State v. Saia

On August 18, 1972 Patrolmen Arnold Jackson and Paul Eskine were driving by the residence at 619 General Taylor Street, New Orleans, in their marked police car when they noticed the defendant leaving that residence. The officers knew that this address was an outlet for drugs; however, they did not recognize the defendant. The defendant, Charlene Saia, proceeded down General Taylor until the police car pulled up beside her at which time she put her hand inside the waistband of her pants and turned around and walked back toward 619 General Taylor. The officers, concluding that defendant had secreted contraband drugs in her pants, got out of their car and followed her back toward 619 General Taylor. They overtook her from the rear in front of the door to 619 General Taylor. They testified that she again reached into the waistband of her pants and then brought her hand toward her head. Officer Jackson testified that he observed what he thought to be a glassine envelope containing heroin in her hand. The officers grabbed the defendant’s hand and removed two glassine envelopes filled with a white powder which was later tested and shown to be heroin. The defendant was arrested and charged with violating R.S. 40:966. Defendant filed a motion to quash and a motion to suppress, both of which were denied by the trial court. On January 24, 1973 trial was held and the jury returned a verdict of guilty. During the proceedings sixteen bills of exceptions were reserved.

Bills of Exceptions Nos. 3, 4, 6, 7, 8, 9 and 11

These bills concern testimony given during the motion to suppress hearing and at the trial by the police officers involved in the case. Bill No. 4 was reserved when the trial judge denied the motion to suppress. For the following reasons we hold that the motion to suppress should have been granted.

Street encounters are an everyday occurrence on today’s urban streets. See, LaFave, Street Encounters and the Constitution, 67 Mich.L.Rev. 39 (1968). The police, however, are bound by the Constitution of the United States to leave the public “secure in their persons, houses, papers, and effects.” It must be stressed that this Fourth Amendment protection is not to be read in a vacuum. This amendment is only one of the cornerstones of what has come to be called the “right to privacy.” Historically, the Fourth Amendment has never been restricted to its terms. In the case of Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, 751 (1886), the court noted the scope and purpose of the right to privacy:

“The principles laid down in this opinion (by Lord Camden in Entick v. Carring-ton, 19 How St Tr 1029) affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; btit it is the invasion of his indefeasible right of personal security, personal liberty, and private property, . . . it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment.” (Emphasis added).

Mr. Justice Brandéis, drawing from the above explanation of the purpose of the Fourth Amendment further expounded on the meaning of the Bill of Rights in his dissenting opinion in the case of Olmstead v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 572, 72 L.Ed. 944 (1928) (one of the early wiretap cases):

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to he let alone — the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.” (Emphasis added).

In this case we are faced with the conflict of the policeman’s duty to investigate crime and the citizen’s right to, as Justice Brandéis stated, “be let alone.”

The State argues that the police had probable cause to arrest the defendant when the officers saw the glassine envelope in her hand. This is correct. However, the police had acted before they saw the envelope. In oral argument on this question the State sought to justify these prior actions of the police officers by Article 215.1 of the Code of Criminal Procedure. Although this statute certainly deals with street encounter situations, the statute must be read beside the Fourth Amendment of the United States Constitution and Article I Section 7 of the Louisiana Constitution of 1921, for if the police actions violate these constitutional protections it cannot be seriously argued that the statute can justify the actions. These prior actions must first be. tested against the Fourth Amendment.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized and upheld, for the first time, an intrusion by a police officer based on something less than probable cause. In a concurring opinion, Mr. Justice Harlan, although agreeing with the resolution of the case, was disappointed in the approach taken by the court. The court had emphasized the reasonableness of the frisk and its necessity for the protection of the officer. Mr. Justice Harlan felt that the primary issue, and one demanding resolution before any of the other problems could be reached, was whether the officer was constitutionally allowed to make a forcible stop of the suspect. Mr. Justice Harlan stated:

“If the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner’s protection. I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.” 392 U.S. 1, 32-33, 88 S.Ct. 1868, 1885, 20 L.Ed.2d 889 (emphasis in original).

Justice Harlan’s approach to this problem has now been accepted and is the law of this country. The Supreme Court used this approach in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), holding that the police officer did have grounds to make a forcible stop on the basis of an informer’s tip. Numerous decisions of the federal appellate court show an almost universal application of this approach to the analysis of the legality of a street encounter. See, United States v. Brown, 457 F.2d 731 (1st Cir. 1972); United States v. Fields, 458 F.2d 1194 (3rd Cir. 1972); Dodd v. Beto, 435 F.2d 868 (5th Cir. 1970); United States v. Catalano, 450 F.2d 985 (7th Cir. 1971); Field v. Swenson, 459 F.2d 1064 (8th Cir. 1972); United States v. Mallides, 473 F.2d 859 (9th Cir. 1973); United States v. Mallory, 460 F.2d 243 (10th Cir. 1972); Young v. United States, 140 U.S.App.D.C. 333, 435 F.2d 405 (1970).

If the seizure is unjustified, any evidence seized, even if voluntarily produced, must be excluded. In United States v. Ward, 488 F.2d 162 (9th Cir. 1973), the court held that the FBI had illegally stopped the defendant in his vehicle. When asked to identify himself the suspect presented a false Selective Service card and was arrested immediately for this offense. The court held that the evidence had to be suppressed because the illegal “seizure” tainted all of the subsequently acquired evidence.

We must, therefore, approach this case by determining first whether the officers in this instance had sufficient knowledge to justify an investigatory stop. Terry v. Ohio, supra, stands for the proposition that a stop of this nature may be made on less than “probable cause.” How much less is the question.

Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L.Ed.2d 917 (1968), was decided along with Terry v. Ohio, supra, and handed down the same day. In Sibron the police officer had observed the suspect for approximately eight hours as the suspect approached numerous known drug addicts and held conversations with the addicts. The officer did not see anything pass between the suspect and the addicts nor did he overhear any of the conversations. Al7 though the majority based the decision on not only the seizure but the scope of the search, the court found that the seizure was unjustified. The Chief Justice, writing for the court, stated:

“The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security.” 392 U.S. 40, 62, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917.

Justice Harlan, analyzing the case with the approach now used by the court concluded :

“The forcible encounter between Officer Martin and Sibron did not meet the Terry reasonableness standard. In the first place, although association with known criminals may, I think, properly be a factor contributing to the suspiciousness of circumstances, it does not, entirely by itself, create suspicion adequate to support a stop. There must be something at least in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity, completed, current or intended. That was the case in Terry, but it palpably was not the case here. .

“. . . in Terry, the police officer judged that his suspect was about to commit a violent crime and that he had to assert himself in order to prevent it. Here there was no reason for Officer Martin to think that an incipient crime, or flight, or the destruction of evidence would occur if he stayed his hand; indeed, there was no more reason for him to intrude upon Sibron at the moment when he did than there had been four hours earlier, and no reason to think the situation would have changed four hours later. While no hard-and-fast rule can be drawn, I would suggest that one important factor, missing here, that should be taken' into account in determining whether there are reasonable grounds for a forcible intrusion is whether there is any need for immediate action.”

If the officer in the Sibron case did not have sufficient evidence to allow an investigatory stop after seeing the suspect confer with various known narcotic addicts for eight hours then the officers in this case cannot be said to have had sufficient grounds to stop the defendant because they saw her exit from a residence which they knew as a drug outlet.

Upon oral argument of this case the State urged, apparently for the first time, that Article 215.1 of the Code of Criminal Procedure authorized the officers to stop and question the suspect in this case. In Sibron, it was noted that New York had a stop and frisk statute which was obviously the forerunner of Article 215.1. The court pointed out that, although a state may create its own law on search and seizure, these laws must always be tested against the Fourth Amendment. Thus, unless the specific seizure in question can be upheld as reasonable under the Fourth Amendment, the state statute can have no effect. If the state legislature attempts to validate a seizure that is invalid under the Fourth Amendment, then the statute by which the attempt is made must be unconstitutional. Thus, we simply note that although there are, no doubt, instances where Article 215.-. 1 may be applied and constitutionally upheld, it cannot be applied in this case because of the conflict with the Fourth Amendment to the United States Constitution.

The seizure in the instant case occurred when the police officers sprang from their car and overtook the defendant in front of 619 General Taylor. As Justice Harlan noted in his concurring opinion in Terry v. Ohio, supra, the officer must first have the right not to avoid the person under suspicion but rather to approach him and by so doing intrude into the person’s freedom of movement. The police cannot approach citizens under circumstances that make it seem that some form of detention is imminent unless they have probable cause to arrest the individual or reasonable grounds to detain the individual under Terry v. Ohio, supra. Police officers cannot actively create “street encounters” unless they have knowledge of suspicious facts and circumstances sufficient to allow them to infringe on the suspect’s right to be free from governmental interference. United States v. Ward, supra.

In summary, the facts before us indicate that the police attempted to seize the defendant without probable cause and without sufficient evidence to justify the seizure under Terry v. Ohio, supra, and Adams v. Williams, supra. The “right to be let alone,” as Justice Brandéis phrased it, is of the utmost importance in a free society. The police cannot interfere with this right unless specifically authorized by a judicial officer or under narrowly drawn exceptions to the warrant requirement of the Fourth Amendment. Since the police action in this case was unlawful, any evidence which was seized as a result of this action is inadmissible under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The conviction and sentence are set aside, and the case is remanded for further proceedings not inconsistent with this opinion.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissented and assigned written reasons.

. It is unclear how they obtained this information, although it is clear that they did not obtain it from personal observation.