State v. Roach

338 So. 2d 621
CourtSupreme Court of Louisiana
DecidedOctober 6, 1976
Docket57650
StatusPublished
Cited by16 cases

This text of 338 So. 2d 621 (State v. Roach) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Roach, 338 So. 2d 621 (La. 1976).

Opinion

338 So.2d 621 (1976)

STATE of Louisiana
v.
Judith Kay ROACH.

No. 57650.

Supreme Court of Louisiana.

October 6, 1976.
Rehearing Denied November 5, 1976.

*622 John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for Roach.

DENNIS, Justice.

Defendant, Judith Kay Roach, was convicted of possession of heroin with intent to distribute, La.R.S. 40:966, and sentenced to serve ten years at hard labor. She filed nine assignments of error, but relies upon only seven of these for reversal of her conviction and sentence.

This case is a sequel to State v. Saia, 302 So.2d 869 (La.1974), and arises from the same factual situation.

Police Officers Arnold Jackson and Paul Eskine, on August 18, 1972, were patrolling in the vicinity of 619 General Taylor Street in New Orleans. The officers suspected that Warren Johnson and Judith Roach were engaged in the unlawful sale of heroin at that address. The officers possessed uncorroborated information to this effect from informants whose prior reports had led to arrests, but as yet no convictions, and unspecified data from fellow police officers. Thus, their information at this time was insufficient to establish probable cause to arrest or to search. As they were driving by the residence they saw Charlene Saia leaving. After observing what they considered to be suspicious acts by Ms. Saia, the officers approached her and discovered two packets of white powder which they believed to be heroin. They placed her under arrest.

As they were putting Ms. Saia in their patrol car one of the officers saw and recognized Warren Johnson as he emerged from the residence at 619 General Taylor Street. When Johnson saw the officers he immediately returned to the residence and re-entered. Officer Jackson unsuccessfully attempted to reach Johnson before he got inside. Jackson was joined by Eskine and together they kicked in the door. Once inside, they saw and recognized the defendant, Judith Roach, in the hallway leading from the front room; she was wearing only an open robe, panties and a bra. Upon their unannounced and forcible entry, Ms. Roach ran down the hallway to a bedroom. The officers pursued her past the kitchen door. Johnson ran out of the kitchen and out the front door. Officer Jackson gave chase, but was unable to catch him. Jackson returned to the bedroom where Eskine waited with Ms. Roach, having placed her under arrest for possession of the heroin seized from Ms. Saia.

After the arrest had been effected, Officer Jackson noticed a piece of green tissue protruding from the left cup of Ms. Roach's bra, and ordered her to remove it. She removed two packages, one from each bra *623 cup, containing some sixty-two glassine envelopes of heroin.

ASSIGNMENTS OF ERROR NOS. 1 and 7

Prior to trial Ms. Roach moved to suppress the heroin taken from her by the officers as having been unconstitutionally seized. Her motion was denied by the trial judge, and the evidence was admitted at trial. Defendant complains that her rights under the United States Constitution and under Article I, § 5 of the Louisiana Constitution of 1974 were violated. We observe at the outset that defendant's arrest, accusation and trial occurred prior to the adoption of the 1974 Louisiana Constitution. Therefore her reliance thereon is misplaced.[*]

Officers Jackson and Eskine both testified at the hearing on the motion to suppress, and again at trial, that defendant was arrested for possession of heroin before they discovered the evidence on defendant's person which she attempted to suppress. Both officers testified they did not know defendant was in the residence when they initiated their entry; they had no warrant for her arrest; and they had no warrant to search the residence at 619 General Taylor Street.

Though the officers suspected, on the basis of uncorroborated information, that the residence was being used as a base for heroin sales by Johnson and Roach, their own testimony clearly establishes that they relied on the arrest of Charlene Saia to corroborate those suspicions, to kick down the door, and to arrest Judith Roach.

In State v. Saia, 302 So.2d 869 (La. 1974), we declared Charlene Saia's arrest unlawful and ordered the suppression of evidence seized incident thereto. Accordingly, defendant argues that the officers, relying as they did on the fact of Saia's arrest to supply probable cause for their forced entry into the residence at 619 General Taylor Street and for their arrest of Judith Roach, exploited the prior illegal arrest, and the evidence seized from Roach's person incidental to her arrest must be suppressed.

Had defendant's arrest occurred after the effective date of the 1974 Louisiana Constitution her argument would be correct. Under the new state charter Judith Roach would have had standing to assert the illegality of the arrest, search and seizure of Saia because she was adversely affected by it. La.Const. Art. I, § 5 (1974) provides:

"Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court." (Emphasis supplied.)

This provision purposefully differs from the prevailing federal rule, which limits the ability to assert the unconstitutionality of a search and seizure to the individual whose person or property was unlawfully searched, e. g., Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and enlarges the class of persons entitled to object to an unlawful search and seizure in this state. The following comments from the committee responsible for drafting Article I, § 5 were included in the Convention Journal when the section was introduced to the convention:

"* * * persons protected against illegal searches and seizures include not only the person whose house or property has been illegally searched but also any other person adversely affected by the *624 illegal search." Official Journal, Constitutional Convention of 1973, Vol. I, p. 86.

An examination of the convention debates reveals that the delegates were aware that Article I, § 5 as proposed enlarged the class of persons entitled to object to unconstitutional police conduct. XIII Constitutional Convention of 1973, Verbatim Transcripts, 14-28. A proposal which would have deleted the last sentence of Article I, § 5 was defeated by a 37 to 72 margin; the provision at it now appears passed by a vote of 96 to 11. Id. at 28. See also, Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 20-25 (1974).

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