)

or the Fourth Amendment .!

The Mincey decision, as is well illustrated in the

‘ There is a clear

majority opinion, is not controlling.

basis for distinguishing the relatively brief search of

the murder victim's own home from an extended four-day

search of premises occupied by someone other than the

murder victim. When a resident of the premises is

murdered, there is a significant diminishing of the

expectations of privacy of the other persons residing

la contrary decision could also raise an extremely

disturbing prospect under the “expanded standing" rule of

La. Const. Art. 1, §5 (1974), if an uninvited intruder,

after murdering a homeowner, claimed that a police search

(such as conducted here), was unreasonable from the

standpoint of other occupants of the home and sought to

have the "fruits" of the search suppressed.

2See the concurring opinion of Justice Rehnquist

in Mincey. Similarly, the occupants of a home seriously

harmed by a fire suffer significant reduction in privacy

for a reasonably preset fire marshal's investigation into

the cause of the blaze. See Michigan v. Tyler, 436 U.S.

499 (1978).

elie

there.>

And when the police are called to the premises,

are admitted inside by someone with apparent authority to

do so, and are furnished reliable information establishing

probable cause to believe that there may be physical

evidence on the premises which might reveal (or confirm)

the circumstances of the killing and the identity of the

killer, then a prompt contemporaneous search is clearly

justified.

Moreover, the police in this case were taced with

the possibility that evidence might be destroyed. Under

those circumstances, it would have been reasonable to

secure the home (even against other occupants) during the

time necessary to secure a search warrant. An equally

reasonable means of preserving evidence was to conduct an

immediate search based on probable cause, which should not

be considered a “greater intrusion” necessitating prior

judicial approval. See Chambers v. Maroney, 399 U.S. 4.

(1970), in which the Court stated with rerord te on

automobile search:

“Arguably, because of the

preference for a magistrate's

judgment, only the immobilization

of the car should be permitted

until a search warrant is obtained;

arguably, only the ‘lesser’

3In cases involving automobile searches, the Court

has indicated a willingness to recognize the

reasonableness of probable cause-based warrantless

searches because of the diminished expectation of

privacy. The surviving occupants of a home in which

another occupant (not an intruder) has been murdered,

sufter a significant diminution in their expectations of

privacy in that home for a reasonably brief period during

which police conduct a reasonable search (both in scope

and duration) for evidence tending to identify and prove

the guilt of the murderer of the resident (even if that

murderer happens to be another person who may claim a

reasonable expectation of privacy in those premises).

-12-

BEST COPY AVA! ABLE

intrusion is permissible until the

magistrate authorizes the

‘greater.’ but which is the

"greater’ and which the ‘lesser’

intrusion is itself a debatable

question and the answer may depend

on a variety of circumstances. For

constutitional purposes, we see no

difference between on the one hand

seizing and

resentin

to a magistrate and on the other

and carrying out an immediate

search without a warrant. Given

probable Cause to search, either

course is reasonable under the

Fourth Amendment .™ (Emphasis

supplied.

See also Robbins v. California, 453 U.S. 420 (1981)

overruled by United States v. Ross, 456 U.S. 798 (1982).

-]3-

Supreme Court of Louisiana

NEW ORLEANS, 70112

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 37

FROM: CLERK OF SUPREME COURT OF LOUISIANA

On the 23rd day of March, 1984, the paaraning action was taken by the

Supreme Court of Louisiana, composed of Chief Justice John A. Dixon, Jr.,

and Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr.,

James L. Dennis, Fred A. Blanche, Jr., Jack Crozier Watson, and Harry T.

APPENDIX "B"

TATE V. THOMPSON, So.2d , (La.

DENIAL OF REHEARING,

DATED 23RD DAY OF MARCH, 1984

1984).

Lemmon, in the cases listed below:

REHEARINGS DENIED:

68 2-KA-2186

8 2-KA- 2206

82-KA-2335

82-KK-2859

State v. George Griffon

State v. Raymond Captville

DIXON, -C.J., & CALOGERO, J., would grant a rehearing.

State v. Frank George and Victor Tyrone Young

(Two Applications - by defendants)

State v. Roy Lee Williams

State v. William D. Pelt

State v. Lillian Thompson

DENNIS, J., would grant a rehearing.

83-C-0655 Kathleen Austen v. Wallace Sherwood, et al

BY THE LOUISIANA SUPREME COURT MARCUS & BLANCHE, J.J., would grant a rehearing.

ONSISTING OF PAGE 1

c 83-C-1204 Isabel Mitchell v. Willie Clark, Jr., et al

LEMMON, J., would grant a rehearing.

83-C-1543 Chevron U. S. A., Inc. v. Martin Exploration, et al

-13-

oie

APPENDIX *C*

TRANSCRIPT OF TESTIMONY TAKEN AT

HEARING ON MOTION TO SUPPRESS ON

SEPTEMBEP 23, 1982

CONSISTING OF PAGES 1 THRU 23

-14-

TWENTY-FOURTH JUDICIAL DISTRICT COURT

PARISH OF JEFFERSON

STATE OF LOUISIANA

STATE OF LOUISIANA e NUMBER 82-1787

VERSUS e

LILLIAN THOMPSON e DIVISION a

Excerpt of testimony taken in the above numbered and

entitled cause on Thursday, September 23, 1982, before the

Honorable Lionel R. Collins, Judge, presiding.

APPEARANCES :

P. MICHAEL CULLEN, Esq.

Assistant District Attorney

CLIFFORD E. CARDONE, Esq.

Attorney for Defendant

REPORTED BY: SUSAN STENTZ, O.C.R.

~2-

-- page 14

EXCERPT OF PROCEEDINGS

SAM ZINNA, 6801 Veterans Boulevard, Metairie,

Louisiana was called as a witness and after having

first been duly sworn, was examined and testified on

his oath as follows:

DIRECT EXAMINATION

MR. CULLEN:

Do you recall the date of May 18, 1982?

Yes, I do.

And by whom were you employed on that date?

The Jefferson Parish Sheriff's Office, Homicide Unit.

Were you on duty on that date?

Yes, I was.

Did you have occasion to go to 32 Caribou Court,

Metairie, Louisiana, on that date?

Yes.

Is that located in Jefferson Parish?

Yes, it is.

And why did you go to that address?

I was notified at approximately 9:15 A.M. of a purported

homicide at that location and I arrived at

approximately 9:45 A.M. At that time I met

with Detective Knudsen, Fourth District Patrol

Division and he advised me that he received a

call of a shooting at that location and in which

the victim was located on the east bedroom of

the residence and he had been identified as

Sylvester Thompson, and he also learned upon

arrival that his wife, Mrs. Lillian Thompson

has shot Mr. Thompson, and upon which she had

=3-

Did you take any evidence from number 32 Caribou Court?

induced an overdose of drugs, and she was

transported to Baptist Hospital in New Orleans.

Yes, I did.

What items of evidence were removed?

Okay, it was a .25 caliber automatic pistol and a four

"ell me

page letter was found in one of the bedrooms

by Sergeant Masson during the process of the

scene and also a note that was torn up was found

in the wastepaper basket in the bathroom which

adjoined the southeast bedroom, where the

victim was found.

what you did when you got there and how you

came to obtain the evidence?

During the processing of the scene, which was where

the victim was located, in the southeast bed-

room, we collected blood and I did a diaqram

of the scene and got all pertinent information

relative to the scene and at that point, we

did not see any weapons. We continued on and

during the proceasing of the scene, we located

a .25 caliber weapon in the chest of drawers

in the bedroon.

This was when you first got there, you described the

victim, and you said the victim and his wife,

were they in the same room?

Okay, the victim was located in the southeast bedroom

and Mrs. Thompson, according to Knudsen, was

in another room of the residence, and which

a4o

prior to my arrival, she was transported to

Baptist Hospital, due to a possible overdose.

Q. Were any of there -—- was anyone in the home other than

the police?

A. At the time of my arrival?

Q. Yes.

A. Bo, just the security by the Sheriff's Office.

Q. Was the daughter or the son of the occupants of that

house present?

A. Yes, sir, Debra Bonin, the victim and the perpetrator's

daughter was at the residence, and which she

spoke with Deputy Knudsen prior to myself and

Sergeant Masson's arrival. However, Sergeant

Masson and Ms. Bonin were on the exterior of

the residence, and Ms. Bonin advised --

MR. CARDONE:

Your Honor, I suspect that a hearsay

answer is forthcoming.

THE COURT:

I do not understand, what was the .

Objection?

MR. CARDONE:

I think that it warn leading to a hearsay

response of Ms. Bonin.

THE WITNESS:

Sergeant Masson can attest to that.

BY MR. CULLEN:

Q. When you came in, you saw the body of the victim in

one bedroom?

A. The soutieast bedroom.

Q. And then the place where the alleged perpetrator had

been before she was taken to the hospital?

A. That was in a different bedroom.

Q. And then after securing the scene, you all proceeded to

look for evidence?

A. Correct.

Q. Okay, where was the various items found?

A. One of the letters which was found, a four page letter

was found tucked inside of a Christmas card,

and it was found in one of the other bedrooms.

Since Sergeant Masson collected that -- another

note was found in the wastepaper basket in a

bathroom, which adjoined the southeast bedroom.

Q. That's where the victim was?

A. Correct, in the wastepaper basket was a note torn up,

which these papers were collected anc taped

together the best wa, possible, which it was

hard to get any details of what the note exactly

said.

Q. Okay, the weapon?

A. It was found in the chest of drawers in the southeast

bedroom where the victim was located.

Q. Were those the only items found on the scene?

A. Correct.

Q. Okay, were any other items of evidence taken at any

time?

A. No, there were not.

Q. How about at the hospital?

-6-

No, sir, -- can I refer back to my notes to be sure?

You can refer back to your notes to refresh your memory.

Just the clothing from the alleged perpetrator was taken

from the hospital.

Who took that?

Okay, Detective Lark (spelled phonetically) of the

Homicide Unit.

He went to the hospital and collected that?

Correct.

MR. CULLEN:

No further questions.

CROSS EXAMINATION

BY MR. CARDONE:

Officer, did you or anyone to your knowledge obtain

a search warrant for the premises at 32

Caribou Court?

No.

When you arrived, to your knowledge, when you arrived

or anyone under your offices arrived, was the

defendant Mrs. Lillian Thompson unconscious

in another hedroom from where the victim was

located?

Upon my arrival, the perpetrator, the accused was

already placed in an ambulance and was being

transported to Baptist Hospital and in which,

according to Deputy Knudsen, she was unconscious.

Now the evidence you spoke of was seized and taken

after she was transported to Baptist Hospital?

Was the evidence seized or taken from the residence

after the children were removed from the house?

Correct.

The house you mentioned was guarded, I think you said

mecured by the police when the evidence was

seized?

Correct.

How long did the investigation of the premises take

approximately?

I'd say we spent at least an hour and a half or two

hours.

At the residence?

Yes.

Certainly enough time to obtain a search warrant?

Currect .

And the evidence was seized, no one other than the

police were in that house, is that correct?

Yes.

You did not receive the consent to search the home from

either of the children?

No. :

As a matter of fact, neither of the children lived

there?

Yes, Debra Bonin as well as I can remember and I think

the Thompson's son lived there as wel’.

But, you did not get a consent to search the residence?

No.

Did you fear for your life or any of your fellow

officers when you went through the residence?

No.

Now, when you went to the residence, you were searching

for persons or things?

Items, things.

The gun that you mentioned was found inside the chest

of drawers?

Yes.

And that was closed, correct?

Correct.

The gun therefore was not in plain view?

That's correct.

The note that was found in the bathroom was torn up in-

side of a wastepaper basket?

Yes.

Prom its outward appearance you could not or it would

not give you any reason that it was evicence

of a murder investigation, is that correct,

the outward appearance of the pieces of paper

in the wastepaper basket?

Mo.

The note found inside a Christmas card was folded in

it, wasn't it?

Correct.

And the Christmas card waz lying face down in a dresser

in a bedroom other than where the victim was

found?

You'd have to question Sergeant Masson on that fact.

You have the police report in front of you?

Yes.

You have been referring to that police report to

refresh your memory?

Yes.

Do you have any independent recollection of where that

Christmas card was found?

It was found in one of the bedrooms or on the table in

the kitchen, I really can't recall.

To your knowledge sir, was that note stashed inside of

that Christmas card and from the outward

appearance, did it look to be evidence in a

murder investigation?

No.

Was any blood on it?

No.

Would it be fair to say sir that you were exploring

the entire residence for evidence of a crime

when you went through it?

Correct.

Did anyone while you were present in the residence

and before the evidence was actually seized

by the police, could anyone have taken that

evidence and destroyed it, misplaced it,

confiscated it in some manner?

No, sir.

Moving to the hospital, to the best of your recollection

and knowledge where did the clothes come from,

do you know where the clothes came from?

Detective Nuzzilo (spelled phonetically) received the

clothing from 4 nurse who removed the clothing

~10-

from the perpetrator upon her arrival at the

hospital.

Q. It would be fair to say that the defendant was uncon-

scious when the clothing was removed and given

to the hospital personnel?

A. Could you repeat that question?

Q. Would it be fair to say that based upon your knowledce

and investigation, the lady was unconscious

when taken and given to the hospital personnel?

A. Yes.

Q. Therefore she didn't give any consent for anyone to

take the clothes from her?

A. No, she was unconscious.

Q. Specifically, did the police gain consent from anyone

cide from the hospital personnel to take the

clothing?

A. No.

Q. Sir, from viewing the circumstances at the scene

when you walked into that scene, apparently

you saw the decedent lying on the bedroom floor

over two shot-guns, and from that evidence and

any evidence that you saw with your eyes in

plain view, was there any indication that a gun

was in th dresser drawer closed?

A. Other than the fact that we did not find one in the

open.

Q. Were there any indication, any physical evidence in

plain view that the note was tucked in a |

Christmas card?

-ll-

Was there any evidence that a note was torn in the

wastebasket in the bathroom?

No.

MR. CARDONE:

No further questions at this time.

MR. CULLEN:

Bo questions.

THE COURT:

Officer, let me ask you this, you

received a call that somebody had been killed

at that address?

THE WITNESS:

Correct.

THE COURT:

Pursuant to that call you immediately

went to the house?

THE WITNESS:

Yes.

And once you saw that someone was in

fact killed or dead, you immediately proceeded

to look for a weapon?

Correct.

You saw no weapon in the area where

the party was lying?

-l2-

THE WITNESS:

No, not in any open area, no, sir.

How far away from where the party was

killed did you find a weapon?

Approximately three or four feet from

where the victim was lying, to the chest of

drawers.

THE COURT:

In other words, the chest of drawers

wae in the same room as the victim was?

THE WITNESS:

Yes *

Do you recall at the time whether the

drawer was open or closed?

THE WITNESS:

It was closed.

All right, I understand. Wow let me

ask you something about the wastepaper basket,

you found paper torn up?

Yes.

How far away from where the victim

was?

-13-

THE WITNESS:

Approximately two feet, it was the,

in the immediate doorway which adjoined the

You saw the --

The paper was torn up.

Was something about a letter in a

Christmas card, how far away from the victim

was that?

THE WITWESS:

It would be hard to say but, it was

located in a separate bedroom or possibly in

the kitchen, I could not recall what part of

the house.

THE COURT:

Gretna, Louisiana, was called as a witness and after

having first been duly sworn, was examined and testified

on his oath as follows:

DIRECT EXAMINATION

CULLEN :

By whom are you employed?

Jefferson Parish Sheriff's Department.

-l4-

Do you recall the date of May 18, 1982?

Yes.

Did you have occasion on that date to co to number

32 Caribou Court, Metairie?

Yes, I did.

While there, did you obtain any evidence?

Yes, sir, I assisted Detective Zinna in processing the

scene of a homicide.

And what evidence, if any, did you collect?

I located in one of the bedrooms or in a Jan, a

Christmas card with a note in it and I also

located a torn up several pieces of paper with

handwriting in a trash can in a bathroom.

Okay, where were these articles in relation to the

victim?

Okay, the victim was in one of the bedrooms and thee

was a door leading from the bedroom to the

bathroom, and there was a garbage can located

just inside the bathroom door, which was

adjoining to the bedroom where the victim was.

Did the garbage can have a cover or anything?

No, it did not.

It was open?

Yes, the other letter was in a bedroom off the den,

which was near, let's see, the northwest part

of the house, which is catercorner from the

room where the body was found.

Was that inside of something or was it sitting on

something?

-15-

A. It was laying on the top of a chest of drawers, it was J drawers, could anyone have removed them other

a red Christmas card and inside the Christmas 2 than a police officer while you were investi-

card was a folded letter. 3 gating the scene?

Q. Was the defendant still on the scene at that time? 4 A. It was my information from Ms. Bonin, I learned that

A. No. 5 she was called to the house by her mother

Q. Was the victim still on the scene? 6 and she arrived prior to the police officers.

— | 7} @. Was anyone, what I'm asking, you found all of that

Q. And were there other people there other than the | 8 evidence after Ms. Bonin and Ms. Thompson

police? 9 were removed from the residence, is that right?

A. There was a Debra Bonin and Donald Thompson. 10 A. When I arrived, Ms. Bonin, she was getting ready to

Q. Where were they located? : i) ) leave to go to the hospital to see her mother

A. They were outside when I got there. | 12 and Donald was outside, and he came inside

MR. CULLEN: | 13 and sat in the kitchen.

No further questions at this time. 14 Q. Was the evidence discovered after that?

eROSS EXAMINATION 15 A. Around the same time, it's hard to pin point but it

BY MR. CARDONE: | 16 | was duz:ing the same time that he was sitting

Q. Sergeant Masson, I'd like to ask you a few questions, "7 : an the kitchen.

did you secure a ‘suwarc’ warrant for the | 18 : Q. Could Donald have removed the gun from the chest of

premises? | 19 drawers without being detected?

A. _ Mo. | 20} A. I doubt it.

Q. _.When you arrived there was not the defendant uncon- 2! Q. How many police officers were on the scene?

* ‘ @cious at the time of your arrival? 229 A. At least five originally when I arrived there were

A. She was not there when I arrived. 23 five, including Zinna, and I believe one of

Q. Were you doing a follow-up investigation? 24 the others, or two of the officers left.

A. I was assisting in the processing of the scene. 25 Q. It's fair to say that Mr. Thompson, Donald, the child,

Q. Could anyone have removed, other than the police, 26 could not have gone into a bedroom where the

could anyone have removed the pages found or 27 decedent was laying without being detected,

the Christmas card or the paper that was torn 28 you would not allow --

up or the gun that was found in the chest of 29 -, Yes, that is correct.

-16- @]Je

GEST COPY AVA! 4PLE

You would not have allowed him to go into the bedroom?

No, sir.

Nor would you have allowed him to go to the bathroom

that was attached to that adjoining bedroom?

Hot that bathroom, no.

During the period of time when Mr. Thompson was

sequestered, if you will. in the kitchen, is

that when the evidence was found?

Yes, he was not in either of the rooms.

How long did the investication take to the best of

your knowledge?

I would say approximately two hours.

You certainly had enough time to obtain a search

warrant?

Yes.

And these chest of drawers the gun was found in, it

was closed, is that right?

Okay, I didn't find the gun.

Do you know if it was closed or open?

I did not find the gun, the note was found on top of

a chest of drawers in another roon.

That was found by you?

Yes.

Go ahead?

I understand from the deputy when I first arrived

that that's the room where they found Mrs.

Thompson.

But, she was not there when the note was discovered

though?

-18-

No,

What I'm trying to get to sir, did you conduct a

Yes.

Did you receive any consent from anyone to do that?

sir, she was not there when I arrived, she had

gone.

any physical evidence in the scene, in other

words, the body of the decedent and the guns

that he were laying on, when you first arrived |

and saw him, was anything there that would

indicate that a gun was in that chest of

drawers?

not that I'm aware of.

there anything to indicate, any physical facts

that you observed that would indicate that a |

note was to be found in a Christmas card in

that particular room?

sir, when I went to view the room where I understand)

from the deputy Mrs. Thompson was found, that's

when I found the Christmas card.

it lying open or was there anything to indicate

independently that the note was inside the

Christmas card?

but there was other evidence in that room also,

there was a sheet that we picked up off the

bed that had a red substance on it, that's

the bed that Mrs. Thompson was 6n.

general exploratory search to find any pieces

of evidence that could potentially relate to

the investigation?

-19-

No.

And of course the gun was not in plain view, is that

correct?

As far as I'm aware, it was not, but I didn't find a

gun.

The note was inside of the Christmas card?

No, the Christmas card was in plain view on top the

chest of drawers.

But that would not indicate in and of itself that there

was evidence of a crime?

It was a Christmas card to my wife.

And this may be repetitive but at the time all of that

was seized, there was no one related to the

defemiant or the family that could have taken

away from the scene or destroyed anything? }

It would have been very unlikely.

Because the house was COrdoned by police officers? |

Yes.

No further questions.

REDIRECT EXAMINATION

BY MR. CULLEN:

Detective, you said that other evidence was obtained,

you mentioned a sheet or a spread or something?

In the bedroom where I had learned from the officers

on the scene, when I first arrived, I under-

stood that Mrs. Thompson was in, in that

bedroom, the back bedroom is where I found the

Christmas card and I went to view that part of

-20-

SSS =

the scene, and I had the crime lab pick up

that sheet, I believe it was a pink and white

sheet with a blood-like substance, it was a

very small amount of blood-like substance.

MR. CARDONE:

That was pot the subject of my motion

to suppress.

Any items that had blood or what appeared to be blood

on them?

Just the articles that were taken from the other

bedroom where the body was, that was the only