text:
    W. B. NORTON v. Charles A. ADDIE.
    No. 57490.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Dale G. Cox, Nelson & Achee, Ltd., Shreveport, for plaintiff-applicant.
    Nolan Harper, Shreveport, for defendant-respondent.
   DENNIS, Justice.

This possessory action was brought by W. B. Norton against his neighbor Charles A. Addie as a result of a dispute over the common boundary between their properties in Caddo Parish. Norton claims that the northern boundary of his property is marked by a fence line which has been in place and maintained by himself and his ancestors in title since 1904. Addie, on the other hand, places the boundary approximately 114 feet south of the fence line at the south line of Section 16, Township 23 North, Range 15 West, as shown by a survey of his property made by Ben E. Ramsey, a civil engineer. The subject of this dispute is the approximately forty acres lying between these two lines, and described in plaintiff’s supplemental petition as:

“[S]tarting at a point which Mr. Addie considers to be the southwest corner of the southeast quarter (SE Vi) of the southeast quarter (SE Vi) of Sec. 16, then run approximately 114' north to a fence that has been in place since 1904 and maintained by the Nortons, then approximately 1320' east along this fence, then south approximately 158' then west approximately 1358' to the point of beginning.”

Several months prior to the filing of this suit Addie filed a boundary action asking for a judicial determination of the boundary between their respective lands. Addie also obtained a preliminary injunction preventing Norton from cutting the timber on the disputed tract. Plaintiff contends that he was in possession of the above described property at the time this action was filed and had been in possession for more than a year; and that defendant, Addie, disturbed his possession by having him enjoined from cutting the timber on this property.

Addie filed an answer and reconventional demand in which he denied Norton’s possession of the disputed area and asserted his own possession of the tract in question since his acquisition of title to the SE Vi of the SE Vi of Section 16 in May, 1962. Addie further alleged that plaintiff recently disturbed his possession by constructing a barbed wire fence through a portion of the SE Vi of the SE lA which is owned and possessed by him. He also sought damages because of this disturbance of his possession by plaintiff.

The trial court rejected Norton’s demands and rendered judgment in favor of Addie on his reconventional demand maintaining his possession of the disputed area and ordering Norton to assert any adverse claim of ownership in a petitory action within sixty days. The court further awarded Addie damages in the amount of $450.00.

The court of appeal found that Addie failed to show that he or his ancestors in title ever had corporeal possession of the disputed area and rejected his demands against Norton, reversing the judgment in his favor. However, it also found that Norton had not been in quiet possession of the subject property for more than a year prior to the bringing of the possessory action, as required by La.Code of Civil Procedure article 3658, and therefore affirmed the decision of the lower court insofar as it rejected Norton’s demands against Addie. The court of appeal appeared to consider it fatal to Norton’s case that he had refrained from cutting timber in the disputed area and had acknowledged the boundary was uncertain. 324 So.2d 497 (La.App. 2d Cir. 1975). We granted writs to consider whether this holding was in conflict with our decision in Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975).

In 1904, Norton’s father bought and settled on land located in Section 22, Township 23 North, Range 15 West, which lies south of and adjacent to Section 16. In that year he built a fence establishing the line which defendant alleges encroaches upon his property. The original fence was replaced by plaintiff in 1923, and terraces were built up to the fence line to prevent erosion of the soil. In 1968, plaintiff leased 160 acres of pastureland, including the tract in dispute, to Willis T. LaRue. LaRue testified that the fence was old but functional and prevented his cattle from escaping except in isolated instances. Both LaRue and plaintiff’s brother, W. D. Norton, testified that they visited the property frequently and checked the fence regularly, mending it in places where it broke. When the fence was inexplicably destroyed in 1974, plaintiff replaced it with a new fence.

Apparently both the trial court and the court of appeal placed considerable significance in the fact that no timber had been cut in the disputed area since approximately 1925 although plaintiff at that time sold the timber from his entire tract, including the disputed acreage, up to the fence line. Defendant’s witnesses testified that Norton had blazed a line indicating where he thought the true boundary lay and did not cut any timber beyond this point. W. D. Norton confirmed that plaintiff had not wished to cut into the disputed portion until the boundary line was settled. Paul Whetstone testified that he had a contract to cut timber on the land of Cordell Brown, and that plaintiff had likewise instructed him not to cut the timber between the blazed line and the fence. Inconsistent with this testimony is Addie’s statement that plaintiff, in a conversation with him which apparently occurred in 1962, said of the subject property, “ * * * I know that ain’t mine, and I don’t want nothing that ain’t mine.” (Tr., p. 81).

To maintain the possessory action, Article 3658 of the La.Code of Civil Procedure provides that the possessor must allege and prove that:

“(1) He had possession of the immovable property or real right at the time the disturbance occurred;
“(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
“(3) The disturbance was one in fact or in law, as defined in Article 3659; and
“(4) The possessory action was instituted within a year of the disturbance.”

The type of possession required for a possessory action is identical to that required to commence the running of acquisitive prescription. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975); Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952). The Louisiana Civil Code defines possession as “the detention or enjoyment of a thing, which we hold or exercise by ourselves, or by another who keeps or exercises it in our name.” La.C.C. art. 3426. Natural possession, which may exist without title, is the corporeal detention of a thing, as by occupying a house or cultivating ground. La.C.C. arts. 3428 and 3430. To acquire possession of property one must combine the intention of possessing as owner with the corporeal detention of the thing. Where a person claims by possession alone and without title the courts have required that he show an adverse possession by enclosures; “enclosures” in this sense are natural or artificial marks which give notice of the character and extent of possession. Hill v. Richey, supra.

The evidence in this case establishes that plaintiff, preceded by his father, had possessed the property in question for many years prior to the institution of this action. The exercise of exclusive grazing privileges over the land, accompanied by the maintenance of the enclosures constituted corporeal possession over the entire tract.

Willis LaRue, who leased the land from plaintiff for pasturage, possessed on behalf of his lessor. La.C.C. arts. 3438 and 3445. Witnesses for defendant asserted that the fence had been neglected over the years and was in a state of disrepair. But this testimony, if true, would not derogate from the proof of plaintiff’s possession. The witnesses concede that the fence, or remains of it, was clearly visible along the old fence line. This was sufficient to give defendant notice of the limits of plaintiff’s continuing possession. See Robertson v. Morgan, 116 So.2d 141 (La.App. 1st Cir. 1959).

Defendant maintains that because he holds a deed translative of title any act of possession on part of his land amounts to constructive possession of the whole and he is presumed to possess to the full extent of his title. La.C.C. arts. 3437, 3498, Marks v. Collier, 216 La. 1, 43 So.2d 16 (1949). However, the constructive possession of Addie and his ancestors in title was lost by the corporeal detention of the property by the Nortons beginning in 1904. By permitting their usurpation to continue without interference, Brown and subsequently Addie, lost constructive possession of the tract. See Robertson v. Morgan, supra, La.C.C. art. 3449. As the court of appeal noted, the only physical use of the property by Addie has been his occasional hunting on it, and this is insufficient to establish his corporeal possession of the property or to interrupt plaintiff’s possession.

The court of appeal found that Norton’s use of the property was not “sufficient to overcome other evidence in the record which shows Norton did not consider himself to be in undisturbed possession of this disputed area.” This conclusion displays misconceptions of the means by which the possessor of an estate may lose his possession.

This Court, in Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975), cited the following pertinent authorities, observing that,

“Our Civil Code provisions make it clear that one who has acquired corporeal possession continues in possession until he transfers it or abandons it, or until another expels him from it, or until he permits the estate to be usurped and held for a year without doing any act of possession or without interfering with the usurper’s possession:
“ ‘Art. 3442. When a person has once acquired possession of a thing by the corporal detention of it, the intention which he has of possessing, suffices to preserve the possession in him, although he may have ceased to have the thing in actual custody, either himself or by others.’
“ ‘Art. 3443. This intention of retaining possession is always supposed, where a contrary intention does not appear decidedly; so that, although a person may have abandoned the cultivation of his estate, he shall not therefore be presumed to have abandoned the possession, but shall be presumed on the contrary to have the intention of retaining it, and shall retain it in fact.’
“ ‘Art. 3444. To retain the possession of a thing when a man once has it, it is not even necessary that he should have such positive intention; a negative intention suffices, that is, it suffices that the positive intention, which he had in acquiring the possession, shall not have been revoked by a contrary intention; for, so long as this revocation does not take place, the possessor is supposed always to retain his first intention, unless a third person has usurped or taken from him the possession, or he has failed to exercise an actual possession for ten years.’
“ ‘Art. 3447. Possession of a thing may be lost either with or without the consent of the possessor.’
“ ‘Art. 3448. Possession is lost with the consent of the possessor:
“ ‘1. When he transfers this possession to another with the intention to divest himself of it.
“ ‘2. When he does some act, which manifests his intention of abandoning possession, as when a man throws into the street furniture, or clothes, of which he no longer chooses to make use.’
“ ‘Art. 3449. A possessor of an estate loses the possession against his consent:
“ ‘1. When another expels him from it, whether by force in driving him away, or by usurping possession during his absence, and preventing him from reentering.
“ ‘2. When the possessor of an estate allows it to be usurped and held for a year, without, during that time, having done any act of possession, or interfered with the usurper’s possession.’ ” 319 So.2d at 774-75.

Furthermore, in Liner we also held that, under Article 3449 of the La.Civil Code, possession is not interrupted when it is “merely disturbed.” A possessor does not lose possession against his consent unless he is forcibly expelled or unless the disturber usurps possession and holds it for more than a year. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766, 778 (La.1975).

Applying these principles to the evidence in the record we conclude that Norton acquired possession of the property, never revoked his intention to possess it, and was not physically disturbed in his possession. Additionally, for the sake of clarity, we point out that even if the evidence here constituted a physical disturbance of possession, which we do not consider it to be, it fell far short of a forcible expulsion or a usurpation for more than one year.

Prior to the acts which gave rise to this suit defendant took no steps to evict plaintiff or to usurp possession for himself. Nor do we think that plaintiff manifested an intention to relinquish his possession of the property. Plaintiff’s unwillingness to cut the timber in the disputed tract demonstrated ambivalence toward his right of possession at worst, and not an intention to revoke his possession. Realizing that the boundary was uncertain, he displayed an understandable and sensible hesitation to waste the resources of the disputed tract. And while he did not cut the timber for himself, neither would he permit others to do so, evidencing a proprietary interest in the land. Additionally, he leased the property for pasturage, and according to the testimony of his witnesses, maintained the fence. The only direct evidence of plaintiff’s intention to abandon possession is Addie’s self-serving statement that Norton, in a conversation with him several years earlier, had disclaimed his right to the property or intent to possess it. Although Norton was too ill to attend the trial and testify, the record is replete with evidence of his actions constantly displaying a contrary intention.

We conclude that plaintiff possessed the property in question quietly and without interruption for more than a year prior to the disturbance in law created by the preliminary injunction, and that he instituted this possessory action within a year of the disturbance. Therefore, we find that plaintiff has satisfied each of the requirements of article 3658, and recognize his right of possession to the following described property:

“[S]tarting at a point which Mr. Addie considers to be the southwest corner of the southeast quarter (SE Vi) of the southeast quarter (SE Vt) of Sec. 16, then run approximately 114' north to a fence that has been in place since 1904 and maintained by the Nortons, then approximately 1320' east along this fence, then south approximately 158', then west approximately 1358' to the point of beginning.”

Defendant is ordered to assert his adverse claim of ownership of the immovable property in a petitory action to be filed within sixty days after the date the judgment becomes executory or be precluded thereafter from asserting the ownership thereof.

Affirmed in part, reversed in part.


source: Caselaw Access Project

author: SANDERS, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana ex rel. Norman CLARK v. Elayn HUNT, Director, Department of Corrections, State of Louisiana.
    No. 57524.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      A. Foster Sanders, III, Spedale, Sanders & Pennington, Baton Rouge, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., E. Michael Harrison, Staff Atty., Baton Rouge, for defendant-respondent.
   SANDERS, Chief Justice.

Norman Clark, an inmate of Louisiana .State Penitentiary, was granted parole on December 11, 1972. During the term of his parole, on July 16, 1974, law enforcement officers arrested him for the distribution of heroin in violation of LSA-R.S. 40:966. Three days after his arrest, the Louisiana Parole Board gave him notice of a preliminary hearing as a parole violator. The notice listed several violations of parole, including the filing of false parole reports, failure to engage in a lawful occupation, and the arrest for distribution of heroin. At the hearing on July 24, 1974, relator was represented by counsel of his own choice. The Parole Board determined that there was probable cause to detain him as a parole violator.

Relator was tried and convicted in the district court of distribution of heroin. On January 3, 1975, the trial judge sentenced him to life imprisonment. The defendant took a timely appeal, which is now pending in this Court.

Initially, upon the request of defendant’s retained counsel, the Parole Board deferred final action on the parole violation until disposition of the appeal. However, for reasons not fully shown by the record before us, after due notice to relator, the Parole Board conducted a final revocation hearing on October 28, 1975. The evidence presented at the revocation hearing consisted of the court records of his narcotics conviction and the report from his parole officer. Based upon this evidence, the Board officially revoked his parole for the stated reason that he had been convicted of distribution of narcotics and sentenced to life imprisonment. On January 6, 1976, the trial court denied the habeas corpus relief sought by relator. On relator’s application, we granted a supervisory writ. He assigns two errors to the trial court’s denial of his habeas corpus petition.

ASSIGNMENT OF ERROR NO. 1

Relator alleges that he was denied due process of law by the Parole Board’s refusal to conduct a prompt revocation hearing. This contention is clearly without merit. The argument is centered on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which guarantees that certain due process safeguards will be afforded the parolee at a revocation hearing, though a parole revocation hearing is not part of the criminal prosecution. However, in applying this standard, the Court, in Brannum v. United States Board of Parole, D.C., 361 F.Supp. 394 (1973), affirmed 5 Cir., 490 F.2d 990 (1974), stated:

“While in Morrissey the Court held as not unreasonable a period of two months between the parolee’s being placed under custody and the revocation hearing, this court is inclined to hold a period of four months as patently unreasonable if there has been no preliminary probable cause hearing.” 361 F.Supp. at 397. (Italics ours.)

Relator was in fact given a preliminary hearing before the Parole Board just eight days after his arrest. Therefore, the strict time limitations within which to conduct the final hearing imposed in Brannum, supra, are inapplicable.

The delay of the final hearing was due primarily to the request of relator’s counsel to defer the final determination of the parole violation until the outcome of the appeal. The request was obviously designed to give the relator the benefit of the appeal for the final determination in the event the appeal was successful.

We conclude that the delay violated no constitutional rights.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2, relator asserts that it is constitutionally impermissible under Morrissey v. Brewer, supra, to base a parole revocation on a non-final conviction.

Quite clearly, the Parole Board based its revocation solely on the conviction. The Board’s revocation notice to relator reads:

“You were convicted of Distribution of Narcotics on January 3, 1975, and received a Life Sentence to the Department of Corrections.”

We do not, however, reach the constitutional question, for the validity of the revocation can be resolved on a statutory basis.

LSA-R.S. 15:574.10 provides:

“When a person is convicted in this state of a felony committed while on parole, his parole shall be deemed revoked as of the date of the commission of the felony. His parole officer shall inform the sentencing judge of the fact that the convicted defendant is a parole violator. The term for which the defendant shall be imprisoned as a parole violator shall be the same as that provided in cases of revocation of parole for violation of the conditions of parole. The new sentence of imprisonment shall be served consecutively to the term of imprisonment for violation of parole unless a concurrent term of imprisonment is expressly directed by the court.”

Under the statute the conviction itself is conclusive that a violation of parole has occurred. See State ex rel. Bertrand v. Hunt, La., 325 So.2d 788 (1976). To have this conclusive effect, however, the conviction must be final, that is, the appeal of right to the Louisiana State Supreme Court must be terminated. In the context of the statute, the term “convicted” means that guilt has been determined by a final judgment.

In State v. Gani, 157 La. 231, 102 So. 318 (1924), dealing with the meaning of conviction under a multiple offense provision, the Court stated:

“. . . conviction means a judgment become final, either because not appealed from or because of having been affirmed on appeal.”

See also Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955); Sportservice Corp. v. The Department of Public Safety, La.App., 293 So.2d 530 (1974).

We hold narrowly that the revocation of parole cannot be based solely on a conviction that is not final. We do not imply that pending appeal the Parole Board is precluded from revoking parole based upon evidence of actual misconduct that violates the conditions of parole. See LSA-R.S. 15:574.9; State v. O’Conner, La., 312 So.2d 645 (1975); State v. Harris, La., 312 So.2d 643 (1975). Our holding likewise does not affect the authority of the Parole Board to hold relator under a detainer pending the outcome of the appeal. See LSA-R.S. 15:574.4 1(1).

For the reasons assigned, the judgment of the district court is reversed and the parole revocation is set aside, without prejudice to the right of the Louisiana Parole Board to conduct further revocation proceedings in this matter not inconsistent with the views herein expressed.

DIXON and DENNIS, JJ., concur in the result.

      . Relator’s allegation that the final hearing was untimely must be considered in light of State ex rel. (Theda) Bertrand v. Hunt, La., 325 So.2d 788 (1976), and State ex rel. (Richard) Bertrand v. Hunt, La., 308 So.2d 760 (1975), which held that when a parole is revoked because the parolee has been convicted of other crimes during his parole, Morrissey supra, does not require that the parolee also be accorded a final hearing if there was a preliminary hearing.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Kenneth KINNEMANN and Paul Sahuque.
    No. 57581.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Robert Glass, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph B. Tosterud, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendants were convicted of possession of marijuana and fined $250.00 plus costs, given a four months suspended jail sentence and placed on one year probation. Assigned as error is the court’s ruling on the motion to suppress. (See Rule 1, § 11, Louisiana Supreme Court Rules).

At fifteen minutes before 6:00 p. m. on January 6, 1975 three New Orleans policemen parked their vehicle about one-half block from 1620 Dante Street and began to watch the house. One of the police witnesses had been told by a “confidential and reliable informant” on that day that one “Favalora was selling pounds of marijuana and also cocaine from his residence located at 1620 Dante Street,” and that the informer had seen the contraband in the house.

At about 6:00 p. m. an automobile parked across the street from the house and defendant Sahuque left the other two occupants of the car and entered the building. Fifteen minutes later he reappeared on the front porch with two paper bags in hand— one a purple “K & B” bag. The bags are not in evidence and not further described in the testimony. Nor is there further description of 1620 Dante; whether it is a single or multiple family residence does not appear.

When the automobile, occupied by the two defendants and driven by a female companion, left 1620 Dante Street, the police followed it, stopping it in the 2700 block of South Carrollton by using their flashing blue light and siren. When they stopped, the police left their vehicle and had the occupants of the other car alight and walk to its rear. One of the policemen looked into the stopped car with a flashlight and announced that he found some marijuana. (That officer testified that he saw an open paper sack on the backseat with green vegetable material exposed). The occupants of the car were immediately told that they were under arrest, and the officer then entered the car and retrieved the contraband.

The testimony at the motion to suppress is substantially conflicting. The facts here related are taken from the police testimony. In addition to the mere presence of defendants at 1620 Dante Street, the State argues that Sahuque arrived empty-handed, left with two paper sacks, looked up and down before crossing the street, and that his demeanor on leaving differed from that on entering the house.

Information possessed by the police, as related at the trial, would have adequately supported a search warrant for 1620 Dante Street. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 85 S.Ct. 584, 21 L.Ed.2d 637 (1969). Our question is whether all the information within the knowledge of the police justified the arrest of the visitor to 1620 Dante Street, or whether the arrest was made on suspicion.

In February of 1975 we decided State v. Jones, La., 308 So.2d 790, a case in which the facts were similar, except that the setting was rural instead of urban. The police had information that a house about ten miles from Natchitoches contained large quantities of marijuana, and were observing the house and activities around it by driving past. They had seen different cars come and go, and on one pass saw the car in which Jones was riding parked at the house. A few minutes later they saw the car leaving and followed it. The car was later stopped and the occupants were arrested. A search of Jones at the police station disclosed marijuana gleanings which were the basis of the prosecution. We held that the police did not possess sufficient knowledge to justify stopping the Jones vehicle, and the contraband detected as a result of that stop should have been suppressed.

In November, 1974 we had decided State v. Saia, La., 302 So.2d 869. There, officers saw Saia leave a residence known to them to be a drug outlet. They sprang from their car and attempted to seize her, during which effort she exposed a packet like those which contain narcotics. The State argued that C.Cr.P. 215.1 authorized them to stop Saia and question her. We held that, properly interpreted, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Sibron and Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) did not prohibit the police from approaching a person to investigate suspicious circumstances, and permitted “a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889.

We further held in Saia that Terry, Sibron, Peters and Adams did not permit, in the absence of probable cause, the warrant-less search of another except for the protection of the investigating officer. The “stop and frisk” law of the State of New York, as well as C.Cr.P. 215.1 of the State of Louisiana, with the necessary exception of the right of the police to protect themselves, “must be judged under the Reasonable Search and Seizure Clause of the Fourth Amendment.” Sibron and Peters v. New York, 392 U.S. 40, 62, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917.

Again, in July of 1975 we held that a search of the person could not be justified by C.Cr.P. 215.1 without at least a reasonable connection between criminal conduct (law violation) and such suspicious activity as startled looks and changing course to avoid police. State v. Truss, La., 317 So.2d 177.

The Louisiana Constitution counterpart of the Fourth Amendment of the United States Constitution is Article 1, § 5 of the Louisiana Constitution of 1974:

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

Should there be any doubt that the right of the police to forcefully stop and search others is circumscribed by the Fourth Amendment of the United States Constitution, there can be none that the Louisiana Constitution of 1974, by the inclusion of the words “invasions of privacy” meant to extend the “probable cause” re-quirement to protect that right, as well as the right to be secure against unreasonable searches and seizures. It can hardly be argued that the right of privacy protected by Article 1, § 5 of the Louisiana Constitution of 1974 does not include at least that right discussed by Justice Brandéis in his dissent to a case which permitted the use of wire tap evidence:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness . . . They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Dissent, Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928).

Therefore, it should make no difference in Louisiana whether the actions of the police constituted an “arrest,” with the discovery of the contraband an incident thereto, or whether the police action was something less than an arrest, during which the contraband was seen “in plain view.” In either case the police action must have been reasonable, that is, supported by probable cause.

Nevertheless, it would be difficult to describe the action of the police in this case as anything but an arrest. They meant to apprehend Sahuque and his companions. They delayed the apprehension until defendants had left the neighborhood of the house under observation. They hoped to find contraband to reinforce an application for a search warrant for 1620 Dante Street.

The police stopped defendants with blue lights and siren. Three officers removed the occupants—one on the driver’s side and two on the passengers’. One officer testified that, in his opinion, he had probable cause to arrest Sahuque when he left the premises at Dante Street. While one officer searched into the car, the others were in the process of obtaining identification from defendants.

The police did not approach the vehicle to talk to Sahuque about his presence at Fava-lora’s, nor were they looking into the car for weapons. The defendants were “actually restrained” before the contraband was found. The Code of Criminal Procedure, Article 201, defines arrest:

“Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.”

The defendants were arrested. Unless the arrest was for probable cause, it was not a lawful arrest.

The State does not argue that there is probable cause to search every person entering and leaving a building where a “reliable confidential informant” says marijuana is being sold. The only information the police had, in addition to the simple presence of defendants, was that Sahuque entered 1620 Dante Street empty-handed, leff with two paper bags, looked up and down the street and had lost his “carefree demeanor” when he left.

These “facts” cannot be said to furnish probable cause for an arrest or search. They do not connect defendants with criminal activity. They are at least as consistent with innocent activity as with guilt. All kinds of people go in and out of all buildings. Paper sacks are not peculiar to narcotics traffic; rather, they are almost exclusively related to innocent uses. One would more reasonably expect an attempt to conceal the container of marijuana. People should be encouraged to look up and down the street. Sahuque’s “changed demeanor” is not even described as “furtive” by the police—only changed.

Justice Rutledge’s explanation of probable cause, in Brinegar v. United States, 338 U.S. 160, 175-177, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, is often quoted:

“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
“ ‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ McCarthy v. DeArmit, 99 Pa. 63, 69, quoted with approval in the Carroll opinion. 267 U.S. at page 161, 45 S.Ct. at page 288, 69 L.Ed. 543, 39 A.L.R. 790. And this ‘means less than evidence which would justify condemnation’ or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 39 A.L.R. 790.
“These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.
“The troublesome line posed by the facts in the Carroll case and this case is one between mere suspicion and probable cause. That line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances. No problem of searching the home or any other place of privacy was presented either in Carroll or here. Both cases involve freedom to use public highways in swiftly moving vehicles for dealing in contraband, and to be unmolested by investigation and search in those movements. In such a case the citizen who has given no good cause for believing he is engaged in that sort of activity is entitled to proceed on his way without interference. But one who recently and repeatedly has given substantial ground for believing that he is engaging in the forbidden transportation in the area of his usual operations has no such immunity, if the officer who intercepts him in that region knows that fact at the time he makes the interception and the circumstances under which it is made are not such as to indicate the suspect is going about legitimate affairs.
“This does not mean, as seems to be assumed, that every traveler along the public highways may be stopped and searched at the officers’ whim, caprice or mere suspicion. The question presented in the Carroll case lay on the border between suspicion and probable cause. But the Court carefully considered that problem and resolved it by concluding that the facts within the officers’ knowledge when they intercepted the Carroll defendants amounted to more than mere suspicion and constituted probable cause for their action. . . . ”

Brinegar was convicted of illegal interstate transportation of liquor from Missouri to Oklahoma. Agents who knew Brinegar and his reputation as a liquor hauler, had seen him loading liquor in Missouri, knew and recognized his car, which appeared to be heavily loaded, spotted Brinegar about five miles from the border in Oklahoma, and stopped him discovering the illegal liquor. Today we would have no trouble finding probable cause for the stop cf. State v. McQueen, La., 278 So.2d 114 (1973). In 1949, the majority found probable cause with some apparent difficulty; Justice Burton concurred; Justices Murphy, Jackson and Frankfurter dissented.

If the police in the ease before us had known Sahuque and his companions like the Alcohol Tax Agents knew Brinegar, there would be probable cause for stopping Sa-huque. Reasonable officers would have been suspicious of Sahuque: they did not, however, possess facts and circumstances justifying a belief in Sahuque’s guilt. The actions of this person, a stranger to the police, were more consistent with innocence than with guilt. Unless the after-the-stop discovery of the contraband clouds our judgment, we must find that the reasonable probabilities when Sahuque emerged from 1620 Dante Street weighed more heavily on the side of innocence than of guilt.

The motion to suppress should have been sustained.

For these reasons, the convictions and sentences are reversed and the case is remanded for further proceedings not inconsistent with this opinion.

SANDERS, C. J., and MARCUS, J., dissent.

      .
      “A. A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.
      “B. When a law enforcement officer has stopped a person for questioning pursuant to this Article, and reasonably suspects that he is in danger of life or limb, he may search the outer clothing of such person for a dangerous weapon or for any other thing the possession of which may constitute a crime.
      “C. If the law enforcement officer finds a dangerous weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.


author: CALOGERO, Justice. DENNIS, J.,

text:
    STATE of Louisiana v. Johnny BOLTON.
    No. 57639.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    J. Hunter Bienvenu, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Gretna, for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Johnny Bolton was convicted of distributing heroin and sentenced to serve a term of life imprisonment. He appeals and assigns seven bills of exception.

The background facts in this case are these. A federal narcotics agent Bernard Harry, working with the Jefferson Parish Sheriff’s Office for the purpose of making narcotics purchases, purportedly bought four “papers” of heroin from Johnny Bolton for $48.00. The state’s case consisted of just five witnesses: two psychiatrists whose testimony was principally that the defendant was sane shortly prior to and at time of trial; the director of the Southeastern Criminal Laboratory (apparently a division of the Jefferson Parish Sheriff’s Office) who testified that the substance purchased by the narcotics agent was heroin; the narcotics agent who made the buy (Agent Harry); and a Jefferson Parish Sheriff’s deputy William Renton, who was working with the federal narcotics agent and was one of at least several corroborating or surveillance officers. Deputy Renton said that in the vicinity at the time of the buy were Harry, Agent Bob Morris, Agent Larry Carver of the Drug Enforcement Administration, Deputy Ronnie Kignel and an assistant group supervisor from the federal regional office. (Deputy Renton’s report indicates that this man was Agent M. Biffel). Agent Bob Morris, who was said by the prosecutor to be a shadow or a backup man for Bernard Harry, was not called to testify even though the prosecutor indicated in his opening statement that he intended to call him. Nor were Carver, Kignel or Biffel called to testify at the trial.

Agent Harry testified that on January 29, 1974 his assignment was to purchase heroin from known dealers in the area of Charlie’s Blue Room, a commercial establishment at the intersection of Jefferson Highway and Atlanta Street in the Parish of Jefferson. His first contact was a male who told him that there was an individual selling heroin from a particular apartment close to Charlie’s Blue Room. He proceeded to the area and came upon defendant and another black male walking in the direction of an apartment dwelling near, or next to Charlie’s Blue Room. He approached them, expressed an interest in purchasing four “things.” Defendant told him it would cost $48.00. Agent Harry gave the man $50.00, got two dollars change and four foil packages which turned out to contain heroin. He testified this occurred outside of the apartment building near or on a stairway between the apartment and Charlie’s Blue Room. He also testified, as did Deputy Renton, that at the time, there were other agents from his office as well as from the Jefferson Parish Sheriff’s Office in the vicinity of Charlie’s Blue Room.

Deputy Renton testified that he and Deputy Bob Morris followed Agent Harry and observed them from about 400 feet away with binoculars. He observed defendant make an exchange of some sort with Agent Harry on the stairway beside an apartment building. He observed Harry and defendant make the exchange during a conversation which lasted about five minutes. He was rather distant, using binoculars, and couldn’t be sure just what was being exchanged, he said, but it did appear that an exchange of some sort was made. Then he saw Harry leave the area in his vehicle.

Officer Renton testified that in a drug purchase case at least two reports are made. The agent who purchases the narcotics does what is known as a “purchase report,” or a “buy report,” and the agents who are on surveillance do a “corroboration report.” He stated that Agent Harry did the purchase report and he and his partner, Deputy Kignel, did a corroboration report.

Prior to trial the assistant district attorney in charge of the prosecution apparently made his entire file available to defense counsel who made extensive notes of his own, or a synopsis of the contents of one or both of the reports. Counsel was therefore aware that in Deputy Renton’s report there appeared a statement that at the given time and place, Harry was observed to enter Apartment 16 of the building and thereafter to leave. The report indicated under “physical description” that the vendor was not observed by the corroborating officers during this transaction.

There was other information in one of the reports of interest to defense counsel and possibly inconsistent with testimony given at the trial. For instance, in Agent Harry’s purchase report the “physical description” of defendant was made as follows: “Jerry Lemar Bolton a/k/a Johnny, is a Negro male 19 years old, born March 7, 1954. He is 5'8" tall, weights 150 pounds, has black hair and brown eyes. Bolden is assigned JPSO # 43264.” The foregoing apparently did not correlate with defendant’s physical appearance at trial (although this is not absolutely clear from the record), and Deputy Harry testified that the 26 year old defendant, Bolton, was about 24 or 25 years old.

Because defense counsel knew of these discrepancies, he wished to impeach Ren-ton’s testimony. Particularly (as relates to assignment number three) did he wish to traverse testimony of Deputy Renton, which had been that he had observed the conversation and exchange on the stairway, with Deputy Renton’s earlier report to the effect that the transfer had taken place inside of the apartment and out of his view.

Defense counsel on cross-examining Deputy Renton, after having the agent concede that either he or his partner had prepared a surveillance report, stated “Well, I am going to refer you to a synopsis of that report _ _ At that point the prosecutor succeeded in having the trial judge remove the jury. He thereupon protested that he presumed counsel’s next question would be whether the agent had a written report, and might he see it. The prosecutor further protested that counsel was not entitled to that, that counsel was not entitled to cross-examine the deputy upon the report. He further indicated that he did not think it proper under cross-examination “to pick apart the synopsis of the report.”

Counsel for the defense pointed out that the witness testified that he saw the transaction take place and that this was inconsistent with what appeared in the report. At that point the court advised counsel for defendant that he would be allowed to ask the witness whether the buy was made inside or outside of the apartment, but insofar as the synopsis made of the report by defense counsel, the court said it was not “going to let counsel refer to that.” When defense counsel thereupon stated that for the purpose of impeaching the witness he would like to use the information that he had obtained, the court sustained the state’s objection (apparently referring to the prosecutor’s earlier protestation) and followed with the observation that “you are not entitled to that report.” Responding to the court’s ruling, defense counsel thereupon abandoned his line of questioning and did not use in further examination of the witness the information contained in his synopsis which he knew to be the information contained in the officer’s report.

It was to this latter ruling of the court that counsel for defendant reserved bill of exception number three. He contends in the bill that in effect the court erred in not allowing him to refer to the content of the agent’s report in cross-examining him for the purpose of impeachment.

The state’s position and that of the trial court in its per curiam is that defendant had not laid the proper foundation for obtaining the report for use in impeaching the witness because he had not shown that one or more of the material statements therein were contrary to the sworn testimony of the witness, citing State v. Nails, 255 La. 1070, 234 So.2d 184 (1970); State v. Whitfield, 253 La. 679, 219 So.2d 493 (1969); State v. Cooper, 249 La. 654, 190 So.2d 86 (1966); State v. Weston, 232 La. 766, 95 So.2d 305 (1957).

State v. Weston, supra is the lead ease on the subject in recent years. Indeed in that-case this Court did say that the trial court should not order production of a prior statement of a prosecution witness for use in cross-examination unless it is first shown that the witness’ statement was contrary in any respect to her testimony given at trial. This jurisprudence still prevails, although not without some moderate criticism, (see 18 La.L.Rev. 350 (1958) cited at Pugh, Louisiana Evidence Law, at 686 (1974)) and notwithstanding expression of a minority view in this Court. (See the concurring opinion of my brother Tate, joined in by Justice Barham and author herein, in the case of State v. Babin, 319 So.2d 367, 372 (La.1975).)

One problem with limiting trial production of the witness’ prior statement to instances when the witness admits the inconsistency on the stand is that under R.S. 15:493 the prior statement cannot be introduced into evidence for purposes of impeachment once the witness has admitted the statement was made. Because of this “the act of laying a sufficient foundation would render the statement useless as evidence.” 18 La.L.Rev., supra at 688.

We note that there also exists in Weston a statement to the effect that production should perhaps be required where there are circumstances indicating that such production is essential.

Considering Weston’s requirement either that there be a showing that the prior statement was contrary in any respect to the witness’ testimony, or that circumstances need be shown to exist which indicate that production is essential to the defendant, it might well be argued that defense counsel’s assertion in court, relative to the content of the officer’s report as evidenced by his own synopsis, was in effect a sufficient showing warranting production of the prior inconsistent statement.

Even assuming, however, that the record in this case does not adequately establish the requisite Weston foundation of either established inconsistency or circumstantial necessity, and even assuming that a majority of the present court is not prepared to adopt the views of the concurring Justices in State v. Babin, supra, there is nonetheless evident error in the trial court’s ruling, for this defendant was denied the opportunity which, even under the stringent requirements of Weston and Nails, is available to him, not of having the witness’ report produced but simply of using the information known by him to be part of the deputy’s report.

When the trial court broke off his line of questioning of the witness and prevented his using the information he had obtained prior to trial, counsel was denied the right to ask such proper and appropriate questions as whether the witness had made a contrary statement in his report.

It is one thing to refuse to require the witness to produce his report at trial. It is entirely another to deny defendant the right to refer to his own synopsis, and indirectly to the content of the officer’s report, in laying the foundation for impeachment.

Reduced to simpler terms, the witness had testified on a material point contrary to what he had earlier said in his report; defendant’s counsel was aware of this because he had read the officer’s report; yet, by the court’s ruling, he was denied the right to use that knowledge, that pertinent information, in interrogation of the witness in an effort to impeach his testimony.

Whatever the merit of the court’s ruling that the report should not be produced, it can hardly be denied that it was error to gag counsel in cross-examination by preventing an effort to impeach the witness by using information which he had fortuitously acquired prior to trial.

Nor is the error cured because there exists or may exist a plausible explanation as to why the contradiction or inconsistency in the officer’s testimony and his report had occurred. The appropriate arbiter or judge of that inconsistency and the reason therefor, was the trial jury. It is not for us to say that the jury would have convicted this defendant even had he been permitted through counsel to attempt impeachment and to produce before the jury the inconsistency in the agent’s recollections.

The simple fact is that defendant’s constitutional right to confrontation by appropriate cross-examination was improperly curtailed in a material and substantial way. See Davis v. Alaska, supra at note 5.

Assignment of error number three therefore has merit.

Because we find merit in bill number three, we deem it unnecessary to consider the remaining bills, including the closely-allied Bill number four which was directed at the court’s refusal to order production of the agent’s report to aid defendant in his effort to impeach testimony of the witness because of alleged inconsistencies between the agent’s testimony and his report relative to the physical characteristics (size, age, weight, etc.) of the heroin vendor.

For the foregoing reasons the conviction and the sentence is reversed, and the case is remanded for retrial.

DENNIS, J.,

concurs for the reasons stated at footnote 7 of the plurality opinion and following. I am not prepared at this time to adopt the views of the concurring Justices in State v. Babin, supra.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.

      . Defendant had entered pleas of not guilty and not guilty by reason of insanity.

      . The purported buy was made on January 29, 1974. Defendant was not arrested until five and one half months later. He was tried October 21, 1974.

      . As will be noted hereinafter, counsel was not able to get the state to produce the reports for his perusal, or for introduction into evidence, or for making a part of the record. However, those reports have been attached to a supplemental brief filed on behalf of the state of Louisiana in this matter.

      . While Deputy Renton testified that the surveillance report was done by either himself or his partner, Kignel, and he “couldn’t recall” who, the report itself attached to the state’s supplemental brief indicates under the designation “reported by” tne name “Agent William Renton.”

      . That concurring opinion proposed an amplification of the State v. Weston rule in light of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The opinion proposed that:
      “Upon any showing that the witness has made a prior statement out of court in relation to the incidents forming the basis of the charge or its investigation, the defendant may be entitled to compel production of such specified prior statement, in order for the trial court to determine in camera whether the doctrine should be made available for use in cross-examination of the witness.”
      We suggested that the trial court make the statement, or a portion of it, available to the defendant if it concerned the same subject matter on which the witness had testified, or if the statement were inconsistent with the witness’ trial testimony. Should the trial judge not grant defendant access to the prior statement, we proposed that the judge seal the statement and allow it to be made part of the record, so that an appellate court could review his decision if the case was appealed.

      . See also in this connection the case of State v. Guagliardo, 146 La. 949, 84 So. 216 (1920).

      . The trial judge in his per curiam states: “Having failed to obtain the police report for want of having laid a proper foundation, defense counsel attempted to impeach Agent Renton by use of notes made from Agent Ren-ton’s report, which the State allowed defense counsel to review prior to trial. The Court refused to allow the defense counsel to make reference to these notes in impeaching Agent Renton’s testimony. To have done otherwise would have allowed defense counsel to make indirect reference to the police report where, having not laid the proper foundation, he was prohibited from making direct reference to the report.”
      Furthermore, the judge at trial sustained the objection immediately upon the heels of counsel’s expressing that for purposes of impeachment he wanted to use the information that he had obtained.

      . The state has filed a supplemental brief apparently attempting to augment the record (in effect something of a questionable matter) by attaching an affidavit of Agent Renton (surely procedurally impermissible) explaining that indeed there was an inconsistency in his trial testimony and his report. In the trial testimony he witnessed the exchange near the stairway with his binoculars and in the report he had said that the agent had gone into the apartment and he did not view what had gone on inside. The mistake on the report occurred by reason of the fact that he had helped make multiple cases in a short span of time including a second incident involving this defendant on the 31st of January 1974, two days after the subject crime, he relates in the affidavit.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Gregory SOCKWELL.
    No. 57658.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Gregory Sockwell was charged with the armed robbery of “Adrien Logdan”. La. R.S. 14:64. He was tried, convicted, decreed to be a multiple offender, La.R.S. 15:529.1, and sentenced to serve 150 years. On this appeal six assignments of error are relied upon for reversal of his conviction.

Assignment of Error 1

After the trial began, and just prior to his opening statement, the State’s attorney handed defense counsel a document entitled “768 Notice” informing the defendant, pursuant to Article 768 of the Code of Criminal Procedure, that the State intended to introduce every confession and statement of the defendant, whether oral, recorded or written, and whether inculpatory, or exculpatory, particularly “statements made orally to Officers Jim Hall, Mel Garret, and K. Maes on August 4, 1975.”

When the “768 Notice” was handed to him, defense counsel, while not objecting to the content of the notice, asserted that the timing of the service was objectionable. He argued that receiving the notice just prior to the opening statement did not give him sufficient time to “meet the issue.”

Article 768 of the Code of Criminal Procedure provides:

“If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

The notice was served on the defendant “prior to the beginning of the state’s opening statement” in full compliance with Article 768. Although defense counsel claimed that he did not have sufficient time to prepare a defense to the inculpatory statements, which were later introduced at the trial, and that the notice should have been served earlier, no facts in the record support the claim that he was unable to properly defend, and no authority is cited which supports the contention that the notice should have been served earlier. State v. Morris, 259 La. 1001, 254 So.2d 444 (1971); State v. Rodgers, 251 La. 953, 207 So.2d 755 (1968).

There is no merit to this assignment.

Assignment of Error 2

During the early morning hours of August 4, 1975 Adrien Logan was robbed of $29.00 at gunpoint. He knew his assailant and immediately reported the incident to the police by telephone. As a result, a description of Sockwell and the fact that he was wanted was broadcast over police radio. Officer Kenny Maes had been stationed in the neighborhood for several years and knew Sockwell. Shortly after the notice was broadcast, he recognized Sockwell walking alone in the 7600 block of Maple Street; and, in company with Officer Irwin Breaux, Officer Maes arrested him. Sock-well was first read his Miranda rights by the arresting officers, but refused to sign the rights of arrestee form and refused to speak; therefore, he was not interrogated. The arresting officers reported over police radio that Sockwell had been arrested, and they drove to the corner of Carrollton and Oak with Sockwell in the police car.

Shortly thereafter Officers Mel Garrett and Jim Hall drove up in a second police car with Adrien Logan, the victim of the armed robbery. Logan went over to the police car where Sockwell was sitting, looked in, saw Sockwell and declared, “That’s the man who held me up.”

Sockwell retorted, “Why don’t you tell them that you owed me money. You owed me $20.00,” or words to that effect.

Logan then asked Sockwell, “Where’s my wallet?”; and ■ Officer Garrett echoed “Where’s his wallet?”

Sockwell replied, “I threw it away.”

Defense counsel contends that because Officer Garrett did not repeat the Miranda warning to Sockwell before asking him about Logan’s wallet, and because Sockwell had previously refused to sign the rights of arrestee form, Sockwell’s inculpatory statement was not free and voluntary and, for that reason, it was improperly admitted into evidence.

Miranda warnings are not required to be in writing and signed by the person in custody; it is sufficient that he be verbally advised of those rights. When the person in custody is so advised and declares that he wishes to remain silent, he may, nevertheless, change his mind. His declaration that he intends to remain silent is revocable. The failure to sign a rights of arrestee form does not bar a subsequent voluntary statement. See State v. Knight, 323 So.2d 765 (La.1975); State v. Lewis, 315 So.2d 626 (La.1975); State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972). Moreover, the Miranda decision does not apply to volunteered statements, and certainly not to a spontaneous reply to a question by the victim of the crime. While Officer Garrett repeated Logan’s question, the question was Logan’s. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Hall, 257 La. 253, 242 So.2d 239 (1970).

Assignment of Error 8

While Officer Hall was being questioned by the prosecuting attorney he was asked where he had come in contact with Adrien Logan on the morning of the robbery, to which Officer Hall replied without defense objection:

“We came in contact with him when we received a call at approximately 1:15 that morning that an armed robbery had taken place. The victim of the armed robbery we were to meet at Hickory and Eagle Street. When we arrived on the scene approximately five minutes later, we met Mr. Logdan for the first time.”

The prosecuting attorney then asked, “O.K. Now, what did you learn from Adrien Logdan?” Defense counsel objected that whatever Officer Hall learned from Logan would be inadmissible hearsay according to Section 434 of Title 15 of the Revised Statutes. The objection was overruled, and that ruling is the basis of this assignment of error. Hall then testified that Logan recounted the details of his being robbed by Sockwell. Later, Logan took the stand and testified to the same effect, again giving the details of the robbery.

The State’s attorney argued that the question propounded to Hall was designed not to establish the truth of Logan’s statements, but rather to bring out the fact that the statements were made. Relying on these statements, Hall and Garrett proceeded with Logan to Oak and Carrollton to ascertain whether Logan could identify Sockwell as his assailant. Also, Hall’s testimony was merely cumulative. Under either theory, the State argues, the statements were an exception to the hearsay rule. The State relies upon State v. Monk, 315 So.2d 727 (La.1975) and State v. Smith, 285 So.2d 240 (La.1973), to support the contention.

While the State’s contention is arguably sound, we prefer to rest the decision on this question upon the proposition that an examination of the entire record makes clear that the ruling has not resulted in a miscarriage of justice, prejudicial to the substantial rights of the accused; nor does it constitute a substantial violation of a constitutional or statutory right. La.Code Crim.Pro. art. 921. The error, if any, was harmless.

Assignment of Error 4

It is asserted that error occurred when Officer Hall, over objection by defense counsel, was permitted to testify that subsequent to the arrest, when Sockwell was asked by Logan where the wallet was, he “told us he had thrown the wallet on the ground.” The defense asserts no predicate had been laid for this statement because “the testimony as to what Sockwell said does not correspond to the testimony given on the predicate when the jury was outside the courtroom.”

There is no merit to' this contention. Hall’s testimony on the predicate outside the presence of the jury was that, in referring to the wallet, Sockwell said, “I just threw it away. I didn’t want that,” or “I threw it away,” or similar declarations. The later version, in the presence of the jury, “I threw it on the ground” was, therefore, covered by the predicate. Although slight variations in the crucial inculpatory statement existed between the testimony establishing the predicate and the testimony before the jury, these slight discrepancies were due to the understandable imperfection of man’s ability to recollect exact words uttered in his presence and to the witness’ inability to perfectly articulate. The variations were not significant. The meaning was the same, and no prejudicial error occurred.

Assignment of Error 5

After presenting its evidence in chief, the State rested, reserving the right of rebuttal. Defense counsel then moved that the jury be retired in order that he could present a motion. The jury was removed and counsel moved for a directed verdict based on the fact that all evidence taken was that one “Adrien Logan” was the victim of the offense, when the bill of information charged that Sockwell robbed “Adrien Logdan”.

The “d” included in Adrien Logan’s name in the bill of information is an obvious typographical error. It is an insubstantial difference which had absolutely.no effect upon the defense. The evidence makes clear that defendant had no doubt concerning the identity of the victim, for in his inculpatory statement he impliedly admitted that Adrien Logan was the person from whom the money was taken, his defense being that Logan owed him $20.00.

Assignment of Error 6

Following his conviction for armed robbery, Sockwell was charged as a multiple offender. La.R.S. 15:529.1. A motion to quash this multiple offender bill was filed by the defense alleging that the law permitting enhanced penalties was unconstitutional in that it gave the district attorney the capricious, whimsical, arbitrary, and, potentially the malicious power to persecute the defendant. Alternatively, the motion to quash alleged that if the enhanced penalty statute was held to be constitutional, in the instant case the district attorney waived his right to file a multiple bill when he knowingly allowed the defendant to be sentenced before the bill was filed. This motion to quash was submitted “on its face” and denied. Defense counsel objected to the ruling and assigned error.

In brief on this appeal, however, defense counsel only invokes Article I, Section 20, of the Louisiana Constitution of 1974, which ordains that no law shall subject any person to euthanasia, torture, or to cruel, excessive, or unusual punishment. The argument is made that the multiple offender act has existed since 1855, and the penalty for armed robbery was increased from thirty to ninety-nine years by the Legislature in 1967. This latter action by the Legislature provides an adequate penalty, according to the defendant’s argument, and any enhanced sentence exceeding ninety-nine years, such as Sockwell’s sentence to 150 years, constitutes cruel and excessive punishment.

In our view the issue presented in brief is not properly before this Court, for it is not the issue presented by the motion to quash; and, therefore, it is not the issue upon which the ruling of the trial judge is based. State v. Powell, 325 So.2d 791 (La.1976). Since the issue presented by the motion to quash is abandoned in brief, it need not be decided.

Nevertheless, the claim that the enhanced penalty is cruel and unusual punishment has no merit. Recidivist statutes have been upheld on many occasions against the attack that they involve cruel and unusual punishment. Price v. Allgood, 369 F.2d 376 (5th Cir. 1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1321, 18 L.Ed.2d 349; State v. Williams, 326 So.2d 815 (La.1976); State v. Vale, 252 La. 1056, 215 So.2d 811, reversed on other grounds, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1968).

For the reasons assigned, the conviction and sentence are affirmed.


author: TATE, Justice.

text:
    STATE of Louisiana v. Leonard TURNER and Bobby Glover.
    No. 57674.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, James W. Mills, III, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.
   TATE, Justice.

The defendants Turner and Glover were convicted of armed robbery, La.R.S. 14:64, and sentenced as multiple offenders, La. R.S. 15:529.1, respectively to ninety-nine years and to seventy-five years at hard labor. Upon their appeal, their most substantial contention (and one in which we find reversible merit) is presented by Assignments of Error Nos. 5, 6, and 7:

The state introduced highly prejudicial testimony in improper rebuttal. Moreover, this testimony was independently inadmissible since it involved an inculpa-tory statement of a defendant which the state introduced without having given pre-trial notice of its intent to do so, as required by La.C.Cr.P. art. 768.

Factual context of this contention

At the trial on the merits, the state’s case in chief was as follows:

The manager and barmaid of a lounge testified as to the robbery of them and their customers. They identified the two defendants as the robbers, and they also identified certain objects as items stolen therein and a shotgun which appeared to be the one used in the robbery. Two police officers testified that these physical objects had been found in the defendant Turner’s possession at the premises of Miss Barbara McDonald.

The state’s case in chief did not consist of any evidence as to a confession or inculpa-tory statement by either defendant. Miss McDonald was not called by the state as a witness in its case in chief.

The defense called two witnesses. Their testimony was solely to the effect that the defendant Glover was at his home during the entire time of the robbery.

“Rebuttal’’ testimony of an inculpatory statement

The state then called Miss Barbara McDonald as a rebuttal witness. Defense counsel immediately requested the court to instruct the prosecutor to propound only questions to rebut the alibi testimony introduced by him as the entire defendants’ case. Thereafter, the defendants consistently objected to questions which went beyond the scope of such rebuttal, and their objections were overruled. To save time, the trial court finally ordered that the objection be made general as to all subsequent questions of the witness. Tr. 123.

The witness then testified that the defendant Turner gave her the rings and, over further special objection, told her that “He had got them at the Afro Lounge” (which location had previously been identified as the place of the robbery charged). (The prosecutor’s questions had directly elicited from the witness her testimony as to if Turner had told her where he got the rings, and what information as to their source he had given her.)

Defense counsel reiterated his objection to this testimony as outside the proper scope of rebuttal (since presenting as “rebuttal” evidence part of the state’s case not introduced in its case in chief, and since not rebutting any defense evidence). Additionally, defense counsel objected to this evidence as being testimony of an inculpatory statement introduced by the state, without any advance notice of its intention to do so as required by La.C.Cr.P. art. 768. Defense counsel also moved for a mistrial.

The trial court denied the motion for a mistrial, but it sustained the objection to the question. The trial court then admonished the jury (over the defendant’s further objection that an admonition was insufficient to cure the prejudice) “to disabuse your minds from that question and answer, as though it had not been asked or answered.”

The defendant reiterated his objection to the remaining testimony of this witness as improper rebuttal, but these objections were likewise overruled. (This further testimony concerned the circumstances of her turning over to the police certain jewelry she had received from the defendant, amplifying the state’s evidence in chief that the items had been found at her premises along with the defendant.)

Legal principles applicable

(1) Rebuttal testimony:

The state may not reserve part of its case-in-chief for rebuttal testimony, after the defense has put on its case and when it can no longer present evidence to rebut the state’s case. This is contrary to statute, to ancient jurisprudence, and to rules of fair play. La.R.S. 15:282; State v. Snoddy, 332 So.2d 800 (La.1976); State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972); State v. Davis, 246 La. 383, 164 So.2d 589 (1964); 2 Marr’s Criminal Jurisprudence of Louisiana, Section 633 (1923).

In State v. Monroe, 205 La. 285, 17 So.2d 331, 332 (1944), we noted: “Rebutting evidence is that which is offered to explain, repel, counteract, or disprove facts given in evidence by the adverse party.” (Italics ours.) Again, in State v. Smith 120 La. 530, 532, 45 So. 415 (1908), we noted that rebuttal evidence is “evidence which has become relevant or important only as an effect of some evidence introduced by the other side.”

In the present instance, the testimony offered in rebuttal was clearly improper for such purpose. The testimony offered by the defense sought only to prove the fact of an alibi as to one of the defendants, and the state’s evidence thereafter offered did not rebut this factual issue. State v. Major, 318 So.2d 19 (La.1975). The state’s “rebuttal” evidence sought to prove, for the first time, that one of the defendants had made a statement of an inculpatory nature — the evidence was independent proof of guilt of an extremely damaging nature, which properly formed part of the state’s case in chief.

The decisions cited demonstrate two kinds of prejudice which may be sustained by a defendant through the admission in state rebuttal of evidence which should be introduced during the state’s case in chief:

(1) Since in Louisiana “the defendant is without right to rebut the prosecutor’s rebuttal”, La.R.S. 15:282, the defendant may be prejudiced by the denial to him of an opportunity to defend against new issues; and

(2) The production of strong prosecution evidence in chief after the defendant rests his case may unfairly emphasize the prosecution’s “rebuttal” evidence, contrary to the legislatively intended order of proof, La.C. Cr.P. art. 765(5), designed from ancient experience to assure fairness in our criminal trials.

The first type of prejudice may often be cured. If the trial court exercises its discretion to permit the state to offer in rebuttal material evidence inadvertently omitted from its ease in chief, the prejudice thereby caused may normally be avoided by the trial court’s permitting the defendant to introduce additional evidence to defend against the new issue thereby raised. La.C. Cr.P. art. 765(5). See State v. Scott, 320 So.2d 528 (La.1975). Further, the failure of the defendant to request such reopening of the evidence in order to avoid such prejudice may under some circumstances be presumed to indicate that prejudice of this type is not presented for review. State v. Johnson, 141 La. 775, 783, 75 So. 678 (1917); State v. Smith, 120 La. 520, 532, 45 So. 415 (1908).

The second type of prejudice is sometimes incurable. Whether reversible error has resulted may depend upon the nature of the new evidence offered by the state for the first time in improper rebuttal. Improper rebuttal with regard to a peripheral issue may be regarded as harmless. State v. Major, 318 So.2d 19 (La.1975). To the contrary, however, if the evidence injects an entirely new issue which should have been an important part of the state’s case in chief, State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972), or if it unfairly places extreme weight on a part of the state’s evidence which should have been introduced in the case in chief, cf. State v. Davis, 246 La. 383, 164 So.2d 589 (1964).

Under the second principle, we have determined that the present is one of those extreme cases where the admission of improper rebuttal evidence constitutes reversible error, for the following reasons:

The evidence of the inculpatory statement was independently inadmissible (see subdivision 2 following). Further, the evidence was to an issue entirely different from those produced in the state’s case in chief, and it was of such importance to proof of guilt that it should almost always form an important part of the state’s case in chief (see footnote 2 above). Finally, no reason is indicated for its delayed introduction until rebuttal except a deliberate state attempt to obtain undue prejudicial advantage of the defendant by having the jury hear it after the defense case had entirely rested.

As stated at 2 Marr’s Criminal Jurisprudence of Louisiana, Section 623, p. 967 (footnotes omitted) (1923), summarizing jurisprudential principles: “Under ordinary circumstances, in common fairness to an accused, the State should offer at once all the evidence that it has and not reserve its real or main attack until after defendant has closed; that is to say, the right to rebut must be limited to rebutting testimony; but this rule cannot always be enforced with cast-iron inflexibility, and must yield in its application to the sound discretion of the trial Judge, whose ruling will not be disturbed except in extreme cases, as where the evidence has been kept back deliberately and for the purpose of deceiving and obtaining an undue advantage of defendant." (Italics ours.)

(2) Inculpatory statement independently inadmissible:

The state may not introduce an in-culpatory statement without giving prior notice to the defendant of its intent to do so. La.C.Cr.P. art. 768. The purpose of the pre-trial notice is to afford the defendant a fair opportunity to plan and present his defense in the light of this extremely damaging type of evidence. State v. Sneed, 316 So.2d 372 (La.1975).

In the present case, no notice of intent to introduce the inculpatory statement was ever given. The defendants could properly rely on the absence of any such evidence in conducting their defense, which (aside from alibi) was through cross-examination of the state witnesses to cast doubt on the identification of the defendants as the robbers and of the physical evidence as connected with the robbery.

The trial court properly ruled that the inculpatory statement was of a nature that required this pre-trial notice and sustained the defense objection to it.

On appeal, the state for the first time contends that the evidence was indeed admissible as part of the res gestae. La. R.S. 15:447, 448. However, the inculpatory statement of the witness, two hours after the robbery, of where a defendant had obtained the rings he gave was not part of the res gestae.

State v. Curry, 263 La. 997, 270 So.2d 484 (1972), relied upon by the state, is distinguishable. The evidence there held admissible as res gestae concerned a threat in concealment of the crime made by the accused, as an immediate concomitant of it.

In the present case, the evidence cannot be justified for such reasons as admissible. The res gestae does not include “the words of the participants when narrating the events”. La.R.S. 15:447. The present evidence offered as res gestae does not, as argued, include res gestae acts or words after the crime has been completed which were “necessary incidents of the criminal act, or immediate concomitants of it” and which did “form in conjunction with it one continuous transaction”, La.R.S. 15:448.

The state, however, alternatively contends that any prejudice thereby caused was cured by the trial court’s admonition to the jury to disregard the question and answer.

The inadmissible evidence, for the first and only time during the trial, informed the jury that a defendant allegedly had admitted taking the rings during the robbery charged. Under these circumstances, concerning the totally inadmissible and highly prejudicial evidence that the defendant himself had inculpated himself, it is unrealistic to assume that the trial court’s admonition to the jury to forget having heard such evidence could humanly be respected.

Further, under the present circumstances, to hold that the admonition cured any prejudice caused by highly damaging evidence of guilt is to permit prosecutorial evasion of the two legislative principles (rebuttal evidence only/notice of intent to use inculpato-ry statements) designed to assure fairness in criminal trials by reason of which the evidence was inadmissible.

The error presents a substantial violation of the statutory rights of the accused designed to assure them a fair trial, and it cannot be disregarded as harmless. See La.C.Cr.P. art. 921.

Other Assignments Argued

Of the other assignments of error, only an issue presented by Assignment Nos. 1 and 3 may recur in any retrial: Was physical evidence (objects stolen in the robbery and a weapon allegedly used therein) the product of an illegal search?

The objects were seized as a result of a warrantless search of Miss McDonald’s premises at the time of Turner’s arrest. Miss McDonald and a police witness testified that the search was with her consent, after the police came to her door to arrest Turner (who was a temporary visitor sleeping in her bedroom). As a result of the search, the police found the stolen objects and the weapon.

The testimony of Turner that Miss McDonald’s consent was coerced was denied by that lady and by the police officer. The trial court accepted their testimony as credible. A trial court’s evaluation of credibility will not be disturbed on review in the absence of clear error. We find none here.

A valid search without a warrant may be made with the consent of an owner of the premises who possesses sole or common authority over the area searched. State v. Rogers, 324 So.2d 403, 413 (La.1975); State v. Johnson, 319 So.2d 786 (La.1975). See also: United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

We find no merit to the assignments of error insofar as based on the illegal search. (We do not pass on the merits of the objection to the relevancy of other jewelry or weapons introduced into evidence but not identified with the present offense charged.)

Decree

Accordingly, for the reasons assigned, we reverse the defendants’ convictions and sentences, and we remand this case for a new trial in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., and SUMMERS, J., dissent.

      . La.C.Cr.P. art. 768 provides:
      “If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”
      In State v. Sneed, 316 So.2d 372, 375-77 (La.1975), we set forth the purpose and intent of this statutorily-required notice, mandated in the interests of a fair trial procedure.

      . In reversing in State v. Smith, 120 La. 530, 532, 45 So. 415 (1908), we noted also that “since nothing could be more relevant in a criminal case than the confession of the accused, there can be no doubt that such confession must either be produced as part of the evidence in chief or not at all.” Of course, a confession or an inculpatory statement may be independently admissible in rebuttal, such as being proof of a prior contradictory statement if the accused takes the stand in his defense and denies having made it. State v. Scott, 320 So.2d 538 (La.1975).