State v. Cormier

438 So. 2d 1269
CourtLouisiana Court of Appeal
DecidedOctober 12, 1983
DocketK83-179
StatusPublished
Cited by9 cases

This text of 438 So. 2d 1269 (State v. Cormier) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cormier, 438 So. 2d 1269 (La. Ct. App. 1983).

Opinion

438 So.2d 1269 (1983)

STATE of Louisiana, Plaintiff-Appellee,
v.
Gregory CORMIER, and Michael Owen, Defendants-Appellants.

No. K83-179.

Court of Appeal of Louisiana, Third Circuit.

October 12, 1983.
Writ Denied December 16, 1983.

*1271 Jim Ortego, Lloyd Keith Milam, Lake Charles, for defendants-appellants.

Robert R. Bryant, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.

Before STOKER, LABORDE and KNOLL, JJ.

LABORDE, Judge.

Defendants, Gregory Cormier and Michael Owen, were jointly and formally charged by grand jury indictment with attempted second degree murder, aggravated crime against nature and armed robbery. LSA-R.S. 14:27, R.S. 14:30.1, R.S. 14:89.1(2) and R.S. 14:64. Both defendants entered a plea of not guilty to all charges and filed a motion to suppress tangible evidence obtained in the course of an alleged unconstitutional search. The trial court denied the motion and the defendants sought writs to this court seeking a reversal of the trial court ruling. We denied the writ. Subsequently, the Supreme Court, 435 So.2d 454, granted writs setting aside the ruling of this court and remanded the case to this court for briefing, argument and an opinion. After a thorough review we conclude that the trial court ruling was correct. Hence, defendants' writ is denied.

FACTS

At approximately 1:30 a.m. on October 14, 1982, Lt. McCann of the Sulphur Police Department received a call that a woman had been beaten, stabbed, sexually assaulted and robbed by two men. Speaking through her son at the hospital, the victim identified one of her assailants as the "Owens boy". The son told Lt. McCann that at one time Owens resided with Carl Evans in a trailer on North Crocker Street in Sulphur. Acting on this information, the lieutenant sent Officer Johnson and his partner to Evans' trailer to ascertain whether Evans knew where Owens could be found. At approximately 2:30 a.m. the officers arrived at the trailer and immediately noticed someone peering out of a window. Officer Johnson knocked on the front door and beckoned in a loud voice for the occupants to answer, but got no reply. Lt. Carroll knocked on the trailer door, identified himself as a police officer, but was equally unsuccessful in rousing the occupants. Lt. Carroll returned to Lt. McCann after instructing Officer Johnson and his partner to watch the trailer's two doors and allow no one to leave the premises. McCann sent him back to the trailer with instructions to enter if no one responded to his knocking. Lt. Carroll was unable to get a response and at approximately 3:00 a.m. he and the other officers made a warrantless entry into the trailer.

What transpired next is the subject of conflicting testimony. The state maintains that the officers awakened the occupants from their slumber and in the process discovered the presence of the two suspects, defendants Owen and Cormier. They contend that no searches or arrests were made until after Carl Evans signed a consent form to search the premises, approximately 45 minutes after the entry. Everyone in the trailer was arrested after a search yielded a small amount of marijuana and several items missing from the victim's residence.

Defendants' version of the incident is somewhat different. They contend that after the police entered the trailer and discovered their presence, everyone inside was arrested including the owner Evans. They assert that the police conducted a limited search of their persons and the immediate area before Evans signed the consent form 45 minutes later at 3:45 a.m.

The defendants' assignment of error presents two (2) issues for our determination:

(1) Whether the defendants were adversely affected within the meaning *1272 of our constitution and have standing to challenge the constitutionality of the search and seizure, and;
(2) Whether the warrantless entry into Carl Evans' trailer and subsequent search and seizure was in violation of defendants' United States Fourth Amendment and Louisiana Article I, sec. 5, constitutional rights?

ISSUE # 1

The threshold inquiry with any constitutional challenge to a search and seizure is whether the accused enjoyed a Fourth Amendment/Art. I, § 5 interest.[1] For without such, he has no standing to object. To demonstrate this interest, defendant must show that he had a reasonable expectation of privacy which society deems worthy of protection and that he was adversely affected by the search and seizure. State v. Ragsdale, 381 So.2d 492 (La.1980); LSA-Const. art. I, § 5 (1974).

In determining whether defendants Owen and Cormier had a Fourth Amendment/Art. I, § 5 interest, we note the following facts:

The search and seizure occurred inside the private residence of a third party, Carl Evans. It resulted from a purely investigatory effort by the police to locate the defendant, Owens. The police had good cause to make inquiry with Carl Evans concerning the whereabouts of Owens, since Owens reportedly resided with Evans "at one time". Carl Evans could have refused to cooperate with the police when approached, but instead consented to a search of his home to absolve himself from suspicion of the police. The search revealed the presence of the defendants and the incriminating tangible evidence which the defendants seek to suppress.

The test for determining whether one has a reasonable expectation of privacy is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable. State v. Ragsdale, supra. In this instance, we find that neither of the defendants have shown, nor is there evidence which tends to show that they possessed a reasonable expectation of privacy which society deems worthy of protecting. The defendants did not have a protectable privacy interest while transiently at the home of Carl Evans, a third party, to the extent that they have standing to object to reasonable inquiries made by the police upon the owner of the trailer. Within the meaning of Article I, sec. 5 of our constitution, the defendants are without standing to challenge the constitutionality of the search and seizure since they are not "adversely affected". It was the trailer owner's constitutional rights that were allegedly infringed upon, rather than defendants'. Should defendants have standing in this case they would effectively be allowed to complain of an alleged unreasonable search upon a third party. We will not allow defendants to assert alleged unconstitutional acts committed upon third parties in order that they might suppress otherwise competent evidence.

In State v. Barrett, 408 So.2d 903 (La. 1981), the Louisiana Supreme Court was presented with a case placing at issue the proper construction of the term "adversely affected" in Article I, sec. 5 of our constitution. In Barrett, supra, the police arrested the subject of an arrest warrant in the house of a third party without having obtained a search warrant to search the third party's home. The defendant objected to the warrantless entry and moved to suppress evidence obtained against him. In denying the motion to suppress, the court held:

"Therefore, the narrow issue presented for our determination is whether, within the meaning and purpose of our constitutional provision, the subject of an arrest warrant in the house of a third person *1273

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State v. DeBlanc
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Bluebook (online)
438 So. 2d 1269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cormier-lactapp-1983.