State v. Dotson , 260 La. 471 ( 1971 )

DIXON, Justice.

On November 22, 1969 defendant Dan E. Dotson was a passenger in a green automobile traveling from Shreveport to Bossier City. Lt. Bolton of the Bossier City Police Department received a telephone call from a confidential informer advising that the occupants of a green automobile, traveling to Bossier City by a specified route, possessed narcotics.

Lt. Bolton proceeded to the ShreveportBarksdale Bridge and radioed for additional police vehicles. When the suspect car crossed the bridge, Lt. Bolton, aided by the other police vehicles, stopped the car and ordered its occupants out. No search was conducted then. However, the occupants, including defendant, were arrested for possession of narcotics.

Lt. Bolton took defendant, along with the driver of the suspect vehicle, into police headquarters. Another officer drove the suspect vehicle in. The driver of the green vehicle consented to a search of his car, which revealed no narcotics therein. However, the driver was charged with having a defective muffler.

Lt. Bolton attempted to question' de- * fendant, but Dotson refused to waive his right to remain silent. Lt. Bolton then filled out an affidavit and, based' on this affidavit, a search warrant was issued by the judge of the city court of the city of Bossier City. Lt. Bolton then searched the person of defendant and took from .defendant’s clothing a matchbox allegedly ..containing marijuana. Defendant was charged with possession of narcotics.

Defendant filed a motion to suppress, which was overruled. At his trial, defendant asserted his innocence and claim'éd that he had been “framed.” The jury found the defendant guilty of possession of narcotics, as charged. This appeal was taken.

Defendant alleges five errors of law, corresponding to his five bills of exceptions: (1) failure to suppress evidence taken from the person of defendant; (2) failure to disclose the name of the con.fidential informant; (3) introduction of evidence which had not been identified properly nor shown to be in substantially 'the same condition as at the time of the 'alleged criminal transaction; (4) questioning defendant concerning prior misconduct and introduction of testimony referring to a' prior arrest'; and (5) outside association 'of a juryman with the primary state witness whose credibility' was at issúe.' These specifications will be* treated'in order.

Bill of Exception No. 1 was reserved when the trial court overruled defendant’s motion to suppress evidence taken from his person. The police stopped the car, arrested defendant, later obtained a search warrant, and then proceeded to search the person of defendant, all on the basis of a telephone call from an undisclosed informant. The essential question presented by the motion to suppress was whether the police had probable cause either to obtain the search warrant or to conduct the search without a warrant. Anent the validity of the procedure used, the United States Supreme Court has spoken. Said the Court in Aguilar v. Texas:

“Here the ‘mere conclusion’ that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only ‘contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,’ it does not even contain an ‘affirmative allegation’ that the affiant’s unidentified source ‘spoke with personal knowledge.’ For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner’s possession. The magistrate here certainly could not ‘judge for himself the persuasiveness of the facts relied on * * * to show probable cause.’ He necessarily accepted ‘without question’ the informant’s ‘suspicion,’ ‘belief’ or ‘mere conclusion.’

“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was ‘credible’ or his information ‘reliable.’ Otherwise, ‘the inferences from the facts which lead to the complaint’ will be drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead, by a police officer ‘engaged in the often competitive enterprise of ferreting out crime,’ Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 * * *; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, * * *, or, as in this case, by an unidentified informant.

“We conclude, therefore, that the search warrant should not have been issued because the affidavit did not provide -a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in petitioner’s trial.

“The judgment of the Texas Court of Criminal Appeals is reversed and the case remanded for proceedings not inconsistent with this opinion.” Aguilar v. Texas, 378 U.S. 108, 113-116, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (footnotes omitted).

In a Louisiana case, State v. Wells, Justice Hamiter of the Supreme Court of Louisiana wrote:

“Under the rulings of the United States Supreme Court in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, such an affidavit, based on mere affirmance of belief or suspicion, is patently defective and, therefore, the warrant issued pursuant thereto is illegal and invalid.

“But even aside from these rulings the same result would be reached under the express language of Article 162 of our own Code of Criminal Procedure which pertinently provides:

“ ‘A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.”’ State v. Wells, 253 La. 925, 221 So.2d 50, 52 (1969) (emphasis in original).

In the instant case, the affidavit of Lt. Bolton demonstrated why the informant was considered reliable but did not recite any of the underlying facts upon which the informant based his suspicion. The judge issued the search warrant in this case without knowing whether the informer’s telephoned statement was based itpon rumor, hearsay or personal observation. Clearly, the warrant was invalid. The prosecution, however, argues that there was probable cause to support the search without a warrant. Normally, a higher degree of probable cause is necessary to support a warrantless search than to support a search with a warrant. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). However, in the case at bar, even though Lt. Bolton may have omitted from his affidavit a recitation of the underlying facts upon which the informant based his suspicion, Lt. Bolton himself knew those underlying facts. Accordingly, the arrest was lawful.

“As a general rule, a search is unreasonable if it is not conducted under the authority of a search warrant. However, the rule is subject to the important exception that a search may be reasonably made as an incident of a lawful arrest.

“In the present case, the police officers concede that they had no search warrant authorizing them to search the defendant’s home. Hence, to justify the forcible intrusion into his residence, it must be established that the search was incident to a lawful arrest. Presented to us for resolution are two questions: Was the arrest lawful? If so, was the search of defendant’s residence incidental to it?” State v. James, 246 La. 1033, 169 So.2d 89 (1964).

To answer the second question above presented, the search of defendant certainly would have been “incident” to the arrest had it been made immediately following that arrest. However, the fact that the search was conducted at the police station rather than at the point of arrest does not suggest that the search was not “incident” to the arrest.

In Recznik v. City of Lorain, the United States Supreme Court stated:

“We have held that the prosecution has not met its burden when an arresting officer 'said no more than that someone (he did not say who) had told him something (he did not say what) about the petitioner.’ Beck v. [State of] Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 228, 13 L.Ed.2d 142. Even where a search warrant is obtained, the police must show a basis for the search beyond the mere fact of an assertion by an informer. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. At least as much is required to support a search without a warrant.” Recznik v. City of Lorain, 393 U.S. 166, 169, 170, 89 S.Ct. 342, 345, 21 L.Ed.2d 317, 321 (1968).

In the instant case the arresting offieer did say what the informer had told him. Here the arrest was lawful and the search was incident thereto.

Accordingly, this court must hold that Bill of Exception No. 1 is without merit.

Bill of Exception No. 2 was reserved at the trial when the court refused to permit defendant to obtain the name, by cross-examination of Lt. Bolton, of the person who informed on him by telephone. The jury was retired, and the defense attorney then stated into the record:

“The defendant will allege that the stuff that was found on him, marijuana, was planted there by the informant. And as a direct part of his defense, it will be necessary to place this informer on the stand and attack his credibility and attack whether or not he did in fact, plant the stuff on him. I think this is an exception to the disclosure rule.”

Although the identity of the informer was well known to Lt. Bolton, the court ruled adversely to defendant. Exception was reserved; the jury was returned; the trial resumed.

While it has been held that the police normally are privileged to withhold from an accused the identity of an informer, this privilege is not absolute. The general rule has its exceptions. In the instant case, one of defendant’s contentions on trial was that he had been “framed” and that someone had planted the marijuana on his person. Under such circumstances, the defendant was entitled to the name of the informer. The trial judge cited in his per curiam the case of State v. Pagnotta. However, that case readily is distinguishable from the case at bar; indeed, Pagnotta is persuasive authority for defendant Dotson. In Pagnotta, Justice Hamlin of this court found correct the following proposition expressed in the per curiam of Pagnotta’s trial judge:

“ ‘This Court has held on occasions too numerous to mention that the defendant is not entitled in a situation such as this, the name of the informant. There was to [no] allegation here by the defendant through his counsel or through any testimony that the confidential informant had framed him or had planted the evidence in his apartment, or had done any other act which would require revealing his identity. * * * State v. Pagnotta, 253 La. 770, 220 So.2d 69, 72 (1969).

In the instant case, of course, the requisite allegation was made that the confidential informant had framed the defendant. Directly in point is the United States Supreme Court case of Roviaro v. United States, in which Mr. Justice Burton wrote:

“Petitioner contends that the trial court erred in upholding the right of the Government to withhold the identity of John Doe. He argues that Doe was an active participant in the illegal activity charged and that, therefore, the Government could not withhold his identity, his whereabouts, and whether he was alive or dead at the time of trial. * * *

“What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law * * * The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform, that obligation.

“ * * * Where the disclosure of an informer’s identity, or .of the contents of his communication, is relevant and helpful to the defense of an. accused, or is essential to a -fair determination of a cause, the- privilege must give way. In these situations the- trial court may require disclosure and, if the Government withholds the information, .dismiss the action. Most of the federal cases involving this limitation on the scope of the informer’s privilege have arisen where the legality of a search warrant is in issue and the. communications of an informer are .claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.” Roviaro v. United States, 353 U.S. 53, 59-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) (footnotes omitted).

Accordingly, under the circumstances of this particular case, this court must hold that Bill of Exception No. 2 was well taken, and that the trial court should have permitted defendant to learn the name of the informer in order that the informer might be examined concerning the alleged “planting” of the evidence.

Bill of Exception No. 3 was reserved when the State introduced the alleged marijuana as an exhibit without identifying the matchbox as being the same matchbox that was taken from the defendant following his arrest, and further without establishing a chain of evidence. Neither Lt. Bolton nor Detective Almond ever identified the matchbox produced in court as being the same matchbox that was taken from defendant following his arrest. No one ever said, “This is the matchbox we took from the defendant.” Additionally, it is clear from the evidence that the matchbox that was in fact removed from the person of defendant was sent to Baton Rouge, for laboratory analysis and there was handled by persons unknown. The technician, known to the State by way of her report, never was called to testify concerning what she did with the exhibit. Defendant suggests that the cannabis could have been put into the box during a clinical examination of its contents. There is no chain of evidence to negate this possibility.

Of particular interest is the case of State v. Foret, in which Chief Justice O’Niell of the Louisiana Supreme Court wrote:

“The judge, according to his per curiam, rested his ruling largely upon the fact that Templet, in his testimony, gave a detailed description of the steer which he said was missing from his pasture and was found several months afterwards in the neighboring pasture of the defendant, and was taken by the sheriff and delivered to Templet. But that testimony did not supply the omission of the prosecuting attorney to offer testimonial proof that the steer which was in the truck, and which was inspected by the jury, was the same steer that was taken from the defendant’s pasture by the sheriff and delivered to Templet. Without some such proof of the identity of the steer in the truck he was not admissible in evidence; and the judge should have complied with the request of the attorneys for the defendant to instruct the jurors to disregard any impression that they might have received from their inspection of the steer in the truck.” State v. Foret, 196 La. 675, 200 So. 1, 3 (1941).

Accordingly, this court must hold that Bill of Exception No. 3 was well taken, and that the trial court should not have permitted the introduction into evidence of the matchbox and its contents absent the establishment of a proper chain of evidence.

Bill of Exception No. 4 was reserved when the State, over defense objection, was permitted to interrogate defendant about prior possession of marijuana, and when the prosecution’s chief witness was permitted to testify that on a previous occasion he had arrested defendant for possession of marijuana. Evidence of the prior possession, of course, is admissible for the■ purpose of showing guilty knozvledge or intent. Louisiana Revised Statutes 15:445, 446. In the instant case, it now is claimed in this court by the present district attorney that the information in fact was elicited for the legitimate purpose of showing guilty knowledge or intent, rather "than for the purpose of impeachment. However, a reading of the transcript discloses that the former district attorney who handled the case in the trial court did not mention the alleged prior possession in his opening statement. Rather, he stated during the trial: “I’m simply laying the foundation for the impeachment of — .” The jury then was retired. Defense counsel asked: “Is the- District Attorney attempting to introduce evidence .of a prior arrest or conviction of the defendant?” The district attorney replied: “I have no such intention.” In the presence of the jury, the district attorney then asked the defendant: “You deny that on the 28th day of August, 1969, you actually used marijuana? At this address that I — .” “Do you deny that other people there used it?” Later, when Lt. Bolton again took the stand, the district attorney questioned the officer as follows:

“Q. Mr. Bolton, you have previously testified that you knew Danny Dotson on sight.”

“A. Yes sir.

“Q. On the 22nd of November. He has testified that you have had previous contact with him. Is this correct ?

“A. Yes sir I have. When I arrested him — .”

The lieutenant then was allowed to testify that on a previous occasion Danny Dotson was in a house where others may have been using marijuana. Defendant never was convicted of the alleged prior possession.

Louisiana Revisecj Statutes 15:495 provides :

“Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, * * *; and no witness, whether he he defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.”

See also Comment, Admissibility of Evidence of Prior Arrests in Louisiana Criminal Trials, 19 La.L.Rev. 684 (1959). This court has no alternative other than to hold that Lt. Bolton’s testimony that he had arrested defendant for possession of marijuana on a previous occasion was highly prejudicial for the jury, and accordingly that Bill of Exception No. 4 was well taken.

Bill of Exception No. 5 was reserved after lunch on the day of trial, when the trial court denied defendant’s motion for a mistrial. It is undisputed that the State’s main witnesses ate lunch that day at the same table with one of the jurors. The prosecution argues that the Village of Benton has just one restaurant, and that there is no evidence in the record that the policemen discussed the case with the juror during lunch.

While there is no rule applicable to the circumstances instant that would have precluded the witnesses from eating at the same restaurant as the jurors (being the only full restaurant in the Village of Benton wherein the Bossier Parish Courthouse is located), it strains propriety for the witnesses to eat at the same table with the triers of fact. Conceding, arguendo, that they confined their discussions to innocuous matters, the fact remains that the issue of guilt in the case at bar depended upon the credibility of Lt. Bolton. The lieutenant had testified that he removed the matchbox from the defendant’s trouser pocket (where, obviously, it would be difficult for someone to plant evidence without the knowledge of defendant). Defendant, Dan Dotson, on the other hand, had testified that Lt. Bolton removed the matchbox from his coat pocket (where, concededly, it would be easier for someone to plant evidence without the knowledge of defendant). The success of defendant’s claim that he had been framed thus depended in large measure upon whether the jurors chose to believe Lt. Bolton’s account, that the marijuana was found in defendant’s left trouser pocket, or whether the jurors chose to believe defendant Dan Dotson’s story, that the marijuana had been planted in his coat pocket (which coat he claimed he had taken off and put on intermittently at various times during the day on the day of his arrest).

The credibility of Lt. Bolton thus was squarely in issue. Eating together allows the witness and the juror to establish a close relationship at a time when the juror should remain impartial. Such close association of a key prosecution witness with a juror should not be permitted.

Said the United States Supreme Court in the case of Turner v. Louisiana:

“The two principal witnesses for the prosecution at the trial were Vincent Rispone and Hulon Simmons. Both were deputy sheriffs of Tangipahoa Parish. * * *

“The members of the jury were sequestered in accordance with Louisiana law during the course of the trial, and were ‘placed in charge of the Sheriff’ by the trial judge. In practice, this meant that the jurors were continuously in the company of deputy sheriffs of Tangipahoa Parish during the three days that the trial lasted. The deputies drove the jurors to a restaurant for each meal, and to their lodgings each night. The deputies ate with them, conversed with them, and did errands for them.

“Two of the deputy sheriffs who were in this close and continual association with the jurors were Vincent Rispone and Hulon Simmons. Turner’s counsel moved for a mistrial when Rispone testified as a witness for the prosecution, and made the same motion when Simmons testified. * * *

“While thus casting its judgment in terms of state law, the [Louisiana] court’s affirmance of Turner’s conviction necessarily rejected his claim that the conduct of the trial had violated the Fourteenth Amendment. We hold otherwise with respect to the federal constitutional issue, and accordingly reverse the judgment before us.

“ * * * It would have undermined the basic guarantees of trial by jury to permit this kind of an association between the jurors and two key prosecution witnesses who were not deputy sheriffs. But the role that Simmons and Rispone played as deputies made the association even more prejudicial * * * And Turner’s fate depended upon how much confidence the jury placed in these two witnesses.” Turner v. Louisiana, 379 U.S. 466, 467, 468, 470, 474, 85 S.Ct. 546, 547, 548, 549, 550, 13 L.Ed.2d 424 (1965) (emphasis in original) (footnotes omitted).

We do not intend, by our decision in this case, to extend the ruling in Turner v. Louisiana to require reversal because of fortuitous and casual encounters between witnesses and jurors. However, because the facilities available in Benton are limited, the court there should guard against a recurrence. Bill of Exception No. 5 is sustained.

For the reasons assigned, the verdict and sentence are set aside, and this case is remanded for a new trial.

BARHAM, J., concurs in result. SANDERS and SUMMERS, JJ, dissent.