Appellees Brief — Johnson v. Louisiana

‘TEED

FEB 9. 1977

E. ROBERT SEA

IN THE VER, CLERK

Supreme Court of the United States

October Term, 197"

No. stat 69- 503 Ss

FRANK JOHNSON

versus

STATE OF LOUISIANA

Appeal From the Supreme Court of Louisiana

BRIEF OF THE STATE OF LOUISIANA, APPELLEE

JACK P. F. GREMILLION,

Attorney General of Louisiana

JIM GARRISON,

District Attorney

For the Parish of Orleans

LOUISE KORNS,

Assistant District Attorney

For the Parish of Orleans

Criminal Courts Building

2700 Tulane Avenue

New Orleans, Louisiana 70119

504 - 822-2414

SUBJECT INDEX

Page

STATEMENT OF THE CASE ....................-. 1

ARGUMENT:

I A CONVICTION OR ACQUITTAL BY

MAJORITY VERDICT OF THE JURY

VIOLATES NEITHER THE DUE PROC-

ESS CLAUSE NOR THE EQUAL PRO-

TECTION CLAUSE OF THE FOUR-

TEENTH AMENDMENT TO THE UNIT-

ED STATES CONSTITUTION .............. 3

A. Due Process ........................ 8

B. Equal Protection... .............. 12

II THE MAJORITY SYSTEM AFFECTS

THE VERDICT IN ONLY A TINY MI-

NORITY OF CASES 2... 22.10.50 5 ec ee eee: 17

III NO WARRANT IS NEEDED FOR AN

ARREST BASED ON REASONABLE

CAUSE ........ 0 ee 21

A. There Was Reasonable Cause

For The Arrest .................... 22

B. There Was No Need To Obtain A |

Warrant ..................000000.. 24

CONCLUSION ............ ee Meee eee eee, 35

CERTIFICATE ................ 00 c ccc. 36

TABLE OF AUTHORITIES

Cases

Bailey v. United States, 261 F.2d 870 (5th Cir.

1958) 20 cee. 31

i

i

FA

4

i

;

*

LEONEL.

ELLE ETE EIEN LI FTES

Sey oo cote,

sr esiben Gl

sou wae

Re, RR ee eee Sack

II

AUTHORITIES (Continued)

Page

Baldwin v. New York, 399 U.S. 66 (1970) ...... 4,19 |

Brinegar v. United States, 338 U. S. 160, 175

(1949) 2.002. ee. ioe e eee e eee anes 23

Bynum v. United States, 262 F.2d 465 (D.C.

Cit TODS) ack eine yes deve cane sees enwox ences 32

Carroll v. United States, 267 U.S. 132, 162

(1925) occ ee ouc rs tebegedeineesnusks +: 23, 30

Chimel v. California, 395 U.S. 752, 778-780

(1969) ..0 0 eee 27, 30

Coffin v. United States, 156 U.S. 432 (1895) .... 9,11

Davis v. Mississippi, 394 U.S. 721 (1969)... . 31, 32, 33

Draper v. United States, 358 U.S. 307, 310

(1959) ..... er ee ee 25

Duncan v. Louisiana, 391 U.S. 145 (1968) ...... 4,19 f

Fournier v. Gonzalez, 269 F.2d 26, 28 (1st Cir.

1959) 22 eee 10

Gardner v. Michigan, 199 U.S. 325 (1905) ...... 12

Henry v. United States, 361 U.S. 23, 98, 100-101

(1959) ............ errr err ee tree 26, 30

Hibdon v. United States, 204 F.2d 834, 838 (6th

Cir: 1953) 20... ge ce Se cece eee 10, 11

Hoffa v. United States, 385 U.S. 293 (1966) ...... 19

In re Winship, 397 U.S. 358 (1970) .............. 9

Ker v. California, 374 U.S. 23 (1963) ............ 26

McCray v. Illinois, 386 U.S. 300 (1967) .......... 23

a ————

III

AUTHORITIES (Continued)

| Page

Mille~ v. United States, 357 U.S. 301 (1958) ...... 24

Odom v. United States, 403 F.2d 45 (6th Cir.

1968) 2 31

R. v. Adams, (1961) 1 W.L.R.106................ 7

R. v. Bateson, (1969) 3 All E.R. 1372.........__. 7

Semayne’s Case, 5 Coke 91, 77 Eng. Rep. 194

(K.B. 1604) ..00000 22, 29

Sibron v. New York, 392 U.S. 40, 66 (Peter’s |

Case) (1968) .......... 23 |

State v. Green, 7 La.Ann. 518, 520 (1852) ...... 4,13 |

State v. Johnson, 230 So.2d 825, 325-332 (1970) .. 3, 34 |

State v. Lewis, 129 La. 800, 56 So.2d 893 (1911) .. 13 |

State v. Robbins, 176 Ohio St. 362, 199 N.E.2d |

742 (1964) 2 9

Terry v. Ohio, 392 U.S. 1 (1968) .............. 31

United States v. Coplon, 185 F.2d 629, (2nd

Cir. 1950) 00. 24

United States v. Di Re, 332 U.S. 581 (1948) .... 24

United States v. Montos, 421 F.2d 215, (5th Cir. .

|) 31 ,

United States v. Wade, 388 U. S. 218 (1967) ...... 33

Williams v. Florida, 399 U.S. 78 (1970) .... 7, 8,9, 19

Wilson v. Schnettler, 365 U.S..381 (1961) ........ 26

Wong Sun v. United States 371 US. 471 (1963) .. 26

Yick Wo v. Hopkins, 118 U.S. 356 (1886) _....... 12

x4 -

a

IV |

AUTHORITIES (Continued)* |

Page

Textbooks, Law Review Articles, etc.

American Bar Association, Standards Relat-

ing To Trial By Jury (1968) ............ 18, 19

Bloomstein, The Jury System (1968) .......... 19

Carlisle, The Criminal Justice Act 1967, 1967 N

Crim.L.Rev. (Eng.) 613 .................... 18 x

Comment, On Instructing Deadlocked J uries, .

78 Yale L.J. 100 (1968) ........... ...... 15, 16

Comment, Stop And Frisk, 63 N.W.U.L.Rev.

837 (1969) ...0 ee 31

Current L.Bk. 1967, sec. 2188 (ed. Burke, 1968) ....7

Devlin, Trial By Jury (1956) .......... 6

Fisher, Laws of Arrest (1967) .............. 21, 31

J. Crim. L. (Eng.), V 32 (1968) ..................1

Kalven & Zeisel, The American Jury

(1966) ...... 02 eee. 14, 15, 16, 17, 18

Leagre, The Fourth Amendment And The

Law Of Arrest, 54 J.Crim.L.C. & PS.

(1963) eect. 21, 30, 31

Majority Verdicts, 116 New LS. (pt. II) 1186,

1620 (1966)... eee eee eee. 6, 10, 19

Orfield, Criminal Procedure From Arrest To

Appeal (1947) .......... cece eee ce eee eeees 21

Perkins, The Law of Arrest, 25 Iowa L.Rev.

201 (1940) ....... 20... eee eee 21, 29

V

AUTHORITIES (Continued)

Page

Roydhouse, Criminal Law and Criminal Jus-

tice Acts 1967 (1968) ...................... 19

Ryan, Less Than Unanimous J ury Verdicts

In Criminal Triais, 58 Crim.L.C. & PS.

(1967) 2200. 5, 9, 20

Samuels, Criminal Justice Act, 31 Modern

L.Rev. (1968) .................. 6, 7, 10, 12, 19

Schwartzman & Stein, Law of Personal

Liberties (1955) 600.2... 21

Thayer, The Jury And Its Development, 5

Harv.L.Rev. 249 (1892). ..................... 6

Unanimous Criminal] Verdicts and Proof Be-

yond a Reasonable Doubt, 112 U.Pa.L.

Rev. 769 (1964) .................... re 11

Waiver of Jury Unanimity-Some Doubts A-

bout Reasonable Doubt, 21 U.Chic.L. Rev.

438 (1954) 0 10

Wigmore, Evidence, v. 9, Sec. 2497 (3d ed.

a) ee 11

Wilgus, Arrest Without A Warrant, 22 Mich.L.

~ Rev. 541 (1923-24) 2.000 21

Wolbrette, Detention For Questioning in lou-

isiana 39 Tul.L.Rev. 69 (1964) 20.0000. 0 0. 31

Nhe hres Caran

' . or of Re eOBAEA TNS ER RN

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1970

No. 5161

FRANK JOHNSON

versus

STATE OF LOUISIANA

Appeal From the Supreme Court of Louisiana

BRIEF OF THE STATE OF LOUISIANA, APPELLEE

STATEMENT OF THE CASE

At about 3:30 on the afternoon of December 26,

1967 Eugene Frischertz, route salesman for the Coca-

Cola Bottling Company, was sitting in his truck get-

ting ready to pull away from Brown’s Grocery at 2139

Third Street in New Orleans when an armed robber

pointed a revolver at him and demanded all of his

money. R. 66-67. Frischertz handed the bandit $600.00

belonging to the Coca-Cola Company, the checks from

the day’s deliveries, and $31.00 of his own money.

The gunman fled on foot and Frischertz used the tele-

phone in the grocery to summon the police. R. 79.

When the police arrived the route salesman gave them

a description of the robber. R. 80-81.

:

SON ANN PMNS IN MER Ades

act ONT

SIE SORE LG ee RAS. OMAN ea

*

The New Orleens Police around this time also re.

ceived reports of other armed robberies of truck driv.

ers. R. 18, 57.

Sometime during the next few weeks officers oj

the New Orleans Police Department got word from

a confidential informer that Frank Johnson, Appellant

herein, and another man had recently been involved

in the armed robberies of several truck drivers. The

police obtained from the Bureau of Identification a

photograph of Frank Johnson and the other man men-

tioned by the informant,,placed these two pictures in

a group with others, and showed the photographs to

one of the victims, a driver employed by Brown’s

Velvet Dairy Products, Inc., who hid also been robbed

recently. This driver positively identified Frank John-

son as the person who had held him up, marking

Johnson’s picture with his initials and the date. R. 17-18

55-56, 85-86. .

‘On January 20, 1968, members of the New Orleans

Police Department went to Frank Johnson’s house

around six-thirty in the morning. They were admitted

by Johnson’s wife, found Johnson under the bed and

arrested him for armed robbery. R. 18, 38, 58-60. Lou-

isiana concedes that the officers had no warrant of

arrest for Appellant.'

INo evidence pertinent to the instant case was seized by the police

in the search following Johnson’s arrest. R. 17, 61-62. In this

connection this Court’s attention is called to the fact that

the Motion to Suppress filed by Appellant prior to trial

(see R. 4, 10) was overruled as moot, R. 17, and the only

physical evidence offered by the prosecution at the trial of °

this case was a photograph of the pretrial lineup, Exhibit S-1,

at which Appellant was identified.

A few days later Frischertz picked Johnson out of

a police lineup and identified Appellant as the man

who had robbed him while Frischertz was working

his Coca-Cola route on December 26, 1967. R. 68, 83.

On February 14, 1968 Frank Johnson was charged

in a bill of information filed by the District Attorney

for the Parish of Orleans with armed robbery of Eu-

gene Frischertz in the amount of $631.00. See Art. 64

La. Crim. Code. The accused pleaded not guilty. He

was tried, found by nine of the twelve man jury to

be guilty as charged, and sentenced to serve 35 years

in the Louisiana State Penitentiary. He appzzaled to

the Louisiana Supreme Court, which affirmed his con-

viction. State v. Johnson, 255 La. 314, 230 So.2d 825

(1970). He appealed to this Honorable Court, which

set the matter down for argument. In this Court Ap-

pellant complains of 1) the nine out of twelve jury

verdict, and 2) his arrest without warrant.

ARGUMENT

I

A Conviction or Acquittal by Majority Verdict

of the Jury Violates Neither the Due Process

Cleuse nor the Equal Protection Clause of the

Fourteenth Amendment to tie United States Con-

stitution

Article 7, Section 41, of the Louisiana Constitution

pertinently provides

“Cases, in which the punishment rnay be at

hard labor, shall be tried by a jury of five, all

4 . e

of whom must concur to render a verdict;

cases, in which the punishment is necessarily

at hard labor, by a jury of twelve, nine of

whom must concur to render a verdict; cases

in which the punishment may be capital, by

a jury of twelve, all of whom must concur to

render a verdict.? (Italics ours)

Implementing the foregoing constitutional mandate,

Article 782 of the Louisiana Code of Criminal Proce-

dure stipulates:

“Cases in which the punishment may be cap-

ital shall be tried by a jury of twelve jurors,

ait of whom must concur to render a verdict.

Cases in which the punishment is necessarily

at hard labor shall be tried by. a jury com-

posed of twelve jurors, nine of whom must

concur to’render a verdict. Cases in which

the punishment may be imprisonment at hard

labor, shall be tried by. a jury composed of

five jurors, all of whom must concur to rend-

er a verdict. Except as provided in Article

2The nine out of twelve jury first appeared in the Louisiana Cor-

stitution of 1898. See also La. Const. 1913, Art. 116. No

explanation of why the majority verdict was adopted by Louisi-

ana in 1898 has been found. But see State v. Green, 7 La.Ann.

518, 520 (1852) (“The frequency of their (the jury’s) dis

agreement is undoubtedly a great evil, and perhaps would

justify a constitutional or legislative provision for the verdict

of a majority.’’)

The first sentence of Art. 7, Sec. 41, of Louisiana’s present

constitution, which provides for a judge trial in misdemeanor

cases has, of course, been modified by this Court’s decision in

Duncan v. Louisiana, 391 U.S. 145 (1968), and Baldwin ».

New York, 399 U.S. 66 (1970).

780, trial by jury may not be waived.”$ (Italics

ours )

Various theories have been advanced to explain the

unanimous verdict requirement in jury trials which

exists in many jurisdictions. One notion is that in

centuries past there were very few ri'es to assure the

accused a fair trial and that the practice of requiring

unanimity among the jurors in order to convict was.

developed to protect the accused. Another theory is

that the English Crown often exerted pressure on the

judges to convict, and that to shift the pressure from

themselves the judges initiated the unanimity rule. A

third explanation is that unanimity was required to

counterbalance the. extremely harsh punishments

which were imposed on convicted felons in times past.’

See Ryan, Less Than Unanimous Jury Verdicts in

Criminal Trials, 58 J. Crim. L., C. & P. S. 211, 212 (1967).

The explanation offered by Lord Justice Devlin — ,

that the unanimity rule developed by chance — is

probably the correct one. In trial by compurgation,

which existed in England in medieval times, twelve

jurors were assembled to swear to the validity of a

party’s oath, and additional jurors were brought in

until cne parity had twelve compurgators swearing to

his position. As the function of the jury gradually shift-

ed to judging credibility rather than swearing to it,

the practice of adding to the original twelve jurors

Art. 780 La. Code Crim. Proc. provides that a jury cannot be

waived in either a capital case or one in: which the imprison-

ment is necessarily at hard labor. Thus a jury could not have

been waived in the present case.

6

was abandoned, but the requirement that the Crown

obtain twelve votes to convict was kept. See Devlin,

Trial By Jury 48 (1956); see also Thayer, The Jury And

ts Development, 5 Harv.L.Rev. 249, 261 (1892).

Thus unanimity in criminal proceedings, which ex-

isted in England at the time this country was col-

onized, evolved from a type of majority verdict sys-

tem which required that at least twelve of the jurors ©

support the verdict.

At the present time many foreign and common law

systems, notably former British territories, operate a

majority system. See Samuels, Criminal Justice Act,

31 Modern L. Rev. 16, 25 (1968). The Scots have a

long history of simple majority verdicts (8 to 7).

See Majority Verdicts, 116 New L. S. (pt. II) 1186

(1966). Moreover, in 1967 England itself, the originator

of the jury system as we know it, adopted majority

verdicts in criminal trials The Criminal Justice Act

enacted in that year provides in c. 80, s. 13, that the

verdict of a jury in criminal proceedings need not

be unanimous if in a case where there are at least

eleven jurors ten agree on the verdict, or in a case

where there are ten jurors, nine agree on the verdict,

but that the court shall not accept a majority ver-

dict of guilty unless the jury has deliberated for at

aIn Scotland in addition to guilty and not guilty there is a third

possible verdict of “not proven”. Majority Verdicts, 116 New

L. J. (pt. II) 1186 (1966).

least two hours. See 47 Halsbury’s Statutes of England

381 (Cont. Vol. 1967).5

As this Court knows, in colonial times Connecticut

permitted majority dec:sion in case of continued fail-

ure to agree, Pennsylvania allowed majority verdicts,

and the Carolinas also abandoned the unanimity re-

quirement. See Williams v. Florida, 399 U.S. 78 (1970),

n. 45, at 399 U.S. 98. Further, majority jury verdicts

are legal in criminal cases in several jurisdictions in

the United States toaay, in addition to Louisiana. Thus,

in Oregon 10 out of 12 jurors may return a verdict

of guilty except in murder cases, Art. I, Sec. 11,

Ore. Const.; in Texas 9 out of 12 jurors may render

a verdict in all criminal cases below the grade of

felcny, Art. V., Sec. 13, Tex. ‘Sonst; in Montana 4 out

of 6 jurors can render a verdict in misdemeanor cases,

Art. III, Sec. 23, Mont. Const.; in Idaho a five out

of six verdict is possible in misdemeanor cases, Art. I,

Sec. 7, Idaho Const.; and in Oklahoma a three-fourths

verdict can be returned in misdemeanor cases, Art.

’There are no alternate jurors in England. If during a trial a

juror dies, or becomes ill, or for some other reason is dis-

charged by the court, the remaining jurors continue to func-

tion as a valid jury provided the number is not reduced below

nine. See Criminal Justice Act 1965, 45 Halsbury’s Statutes

of England 215 (2d ed. 1965).

For the Practice Direction on majority verdicts, See Current L.

Bk. 1967, sec. 2188 (ed. Burke, 1968); see also 32 J. Crim. L.

(Eng.) 30-32 (1968).

For criticism of the required two-hour deliberation time (an

“arbitrary and artificial two-hour safeguard’), see Samucls,

Criminal Justice Act, 3 Modern L.Rev. 16, 25 (1968). See also

R.V. Bateson, (1969) 3 All E.R. 1372; R.V. Adams, (1969) 1

W.L.R. 106, for cases dealing with technicalities as to how

the two hour deliberation time should be computed.

ad

3s

ae

8

II, Sec. 19, Okla. Const. Also in Puerto Rico 9 out

of 12 jurors can convict of a felony, Art. II, Sec. ll,

P. R. Const.

In Williams v. Florida, supra, this Couxt rejected

the idea that every feature of the jury as it ex-

isted at common law was necessarily included in the

Constitution wherever that document refers to a jury.

This Court’s opinion in Williams also noted the fact

that although as introduced by James Madison in the

House, the Amendment relating to jury trial in crim-

inal cases would have provided that the jury verdict

must be, among other things, unanimous, and _ the

Amendment passed the House with this requirement,

the requisite of unanimity was deleted in the Senate,

and as adopted the Sixth Amendment ensured an ac-

cused:

“the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously as-

certained by law. ...” (399 U.S. at 94)

A. Due Process

The issue for decision in the instant case is whether

a majority jury verdict in State criminal trials vio-

lates the Due Process Clause of the Fourteenth Amend-

ment to the United States Constitution by infringing

upon the right of a person accused of a crime to be

convicted only upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with

which he is charged. See In re Winship, 397 U.S. 358

(1970); Williams v. Florida, supra, n. 46 at 399 USS.

100.

It is Louisiana’s position herein that majority jury

verdicts in no way infringe upon the reasonable doubt

principle and hence do not deprive an accused per-

son of Due Process of Law.

In Louisiana as in other common law jurisdictions

the court in criminal trials always charges the jury

that the accused is presumed by law to be innocent

until his guilt is proven beyond a reasonable doubt,

and that it is the duty of the jury, if not convinced

of the guilt of the accused beyond a reasonable doubt,

to find him not guilty. See Art. 804 (1) -(3) La. Code

Crim. Proc.; Coffin v. United States, 156 U.S. 432 (1895);

In re Winship, supra.

The question here seems to be whether the jury

reaches its verdict as a body or as separate individuals.

If we accept the view that the jury arrives at its

verdict as a body, or entity, then certainly the burden

or proof is lower if the prosecution does not have to

gonvince all of the members of the jury of the guilt

of the accused by proof beyond a reasonable doubt.

‘However, the fallacy of the entity approach has often

been demonstrated by, among other things, pointing

out that under this theory the reasonable doubt of

one juror would result in an acquittal instead of the

hung jury which actually results. See State v. i.obbins,

176 Ohio St. 362, 199 N.E.2d 742 (1964); Ryan, Less

Than Unanimous Jury Verdicts in Criminal Trials, 58

J.Crim. L. C. & P. S. 211, 215 (1967).

es,

Ne

i» > ~ — » . <4, wo

eae OS Ain ae Re x et 5 WE ROE Ke

Bat Baerhices ee oe) Wie ites

10

On the other hand if we believe (as Louisiana does)

that the jury decides a case as individuals, then the

burden of proof beyond a reasonable doubt is in no

way altered by the number of jurors who must be

convinced of guilt to the constitutionally accepted de-

gree. The burden remains the same because the ma-

jority who are empowered to decide must be con-

vinced beyond a reasonable doubt. See Fournier v.

Gonzalez, 269 F.2d 26, 28 (1st Cir. 1959); Samuels,

Criminal Justice Act, 31 Modern L.Rev. 16, 24 (1968).

It has been suggested that the factor which changes

as the number of jurors on the panel who must be

convinced of guilt is reduced is the prosecution’s bur-

den of persuasion. See Waiver of Jury Unanimity —

Some Doubts About Reasonable Doubt, 21 U. Chi. L.

Rev. 438, 443 (1965), compare Hibdon v. United States,

204 F.2d 834 (6th Cir. 1953). Whether the prosecution’s

burden of persuasion is in fact lowered in cases decided

by majority jury verdict is extremeiy doubtful, as will,

be shown in Part II of this brief. Certainly there exist.

no figures based on actual experience which sugees

that the percentage of convictions in criminal cases is

higher in jurisdictions which use the majority jury ver-

dict.

In urging the adontion of the 1967 majority verdict

law the English Home Secretary, Mr. Roy Jenkins, |

said that he did not believe that there was danger that

the new rule would damage the innocent, and pointed —

to the example of the Scots, who have long applied

a system of simple majority verdicts without such

consequences. See Majority Verdicts, 116 New LJ.

11

~

1620 (pt. II 1966). The English example is certainly

persuasive when we remember that the presumption

of innocence and its corollary, the reasonable doubt

standard, originated in England, and were brought to

this country by Englishmen.

Moreover, it is incorrect to assume, as Appellant

herein does, that a unanimous verdict is “inextricably

interwoven with the required measure of proof.”

(Hibdon v. United States, supra, at 204 F.2d 838).

Studies have shown that the unanimity rule and the

reasonable doubt principle developed at different times

and under different circumstances. See Unanimous

Criminal Verdicts and_Procf Beyond a Reasonable

Doubt, 112 U. Pa. L.Rev. 769 (1964). As a matter of

fact, the concept that in. a criminal case guilt must

be established beyond a_reasonable doubt is a com-

paratively recent one, having been applied at first

only in capital cases and having developed gradually

as courts in this country and England struggled with

the proper terms to use in instructing the jury as

to the degree of certainty which must exist in the

jurors’ minds in order for them to reach a guilty

verdict. See 9 Wigmore, Evidence 316-325, sec. 2497

(3d ed. 1940). Of course the presumption of innocence

has long been rooted in English common law. See

Coffin v. United States, 156 U.S. 432 (1895).

It is important to remember that a person accused

of crime can be acquitted by a majority verdict as

well as convicted. Proponents of the English majority

verdict law point out that an accused would surely

prefer an acquittal 10:2 than a disagreement and a re-

MED hale i a

Poe ROT MRE Re RGR

12

trial. See Samuels, Criminal Justice Act, 31 Modem

L.Rev. 16, 25 (1968).

B. Equal Protection

Louisiana is of the respectful belief that the con-

stitutional and statutory provisions here at issue —

that criminal cases in which the punishment is neces-

sarily at hard labor shall be tried by a jury com-

posed of twelve jurors, nine of whom must concur |

to render a verdict — do not deprive Appellant of

the Equal Protection of the Laws guaranteed to him

by the Fourteenth Amendment to the United States

Constitution, for the reason that all persons in similar

circumstances are tried by the same type of jury.

Thus, in being found guilty of armed robbery, for whicn

the punishment in Louisiana is necessarily at hard la-

bor, by the concurrence of nine out of twelve jurors,

Appellant has been treated exactly like all persons

in Louisiana who are tried for crimes for which the

punishment is necessarily at hard labor. See Yick Wo

v. Hopkins, 118 U.S. 356 (1886); compare Gardner v.

Michigan, 199 U.S. 325 (1905).

Moreover, the distinction which the Louisiana Leg-

islature has made in the size and method of voting

of juries in this State — that cases in which the

punishment may be at hard labor shall be tried by

a jury of 5, all of whom must concur to render a

verdict; that cases in which the punishment is neces-

sarily at hard labor shall be tried by a jury of 12,

9 of whom must concur to render a verdict; and that

cases in which the punishment may be capital shall

— —a—_

13

be tried by a jury of 12, all of whom must concur

to render a verdict — is not arbitrary, unreasonable,

or capricious, as contended by Appellant, but, on the

contrary, is calculated to expedite the administration

of criminal justice in Louisiana, a purpose which

grows more laudable as our criminal dockets become

daily more congested and the administration of crim-

inal justice becomes slower and more cumbersome. i

See State v. Green, 7 La.Ann. 518, 520 (1852), in which ;

the Louisiana Supreme Court over a century ago sug- _ &§

gested that the remedy fcr the jury’s frequert dis-

agreement might “be the majority verdict; State v.

Lewis, 129 La. 800, 56 So.2d 893 (1911).

The provision for majority verdicts (9 out of 12)

in cases necessarily punishable at hard labor reduces

the time it takes to try each case and also diminishes

the necessity for a retrial due to a hung jury. Sim-

ilarly, the five man unanimous jury required for

crimes which may be punishable at hard iabor saves

manpower and time, as less jurors are needed for each

case, less time is spent on voir dire examination, and

it takes less time for five men to reach unanimity

than for 9 or 12 men to arrive at this result. The

provision that in capital cases the jury must be of

12 men and must reach a unanimous verdict is prob-

ably of more psychological than real value, as the

thought of putting a fellow man to death fills most

persons with some degree of awe and guilt.

It must be remembered that there are available no

figures based on actual study and analysis to sug-

gest that the percentage of convictions in criminal

:

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%

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re. fas At ee ee meant ee

14

tases decided by a majority jury verdict is any high-

er than in those cases decided by a unanimous ver-

dict, because to our knowledge no one has undertaken

such a project. However, the experience of Scotland,

of various members of the British Commonwealth, and

of England since 1967 strongly suggests otherwise.

Moreover, figures compiled by Kalven and Zeisel in

their recent book The American Jury, which analyses

the legal decision-making process and attempts to

evaluate the relative performances of judge and jury

in similar cases, show that if allowed to deliberate

long enough juries arrive at unanimity ninety-five per-

cent of the time and hang the remaining five percent

of the time, and that of the cases decided by unani-

mous verdict ninety-five percent of the time, the con-

viction-acquittal ratio is roughly 2 convictions for 1

acquittal. See Kalven and Zeisel, The American Jury

56-58. 461. 488 (n. 13) (1966). Moreover the authors’

conclusion that the jury generally decides the case

before deliberation begins, see pp. 488-489, casts

doubt on the value of forcing the jury to deliberate

for an extendea period of time.

Thus, as shown by Kalven and Zeisel, Lousi-

ana’s 9 out of 12 jury, if allowed to deliberate

long enough, would inevitably reach unanimity ninety-

five percent of the time, at a ratio of 2 convictions

to 1 acquittal. Additionally, of the five percent of

cases which result in hung juries in unanimous ver-

dict cases, 56 percent would be decided by a majority

vote of 9 out of 12 (or 10 out of 12, or 11 out of 12)

jurors — or only about three percent of all the cases

tried by this type of jury. (56% x 5.5%) Of this three

—

15

percent of cases decided by 9 out of 12, etc., jurors

(that would hang in Louisiana in capital cases and

cases in which the punishment may be at hard labor)

the conviction-acquittal ratio is at a somewhat higher

rate, or approximately 3 1/2 convictions to 1 acquittal

instead of 2 convictions to 1 acquittal. Id. at pp. 460-

461. However, we must remember that in some of the

five percent of cases which end in a hung jury in the

unanimous jury cases the accused will be convicted

on retrial, at a ratio we do not know. Consequently

it appears that there is no appreciable difference in the

percentage of convictions by a majority verdict as

compared to a unanimous verdict. That is, it appears

that the majority of the jurors have the same high

threshold of reasonable doubt as the entire jury,

which interprets the proof beyond a reasonable doubt

principle more generously than does a judge. Id. at

p. 189. The explanation of the foregoing is found in

The A:.erican Jury at p. 488-489, where the authors

conclude that the function of the jury’s deliberation

process is not so much to decide the case:as to bring

about a consensus.® See also Comment, On Instructing

Deadlocked Juries, 78 Yale L.J. 100, 109 (1968).

Thus in the instant proceedings there was a 95%

chance that the jury which convicted Appellant would

have reached unanimity had it continued its deliber-

ations beyond the 9 to 3 stage instead of returning

to court with its verdict at this pcint. There was also

a 2% chance that the jury would hang at 8:4, 7:5,

‘The deliberation process might well be likened to what the

developer does for an exposed film; it brings out the picture,

but the outcome is pre-determined.”

-ootemnen atin —

16

or 6:6, with at least a 50% (and perhaps higher) chance

that Appellant would be convicted later. In view of

the jury vote which actually occurred herein (9:3),

there was almost no chance that Appellant could have

been acquitted, as figures in Kalven and Zeisel’s book

show that “only with extreme infrequency does the

minority succeed in persuading the majority to change

its mind during the deliberation.” The American Jury,

at p. 488. Of course, prior to trial there was a 33%

chance of Appellant’s being acquitted by a unanimous

verdict plus an additional appruximately 1% chance of

acquittal by a majority verdict.

Furthermore, we can conclude that the 9, 10, or ll

jurors out of 12 who vote for conviction or acquittal

in Louisiana in cases necessarily punishable at hard

labor believe firmly in their decision and are not

pressured into the majority view, because if any one

of them wants to dissent from the majority he has

at least one supporter to back up his’ position, a sig-

nificant factor in the opinion of those who have studied

the manner in which juries operate. See Comment,

On Instructing Deadlocked Juries, 78 Yale L.J. 100,

110 (1968) (“A single ally gives most dissenters ‘he

courage tu voice their true convictions.”); Kalven and

Zeisel, op. cit. supra, p. 463.

In view of the fact that there is no factual basis

to suppose that Appellant ran a higher risk of con-

viction when triec by a jury of 12, 9 of whose mem-

bers could return a verdict, and the further fact that all

accused persons in Appellant’s class are similarly tried

by majority verdict, the State of Louisiana respect-

—

17

fully suggests to this Court that there is no merit to

Appellant’s Equal Protection argument.

The Majority System Affects the Verdict in Only

a Tiny Minovity of Cases

As was poined out above, Kalven and Zeisel in

their recent book The American Jury show that if

allowed to deliberate long enough the jury reaches

a unanimous verdict in approximately 95 percent of

all cases, and that in approximately 5 percent of all

cases the jury hangs. Moreover, the conviction-acquit-

tal ratio of the unanimous verdicts arrived at in 95

percent of the cases is 2 convictions for 1 acquittal.

See Kalven and Zeisel, The American Jury 56-58, 461,

488 (n. 13) (1966).

Thus we may assume that in Louisiana juries would

eventually arrive at a unanimous verdict, at a con-

viction-acquittal ratio of 2 to 1, in 95 percent of all

cases in which punishment is necessarily at hard

labor if the jury continued its deliberations beyond

the 9 to 3 stage. Further, from Table 25 of The

American Jury, p. 460, which shows the last vote of

hung juries, we can also assume, as do Kalven and

Zeisel, that of the remaining 5 percent of cases in

which the jury hangs in unanimous verdict cases, a

9:3. 10:2, or 11:1 verdict would be reached in Louisi-

ana in cases necessarily punishable at hard labor 56

percent of the time — or in approximately 3 percent

of the total number of cases of this type tried in

Louisiana.

18

When we remember that of this 3 percent of the

cases which are decided in the 9 out of 12 category

when the unanimous jury hangs, the accused is often

convicted on retrial in the unanimous jury cases,’ we

readily see that Louisiana’s majority jury verdict only

actually affects a very small minority of cases. It

is also relevant to note that The American Jury, which

deals, among other things, with the higher rate of

convictions in judge trials as compared to jury trials,

does not indicate that there is a higher conviction

rate in jurisdictions like Louisiana which allow ma-

jority jury verdicts in criminal cases; on the con-

trary, the authors suggest wider use of the majority

verdict in order to reduce the number of hung juries.

See p. 461. See also Carlisle, The Criminal Justice

Act 1967, 1967 Crim. L. Rev. (Eng.) 613, in which the

author notes that the new English majority verdict

law is “unlikely to affect more than a tiny minority

of cases”.

Although the majority verdict actually affects the

type of verdict ultimately arrived at in only a small

fraction of all the cases tried in this manner, the sys-

tem saves considerable time in all cases in which it

is used because the jury returns to the courtroom with

its verdict as soon as nine of its members agree eith-

er to convict or acquit.

7The proportion of convictions that are obtained after the first

trial ends with a hung jury is not known. See A.B.A. Stand-

ards Relating to Trial by Jury 27 (1968). Kalven and Zeisel

suggest that roughly half the hung jury cases end up as

an acquittal, but state that they were unable to obtain reliable

statistics on the final disposition of the hung jury cases, and

that the practice varies according to jurisdiction. See The

_American Jury, pp. 57-58 n. 4.

19

Additionally, it would appear that prevention of op-

pression by the Government, which is the primary

purpose of the jury trial (see Duncan v. Louisiana,

391 U.S. 145 (1968): Wilitams v. Florida, 399 U.S. 78

(1970); and Baldwin v. New York, 399 U.S. 66 (1970) )

is in no way affected by the use of a majority ver-

dict, as there still exists a body of laymen whose

judgment is interposed between the accused and his

accuser and who are less likely to function or appear

as but another arm of the Government that is bring-

ing the charge.

In England the Government’s chief reason for chang-

ing from the unanimous to the majority jury verdict

was the mounting problem of corruption or intimida-

tion of jurors (“‘nobbling”) to prevent a unanimous

vote for conviction, chiefly in cases involving organ-

ized crime, and also in order tc neutralize the perverse

juror. It was pointed out that failure of the jury to

arrive at a verdict wastes time, money, and judge

power, especially in a long case. See Majority Verdicts,

116 New L.J. (pt. IIT) 1186, 1620 (1966); Samuels, Crim:

inal Justice Act, 3 Modern L.Rev. 16, 24 (1968); Royd-

house, Criminal Law and Criminal Justice Acts 1987,

p. 117 (1968); Bloomstein, The Jury System, pp.

112 (1968). For an example of “nobbling” in this coun-

try, see Hoffa v. United States, 385 U.S. 293 (1966),

involving the Test Fleet trial, which ended with a hung

jury.

It is also relevant to note tnat in its Minimum Stand-

ards For Criminal Justice the American Bar Associa-

tion has recently recognized “the propriety of less than

unanimous verdicts, as now permitted in six states.”

aptee

ae

e.

*

E

.

:

EGIL le BEA MEET Shi

| ener iia Cee NaN tome

20

See Standards Relating to Trial By Jury 28, sec. 1.1(d)

(1968).

One of the advantages of federalism is that it permits

different courses of action to be follow. * in different

States simultaneously. At the present uine England

has changed over to rnajority verdicts,® and leading

authorities in this country have approved the use of

majority verdicts in order to improve the administra-

tion of criminal justice.

In Louisiana and the other States which presently

use the majority verdict system we have an unpar-

alled opportunity to study this procedure in actual op-

eration, and to compare its advantages and disadvan-

tages with the unanimous verdict procedure. No one

has ever contended, much less demonstrated, that the

rate of conviction is appreciably, or even slightly, high-

er ins jurisdictions such as Scotland and Louisiana

which employ majority jury verdicts; on the other

hand, it has been effectively shown that time. money

and judge power are saved through use of this proce-

dure. It is respectfully submitted to this Court that

Louisiana should be allowed to retain its majority ver-

dict procedure, which has served it well in the past

72 years.

sIt has been suggested that the English system is more flexible

than ours because the English Constitution, unlike ours, is

a product of the common law and easily adapts to changing

circumstances. Ryan, Less Than Unanimous Verdicts, 58 J.

Crim. L.C. & P.S. 211, 213 (1967).

21

Il

No Warrant Is Needed for an Arrest Based on

Reasonable Cause

Articie 213 of the Louisiana Code of Criminal Proce-

dure provides that a police officer may, without a war-

rant, arrest a person when there is reasonable cause

to believe that the person to be arrested has committed

an offense, although not in the presence of the officer.

Article 216 of the Code states that an arrest may be

made on any day, at any time of. the day or night,

and at any place. Article 224 of the Code allows an

officer who has announced his authority and purpose

to enter any dwelling in which the person to be ar-

rested is reasonably believed to be, in order to make

the arrest.

At common law it has long been the rule that a peace

officer has the right and even the duty to arrest without

a warrant a person whom he has reasonable ground

to believe has cornmitted a felony, although not in his

presence. See Fisher, Laws of Arrest, pp. 124-136, 166-

178 (1967); Perkins, The Law of Arrest, 25 Iowa L.

Rev. 201, 233-234 (1940); Schwartzman and Stein, Law

of Personal Liberties, p. 14 (1955); Leagre, The Fourth

Amendment and the Law of Arrest, 54 J. Crim. L.,

C.& P. S. 393, 403 (1963); Orfield, Criminal Procedure

From Arrest To Appeal, p. 14-23 (1947): Wilgus, Arrest

Without A Warrant, 22 Mich. L. Rev. 541, 560, 673 (1923-

24).

Further, it has been settled since early times that

an arrest for a felony can be made, with or without

BS,

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,

CMR Pe Raed th Phe PRN.

Bewseccnercs

22

a| warrant, in the house of the arrestee himself, al-

tHough generally the officer cannot break in the door

td make the arrest unless he has been refused admit-

tance after announcing his authority and purpose. See

i Case, 5 Coke 91, 77 Eng. Rep. 194 (KB.

1604) .®

A! There Was Reasonable Cause For The Arrest

The record in this case shows that approximately

thtee weeks after Eugene Frischertz, route salesman

fot the Coca-Cola Bottling Company, was robbed, Of-

ficer Theodore Feld through his superior officer, Cap-

tain Newman, received information from a confiden-

tial informer that Frank Johnson, Appellant herein,

and a Harold Hayes were engaged in armed robberies

of truck drivers. Officer Feld obtained from the Bureau

of Identification photographs of Frank Johnson and

Hayes, placed these pictures in a group with others,

and sent Detective John Lanza to show the collection

of photographs to a Marion Catalano, a truck driver

for| Brown’s Velvet Dairy, who, as the police knew,

haj also been robbed recently. Catalano picked out

pictures of Frank Johnson and Harold Hayes as the

men who had robbed him, marking the photographs

{

9“‘J. beats R. so as he is in danger of deaih, J. flies, and thereupon

hue and cry is made, J retreats into the house of T. they

who pursue him (D), if the house be kept and defended

with force (which proves that first request ought to be made)

may lawfully break the house of T. for it is at the K’s suit.”

Semayne’s Case, 77 Eng. Rep. at 196 (K.3B. 1604).

“(D) Either with or without a warrant, and whether

the pursuit is by a constable or private per-

son. Hawk. P.C.B. 2 chap. 14. 27.”

23

with his initials and the date of the offense. R. 55-56,

17-18.

Thus at the time the New Orleans Police Officers

arrested Frank Johnson they knew that several truck

drivers had teen robbed recently; they had informa-

tion from a confidential informer that Frank Johnson

had been involved in one or more of those robberies;

and Catalano, a Brown’s Velvet Dairy truck driver

who had recently been robbed, picked the photograph

of Frank Johnson out of a group of pictures which the

police showed him and positively identified Appellant

as the man who had held him up.

Reasonable (or probable) cause to make an arrest

exists, as this Court knows, when the facts and circum-

stances within the arresting officer's knowledge, and

of which he has trustworthy information, are sufficient

in themselves to justify a man of average caution in

the belief that the person he is arresting has committed

acrime. Further, in determining compliance with this

standard of reasonable cause, the degree and type of

proof required for conviction is not necessary. The

proof needed to satisfy the requirement of reasonable

cause for a warrantless arrest is commensurate with.

he term itself — that is, the probabilities and practical

considerations of everyday life on which reasonable

men can be expected to act. Carroll v. United States,

267 U.S. 132, 162 (1925); Brinegar v. United States, 338

US. 160, 175 (1949); McCray v. Illinois, 386 U.S. 300

(1967); Sibron v. New York, 392 U.S. 40, 66 (Peter’s

case) (1968).

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Louisiana respectfully suggests to this Court that the

police officers in *4e present proceeding acted upon

reasonable cause.

B. There Was No Need To Obtain A Warrant

There was no necessity fc~ the officers in the instant

case to secure a warrant in order to arrest Appellant.

Having statutory authority to make arrests without

a werrant when reasonable cause exists, see Art. 213

La. Cede Cr. Proc., police officers in Louisiana never

Swear out an arrest warrant in a case such as the

present one where they know the whereabouts of the

person to be arrested and he is within their jurisdiction.

As a practical matter, if the police had to spend half

a day or more preparing an arrest warrant with sup-

porting affidavit and submitting it to a judge for study

and approval every time they took a person into cus-

tody or picked up a runaway child, their efficiency

would be seriously impaired. It must be remembered

that the State police have the duty of preserving the

public peace, unlike federal agents, who have no gen-

eral peace keeping duties. Consequently, no broad stat-

ute permitting warrantless arrests similar to Louisi-

ana’s Article 213 of the Code of Criminal Procedure

exists in federal] law, as none is needed. However, for

many years federal arrests were governed by state

law. United States v. Di Re, 332 U.S. 581 (1948); Miller

v. United States, 357 U.S. 301 (1958); United States

v. Coplon, 185 F.2d 629, 633-635 (2d Cir. 1950); and in

the past forty years Congress has authorized various

federal officials to make warrantless arrests, e.g., 18

U.S.C. § 3052 (F.B.I. agents); 18 U.S.C. § 3053 (United

States Marshals); 18 U.S.C. § 3056 (Secret Service

25

agents); 26 U.S. § 7607 (2) (Bureau of Narcotics a-

gents).

Although the precise question here at issue was not

posed, this Court has upheld arrests without warrant

‘in situations in which there would have been time to

procure one. In Draper v. United States, 358 U.S. 307

(1959), an informant on September 3, 1956, told Marsh,

a federal narcotic agent, that Draper had recent)

taken up abode at a stated address in Denver and was

peddling narcotics to several addicts in that city. Four

days later, on September 7, the informer told the agent

that Draper had gone to Chicago the day before by

train, that he was going to bring back three ounces

of hercin and that he would return to Denver on the

morning of either September 8 or September 9, also

by train. At this time the informer gave Marsh a de-

tailed physical description of Draper. On the morning

of September 9 the agent arrested Draper as he alight-

ed from an incoming Chicago train. In its opinion in

Draper this Court set out the provisions of 26 U.S.C.

§ 7607, added by § 104 (a) of the Narcotic Control

Act of 1956, 70 Stat. 570, which allows an agent of the

Bureau of Narcotics to make an arrest without warrant

when the agent has reasonable grounds to believe that

the person to be arrested is committing a narcotic of-

fense (and which is similar to Article 213 of the Louisi-

ana Code of Criminal Procedure) and said:

“The crucial question for us then is whether

knowledge of the related facts and circum-

stances gave Marsh ‘probable cause’ within

the meaning of the Fourth endment, and

‘reasonable grounds’ within (the meaning. of

26

§ 104 (a) supra, to believe that petitioner had

committed or was committing a violation of

the narcotic laws. If it did, the arrest, though

without a warrant, was lawful ....” 358 US.

at 310. (Italics ours)

See also Ker v. California, 374 U.S. 23 (1963); com-

pare Henry v. United States, 361 U.S. 98 (1959), and

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

this Couft held arrests without warrant to be invalid

because not based on probable cause within the mean-

ing of the Fourth Amendment nor reasonable grounds

within the meaning of the arrest without warrant stat-

utes.

In Wilson v. Schnettler, 365 U.S. 381 (1961), federal

agents arrested petitioner without a warrant and

seized narcotics whic! they found on his person in the

course of an incidenté! search. Petitioner sued in fed-

eral district court to impound the narcotics, to enjoin

their use in evidence, and to enjoin the agents from

testifying against him. Although his complaint alleged

that the arrest was made without a warrant, there

was no allegations that it was made withou. probable

cause. This Court sustained dismissal of the complaint

for failure to state a claim upon which relief could

be granted. In its opinion this Court said that if the

agents had probable cause “the arrest, though without

a warrant, was lawful”. 365 U.S. at 383.

In the present case the Coca-Cola Company robbery

occurred on December 26, 1967. R. 57. On January 18,

1968 a confidential informer told Captain Newman of

the New Orleans Police Department that Appellant and

27

a Harold Hayes were involved in the armed robbery

of truck drivers. R. 56. The police got pictures of John-

son and Hayes from the B. of I., placed these photo-

graphs in a group with others, and showed them to

Marion Catalano, a truck driver for Brown’s Ve-vet

Ice Cream who had been robbed three times recently.

Catalano positively identified Appellant as the man

who had robbed him. The record does not show the

date on which Catalano made this identification, but

it was probably done on January 19, the day following

the informer’s tip because the record shows that there

was a little difficulty in finding the truck driver, who

was out on his route. R. 58-59. On January 20, two

days after receiving the confidential tip, at about six-

fifteen or si*.-thirty in the morning, Lieutenant Thev-

dore Feld of the Robbery Division and five other armed

officers went to Appellant’s home at 2135 Philip Street

in New Orleans, and knocked on the front door. The

officers had no warrant of arrest. R. 55, 58-59. When

Mrs. Johnson came to the door the officers identified

themselves as the police and said that they had come

to arrest Frank Johnson for robbery. R. 36, 50-53, 58-

60. Mrs. Johnson admitted the officers, who found Ap-

pellant under the bed and arrested him for armed rob-

bery of Catalano. R. 51, 58, 60, 104. A search of the

bedroom, the second room and the kitchen was con-

ducted in an effort to find an automatic revolver,'°®

but the search was unsuccessful in this respect, R.

61, and the police were unable to find any evidence

‘oThis search was conducted prior to this Court’s 1969 decision in

Chimel v. California, 395 U.S. 752.

aN aR

ya

EEL POI CE EI NE ILI SL ELLOS LTE ESE LNE ESE RAM Sse HES ST Gh Mth

. —

28

during this search which could be used by the prosecu-

tion during the trial of this case. R. 106-107."

Appellant was taken to police headquarters and

charged with several armed robberies. R. 63. Three

days later, on January 23, 1968, Eugene Frischertz,

route salesman for Coca-Cola Bottling Company,

picked Appellant out of a lineup and identified Appel-

lant as the man who had robbed him on December

26, 1967. R. 66-68. Appellant was represented by coun-

sel at this time. R. 49-51.

It is Appellant’s contention herein that his arrest

without: warrant was unconstitutional, that his deten-

tion following arrest was unlawful, that the lineup iden-

tification of him which was made by Frischertz during

that detention was illegally obtained, and that there-

fore his conviction should be reversed.

As a practical matter it is doubtful whether the police

officers in the present proceeding had time to obtain

an arrest warrant. Catalano’s identification of Frank

Johnson as one of the men whovhad robbed him prob-

ably took place on January 19, the day after the police

received the confidential tip involving Appellant in the

robberies of truck drivers. Johnson was arrested at

six-thirty on the following morning, January 20, 1968.

It takes at best three or four hours, and often a couple

of days, for police officers to draw up an affidavit set-

ting out reasonable cause for arrest and to submit the

11The officers picked up “a little syringe and a spoon that was

used with narcotics” which were in plain view on the mantel

piece. R. 61-62.

29

application for the warrant to a Criminal District Court

Judge for the Parish of Orleans for study and approval.

The State of Louisiana respectfully contends that no

arrest warrant was necessary and that the officers

in this case were justified in relying on the statutory

authority to arrest without warrant which has been

conferred on them by Articles 213, 216 and 224 of the

Louisiana Code of Criminal Procedure, and that be-

cause reasonable, or probable, cause to make the war-

rantless arrest existed herein there was no violation

of the Fourth Amendment

FEST Sige Bcc ARMED ein TOM

Initially Louisiana directs this Court’s attention to

the fact that historically the home has never been a

sanctuary against arrest, for the reason that ‘‘the Jib-

erty or privilege of a house doth not hold against the :

King.” Semayne’s Case, 5 Coke 91, 77 Eng. Rep. 194, é

197 (K. B. 1604); see Perkins, The Law of Arrest, 25 s

Iowa L. Rev. 201, 244 (1940). Thus it has long been

settled that society’s right to arrest one who breaks :

its laws takes precedence over the common law rule

that a man’s house is his castle.

The gereral warrants (or writs of assistance as they

were known in the American Colonies), abhorrence

of which furnished the basis for the Fourth Amend-

ment’s prohibition against unreasonable searches and

seizures, were in violation of the existing common law

tules in that they were not required to be based on

evidence giving rise to a reasonable presumption that

acrime was being or had been committed, but were,

on the contrary, blanket written authorizations given

by the English King to his officials (and good for the

;

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Beiteetcuitistosicns xing Saag

30

life of the sovereign in the case of the writ of assist.

ance) which permitted the officer holding the general

warrant or writ of assistance to arrest whomever he

wanted, according to his persona! whim and regardless

of probable cause. See Henry v. United States, 361 US,

98, 100-101 (1959); Leagre, The Fourth Amendment and

the Law of Arrest, 54 J. Crim. L.C. & P.S. 393, 396-397

(1963). Therefore, state statutes such as Article 213

of the Louisiana Code of Criminal Procedure which

permit an arrest without warrant when the peace of-

ficer has reasonable, or probable, cause to believe that

a crime is being or has been committed cannot be

likened to writs of assistance or general warrants in

the respectful view of Louisiana.

Moreover several practical aspects of the arrest pro-

cedure must be kept in mind. For one thing, the fact

of mobility which justifies the search of an automobile

without a warrant, see Carroll v. United States, 267

U.S. 132 (1925), is also present in the arrest of a person.

In this respect an arrest differs radically from a search

for inanimate property. Additionally, reasonable po-

lice practice often requires that an arrest be post-

poned, either until sufficient evidence is obtained to

furnish reasonable grounds for the arrest, as in the

case at car, or in order not to alert other participants

in the crime, vet in many cases, even after consider-

able delay, quick action by the police in making the

arrest may be necessary. Also, often by the time prob-

able cause to arrest a man has developed he is on

the verge of flight. These considerations persuaded

Congress to give the FBI the authority to arrest without

a warrant without any showing of probability of flight.

See Chimel v. California, 39% U.S. 752, 778-780 (1969)

31

(dissenting opinion of White, J.): Leagre, The Fourth

Amendment and the Law of Arrest, 54 J. Crim. L.C.

& P.S. 391, 405 (1963).

For lower federal court decisions hoik'ing that an

arrest warrant is unnecessary even if there is time

to secure one, see United States v. Montos, 421 F.2d

215, 225 (5th Cir. 1970); Odom v. United States, 403

F.2d 45 (6th Cir. 1968); Bailey v. United States, 261

F.2d 870 (5th Cir. 1958).

Further, if a warrant must be obtained for an arrest,

which can only be made if there is probable cause

to believe that a crime has been committed, must a

warrant also be. secured every time the police detain

a person for investigation? As this Court knows, the

police may detain a man for several hours for investi-

gative purposes on something less than probable cause

for arrest. In determining whether such a detention

is justifiable two factors must be considered: 1) wheth-

er the circumstances justify an investigation; and 2)

whether the extent of the detention is appropriate un-

der the existing facts. See Wolbrette, Detention For

Questioning in Louisiana, 39 Tul. L, Rev. 69 (1964);

Fisher, Laws of Arrest, Situations Distinguished From

Arrest, pp. 58-98 (1967); Comment, Stop and Frisk, 63

Nw. U.L.Rev. 837, 845-848 (1969); compare Terry v.

Ohio, 392 U.S. 1 (1968).

Davis v. Mississippi, 394 U.S. 721 (1969), relied on

by Appellant herein, presents a totally different fact

situation from the one existing in the present case.

There the only evidence the police had following a rane

were finger and palm prints on the window through

ne Ee ae Sen ET pptesethe tat ,

ee et Bai Ry eC) Prac oath a

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CESSES LAE CA ERE Fi RD TN EE

32

which the rapist had entered the victim’s home and

the victim’s vague description of her assailant as “a

Negro youth.”’ During the ten day period following the

ccmmission of the crime the police took at least 24

black youths, among them Davis, to headquarters,

where they were yuestioned briefly, fingerprinted and

released. Thereafter the police arrested Davis, al-

though no reasonable grounds to believe that he had

committed the crime existed, and two days after the

arrest, while in jail, Davis was again fingerprinted.

Later, after more evidence had been found, Davis was

tried for the rape and convicted, partly on the strength

of the fingerprint evidence. This Court set aside the

conviction on the ground that Davis’ fingerprints were

invalidly obtained on both occasions and thus were in-

admissible in evidence during Davis’ trial. Also in By-

num v. United States, 262 F.2d 465 (D.C. Cir. 1958),

cited and gvoted from with approval by this Court in

its opinior .n Davis, the arresting officer had no rea-

sonable ground to believe that Clayborne Bynum had

committed a felony.

In the case presently before the Court, on the other

hand, the arresting officers had reasonable ground

to believe that Appellant had recently robbed Marion

Catalano, a truck driver for Brown’s Velvet Dairy

Products, and it was for this reason that: Appellant

was arrested. R. 55-58.

Louisiana also respectfully contends that there is a

marked difference between the finger and palm prints

which were taken from Davis and subsequently intro-

duced as evidence at his trial and the lineup identifi-

cation of Appellant by Frischertz in the instant case.

33

The fingerprints obtained from Davis during his illegal

detention constituted concrete, tangible physical evi-

dence which was introduced by the prosecution during

the trial. In the present proceeding the prosecution’s

whole case was based on the in-court identification of

Appellant by the Coca-Cola Company truck driver

whom Appellant robbed, Eugene Frischertz. R. 66-93.

This in-court identification of Appellant by Frischertz

must be held to have a source independent of the pre-

trial lineup in view of the fact that Frischertz was

robbed at about 3:30 in the afternoon and was abie

to get a good, close look at the robber, who was wear-

ing no face mask or other type of disguise, and whose

physical appearance during the commission of the

crime made a strong impression on Frischertz. See

United States v. Wade, 388 U.S. 218, 241-242 (1967).

Thus, although the pretrial lineup was referred to by

the witness several times, particularly during cross-

examination and was described in detail, and a picture

of the lineup was introduced, the evidence on which

Appellant was convicted by the jury was clearly Fris-

chertz’ strong identification of Appellant during the

trial, based on the fact, as described by Frischertz,

that on the day of the robbery the witness had seen

Appellant approaching in his rear view mirror on the

side of his truck, and that when he got to the door

of the truck Appellant held a gun on Frischertz and

the driver’s two helpers and said, “Give me all your

money.” R. 67, 78, 81-82. Thus, the lineup identification

here at issue was not an independent piece of evidence

offered by the prosecution to prove the guilt of the ac-

cused, as in Davis, but was only offered to corroborate

the strong in-court identification of Appellant made

by Frischertz.

ERG TARGA 4 SiR Rete ny A

34

Furthermore, Appellant in the instant proceedings,

unlike Davis, did not during his trial object to testi-

mony concerning the pretrial lineup in which he had

been identified by Frischertz, and raised this issue for

the first time when his case was appealed to the Su-

preme Court of Louisiana. Thus the trial judge was

given no opportunity to rule on the admissibility of

testimony concerning the pretrial lineup, and under

Louisiana law waived any objection thereto. See Arts.

841-845, 920 La. Code Crim. Proc.'?

Fer the foregoing reasons the State of Louisiana is

of the respectful belief that the warrantless arrest of

Appellant herein was valid and constitutional even

though the police officers may have had sufficient time

to swear out a warrant of arrest. Alternatively, it is

Louisiana’s position that introduction of evidence of

the pretrial lineup identification of Appellant by Fris-

chertz during the trial was at most harmless error

in view of the strong in-court identification of Appel-

lant by Frischertz and the fact that this in-court iden-

tification had a source independent of the pretrial line-

up.

12The accused filed a Motion to Suppress prior to trial and a

hearing was held thereon, during which it developed that

no evidence material to this case was seized by the police in

their search of Appellant’s house following his arrest, and for

this reason the trial judge decided that the Motion to Suppress

was moot. R. 14-18, 26-29. At the time the prosecution offered

the lineup photograph, S-1, in evidence defense counsel object-

ed only on the ground that it had not been properly identified.

R. 99-100. In the Louisiana Supreme Court the State contended

that Appellant had waived the question of the admissibility of

his lineup identification by failing to timely object; however,

that court deci the question cn the merits. See State v.

Johnson, 255 La. 314, 325-332; 230 So.2d 825 (1979).

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35

CONCLUSION

The State of Louisiana respectfully requests that this

Honorable Court affirm the judgment of the Supreme

Court of Louisiana in this case.

JACK P. F. GREMILLION

Attorney General of

Louisiana

JIM GARRISON,

District Attorney for

the Parish of Orleans

LOUISE KORNS,

Assistant District Attorney

for the Parish of Orleans

; 36

CERTIFICATE

I certify that copies of this Brief have been mailed

to:

‘ Richard A. Buckley, Esq.

; 4038 Cheena Drive

Houston, Texas 77025

Telephone: A, C 713-666-7156

John W. Reed, Esq.

Robert Glass, Esq.

New Orleans Legal Asst. Corp.

605 Carondelet Building

New Orleans, Louisiana 70130

Attorneys for Appellant

: Frank E. Williams, Jr.

5 Research Assistant

3903 Canal Street

New Orleans, Louisiana 70119

LOUISE KORNS,

Assistant District Attorney

for the Parish of Orleans

Criminal Courts Building

2700 Tulane Avenue

New Orleans, Louisiana

A/C 504-822-2404

RAED Mei SSS a LA AMT colt ws 22 PNY