author: MARCUS, Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Paula L. SIERRA.
    No. 57605.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Sheila C. Myers, Asst. Dist. Atty., for plaintiff-relator.
    James A. McPherson, New Orleans, for defendant-respondent.
   MARCUS, Justice.

Paula L. Sierra was charged by bill of information with having unlawfully produced a controlled dangerous substance, to-wit: marijuana, in violation of La.R.S. 40:966. Prior to trial, defendant filed a motion to suppress certain physical evidence seized from her apartment pursuant to a search warrant claiming that probable cause did not exist for the issuance of the warrant and, alternatively, that the conduct of the executing officers during the course of the search rendered the search unreasonable under the fourth and fourteenth amendments of the federal constitution. The trial judge sustained defendant’s motion to suppress the evidence. We are unable to ascertain from his reasons which of the defendant’s contentions formed the basis for his ruling. We granted the state’s application for certiorari to consider the correctness of the trial judge’s ruling.

On September 10, 1975, five officers of the New Orleans Police Department, acting under the authority of a warrant, conducted a thorough search of defendant’s apartment for approximately one and one-half hours. While none of the items listed in the warrant was recovered, one of the officers inadvertently came across a flower pot containing one hundred and forty-five marijuana plants as he waited on the balcony of the apartment for another police car which was to pick the officers up. Upon further investigation, a second pot was found atop a bird cage in the defendant’s living room. This evidence forms the basis of the offense with which the defendant is charged and is the object of her motion to suppress.

I.

The state argues that, if defendant’s motion to suppress the evidence was sustained based on the alleged insufficiency of the search warrant’s supporting affidavit, the ruling by the trial judge was in error.

The supporting affidavit relates in essence the following facts. On September 8, 1975, Officers Anthony Canatella and Earl Hardouin spoke to a confidential informant who had in the past given them information leading to arrests and convictions, and, more particularly, to the recovery of stolen property. The informant reported to the officers an encounter that he had with a subject known to him as Danny-Boy. Danny-Boy was described in detail as a white male with brown hair, about twenty-nine to thirty-one years old, five feet ten inches tall, and weighing approximately one hundred and sixty pounds. The informant further related that the subject was pulling burglaries in the lakeview area and that Danny-Boy had asked him if he, or anyone he knew, would be interested in buying some “hot jewelry.” After receiving this information, the officers checked the lake-view burglary reports and corroborated the fact that a number of burglaries had recently occurred in that area in which large amounts of jewelry had been stolen. In an attempt to further identify the subject, Danny-Boy, the officers checked the police computer and several other sources, learning from the narcotics division that a white male, Daniel Alfortish, was known to use the moniker Danny-Boy. A cross check through the police computer of the name of Daniel Alfortish revealed that he, in fact, used the alias given by the confidential informant and that he had a previous arrest record. Two days later, on September 10, 1975, Officers Canatella and Hardouin were directed to meet Officer Sidney McCann at the Sailboat Bay Apartments in lakeview in order to investigate a seemingly unrelated report of two apartment burglaries with a possible suspect. A maid from one of these apartments informed the officers that shortly before the burglary someone had knocked but refused to identify himself , or herself through the closed door. Upon opening the door a few seconds later, the maid discovered that no one was there but noted that a woman with a camera around her neck and whom she recognized as living in the apartment complex was retreating down the hall. The maid then locked the door and went downstairs to the laundry. On returning about twenty minutes later, she discovered that the apartment had been entered and ransacked. The officers further learned that the woman with the camera had knocked on the doors of several other apartments on the day of the burglary and that the tenants of those apartments had identified the girl as the occupant of apartment 303. Pedestrian traffic in and out of that apartment at all hours of the night was also reported to the officers during the course of their investigation. A check of the apartment rentals disclosed that the burglary suspect who was living in apartment 303 was Paula L. Sierra; residing with her was the man reported by the confidential informer as pulling burglaries in the lakeview area and marketing “hot jewelry,” Daniel Alfortish.

The state contends that the facts attested to in the supporting affidavit adequately demonstrated probable cause to believe that stolen property was concealed in apartment 303 of the Sailboat Bay Apartments, 8600 Pontchartrain Boulevard. We agree with this contention.

La.Code Crim.P. art. 162 provides in pertinent part:

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 the issuance of the warrant.

Probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. State v. Hightower, 272 So.2d 363 (La.1973). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. Whitely v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Holmes, 254 La. 501, 225 So.2d 1 (1969).

When a search warrant is based solely on hearsay, there must be a substantial factual basis upon which the magistrate may find reliable both the informant himself and the information given by him. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Paciera, 290 So.2d 681 (La.1974). We have recognized that factors which support the credibility of an unidentified informant include prior accurate reports or any specific corroboration of the instant report. A factor which will support the credibility of the information reported is the direct personal knowledge or observation of the informant. Paciera, supra.

In the affidavit before us for review, Officers Canatella and Hardouin swore that their informant had previously given information leading to arrests and convictions, thereby establishing a basis for crediting the reliability of the informant. Moreover, the reliability of the information given was demonstrated by their attestation that the source of the informant’s tip was his personal conversation with Danny-Boy, later identified by the police through independent corroborative work as Daniel Alfortish. Hence, we are satisfied that the informant’s tip in the instant case met the two prong test for reliability mandated by Aguilar and Paciera.

In addition to the information concerning lakeview burglaries received from the confidential informer, the supporting affidavit detailed the officers’ independent investigation of the robberies at the Sailboat Bay Apartments which disclosed that the subject, Daniel Alfortish, resided in apartment 303, the same apartment occupied by defendant whose activities had rendered her the prime suspect in the burglaries that had occurred in the complex. At the suppression hearing, extensive testimony was adduced in an attempt by defendant to discredit the affidavit supporting the search warrant, yet no evidence was introduced that contradicted in any significant way the facts contained therein. Nor was there any indication that the officers perjured themselves in attesting to those facts.

Affidavits must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. A grudging or negative attitude by reviewing courts will tend to discourage police officers from submitting their evidence to a judicial officer before acting. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). We have noted that magistrates are not to be confined to niggardly limitations or by restrictions on their common sense. Their determinations of probable cause should be paid great deference by reviewing courts and, although it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. State v. Nix, 327 So.2d 301 (La.1975); State v. Paciera, 290 So.2d 681 (La.1973).

Applying these principles, we are satisfied that the search warrant under consideration in the instant case contained sufficient allegations of facts, gained both from the reliable confidential informant and from the independent investigatory work of the police, to enable a neutral and detached magistrate to believe that property stolen in the lakeview burglaries was present in the apartment shared by the defendant, Paula Sierra, and Daniel Alfortish.

II.

The second ground defendant urged for suppressing the evidence seized from her apartment was that certain conduct of the police officers during the search rendered the search unreasonable under the fourth and fourteenth amendments of the federal constitution.

Testifying for defendant at the suppression hearing, Daniel E. Alfortish, defendant’s co-tenant, claimed that, when the police officers entered the apartment, they pushed him against a wall, slapped a warrant across his face several times, and struck him once in the side with the butt of a shotgun, thereby breaking four of his ribs. In connection with the alleged incident, Al-fortish testified that he was examined at West Jefferson Hospital on September 11, 1975 and twice (September 24 and October 3) visited his father’s company physician. Defendant offered in evidence a promissory note executed in favor of the hospital in the amount of $ 45.75 and the medical report of the company physician for the purpose of substantiating Alfortish’s testimony. The state objected. The trial judge permitted the introduction of the note, whereupon defense counsel withdrew the offer of the medical report. Apparently, no attempt was made to subpoena either the doctor who treated Alfortish at West Jefferson Hospital or the company doctor who treated him subsequently. Consequently, the record contains no medical evidence to substantiate the claims of Alfortish regarding his injuries where such evidence was available and not produced.

Defendant’s version of the police activities during the search included another incident concerning her co-tenant wherein officers supposedly pushed Alfortish’s head down into the bathroom toilet. Defendant testified that, when Alfortish was brought back into the living room after this episode, his face was “all wet.” When Alfortish himself testified about what happened on the night of the search, however, he apparently forgot about the toilet episode, making no mention of the incident until specifically questioned about it by defense counsel. Even then, Alfortish’s testimony differed markedly from that of the defendant; far from claiming that his whole face had been immersed in water, he stated that only the tip ends of the hair in front of his head had gotten wet.

Defendant Sierra’s testimony included a further accusation that at the conclusion of the search one of the officers reached into her blouse and jeans, fondling her intimately. Although this was reported to have taken place in front of all of the other officers, the defendant testified that neither the officer accused of the impropriety nor any of the others made any remarks or comments whatsoever. In fact, defendant did not claim that she herself struggled or protested in any way. Interestingly, when the district attorney in cross-examination referred to the alleged police conduct as “abusive,” defendant corrected her and characterized it as “disrespectful” instead. We find it significant that Daniel Alfortish, who was apparently present at the time the episode was supposed to have taken place, denied seeing any of the officers touch the defendant.

Quite apart from her recounting of the purported physical mistreatment of herself and Alfortish, the defendant additionally testified that the officers “ransacked” her apartment, went through “everything,” and overturned and damaged tables and other furnishings. Defendant introduced sixteen color photographs, allegedly taken two days after the search, in an effort to substantiate her story. The pictures depict loose articles of clothing, books, magazines, children’s toys and papers strewn about on the floor of the apartment. They also show pictures taken down from the walls, food and cleaning items spread about on the kitchen floor, and a few drawers removed from their respective bureaus. Contrary to defendant’s testimony, the photographs do not reveal that the furniture was overturned nor do they illustrate the knife marks defendant claimed were made on her tabletops. Although she described how her bed had been “broken in half,” the photographs indicate only that the bed’s metal frame is resting on the floor at one end. While one lampshade appears slightly crushed, none of defendant’s other furnishings are shown as broken or damaged in any way. And, despite the fact that the photographs indicate that some clothing was removed from drawers and a dirty clothes hamper without being replaced, they also illustrate that most of the clothing hanging in defendant’s closets was not disturbed. The pictures further reveal that the numerous potted plants and hanging baskets situated throughout the apartment were not tampered with or even moved during the search. When questioned concerning this fact, defendant testified that the officers had “poked their fingers around in the pots.”. We find it quite unusual that officers conducting the kind of search described by the defendant, i. e., “ransacking” the place and going through “everything,” would forego the opportunity to dump out mud-filled pots in which stolen jewelry might easily have been concealed. Our examination of the photographs additionally discloses that neither the defendant’s mattress nor any of her throw pillows were cut open in an effort to find hidden contraband. We note that she found it difficult, moreover, to explain how it happened that her rather extensive record collection was left in three neat stacks against the living room wall. In short, defendant’s photographs illustrate a very disorderly scene in which a variety of loose items are depicted as scattered about in disarray but are otherwise unharmed. Yet the same photographs demonstrate that the very objects which might have been actually damaged by the type of handling alleged, dishes, plants, lamps, records, hanging clothing, etc., somehow escaped the outrageous conduct described by defendant.

During the course of Paula Sierra’s testimony, she revealed that the apartment manager walked in shortly before the officers took Alfortish and herself to police headquarters. The court, in an obvious effort to secure the testimony of a disinterested witness, issued an instanter subpoena for Mr. George Marti, the owner-manager of the Sailboat Bay Apartments. When Mr. Marti was shown the sixteen defense photographs, he stated that only four (D-2, D-4, D-10 and D-15) generally depicted the scene at defendant’s apartment on the night in question. These four pictures show only miscellaneous objects littering the floor of the defendant’s living room and bedroom. Mr. Marti specifically denied that any of the furniture was “smashed up.” He seemed unable to recall the crimped lampshade and stated that defendant’s bed definitely was not broken when he saw it. While the manager apparently left before the final conclusion of the search, defendant’s testimony indicated that his visit occurred just before she and Alfortish were taken out of the apartment. We are impressed by the fact that, at least up to the point of Mr. Marti’s departure, there had been no gross disregard for defendant’s property. To this extent, the testimony of the building manager contradicts that of defendant who claimed that the officers acted like “animals” throughout the search.

Officer Anthony Canatella, a veteran police officer with nine years of experience in executing search warrants, steadfastly denied that defendant’s apartment was left in the condition depicted by the photographs. Officer Canatella stated that defendant’s residence was already in a state of disarray when he and the other officers arrived, with pillows and magazines strewn about in a disorderly fashion. He admitted that the search was extensive in view of the fact that they were searching for stolen jewelry which is often concealed in inconspicuous places. However, he further testified that, while some of defendant’s possessions may not have been put back where they were found, the officers did not “throw things around” to the extent indicated in the defense photographs. In no uncertain terms, Officer Canatella maintained his position that neither he, nor any of the other officers physically mistreated either defendant or Daniel Alfortish. When questioned as to why defendant would make such allegations of misconduct against the officers, the witness frankly responded: “I think she’s nuts.” His comment concerning the incident where Alfortish’s head was allegedly pushed down into the toilet was that the story was “absurd.” Officer Leroy DiFris-co, called as a rebuttal witness for the state, plainly denied that he had hit Alfortish with his shotgun and testified that he did not observe any injuries befall Alfortish on the evening of the search. The officer defendant accused of having been sexually “disrespectful” of her (also called by the state) flatly contradicted this claim and stated that he had not had any physical contact with defendant whatsoever. Defense counsel chose not to cross-examine this witness.

The fourth amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

Since the historic pronouncements in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the exclusionary rule has operated to prohibit at trial on the merits the introduction of evidence seized in searches which do not comport with the fourth amendment as applied to the states through the due process clause of the fourteenth amendment. The chief justification for this harsh remedy is its deterrent effect on improper police conduct. Although there is certainly no paucity of jurisprudence dealing with the use of the exclusionary rule in regard to warrantless searches and searches made pursuant to warrants issued without probable cause, we have been unable to discover any federal or state court decision employing the exclusionary rule in situations where the initial, intrusion on a person’s privacy is valid but the subsequent search is conducted without regard for the property of the occupants of the premises searched. While the language of the fourth amendment may arguably extend to searches made with probable cause that are conducted in an improper manner, we note that, in the recent decisions of Stone v. Powell, - U.S. -, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) and United States v. Janis, - U.S. -, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), the exclusionary rule has come under increasing criticism. In those cases, the Supreme Court observed that after fifteen years of experience with the rule, we are still unable to say whether it has had a significant effect on police conduct. The Court frankly acknowledged its manifest reluctance to utilize the exclusionary rule in new and untried areas without clear proof that the desired deterrent effect would be accomplished. We find it unnecessary to further explore this difficult question since we are satisfied that defendant in the instant case has not demonstrated a fourth amendment violation.

La.Code Crim.P. art. 703 mandates that at a hearing on a motion to suppress physical evidence seized pursuant to a search, the burden of proof is on the defendant to prove the grounds of his motion. In ruling on the evidence adduced during the suppression hearing in the instant case, the trial judge apparently applied the rule set out in article 703 incorrectly, as demonstrated by his remark that “taking the totality of the testimony, and advancing the reasonable doubt, and giving the reasonable doubt to the defendant, I think the evidence in this case should be suppressed. . . . ” Nevertheless, since the record before us is complete, containing all of the evidence adduced at the suppression hearing, we find it unnecessary to remand this case to the trial court for a further ruling on the admissibility of the evidence.

A careful review of the record leaves us unimpressed with the evidence presented by defendant in support of her allegations of physical mistreatment of Daniel Alfortish and herself. Even if we credited defendant’s photographs with accurately depicting the condition of her apartment after the search (which we do not), at most, they reveal an apartment in a disorderly condition. The photographs do not demonstrate nor are we convinced by the evidence of any wanton or malicious disregard for defendant’s property, particularly in view of the fact that the police officers were searching for stolen jewelry— contraband which conceivably could be concealed almost anywhere. We do not mean to suggest that we condone police officers leaving the scene of a search in an untidy and disorderly fashion. In executing a search warrant, to the extent possible, due respect should be given to the property of the occupants of the premises searched. We simply find that defendant has not proven that the conduct of the officers in the instant case was of such a nature as to be unreasonable under the fourth and fourteenth amendments of the federal constitution. Accordingly, since the search was conducted under the authority of a valid search warrant issued upon probable cause, there is no justification for excluding the evidence seized pursuant thereto at trial on the merits.

DECREE

For the reasons assigned, the ruling of the trial judge sustaining defendant’s motion to suppress the evidence is reversed, and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.

DIXON, J., concurs.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., concurs in the result only.

CALOGERO, Justice

(dissenting).

I respectfully dissent.

In September of 1975, five officers of the New Orleans Police Department, acting under the authority of a warrant,' went to the apartment of Paula Sierra and handcuffed her and her friend Danny Alfortish. Following the restraint of these two, a search was undertaken of the entire apartment which consisted of a living room, bedroom, bathroom, and kitchen. The object of the search was to find the items listed in the warrant: a gold bracelet, two rings, and a revolver. One agent was assigned to each room of the apartment and a second officer was assigned to double-check his work by searching the rooms a second time. The five officers conducted a careful, thorough search for approximately one and one-half hours. Not one of the items listed in the warrant nor any other stolen property was discovered. However, as the men were waiting on a small balcony off of the living room and watching for a car that was to pick the officers up, one officer accidentally found a small four-by-four inch flower pot containing small (none more than eight inches tall) marijuana plants. Upon further investigation, a second four-by-four inch pot containing small marijuana plants was discovered on top of a bird cage in the living room. Both Alfortish and Sierra were arrested and Sierra was later charged with cultivation of marijuana, a violation of R.S. 40:966. Upon conviction under this statute a person may be imprisoned for up to ten years at hard labor and, in addition, fined up to fifteen thousand dollars. R.S. 40:966(B)(2).

Defendant Sierra filed a motion to suppress, alleging that the warrant on which the search was made was invalid and, alternatively, that the search exceeded the authority granted by the warrant. The trial judge granted the motion to suppress. The state applied for supervisory writs which we granted because we felt that the trial judge employed an improper standard when he ruled on the case. It seemed that he suppressed the evidence in question because the state had failed to establish beyond “a reasonable doubt” that the warrant was based upon probable cause and that the officers had not exceeded the authority of the warrant.

When an aggrieved party asserts that police officers who have searched his property on the basis of a warrant have violated his fourth amendment right to be free of unreasonable searches and seizures, it is the aggrieved party who bears the burden of establishing that his rights have been violated. C.Cr.P. art. 703. The warrant, which was issued on the authority of a neutral and detached magistrate, should be paid great deference by reviewing courts. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). And it is assumed that police officers who execute warrants do so in a proper manner and do not trample upon the rights of our citizens.

A reviewing court must, therefore, examine the warrant to determine whether it contained a basis upon which a neutral and detached magistrate could find probable cause to believe that the enumerated items of contraband would be found at the stated address. In this case, we additionally had to consider the merit of defendant’s contention that improprieties in the execution of the warrant caused the search to become unreasonable, irrespective of the officers’ warrant, and required the fruits of the search to be suppressed.

As to the second proposition, defendant Sierra argues that the officers exceeded the authority of their warrant to search the apartment because they broke four of Danny Alfortish’s ribs with a shotgun, fondled her intimately, and needlessly scattered her belongings, destroyed some of her furniture, and damaged the apartment in which she lived. Defendant supports her allegation with a series of sixteen pictures of the apartment taken after the search, testimony of several witnesses to the search including the apartment manager, and Danny Alfortish’s medical bill, all of which she contends support her allegation that this search violated her rights guaranteed by the federal and state constitutions.

The state offered three pictures of small portions of the apartment which were taken before the search had ended. The officers admitted that they did not replace all of defendant’s belongings, but they stated that they did not break Mr. Alfortish’s ribs, fondle Ms. Sierra, or destroy the furniture. The state further asserts that should we find that defendant’s rights were violated, her only remedy is a civil action in damages, not suppression of the evidence seized.

I believe that this Court need not have reached the issue presented by defendant’s allegation relative to improprieties in execution of the warrant and a consequently-required exclusion of the evidence, because I believe that the trial judge was correct when he suppressed the evidence in this case because the affidavit on which the warrant was based did not contain probable cause to believe that the enumerated items could be found at the designated address.

Article 162 of the Code of Criminal Procedure states in pertinent part:

“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.”

In order to establish probable cause, the affiant must include factual information which forms the basis on which the magistrate can decide that probable cause exists to believe that the items to be seized are currently contained in the place to be searched. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). A mere suspicion or belief is not sufficient to establish probable cause. State v. Thomas, 329 So.2d 704 (La.1976); State v. Chaffin, 324 So.2d 369 (La.1975); State v. Wells, 253 La. 925, 221 So.2d 50 (1969). Only when the affidavit sets forth those underlying circumstances upon which a judge can conclude that the contraband was on the premises to be searched may he cause the search warrant to issue. Aguilar v. Texas, supra; United States v. Ventresca, supra; State v. Paciera, 290 So.2d 681 (La.1974).

The affidavit at issue before the Court describes information that the affiants received from several sources. An unidentified informant told them that a person he described and knew as “Danny Boy” had attempted to sell him some stolen jewelry. Other police officers told them that a Daniel Alfortish who had an arrest record was known as “Danny Boy.” While investigating an apartment burglary at 8600 Pontchartrain Boulevard, they learned from a domestic employee at Apartment 417 that she had seen a woman, who lived in the same apartment complex, near the door to Apartment 417 shortly after the door had been knocked on, and a few minutes before the apartment was ransacked. The officers learned from the lessee of the apartment (an FBI agent) that other residents of the apartment house had told him that a female resident of Apartment 303 had knocked on other doors in the apartment house. The officers then learned from the apartment manager that Apartment 303 was leased to Paula Sierra, and that Danny Alfortish also resided there. They were also told by the apartment manager that complaints had been received about pedestrian traffic to that apartment late at night.

A. An action by a person who is an heir or legatee of a deceased person, and who has not been recognized as such in the judgment of possession rendered in the succession of the deceased by a court of competent jurisdiction, to assert any right, title, or interest in any of the property formerly owned by the deceased against a third person who has acquired this property from or through a person recognized as an heir or legatee of the deceased in this judgment of possession, is prescribed in ten years if the third person, or his ancestors in title, singly or collectively, have been in continuous, uninterrupted, peaceable, public, and unequivocal possession of the property for such period after the registry of the judgment of possession in the conveyance records of the parish where the property is situated, irrespective of the good faith or bad faith of the third person’s ancestors in title, including the heir or legatee of the deceased recognized as such in the judgment of possession.

The affidavit contained no information that Paula Sierra had been seen with any jewelry, or that any jewelry had been seen in her apartment, or that she had been involved in any criminal activity of any kind. There were secondhand hearsay reports in the affidavit that she had been seen walking in the halls of the apartment building in which she lived knocking on doors, conduct which seems innocent and does not suggest criminal activity. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Nor does the affidavit contain facts which could form the basis for a belief that Daniel Alfortish was concealing contraband in Apartment 303. For example, it contains no information that Alfortish was selling stolen jewelry, or that he was selling anything seen, or even likely to be found, in Apartment 303, or that Apartment 303 contained contraband of any sort, or any jewelry or guns. Nor was there any information in the informer’s tip that the “hot jewelry” being sold by a “Danny Boy” was a particular kind of jewelry (which might have matched the jewelry described in the warrant), or that the “hot jewelry” was stolen from any particular apartment or apartment building. In short, I believe the affidavit contains no information on which a magistrate could have concluded that there was probable cause to believe that the bracelet, rings, and gun described in the warrant could be found in Apartment 303 at 8600 Pontchartrain Boulevard.

As I read this record, the foregoing account of the facts in this case is an accurate one. The facts related in the majority opinion are, at the least, misleading. As I review the majority opinion, I am left with the impression that the majority is saying that the affidavit stated that the informer said “Danny Boy” was Danny Alfortish (that is not true), and that the affidavit stated that Danny Alfortish lived in Apartment 303 (that is not true), and that at the suppression hearing the information in the affidavit was generally substantiated (that is not true, in my' considered judgment).

This Court has consistently upheld convictions which were attacked on the basis that an illegal search and seizure had violated defendant’s rights because we found that the warrant authorizing the search was based on probable cause. In State v. Martin, 318 So.2d 25 (La.1975) we found an affidavit was adequate to support the issuance of a search warrant when the affidavit stated that an informer had personally observed a quantity of coats in the residence which was to be searched, and had learned of their offer for sale. That affidavit also recited that police discovered that a large quantity of coats had been burglarized from a store near the residence a few days before the informer’s observations. Likewise, in State v. Thomas, supra, we found that an affidavit did recite facts establishing to the satisfaction of the judge that probable cause existed for the issuance of the search warrant where the affidavit included information that an informant had personally seen the contraband (heroin) in the residence to be searched and that he had seen the defendant, who lived at that residence, selling small packages of white powder. We have also upheld a ruling that a warrant was issued on the basis of probable cause when the warrant was supported by an affidavit which included information that an informant had personally seen contraband for sale at the address to be searched. State v. Roach, 322 So.2d 222 (La.1975).

However, when the information in an affidavit has failed to supply enough factual information so that an issuing magistrate could find that probable cause existed to search a person’s premises, we have held that the search was unreasonable by constitutional standards. See State v. Humble, 309 So.2d 138 (La.1975).

The affidavit at issue here does not contain information on which the magistrate could have found probable cause to believe that Paula Sierra had concealed in her apartment the fruits of a burglary, or that Alfortish had done so. The officers believed only that a man named “Danny Boy” was selling “hot jewelry,” that Daniel Al-fortish, who had an arrest record and purportedly was known as “Danny Boy” had a connection to Apartment 303, and that an apartment in the same building had been robbed. Such information might well cause police to be suspicious about whether Danny Alfortish had been involved in a burglary, but I believe it does not establish the probable cause necessary to support a valid search warrant of Apartment 303. Search warrants cannot issue on a basis only of reputation and police suspicion. Spinelli v. United States, supra; State v. Paciera, supra.

I believe, therefore, that the affidavit in support of the search warrant at issue here lacked sufficient facts upon which a finding of probable cause might be found. I would affirm the trial judge’s ruling.

      . The warrant described these items as follows:
      “One twelve karat gold bracelet 2" width, one 14 karat gold florentine man’s ring with large sokey (sic) topaz stone, one 14 karat gold pinky ring with five small amethyst stones, oriental style, one Smith & Wesson .38 caliber blue steel revolver, 6 inch barrel, other stolen property.”

      . The return on the search warrant describes the plants as “one hundred fifty-five 6-8" green plants.”

      . This statute implements the fourth amendment to the United States Constitution and Article I, section 5 of the Louisiana Constitution of 1974.

      . The affidavit stated in full as follows:
      “The reasons and facts for the request of this search warrant are:
      1. On Monday, 9-8-75, Officers Anthony Cannatella and Earl Hardouin met and spoke with a confidential reliable informant whose information has lead to numerous arrests and convictions in the past and the recovery of stolen property, and learned that a subject known to him as ‘Danny-Boy,’ white male, about 5-10, 160 pounds, brown hair about 29-31 years old, was pulling burglaries in the Lakeview area. He stated that the subject Danny Boy asked him if he wanted to buy or if he knew anyone that wanted to buy some ‘hot jewelry.’ He said he told Danny Boy that he was not interested at the time but that he would ask around for him. The Officers then returned to the district station and checked the residence burglary reports for the Lakeview area and found several where large amounts of jewelry were stolen o (sic) police report number 1-5562-75, which occurred 9-6-75 where $4200 in jewelry and stereo equipment were stolen, police report number 1-5102-75 which occurred on 9-5-75 where $7692.00 in jewelry were stolen. The Officers also found several other burglary reports where jewelry and stereo equipment were stolen. A check with the police dept. NCIC computer of the name Danny Boy to no avail. The Officers then checked with the burglary division of the detective bureau also to no avail. Upon checking with the narcotics division, the Officers learned that two subjects used the name of Danny Boy, one was a Negro male, and the other was a white male one Daniel Alfortish. Upon checking the name Daniel Alfortish in the NCIC computer it showed that there was a subject with a previous arrest record by that name and he used the moniker Danny Boy.
      2. On Wednesday, 9-10-75, Officers Anthony Cannatella and Earl Hardouin, assigned to burglary and robbery followup investigations in the Third District, received a call to meet officer Sidney McCann in the Third District station relative to two apartment burglaries with a possible suspect. Upon speaking to Officer McCann the Officers learned that he had just taken a burglary report from a victim who resides at 8600 Pontchartrain Blvd. apt. 408 and also a victim in apt. 417. Officer McCann informed the Officers that the maid in apt 417 was a witness to that burglary, in that while she was ironing some clothes she heard a knock on the door. When she answered the knock there was no reply and a second knock. She again answered the knock and received no reply so she told the caller through the closed door that no one was home but the maid. She waited a few seconds and opened the door and observed a white female walking down the hall with a camera hanging around her neck. The maid, Corine Russell, then left the apartment and went downstairs to the laundry and locked the apartment door. Upon returning about 20 minutes later, she discovered the apartment had been entered and ransacked. She stated that she knew the white female lived somewhere in the apartment complex. The victim FBI agent Jack Nehl, then returned home. The Officers learned from agent Nehl that several other people residing in the complex had complained to him that the same girl that they knew to reside in apt. 303 had knocked on their doors that day also. Upon checking with the manager of the complex it was learned that apt 303 is leased by one Paula Sierra W/F and that she receives mail in three different names, one of which is Paula Levet and that on the rental card it is listed that one Daniel Alfortish also resides in the apartment. The manager also stated that several complaints have been received from other tenants relative to numerous pedestrian traffic into apt. 303 all hours of the night. Upon learned the above from Officer Sidney McCann, the Officers correlated this information with the information they had received from the informant and due to these facts the Officers feel that concealed in the aforementioned apartment, 303, is the property from the burglary of apartment 408 and possibly the property from other apartment burglaries in the same general area.”

      . Much of the information in the affidavit was not substantiated by the testimony at the suppression hearing. Some of it was shown to be erroneous. This fact, however, does not bear upon the narrow legal issue we review: i. e., whether facts on which a magistrate might find probable cause to search were contained within the four corners of the affidavit.

      . In fact, although the affidavit concludes with the statement the officers felt that apartment 303 contained “the property from the burglary of apartment 408 and possibly the property from other apartment burglaries in the same general area,” there is no statement at all that the enumerated items were stolen from apartment 408.


source: Caselaw Access Project

author: TATE, Justice. SANDERS, Chief Justice PER CURIAM. SUMMERS, Justice

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Irvin Joe CROSBY and Jimmy Andrew Mamon, Appellants.
    No. 57513.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 15, 1976.
    Dissenting Opinion Nov. 3, 1976.

      Paul H. Kidd, Kidd, Katz & Strickler, Monroe, for Jimmy Andrew Mamón, defendant-appellant.
    Joseph A. Reeves, Jr., Emmons, Henry & Reeves, Jonesboro, for Irvin Joe Crosby, defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whit-ten, Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendants pleaded guilty, conditioned upon appellate review of their complaints of prejudicial pre-plea rulings which (they allege) impaired their ability to present an adequate defense. The guilty plea was accepted by the trial court with that reservation of appellate review, the court thus approving the plea bargain to that effect between the prosecutor and the defense counsel.

The chief issue of these appeals is whether, under these circumstances, the defendants may have appellate review of their assignments of error, insofar as based upon pre-plea rulings by the trial court, and a reversal of their convictions if prejudicial error is shown.

I.

A plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea. State v. Torres, 281 So.2d 451 (La.1973); State v. Foster, 263 La. 956, 269 So.2d 827 (1972).

Here, however, the accused expressly did not waive their right to appellate review of non-jurisdictional trial error which (they contend) made useless any continued trial of their defense. Their plea of guilty was entered upon the express plea bargain that they did not lose their right to appellate review of such error.

If we are not able to afford the accused their bargained-for appellate review, we must set aside the guilty pleas. The plea could not therefor be characterized as voluntary, because of the non-performance of the plea bargain (or the impossibility of the state to perform it) by virtue of which the plea was obtained. State v. Baudoin, 334 So.2d 186 (La.1976); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

In State v. Torres, 281 So.2d 451 (La. 1973), we held that, despite the allegation of such a plea bargain, we would not on direct appeal review the pre-plea errors urged as a basis for reversal. However, we expressly noted, 281 So.2d 454, 456, that the accused was entitled to post-conviction review and relief if the plea was involuntary by reason of his mistaken belief that he was entitled to appellate review of the voluntar-iness of his confession, the principal error there alleged. Further, distinguishably from the present case’s express plea bargain, in Torres we found that the appeal-record did not demonstrate that the plea bargain was conditioned on the accused’s right to obtain appellate review of the constitutional invalidity of (what the state there stipulated to be) the principal evidence against him.

II.

We are therefore for the first time faced with an instance where, on an appeal from a conviction through an accused’s plea of guilty, the plea of guilty is shown by the record to have been expressly conditioned (and so accepted by the trial court) upon the accused’s right to obtain appellate review of pre-plea rulings urged as reversibly erroneous.

III.

If we rigidly apply the judicially-created doctrine that a plea of guilty waives all but jurisdictional defects in the prosecution, then (as noted earlier) we must order the plea vacated as involuntary and remand for a new trial, without considering whether in fact prejudicial error had actually occurred. However appropriate a resolution this might be under some circumstances, in the present situation (unless required by law) the vacation of the plea and the remand for a new trial represents a wasteful use of judicial and legal resources and an inefficient method to review the contentions of the accused that their conviction is based upon constitutional deprivation and improper state conduct:

If we follow this rigid approach of refusing to review the assignments of error (and consequently vacating the guilty pleas), then for us to afford review the state must retry the defendants, in order for them to preserve once again their contentions of error and present them to us once again, if convicted, for our consideration of them on their merits. This, despite the accused’s admission of their factual guilt and their satisfaction with the sentence imposed (providing that their contentions of illegal evidence or improper state action are reviewed on appeal and found not to possess reversible merit). This, despite the circumstance that the prosecutor concurred in the plea bargain by which the defendants reserved their right to appellate review of their assignments of error, and despite the acceptance by the trial court of the pleas of guilty based upon this reservation.

Of course, if not permitted by law to review the assignments of error, we have no alternative but to follow such an inefficient and hypertechnical procedure, thus forcing the state, the defendants, the jurors, and the witnesses to undergo the delay and expense of a new trial in order finally to present to us for review the assignments of error now ripe for our present decision: Offering defendants who admit their factual guilt an opportunity to escape an unfavorable verdict, and likewise opening up the possibility (if there is merit in the defendants’ assignments of error) of a subsequent reversal and yet a third trial on the charges now before us.

Undoubtedly, legal issues aside, the most practical and fair disposition indicates, under the present circumstances, that we should review the assignments of error now, if empowered to do so, and either reverse the convictions and remand for immediate re-trial or else affirm the convictions and terminate the legal proceedings if no reversible error is presented to us.

IV.

The ultimate issue remains: Are we empowered to review the pre-plea rulings, properly reserved at the time and at the plea of guilty; or must we set aside the pleas and remand for new trial, upon our finding' that we have no discretion that permits us to review the assignments of error?

For the reasons more fully articulated below, we have determined that we are not barred from reviewing the assignments of error specifically reserved at the time of the plea of guilty, where the trial court accepted the plea of guilty so conditioned (which the court had discretion to refuse, if proffered upon such reservation).

V.

The narrow issue before us is whether, on an appeal from a conviction and sentence founded upon a plea of guilty, this court may consider an assignment of error properly reserved for review at the time of (a) the trial court ruling, (b) the plea of guilty, and (c) the appeal.

We find no statutory or constitutional bar to our doing so. In criminal proceedings, final judgments are appealable, La.C. Cr.P. art. 912 A, and the defendant has a statutory right to appeal a judgment which imposes a sentence upon him, La.C.Cr.P. art. 912 C. A sentence may be based either upon a verdict or a plea of guilty. La.C. Cr.P. art. 872(3). Unless waived by the appellant, an error properly reserved by an assignment of error “shall be considered on appeal.” La.C.Cr.P. art. 920.

VI.

Nevertheless, by judicially-created principle, a defendant normally waives any non-jurisdictional error by his plea of guilty. Under both state and federal jurisprudence, an unqualified plea of guilty waives all non-jurisdictional defects occurring prior thereto, and precludes review thereof either by appeal or by post-conviction remedy.

See: State v. Torres, 281 So.2d 451 (La. 1973); State v. Foster, 263 La. 956, 269 So.2d 827 (1972); State ex rel. Jackson v. Henderson, 263 La. 797, 269 So.2d 248 (1972); State v. Coats, 260 La. 64, 255 So.2d 75 (1971); State v. Valentine, 259 La. 1019, 254 So.2d 450.(1971); State v. Bergeron, 152 La. 38, 92 So. 726 (1922). See also: Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (grand jury venire); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970) (initially coerced confession, but voluntary plea a month later); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (same issue as in Parker); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (fear of death penalty did not invalidate voluntary plea). But cf., Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975).

However, even an unqualified plea of guilty does not preclude review of what are regarded as “jurisdictional” defects-— those which, even conceding the accused’s factual guilt, do not permit his conviction of the offense charged. These include, for example: the lack of jurisdiction of the sentencing court, La.C.Cr.P. art. 362(1); the conviction represents double jeopardy, La.C. Cr.P. art. 362(2), State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974); Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); the prosecution, when instituted, had prescribed, La.C.Cr.P. art. 362(7), see also State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974); the state lacked constitutional or legal power to try the accused for the offense charged, Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); State ex rel. Jackson v. Henderson, 283 So.2d 210 (La. 1973); the statute under which the prosecution is brought is unconstitutional, State v. Bergeron, 152 La. 38, 92 So. 726 (1922); the charge brought by the indictment does not constitute a crime, State v. Watson, 41 La. Ann. 598, 7 So. 125 (1889); certain types of patent error preventing conviction for the offense, La.C.Cr.P. art. 920(2), see indicative listing at State v. Guillot, 200 La. 935, 9 So.2d 235, 239 (1942).

We do not intend to disturb any of the above jurisprudential principles by our ruling today (see below) that we will, upon the circumstances shown by this appeal, review the assignments of error as to pre-plea rulings, rather than vacate the pleas and remand for a new trial.

VII.

The problem we here face is not peculiar to Louisiana. The dilemma of the unfulfilled plea bargain, whereby the court must vacate the plea or grant specific performance of the unfulfilled condition, does not arise solely where the bargain is for appellate review, see Bond, Plea Bargaining and Guilty Pleas, Sections 7.18, 7.19 (1975), although it has arisen as to this issue also, Bond, Section 7.22[2]. The merits and demerits of permitting the appeal of non-jurisdictional defects, despite a plea of guilty, have been considered in other jurisdictions and by leading scholars and practitioners in the field of criminal justice. Bond, Sections 7.22[3], [4],

The administration of criminal justice has in the past decade been subjected to extensive study and evaluation by national institutional groups, such as the American Bar Association and the National Conference of Commissioners on Uniform State Laws. These groups have recommended standards and procedures intended to improve the efficiency and fairness of our justice system, and to reform the sometimes archaic, inefficient, and hypertechnical principles of our ancient criminal procedures insofar as based upon the different historical conditions of other times.

Among the recommended reforms is to permit the appellate review, at least under limited conditions, of non-jurisdictional errors, despite a plea of guilty.

The Uniform Rules of Criminal Procedure, National Conference of Commissioners on Uniform State Laws (1974), provide both for appellate review of certain pre-trial rulings where the conviction is founded upon a plea of guilty, Rule 444(d), as well as that a condition of the plea bargain may be that the defendant waive his right to seek appellate review of such pre-trial rulings, Rule 443(a).

Likewise, the American Bar Association Standards for Criminal Justice Relating to Criminal Appeals (1970) recommend that a defendant should have the right to seek review of a conviction founded “ upon his plea of guilty or nolo contendere. Standard 1.3(a)(iii). Commentary (c) to this standard notes: “ * * * there is great value in modifying the traditional view that a plea of guilty waives all non-jurisdictional defects which could be waived by a pre-trial defensive motion. * * * Where, under defense strategy, the only litigable question arises before trial, it is wasteful to force a sham trial in order not to have a forfeiture of appellate review. * * *.”

For reasons similar to those expressed by the commentaries, at least three American jurisdictions have specifically provided that even an unqualified plea of guilty does not waive review of a pretrial ruling which refuses to suppress evidence as illegally seized. California Penal Code, Section 1538.5(m) (1970); N.Y. Criminal Procedure Law, Section 710.70(2) (1970); Wisconsin Statutes Annotated, Section 971.31(10) (1969). (In Wisconsin, the unqualified plea of guilty likewise permits review of the denial of a motion challenging the admissibility of a statement by the defendant.)

The practice in these states has generally received professional and scholarly approval and has successfully achieved the intended aims. See commentaries to Uniform Rules of Criminal Procedure and American Bar Association Standards, above cited; 1 Wright, Federal Practice and Procedure 381-82 (1969); Bond, Plea Bargaining and Guilty Pleas, Section 7.22 (1975); Comment, Appellate Review of Constitutional Infirmities Notwithstanding a Plea of Guilty, 9 Houston L.Rev. 305 (1971). See also, e. g., United States v. Clark, 459 F.2d 977 (CA 8, 1972); United States ex rel. Rogers v. Warden of Attica State Prison, 381 F.2d 209 (CA 2, 1967).

To permit review of non-jurisdictional defects, appeals from guilty pleas, has also been criticized. See e. g., United States v. Sepe, 474 F.2d 784 (CA 5, 1973); United States v. Cox, 464 F.2d 937 (CA 6, 1972). The chief arguments against such a procedure are: it compromises the finality of the guilty plea; it permits an admittedly guilty defendant to reap the benefits of a guilty plea, yet preserves his right to have his conviction set aside on appeal; and it may force the courts to decide constitutional issues which may not actually arise during the trial or which, if they do, may represent harmless error in the light of the full trial record.

Yet, despite disapproval or doubt as to the practice, in at least several instances the appellate court has reviewed assignments of error, when the plea of guilty was conditioned upon their appellate review, rather than vacate the plea (because of the nonperformance of the plea bargain) and remanding for a full trial. United States v. Caraway, 474 F.2d 25 (CA 5, 1973) (decisions to this effect collected at 474 F.2d 28); United States v. Cox, 464 F.2d 937, 946 (CA 6, 1972); Nickels v. State, 545 P.2d 163 (Alaska, 1976).

VIII.

As we earlier noted, no statutory or constitutional bar prevents our review of the assignments of error here presented to us. If we do not review them, we must order the vacation of the pleas of guilty and a remand for new trials, since the pleas were expressly volunteered on the basis that such review would be afforded.

Our review of the assignments, if indeed prevented, would be barred only by a rigid application of the judicially-created doctrine of waiver of non-jurisdictional defects when reviewing convictions based on guilty pleas. However, this doctrine itself arose only in the context of an un qualified guilty plea, where the defendant did not (or was not permitted to) reserve his appellate rights as to pre-plea rulings.

We have determined that, under the circumstances presented to us, we will review the assignments of error here presented. Nothing in our laws prevents such a sensible procedure — a quick and effective method of saving courtroom time and obtaining review of the only disputed legal issues.

Before reviewing the assignments here presented to us, however, we deem it appropriate to discuss principles of appellate review applicable to reviews of convictions based upon, assignments of error reserved (with the approval of the trial court which accepts the plea) at the time the defendant pleads guilty.

IX.

Principles Applicable to Appellate Review of Assignments of Error Reserved at the Time of the Plea of Guilty

Among the principles we deem applicable to review of assignments of error reserved at the time of a plea of guilty are:

1. As in other instances of a qualified plea of guilty, the trial court has very great and virtually unreviewable discretion to reject rather than accept a guilty plea conditioned upon reservation of appellate review of pre-plea assignments of non-jurisdictional error. See: State v. Green, 221 La. 713, 60 So.2d 208 (1952); Bond, Plea Bargaining and Guilty Pleas, Section 6.18 (1975); but cf., United States v. Ammi- down, 162 U.S.App.D.C. 28, 497 F.2d 615 (1974), noted, 20 Wayne L.Rev. 1359 (1974).

2. The functional purpose involved is to permit a fair and efficient method to review a central issue of a trial and a prosecution, in instances where the pre-plea ruling, if erroneous, mandates a reversal of any conviction which may result. The trial court discretion, in accepting a conditioned plea or a plea bargain of the nature at issue, should be exercised in the light of this purpose.

3. The normal function of the procedure is to avoid the delay of a trial on the merits (and the useless cost to the judicial system, the witnesses, the jurors, and the accused) by affording immediate review, without a trial of the merits, of a pre-trial ruling which, if correct, permits the trial or the introduction of evidence which will substantially contribute to a conviction (and which, if incorrect, mandates reversal upon introduction of the evidence). The type of error usually here assigned represents a violation of a constitutional or statutory right which, for reasons beyond guilt or innocence, would mandate a reversal of any conviction resulting from a trial. When a conditioned plea is accepted reserving an assignment of error as to a pre-trial ruling of this nature, we will assume that the evidence questioned is of this prejudicial nature and will be offered at the trial, unless the record prior to the plea demonstrates otherwise.

4. Normally, the trial court will not accept a plea of guilty conditioned upon review of procedural irregularity occurring after the trial has commenced or evidentia-ry rulings therein which do not go to the heart of the prosecution’s case. Of this nature also, are pre-trial rulings which affect the conduct of the trial but which do not substantially relate to guilt, such as the denial of a continuance or of a severance.

Since a plea of guilty by its nature admits factual guilt and relieves the state of the necessity to prove it by a contested trial, assignments based upon incidents relating to procedural conduct of the merit-trial will be reviewed (if permitted to be reserved, as in the present case) upon the assumption that they represent harmless error, La.C.Cr.P. art. 921, unless the record clearly demonstrates otherwise. Once the trial has started, a defendant who complains only of errors of this nature should normally be required to continue with the trial until verdict; he should not be able to obtain a reversal, despite his admitted guilt, because an incidental ruling may be erroneous but might not in the light of a full trial record constitute a cause for reversal.

5. If the prejudicial error is not patent on the face of the record, a defendant who pleads guilty waives his right to obtain appellate review of contended-error if he does not object to it at the time it occurs or perfect an assignment of error or take other procedural step required to preserve it for consideration by this court upon his appeal. State v. Spain, 329 So.2d 178 (La.1976); State v. Knighten, 320 So.2d 184 (La.1975); State v. James, 260 La. 423, 256 So.2d 430 (1972); State v. Marcello, 152 La. 727, 94 So. 370 (1922).

6. Analogously, a defendant will also waive his right to review of a non-jurisdictional pre-plea trial ruling unless, at the time of his plea, he expressly stipulates that he does not waive his right to review of it, the normal consequence of a guilty plea. (In the light of this reservation, of course, the trial court may or may not exercise its discretion to accept the plea.) As in other jurisdictions which permit the practice, where the issue is presented, the prosecutor may validly require the waiver of appellate review of non-jurisdictional pre-plea rulings or conduct as a condition of a plea bargain.

7. Finally, in our review of pre-plea rulings or conduct, we may vacate the plea and remand for a new trial if we are not able, in the light of the above principles, to make adequate review of the assignments presented to us.

The principles noted above are designed to facilitate use of the conditioned plea only to those instances for which designed, to secure review of what is believed to raise an issue of fundamental error of a nature that mandates reversal of any conviction which might result after a trial on the merits. The principles are also designed to avoid the possible abuses of the procedure suggested by its informed critics, by discouraging frivolous reservations of appellate review on the part of the defense or easy acquiescence in such reservations by the court and the prosecutor.

X.

The Present Case

The defendants Crosby and Mamón were indicted for first-degree murder, a capital offense. La.R.S. 14:30 (1973). At the completion of the state’s case, the defendants were permitted to plead guilty to second degree murder, La.R.S. 14:30.1 (1973), but to reserve their right to appeal the pre-plea rulings of the trial court to which they objected. They were sentenced to life-imprisonment, the maximum penalty for the lessor offense to which they pled.

The plea bargain (approved by the trial court, in the accepting the pleas) purporting to confer appellate rights is reduced to writing and made part of this record. Conformably thereto, the following assignments are presented to us for review by formal assignment and argument to this court:

1. The denial of the motion to quash the indictment, on the ground that the statute charging first-degree murder, La.R.S. 14:30 (1973), is unconstitutional in that it imposes the death penalty (Assignment No. 1, Mamón, Crosby): Since the defendants were not convicted of violating that statute, but instead pleaded guilty to second-degree murder, La.R.S. 14:30.1 (1973), the assignment is without merit. See also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

2. The denial of a motion to suppress, as illegally seized, a shirt taken from the residence of a codefendant. (Crosby Assignment No. 2): The evidence shows that the defendants Crosby and Mamón came to Mamon’s residence, where in the presence of Mamon’s half-brother, Milton Campbell, they took off some clothes and gave them to him to dispose of. The clothes included the complaining defendant Crosby’s shirt. Subsequently, after Ma-mon’s automobile was connected with the murders, the occupants of Mamon’s home were questioned. During his recorded interrogation, Campbell informed the officers that Crosby had left a shirt with him. The preponderance of the evidence shows that Campbell voluntarily turned the shirt over to the officers. In view of this voluntary surrender of the shirt by its custodian with dominion to do so, we find no merit to this assignment.

3. The remaining assignments present issues concerning trial court’s rulings affecting the conduct of the trial. They concern alleged evidentiary rulings or procedural irregularities. A review of the record does not negate that, even if erroneous, for purposes of our present review they were at the most harmless under the circumstances of the state’s case, which aside from the contended errors strongly proves the defendant’s guilt. They are therefore without merit.

Decree

For the reasons assigned, we affirm the convictions and sentences.

AFFIRMED.

SANDERS, C. J., dissents and assigns written reasons.

SUMMERS, J., dissents and assigns written reasons.

MARCUS, J., dissents.

SANDERS, Chief Justice

(dissenting).

Defendants, Irvin Joe Crosby and Jimmy Andrew Mamón, were charged by grand jury indictment with the first-degree murder of two persons, a violation of LSA-R.S. 14:30. The defendants filed several pretrial motions, which the trial judge overruled, and made various objections during the trial. At the close of the State’s evidence, defendants were allowed to plead guilty to second degree murder, reserving their right to appeal the rulings of the trial court made prior to their guilty pleas. Pursuant to the plea bargain, defendants now appeal to this Court, relying upon several assignments of error for reversal of their convictions and sentences.

It is well settled that a plea of guilty waives all non-jurisdictional defects prior to the plea. State v. Torres, La., 281 So.2d 451 (1973); State v. Foster, 263 La. 956, 269 So.2d 827 (1972); State v. Valentine, 259 La. 1019, 254 So.2d 450 (1971); Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

Here, the State had completed its case against the defendants before the guilty plea was entered. Under the rule, we cannot review' for non-jurisdictional defects that occurred either before or during the trial. Of special significance here is the circumstance that the conviction resulted from the plea of guilty, not from the trial.

It is true that the plea bargain between the prosecutor and the defendants provided for appellate review of the several defense contentions. In my opinion, however, the scope of appellate review in this Court cannot be altered by such an agreement.

Although the majority stresses judicial economy, I do not believe that the decision promotes this laudable objective. Here, the district court held an incomplete trial but, despite guilty pleas to a lesser included offense, the defendants get full appellate review in this Court. Under these procedures, the guilty defendants get the best of both worlds to the prejudice of the already congested court dockets.

For the reasons assigned, I respectfully dissent.

ON REHEARING

PER CURIAM.

The motion to quash was properly overruled. Roberts v. Louisiana, - U.S. -, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) did not hold unconstitutional the Louisiana first degree murder statute, only the death penalty under that statute.

Rehearing denied.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Chief Justice.

      . Also: State v. Frank, 310 So.2d 110 (La. 1975); State ex rel. Smith v. Henderson, 284 So.2d 772 (La.1973); State v. Barber, 262 La. 443, 263 So.2d 719 (1972).

      . Rule 444(e) provides, as to the effect of a plea of guilty: “The plea bars an appeal based upon any non-jurisdictional defect in the proceedings, but an order denying (1) a pretrial motion to suppress evidence, or (2) any pretrial motion which, if granted, would be dispositive of the case, may be reviewed on appeal from an ensuing judgment of conviction.”

      . Rule 443(a)(4) provides:
      “(a) Agreements permitted. The parties may agree that the defendant will plead on one or more of the following conditions: * * *
      “(4) That the defendant will not seek appellate review, as permitted under Rule 444(d), of an order denying a pretrial motion.”

      .However, waiver of the right to appeal such pretrial ruling may be a valid condition to acceptance of the plea. People v. Williams, 36 N.Y.2d 829, 370 N.Y.S.2d 904, 331 N.E.2d 684 (1975).

      . The typical pre-trial ruling so reviewed in other jurisdictions is the denial of a motion to suppress evidence or a confession or statement as unconstitutionally or illegally obtained and thus not admissible. Occasionally, the motion to suppress, required to be filed pre-trial, is not filed until during the trial; but the principle of review will in such case be the same as if the ruling were made to a pre-trial motion.

      . Some of the defendant’s assignments of error formally made, see Tr. 75 and 77, were not argued, and some of the arguments concern trial rulings which were not made by the formal assignments of error. Unless both assigned and argued, the alleged errors are deemed waived, under usual principles of appellate review. (We further note that none of the waived or non-assigned alleged errors present any issue indicating prejudicial or reversible error.) In the text of our opinion, we adopt the numeration of the assignments in the record, Tr. 75 and 77, rather than in the briefs.

      . The other assignments are of the following nature:
      1. The state’s introduction of an inculpatory statement without compliance with the pre-trial notice of such intent required by La.C.Cr.P. art. 768 (Mamón 3): The Williams’ statement concerned a remark of one defendant to the other prior to the offense; it is not regarded by our jurisprudence as governed by the notice requirement of the code. Aside from this, however, this type of technical objection will, upon our review after a guilty plea, normally be regarded as a merely procedural irregularity which does not affect the determination of guilt nor result in reversible error.
      2. The admission of allegedly gruesome photographs showing the condition and location of the victims when found. (Crosby 6): Again, aside from the lack of factual and legal merit to the assignment, this type of evidentia-ry ruling during the trial is assumed to be harmless unless the record demonstrates to the contrary, for purposes of the present review.
      3. The trial court allegedly forced the defendants to stipulate that the killings occurred in the parish of the prosecution, thus depriving the defendants of their opportunity to question the essential proof of venue (Mamón 5, Crosby 5): This assignment arose when the defendants strenuously objected to the admission of certain color photographs in connection with a physician’s testimony that, based upon the bleeding shown by them, that the deaths must have occurred near the place the bodies were found. In return for the agreement of the prosecution not to exhibit these photographs to the jury, the defendant conceded the venue of the crime (out of the presence of the jury). The defendants’ voluntary agreement, in return for the prosecutor’s agreement not to exhibit admissible and relevant photographs to the jury, would prevent the assignment from representing error even if urged after conviction by a jury. However, on review after a plea of guilty, this type of alleged trial error is regarded as harmless, being peripheral to the issue of the accused’s guilt or to the essential fairness of the trial.
      4.The denial of defendant Crosby’s motion to sever his trial from Mamon’s, on the ground that he would be deprived of cross-examination of his codefendant Mamón if, pursuant to its intent, the state introduced evidence of an oral inculpatory statement made to Milton Campbell by Mamón (Crosby 4): Again, this is a type of procedural irregularity which is presumed to be harmless on a review of this nature. For example, since the plea of guilty was entered at the conclusion of the state’s case, the record does not demonstrate that in fact Crosby was deprived of a failure to cross-examine Mamón (the only basis urged for the motion to sever) by the failure to grant the motion, since we do not know if Mamón would have taken the stand if the trial had continued. If it were pertinent to this review, we might also note that the assignment is without merit: The evidence shows that Mamon’s statement to Campbell, which inculpated both Mamón and Crosby, was made in the presence of Crosby and is thus independently admissible against the latter, State v. Sharbino, 194 La. 709, 194 So. 756, 759 (1940), without violating any constitutional right to cross-examination of the declarant, see Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).


author: PER CURIAM.

text:
    STATE of Louisiana v. Robert McQUEEN.
    No. 57867.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 15, 1976.
    Donald Sharp, Gold, Hall, Hammill & Little, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Ralph W. Kennedy, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: TATE, Justice.

text:
    LYKES BROTHERS STEAMSHIP COMPANY, INC., Plaintiff-Appellee-Respondent, v. F. C. DOYAL, Jr., Administrator of the Department of Employment Security, and Melford Swain, Jr., Defendants-Appellants-Relators.
    No. 57351.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      Marion Weimer, James A. Piper and James A. McGraw, for Administrator of La. Dept, of Employment Security, Baton Rouge, for defendant-applicant.
    Andrew T. Martinez, Charles F. Lozes, Terriberry, Carroll, Yancey & Farrell, New Orleans, for plaintiff-respondent.
   TATE, Justice.

This case arose when Lykes Brothers Steamship Company, Inc. challenged an administrative award of unemployment compensation to a Lykes employee under La. R.S. 23:1471 et seq. Lykes contends that its employee was not eligible to receive benefits because he was not “available for work” as required by La.R.S. 23:1600(3).

The administrative tribunal adjudicating claims and objections to compensation determined that the claimant was indeed eligible. The court of appeal upheld the district court’s reversal of such administrative determination. 322 So.2d 433 (La.App. 4th Cir. 1975).

We granted certiorari, 325 So.2d 605 (La. 1976), because we thought that, by so doing, the court of appeal had overlooked the proper test for disqualifying a claimant: By failing to apply the provisions of the statute as a whole, the court had failed to consider whether the “available” work, La.R.S. 23:1600(3), was also “suitable”, within the meaning of and as required by statute, La. R.S. 23:1601(3) (quoted in text below).

The pragmatic issue

The essential pragmatic issue presented is whether a seaman, who has obtained job security with a given company on a given vessel, is required to forfeit such seniority rights by applying for and accepting less permanent and desirable work (which was not in fact offered him), or else forego his rights to compensation during otherwise involuntary unemployment.

Legal principles applicable

The court of appeal held that the claimant was not entitled to benefits because he did not meet the eligibility requirement of La.R.S. 23:1600(3), namely, that, “He is able to work and is available for work.” However, the meaning of “available for work” for eligibility, La.R.S. 23:1600, must be determined by considering the act as a whole, including the correlative provision for disqualification from benefits, La.R.S. 23:1602. See Raborn v. Heard, 87 So.2d 146, 149 (La.App. 1st Cir. 1956). See also Broden, Law of Social Security and Employment Insurance, Sections 8.04,10.11, 13.06 (1963).

Disqualification for unemployment compensation benefits on the ground that the

employee is unavailable for work is determined under La.R.S. 23:1601(3), which provides:

“An individual shall be disqualified for benefits: * * *

“(3) If the administrator finds that he has failed, without good cause, either to apply for available, suitable work when so directed by the administrator or to accept suitable work when offered him, or to return to his customary self-employment (if any) when so directed by the administrator.

“(a) In determining whether or not any work is suitable for an individual, the administrator shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence. * * * ” (Italics ours.)

A claimant is “available for work” within the meaning of the statutory enactment and entitled to benefits if he restricts his availability to suitable work as defined by the statute. Raborn v. Heard, 87 So.2d 146 (La.App. 1st Cir. 1956), and authorities cited therein. Of course, such restriction cannot be unreasonable, and the claimant cannot arbitrarily remove himself from available work by restricting his willingness to work to certain hours, types of work, or conditions, not usual or customary in the occupation, trade or industry. Raborn v. Heard, supra.

Facts

The claimant is a seaman who sails under a union contract. The employment agreement mandates that he take all his accrued vacation at the end of the voyage during which he accumulates 210 workdays. If the seaman chooses to make another voyage following that voyage in which he accumulates 210 workdays, he may do so but he forfeits his reshipping rights upon that vessel.

In this case, the seaman chose to take his vacation at the end of a voyage during which he had accumulated 180 days. (The voyage which the seaman missed was to the Far East and lasted 146 days. It would have required him to work at sea 355 days without a vacation.)

The seaman received 60 days paid vacation (one day for every three days worked), to which he was entitled under the union contract. He also received a “reship letter”, which entitled him to reship on the same vessel provided he not compete for any other employment on the union’s “open board”.

The end of the seaman’s vacation did not coincide with the return of his ship. Choosing not to forfeit his reshipping privileges on the ship to which he had been attached since 1966, the seaman sought unemployment benefits. As noted, the agency held him eligible to receive such benefits. The determination is contested by his employer on this judicial review of it.

Available, Suitable Work

In interpreting and administering the unemployment compensation act, we must take into consideration the legislative mandate that the statute be interpreted broadly and in accord with the act’s objective of “relieving individual hardship and the economic loss to the community as a whole which result from the lack of income caused by unemployment.” Immel v. Brown, 143 So.2d 156, 160 (La.App. 3d Cir. 1962). See National Gypsum Co. v. Administrator, Dept. of Employment Security, 313 So.2d 230, 232 (La.1975).

Unemployment compensation is neither a reward given to the employee, nor is it punishment imposed upon the employer. Its purpose is simply “to protect the stability of the state and of the family, by relieving the family distress and the menace to public welfare occasioned through unemployment of individual workers.” National Gypsum Co. v. Administrator, Dept, of Employment Security, supra. On the other hand, an employee is not disqualified by not applying for and accepting work which is not “suitable” for him. La.R.S. 23:1601(3). The concept in part is that the temporary unemployment of an individual should not, on penalty of starvation to his family otherwise, cause him to accept temporary positions which may be unsuitable as resulting in some permanent impairment of earning power by loss of status or security in the customary occupation in which he has permanently been employed. See Broden, Law of Social Security and Unemployment Insurance, Sections 10.01, 10.04, 10.11 (1962).

The determination of whether a claimant has removed himself from the work market and is “unavailable for work” is to some extent a factual determination as to the “suitability” of the work for which he does not make himself available. Therefore, the administrative agency’s resolution of this mixed law-fact issue is entitled to great weight, in view of its statutorily conferred role as final arbiter of fact, La.R.S. 23:1634, and in view of its presumed expertise as to issues of this nature. See Unemployment Compensation Commission of Alaska v. Aragon, 329 U.S. 143, 67 S.Ct. 245, 91 L.Ed. 136 (1946) and 4 Davis, Administrative Law Treatise, Sections 30.05, 30.09 (1958).

The claimant’s “availability” for other work as “suitable” must be weighed as reasonable or not in light of his particular field of industry, length of employment, and experience and prior earnings therein. See: La.R.S. 23:1601(3); Raborn v. Heard, cited above, and authorities therein cited. We cannot find unreasonable the administrative determination that such other work was not “suitable” in the light of the employee’s field of industry and length of employment therein and the loss of earned security rights he would forfeit by accepting other temporary employment.

In the present case, the seaman chose to preserve his tenured rights to reship, as opposed to applying for and accepting employment on any other incoming ship. Had the claimant made himself available to any position on other ships on the union’s “open board”, he would have relinquished his tenured rights to reship on the Joseph Lykes, and to his permanent berth and seniority-secured reshipping rights on this vessel, on which he has worked since 1966. His berth with Lykes would have then been given to someone else.

In light of the alternatives posed to the seaman, his choice not to abandon his reshipping privileges by applying for other work is reasonable. Such other work was unsuitable for him, as measured by the statute, so that his failure to apply for such work did not remove him from eligibility for compensation benefits by not being “available” for work. La.R.S. 23:1600(3); Raborn v. Heard, supra. Nor has it been shown that he failed to apply for “available, suitable” work when offered him, such as would disqualify him from the receipt of benefits. La.R.S. 23:1601(3); Smith v. Administrator, Division of Employment Security, 95 So.2d 349 (La.App. 2d Cir. 1957).

Other jurisdictions recognize a claimant’s “legitimate desire to return to work for a previous employer.” Broden, Law of Social Security and Unemployment Insurance, Section 10.04 (1962). To retain eligibility for unemployment benefits, a claimant should not be required to accept employment which requires him to forfeit seniority rights obtained in previous employment. Hobbs v. Board of Review, etc., 122 N.E.2d 707 (Ohio App.1953).

Lykes does not cite to us any judicial decisions to the contrary. It relies upon decisions of the California Unemployment Insurance Appeals Board, interpreting that jurisdiction’s unemployment compensation law. See Unempl.Ins.Rep. [(Calif.) ¶¶ 1950.-226, 237, .848] (CCH Topical Reports). We do not find that authority persuasive, in that (even if interpreted as Lykes does them) they conflict with the principles above-cited as to availability-suitability principles followed by jurisdictions which interpret such provisions as does Louisiana’s courts and administering agency.

Lykes also contends that the employee is disqualified because he left his employment without work-connected cause. La.R.S. 23:1601(1). We find no error in the administrative board’s and the court of appeal’s finding that, under the present facts, an employee’s taking of an earned vacation, which otherwise will be long deferred, does not constitute grounds for disqualification within the meaning of La.R.S. 23:1601(1). See 299 So.2d 477 (La.App. 4th Cir. 1974).

Decree

For the reasons assigned the decision of the trial court and the decision of the court of appeal are reversed, and the decision of the administrative board of review is reinstated. Appellee’s suit is dismissed. Appel-lee to pay all costs.

SANDERS, C. J., dissents, being of the opinion that the judgment of the Ct. of Appeal is correct. See 322 So.2d 433.

SUMMERS, J., dissents and subscribes to the reasons assigned by the Ct. of Appeal.

DENNIS, J., dissents being of the opinion the majority has misconstrued the meaning of “suitable” employment as intended by the Legislature so as to modify it to mean “ideal” employment. This judicial gloss is not justified by the purpose and wording of the law, confers a preferential benefit on a small class of employees, and tends to weaken the unemployment compensation system upon which other unemployed workmen not given such preferential treatment must rely for sustenance when out of work.

      . In earlier proceedings, the board had previously determined that the claimant was eligible for compensation benefits. The agency determination had been set aside, and the case remanded for the particular determination by the board of the claimant’s availability for work. 299 So.2d 477 (La.App. 4th Cir. 1974).

      . See at 329 U.S. 153-54, 67 S.Ct. 250:
      “ * * * [T]he question presented ‘is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially.’ To sustain the Commission’s application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings. The ‘reviewing court’s function is limited’. All that is needed to support the Commission’s interpretation is that it has ‘warrant in the record’ and a ‘reasonable basis in law.’ ”

      . Accepting the berth on another ship would have assured him only a single voyage. If he took this job on another ship, any seaman with reship privileges by virtue of tenure on this other ship was entitled, at expiration of the voyage, to claim his job back, which the claimant had filled for that voyage only.