# Record and brief — Thompson v. Louisiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1309%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1985 - **Citation:** 469 U.S. 17 ## Text DOCKET 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 Lipinion ‘4425465554 p> ae | tsuaadas llirilamn. Se es ee es ee ee ee ee ee ee COPY BEST AVAILABLE i —— PETITION FOR WRIT OF CERTIORARI y 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). A. 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.). * A. Q. 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 of 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 Ne q3 w Orleans, Louisiana 70119 a -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. 1. 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, 2. 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 t 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- 28 29 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. 28 29 ~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: Q. 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? tw 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? tr wa 28 29 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. Q. A. 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- 28 29 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 ho 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- 20 A. Q. No, 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: Q. 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 other articles that were picked up. MR. CULLEN: No further questions. Officer, when you went to the other bedroom, you were not looking for a Christmas card or anything of that kind? THE WITNESS: Ho, sir, I was just doing that as part of the formal scene investigation and the reason that I went to that room is I learned that from the original officer on the scene that that was the room where Mrs. Thompson was located when t»ey arrived on the scene. THE COUPT: And it was through your investigation that you found this Christmas card? -2]- Yes, well, this was in May, and this was a Christmas card on top of a chest of drawers and May was not really Christmas season, and it was just normal curiosity I looked in it. And it was addressed to my husband? THE WITNESS: It was not in the envelope and inside the Christmas card itself was a note, and I believe it said to my wife at Christmas, and it was signed by Sylvester. That was the card, not the note? THE WITNESS: The card was signed by Sylvester. You may step down. -22- CERTIFICATE I, Susan Stentz, Official Court Reporter, do hereby certify that the foregoing is a true and correct transcript of the proceedings in the entitled and numbered cause held on Thursday, September 23, 1982, before the Honorable Lionel R. Collins, Judge presiding, Division “L". Official Court Reporter 24th Judicial District Court Parish of Jefferson State of Louisiana 7 | offen =e -23- APPENDIX "D" DISSENTING OPINION OF JUSTICE DENNNIS LOUISIANA SUPREME COURT CONSISTING OF PAGES 1 THRU 7 -15- SUPREME COURT OF LOUISIANA No. 82-KK-2859 STATE OF LOUISIANA versus LILLIAN THOMPSON DENNIS, Justice, dissenting. I respectfully dissent. The major issue presented by this case is whether the warrantless search of the defendant's residence for evidence violated the state and federal prohibitions against unreasonable searches and seizures. The United States and Louisiana Constitutions expressly proscribe all “unreasonable searches and seizures." U.S. Const. amena. XIV; La. Const. 1974, art. I, § 5. It is a cardinal principle of constitutional law that searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable--subject only to a few specifically established and well-delineated exceptions. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1968); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); State v. Ludwig, 423 So.2d 1073 (La. 1982); State v. White, 399 So.2d 172 (La. 1981). Once the defendant makes the initial showing at a motion to suppress hearing that a warrantless search occurred, the burden of proof shifts to the state to affirmatively show that the search is justified under one of the narrow exceptions to the rule requiring a search warrant. State v. Franklin, 353 So.2d 1315 (La. 1977); La. C.Cr.P. art. 703D; See also, Lafave, Search and Seizure--A Treatise on the Fourth Amendment, § 6.6 (1978). Counsel for the State asserts that this affirmative showing was made, arguing that the report of a homicide justified the officers' warrantless entry into defendant's home and that the Christmas card and suicide note which were “in plain view" were properly seized. The United States Supreme Court in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2da 290 (1978), held that a “murder scene exception” to the warrant reguirement created by the Arizona Supreme Court is inconsistent with the Fourth and Fourteenth Amendments, and restated the rules governing the search of a person's nome. Warrants are generally required to search a person's home or his person unless the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment. Mincey v. Arizona, supra, at 394, 98 S.Ct. at 2414, 57 L.Ed.2d at 301; McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153, 158 (1948). For example, the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt, warrantless search of the area to see if there are other victims or if a killer is still on the premises. Mincey v. Arizona, supra, 473 U.S. at 392, 98 S.Ct. at 2413, 57 L.Ed.2d at 300. Cf. Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S.Ct. 1942, 1949-50, 56 L.EG.2d 486, 498-99 (1978). A warrantless search must, however, be “strictly circumscribed by the exigencies which justify its initiation.” Mincey v. Arizona, supra, 437 U.S. at 393, 98 S.Ct. 2413, 57 L.Ed.2d at 300, citing Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889, 908 (1968). See also Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (search of arrested suspect and area within his control for weapons or evidence); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed. 782 (1967) ("hot pursuit” of fleeing suspect); Schmerber v. California, 384 U.S. 775, 86 S.Ct. 1826, 14 L.Ed.2d 908 (1966) (imminent acestruction of evidence). In sum, when an exigent circumstance, such as a report of a homicide, is used as the reason for operating in an otherwise illegal manner, the search must be limited to the parameters of the exigency itself. Satchell v. Cardweil, 653 F.2d 408 (9th Cir. 1981). Applying these precepts, it is clear that the trial judge correctly suppressed the gun and the suicide note as products of an unlawful warrantless search. The deputies first summoned to the murder scene were entitled to make, and did make, a prompt warrantless search of the premises to see if there were other victims Or persons in neea of immediate aid or if a killer was still on the premises. Their search was strictly confined to these purposes. The search conducted by the homicide detectives which resulted in uncovering the gun and suicide note, however, was not a response to an emergency situation because the detectives could not have reasonably believeu that there was anyone 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 had ample time to obtain a warrant, but chose not to do so, and that the suicide note was discovered during a systematic search for evidence. The state strenuously argues, however, that the alleged suicide note was properly seized as it was in plain view during the course of the legitimate emergency activities. Michigan v. Tyler, supra, 436 U.S. at 509-10, 98 S.Ct. at 1950, 56 L.Ed.2d at 498; Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.2d 564, 582-83 (1971). The seizure fulfilled none of the requisites of the plain view rule, however. The conditions necessary for the discovery of evidence in “plain view” and subject to seizure are: (1) there must be a prior justification for the officer's intrusion into a protected area, (2) in the course of which evidence is discovered inadvertently, and (3) where it is immediately without close inspection that the items are evidence or contraband. Covlidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Fearn, 345 So.2d 468 (La. 1977); See also, State v. Meichal, 290 So.2d 878 (La. 19740. In the instant case, none of the conditions essential to a plain view seizure were met. As we noted earlier, the homicide detectives* intrusion into the defendant's home was not justified because the limited search for casualties, captives, victims or culprits necessitated by the exigency had been fully performed by other officers and the detectives admitted that their intrusion was purely a search for evidence under non-exigent circumstances. The note was not discovered inadvertently, but was found during this intentional detailed search for evidence. It was not immediately apparent that a note was inside tne closed card, and it was certainly not apparent that the closed card contained evidence of the homicide. Accordingly, the seizure of the note cannot be sustained by the plain view exception to the warrant requirement. Therefore, it is clear that the detectives did not respond to an emergency situation but engaged in a deliberate warrantless search for evidence which is og proscribed by the Fourth Amendment. The initial entry by the other officers was unquestionably a lawful response to an emergency situation. But, the general warrantless search by the two homicide detectives who arrived at the murder scene after the victim had been discovered, the defendant had been taken to the hospital, a search for other occupants had been made, and the scene had been secured, was clearly illegal and unjustified because of the absence of any emergency or exigency. Mincey, Supra at 393, 98 S.Ct. at 2413-2414. Further, this court should not accept, for the reasons outlined above, the State's contention that the challenged search and seizure fell within the ambit of the plain view exception to the warrant requirement. At oral argument and in deliberations this court has considered at least two approaches toward limiting the principle of the Mincey case. First, by limiting its holding strictly to its facts; and, second, by constructing a theory of implied consent whereby it could be presumed that a victim slain in his own home has given permission for a general search in connection with the detection and apprehension of his murderer. See Lafave, supra § 6.5(e). Careful consideration of the Mincey opinion, however, convinces me that neither interpretation is warranted. The facts of the pre.ent case are different from Mincey in that here the victim was slain in his own home and the intrusion by the homicide detectives was not as aggravated as the four day intensive search performed by the officers in Mincey. Nevertheless, the principles of the Mincey decision clearly have application beyond the particular facts of that case. Tne court began by reaffirming the principle stated in Katz v. U.S. supra that a search conducted without a warrant issued on probable cause is per se unreasonable subject only to a few specifically established and well delineated exceptions. The opinion flatly rejected the idea that the search of a homicide scene, without more, should he considered as a valid generic exception. Mincey, supra at 390, 391. In totally rejecting the Arizona murder scene exception, the high court was aware that the Arizona cases indicated that the exception had been applied in instances in which homicides had occurred at the home of the victim. Mincey, supra at 392 n. 5. The Mincey opinion recognized that within the “few specifically established and well delineated exceptions" are certain emergency situations, viz., entries and searches upon reasonable belief that a person within is in need of immediate aid or a prompt warrantless search to see if there are other victims or if a killer is still on the premises. But the Court clearly indicated that such an exceptional warrantless search must be strictly circumscribed by the life or limb threatening emergency which justifies its initiation. Finally, the court rejected Arizona's argument that a murder scene exception should be permitted because the search could be confined in scope and intensity by guidelines such as those set forth by the Arizona Supreme Court. In rejecting this approach, the court noted that Arizona would confer unbridled discretion upon the individual officer to interpret such terms as “reasonable .. . search" “serious personal injury with likelihood of death where there is reason to suspect foul play", and " reasonable period", and that it is precisely this kind of judgmental assessment of the reasonableness and scope of a proposed search that the Fourth Amendment requires be made by a neutral and objective magistrate, not a police officer. Mincey, supra at 396. Consequently, it is clear that the high court has limited murder scene searches to those strictly necessary to deal with emergencies threatening life and limb or to apprehend a killer on the premises. Whether the victim was slain in his own home or elsewhere is not relevant. hor is the intensity or aggravated nature of the search, if the intrusion is not authorized by an emergency situation. Therefore, since the evidence is clear that there was no emergency at the time the search complained of in the present case was conducted, the intrusion was plainly unjustified and the trial court was correct in suppressing its fruits as evidence. APPENDIX "E" DISSENTING OPINION OF CHIEF JUSTICE DIXON LOUISIANA SUPREME COURT CONSISTING OF PAGE 1 SUPREME COURT OF LOUISIANA No. 82-KK-2859 STATE OF LOUISIANA Versus LILLIAN THOMPSON DIXON, Chief Justice (dissenting) I respectfully dissent. All it would take to make this search legal is a warcant. OPPOSITION BRIEF RIGINAL IN THE DISTRIBUTED AUG 13 1984 SUPREME COURT OF OCTOBER TER\M, i LILLIAN THOMPSON, VERSUS LOUISIANA, Suprame Court US FILED 13 198¢ AUG THE UNITED STATES ALEXANDER L SPEVAS Cc