State v. Krempel

471 So. 2d 841, 1985 La. App. LEXIS 8658
CourtLouisiana Court of Appeal
DecidedJune 12, 1985
DocketNo. 16970-KA
StatusPublished
Cited by2 cases

This text of 471 So. 2d 841 (State v. Krempel) 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. Krempel, 471 So. 2d 841, 1985 La. App. LEXIS 8658 (La. Ct. App. 1985).

Opinion

JASPER E. JONES, Judge.

The defendant, Lawrence Krempel, was convicted on two counts of armed robbery in violation of LSA-R.S. 14:64 and was sentenced to ten years at hard labor on each count with the sentences to run concurrently. He appeals his convictions and sentences relying on three assignments of error.1 We affirm.

Facts

At approximately 8:00 p.m. on November 6, 1981 two men entered Marlene’s Bottle Shop in Shreveport and robbed at least two customers at gunpoint. During the course of the robbery shots were fired into the ceiling of the establishment. On November 23, 1981 the chief investigator on the case, Detective George Spriggs of the Shreveport Police Department, received information implicating defendant and Thomas Castle in the robbery at Marlene’s. After further investigation of the incident Spriggs obtained arrest warrants for the suspects. The warrants were issued at approximately 2:00 p.m. on December 8, 1981 and were executed shortly thereafter. Defendant was arrested at his place of employment by Caddo Parish sheriff’s deputies' and Castle was arrested at defendant’s residence, located at 3821 Victory Drive in Shreveport, by officers from the Shreveport Police Department. Castle is defendant’s brother-in-law and at the time of his arrest was living with defendant. A pistol, which ballistics tests proved to have fired one of the shots in Marlene’s, was seized at defendant’s home during Castle’s arrest. The pistol was admitted into evidence against defendant. Defendant moved to suppress the pistol prior to trial. The motion was denied.

Assignment No. 1

By this assignment defendant contends the trial court erred in denying the motion to suppress the pistol.

The record reveals that six officers were dispatched to the Victory Drive address to arrest Castle. When they arrived at the address three officers, including Spriggs and Detective Rick Ware, went to the front door and three officers went to the back of the house to cover the rear door. The officers at the front door were admitted into the residence by someone inside. Upon entering they encountered three adults and two children. The officers stated their purpose for being at the residence and asked if Castle was there. The adults indicated they did not know where he was. At about that time Castle was apprehended by the officers in back attempting to flee out the rear door.

The officers immediately had everyone in the house gather into the living room. After everyone was in the living room an adult female, later identified as defendant's wife, left the living room and went to the bedroom to turn off a radio. Detective Ware followed her into the bedroom. After watching Mrs. Krempel turn off the radio and pick up a pack of cigarettes Ware noticed that she was looking at the bedroom closet. He stepped between her and the closet and quickly opened the closet door but saw no one inside. When he turned back around he noticed that Mrs. Krempel was looking down at the bed. Ware quickly looked under the bed where he saw nothing, and then picked up the corner of the mattress and found the pistol between the mattress and springs. He made no further search of the bedroom.

A search and seizure conducted without a warrant is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Fearn, 345 [844]*844So.2d 468 (La.1977); State v. Hernandez, 410 So.2d 1381 (La. 1982); State v. Knowles, 438 So.2d 648 (La.App.2d Cir. 1983). After the defendant makes an initial showing that a warrantless search occurred, the burden 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. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Chapman, 410 So.2d 689 (La. 1982); State v. Huston, 445 So.2d 67 (La.App.2d Cir.1984).

It is well settled that police officers in the course of performing their official duties are allowed to take whatever precautions are reasonably necessary to insure their safety. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Wade, 390 So.2d 1309 (La.1980); State v. Bolden, 380 So.2d 40 (La.1980). The question of what is reasonably necessary depends upon the facts and circumstances of the individual case. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The ultimate issue is whether a reasonably prudent officer would be warranted in the belief that his safety or that of others was in danger. Terry v. Ohio, supra; State v. Wade, supra.

When the circumstances so warrant, officers in the course of making a valid arrest are entitled to make a security search of the immediate premises for third persons who may present a potential threat to the officer’s safety. State v. Guiden, 399 So.2d 194 (La.1981); State v. Holley, 362 So.2d 1089 (La.1978).

As a matter of self-protection and to prevent the destruction of evidence, officers making an arrest are allowed to search the person of the arrestee and the area within his immediate control. Chimel v. California, supra; State v. Barrett, 408 So.2d 903 (La.1981); State v. Jewell, 338 So.2d 633 (La.1976).

The question presented here is whether officers may search the area within the control of a third person who is not arrested. With regard to that question we are in accord with the rule established in United States v. Simmons, 567 F.2d 314 (7th Cir. 1977) where the court held that a search for items within the area of immediate control of a third person who is present during a custodial arrest of the defendant for a recent crime in which guns were used is reasonable when an objective probability of danger to law enforcement officers exists under the circumstances. The officer’s search revealed cash under the cover on a bed and a gun in a purse, both of which were seized. This search was performed in the presence of a woman standing near the bed and purse while the defendant was being arrested by other officers at the doorway of the motel room. The court approved the admissibility of the seized items holding the officers were justified in believing a gun might be present and the woman might use it against them.

Detective Ware seized the gun from a bed within two to three feet of Mrs. Krempel after she cast a furtive glance at the location of the weapon. She was in the residence where her brother had just been arrested for participation in an armed robbery in which guns had not only been used but shots had been fired. Detective Ware believed Castle had just been arrested at the time he went into the bedroom with Mrs. Krempel but he was not certain of this fact. Detective Ware also was aware that Krempel was probably not at home but he also was not certain of this fact.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Bonnett
524 So. 2d 932 (Louisiana Court of Appeal, 1988)
State v. Cathey
493 So. 2d 842 (Louisiana Court of Appeal, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
471 So. 2d 841, 1985 La. App. LEXIS 8658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-krempel-lactapp-1985.