author: DENNIS, Justice. MARCUS, Justice

text:
    L. P. WHITE v. De Wayne C. MORRIS et al.
    No. 58692.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      Alonzo P. Wilson, Gist, Methvin & Trim-ble, Alexandria, for defendants-applicants.
    Richard E. Lee, Holt, Wagner & Lee, Pineville, for plaintiff-respondent.
   DENNIS, Justice.

L. P. White, a Rapides Parish Deputy Sheriff, instituted this personal injury action against DeWayne C. Morris, who in resistance to White’s attempt to arrest him, delivered the officer a damaging blow to the face. Also joined as a defendant was Morris’ homeowner’s liability insurer, Hartford Insurance Group, which admitted insurance coverage.

At approximately 12:30 a. m. on the morning of November 3, 1974, Deputy White and his partner, O. C. Tynes, were on routine patrol in the small community of Kingsville, located north of Alexandria, Louisiana, on U.S. Highway 165. According to White, because of recent burglaries in the area, the officers had been instructed to be particularly vigilant of business establishments. As they approached a truck parked on the side of the highway just beyond a drive-in restaurant known as Mr. Ed’s, two figures ran from behind the truck toward the restaurant, which was closed.

The officers returned to investigate, but by the time they had reached the scene again the two individuals had disappeared from their view. Proceeding to the parking area on the side and toward the rear of Mr. Ed’s, the deputies came upon five youths standing outside an automobile.

There is conflict in the testimony as to exactly what occurred after deputies White and Tynes approached the young men. At the trial White relied solely on his own testimony and offered no explanation for not calling Tynes as his witness. Defendants called as their witnesses Morris and three of the youths present at the time of the incident. In his written reasons for judgment the trial judge made factual findings, well supported by the evidence, as follows:

“At this time Mr. Ed’s was closed. These boys were around an automobile in a general discussion, as boys in rural communities usually do for entertainment and pasttime [sic]. The plaintiff flashed a light into the back seat of the automobile and observed an ice chest. Without permission, but illegally, plaintiff opened the door of the car, opened the ice chest and observed some beer that was on ice. None of the boys were drinking at the time. The officers asked the boys what they were doing and requested identification of each. Three of the boys produced identification. One of the boys, Mack Burton, Jr., stated that he didn’t have a wallet as he had no pockets in his trousers and could not produce identification. He stated: ‘If you don’t believe me, you can call my dad.’ In response, White replied: ‘Don’t be a smart ass.’ White then asked the remaining boy, DeWayne Morris, for his I.D. whereupon Morris, perturbed by White’s previous remark, responded that he did not have to ‘give no damn I.D.’. White then took Morris by the arm and began leading him to the patrol car. Morris apparently took a few steps in compliance with White’s nudging and then changed his mind. Morris jerked away at which point the other officer, Tynes, came to White’s assistance. They both attempted to physically overpower Morris. At this time they were against and upon the trunk of the patrol unit. White had an arm lock around Morris’ neck. One officer had out some handcuffs and was attempting to place them upon Morris. While doing so the handcuffs were banging against the head of Morris. Morris broke away a second time and White again approached him. Morris correctly analyzed this as further attempt by White and Tynes to physically subdue him, place him in the patrol unit and transport him to jail. As White approached him this last time he struck White in the face, which blow knocked plaintiff to the ground and broke his jaw. Morris then escaped on foot and made it to his home whereupon a short time later two officers came and took him to jail.
“It is not clear whether either of the officers informed Morris that he was under arrest or informed him to accompany them. One of the boys testified that the officers told Morris he was under arrest. White testified that Tynes advised Morris he was under arrest.
“It is clear that the officers had no reason to believe that a crime had been committed or that any of the five boys had committed a crime or were about to commit a crime. The only reason that White attempted to arrest Morris was because Morris refused to give identification when White demanded it.”

Further inquiry revealed that the boys had not been engaged in any wrongdoing, but that one of them worked at the drive-in which he had locked up shortly before the officers' arrival, two had arrived earlier to visit with a young female employee, and the other boys had congregated there to talk. The evidence does not reflect that the deputies were aware of these facts at the time the altercation arose. However, it does not appear that they had taken any pains to obtain an explanation from the youths before searching the car and demanding identification papers. A

The court of appeal overturned the decision of the trial judge, reasoning that the information known to the officers at the time they discovered defendant and his friends behind Mr. Ed’s supported a reasonable suspicion of criminal activity, enabling them to further investigate the situation and question the youths. The court further concluded that defendant’s abusive language warranted his arrest for criminal mischief, La.R.S. 14:59(7). Even if the arrest were unlawful, the court stated, the force used by defendant in resisting it was excessive. Damages were awarded to plaintiff in the amount of $7,092.05. 337 So.2d 237 (La.App.3d Cir. 1976).

We do not agree that the trial court fell into reversible error in concluding that the officers lacked a basis for reasonably suspecting that DeWayne Morris was committing, had committed or was about to commit a crime. Mr. Ed’s drive-in had been closed for only a short time, a fact of which the deputies must have been aware. A well lighted Billups Service Station was situated just across the heavily travelled U.S. 165 highway from the premises. The trial judge, who stated that he was reared very near the place where this incident occurred, found that the officers had no reason to be suspicious because the boys were engaging in a pastime that is common to young boys in a rural community. At the time the deputies demanded identification from Morris they had already searched the car and obtained identifications from all of the other youths without detecting anything suspicious. During the process they had exchanged unpleasant remarks with one of the young men and probably were not in a good humor. Although a trier of fact validly could have reached a different conclusion, the evidence adequately supports the trial judge’s finding that the officers did not have grounds for reasonably suspecting Morris of criminal activity and, therefore, were not entitled under the stop and frisk law to demand of him his name, address and an explanation of his actions. La.C. Cr.P. art. 215.1.

However, because of the serious issues raised by the court of appeal opinion, we will assume, for the sake of argument, that the deputies were justified in demanding Morris’ name, address and an explanation of his actions. The other questions presented are: Did Morris’ refusal to identify himself or his language provide grounds for a legal arrest? If not, was Morris entitled to use reasonable force in resisting an unlawful arrest? Was the force used reasonable?

Article 215.1 itself provides no sanctions for a refusal to comply with an officer’s request for information. Inherent in the officer’s right to “stop” a suspect and “demand his name, address and an explanation of his actions” is the right to detain him temporarily to verify the information given or to obtain information independently of his cooperation. See, State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). However, Deputy White unequivocally stated that defendant had been placed under arrest the moment he refused to produce his identification papers. This action was not authorized by Article 215.1, and in fact our law nowhere authorizes an arrest based upon less than probable cause. See, La.C. Cr.P. arts. 202 and 213.

New York courts, interpreting the “stop and frisk” statute after which our own was modelled, have similarly held that an arrest cannot be founded upon an accused’s refusal to furnish his identification. N.Y.Cr.Pro.L. § 140.50; People v. Bambino, 69 Misc.2d 387, 329 N.Y.S.2d 922 (1972); People v. Schanbarger, 24 N.Y.2d 288, 300 N.Y.S.2d 100, 248 N.E.2d 16 (1969). In People v. Schanbarger, the court observed:

“ * * * While it may be true that there was no reason why the defendant should not have answered the trooper’s questions, it equally is true that his failure to answer cannot constitute a criminal act * * *.” 300 N.Y.S.2d at 102, 248 N.E.2d at 17.

And the court stated in People v. Bambino:

“This right, however, to detain and investigate on suspicion does not, under any circumstances, and cannot, within recognized constitutional controls, ever justify an arrest on suspicion * * *329 N.Y.S.2d at 931.

While Deputy White may have been justifiably angered by Morris’ affront to his authority, this alone could not have elevated a reasonable suspicion of criminal activity to probable cause to believe that a crime had been, was being, or was about to be committed so as to justify an arrest.

Plaintiff argues, however, that his authority to arrest defendant derived from La.R.S. 14:108, which makes it unlawful to resist an officer under the following circumstances:

“Resisting an officer is the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
“The phrase ‘obstruction of’ as used herein shall, in addition to its common meaning, signification and connotation mean:
“(a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
“(b) Any violence toward or any resistance or opposition to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
“(c) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
il # >(t *
“Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.”

Specifically, plaintiff urges that defendant violated La.R.S. 14:108(c) when he refused to furnish his identification upon demand. This provision by its own terms clearly applies only to an arrested party, and does not provide a basis for the arrest of a mere suspect who refuses to supply information demanded under Louisiana Code of Criminal Procedure article 215.1.

The alternative grounds offered for defendant’s arrest by the court of appeal, which apparently were' not contemplated by the arresting officers themselves, are equally insupportable. The court ruled that defendant’s action in cursing the deputies constituted a clear violation of La.R.S. 14:59(7), which provides:

“Criminal mischief is the intentional performance of any of the following acts:
“(7) Acting in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others;

Great care must be taken in the regulation of spoken words to punish only classes of speech not protected by the First and Fourteenth Amendments to the United States Constitution, viz., “the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words — those which by their very utterance inflict injury and tend to incite an immediate breach of the peace.” Chaplinski v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Statutes must be carefully drawn or authoritatively construed so as to be insusceptible of application to protected expression; failing this, they are unconstitutionally overbroad. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).

Ignoring this constitutional mandate, the court of appeal attempted to bring within the strictures of a statute, which on its face appears applicable only to offensive actions, words which, particularly when analyzed in context, were protected speech. The trial judge found that defendant’s “cursing” did not extend beyond his statement that he did not have to give “no damn i. d.” A rather mild profanity to begin with, this statement was provoked by one of the deputies’ gratuitous reference to defendant’s companion as a “smartass.”

In City of New Orleans v. Lyons, 342 So.2d 196 (La.1977), we held that abusive words, including “s_” and “f— you” uttered to a policeman upon his attempt to question the defendant were protected speech. We said:

“ * * * There was no evidence to show, nor does the context herein suggest, that defendant’s remarks tended to incite the police officer to an immediate breach of the peace. In fact, when such words are addressed to an officer, one would normally contemplate the need for a stronger showing that the words tend to incite the addressee to an immediate breach of the peace. Thus there was lacking in this case the clear and present danger necessary in order to justify the state’s interference with defendant’s right to speak freely. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919).

We conclude that La.R.S. 14:59 was inapplicable to defendant’s conduct and that his arrest cannot be justified on that or any other ground.

The right to resist an unlawful arrest is of long standing in Louisiana, and has recently been reaffirmed by this Court. City of Monroe v. Ducas, 203 La. 971, 14 So.2d 781 (1943); City of New Orleans v. Lyons, supra.

In City of Monroe v. Ducas, supra, the Court reversed the relators’ convictions under a local ordinance making it unlawful to resist a police officer in the discharge of his duties. Michael and John Ducas, members of a religious organization, had called at the home of a black family for the purpose of taking them to a bible study class. This activity impressed a police officer as “dangerous and suspicious” conduct, and he approached relators, demanding to know what they were doing. When Michael Ducas replied that “it was none of [the officer’s] business” and attempted to drive away, the officer tried to stop him and was injured. Observing that the relators had not been guilty of violating any law at the time of their arrest, the Court declared:

“The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has a right to resist an unlawful arrest; and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.” 14 So.2d at 784.

This principle has been codified in our law. La.R.S. 14:108, supra, proscribes resistance to “an individual acting in his official capacity and authorized by law to make a lawful arrest * * *.” (Emphasis supplied.) Similarly Article 220 of the Louisiana Code of Criminal Procedure requires that a “person * * * submit peaceably to a lawful arrest.” (Emphasis supplied.) Attempts made in the legislature to modify these provisions and abolish the right to resist an unlawful arrest have proved unsuccessful. In 1969, the Louisiana State Law Institute proposed to amend Article 220 and R.S. 14:108, to read as follows:

Proposed amendment to La.C.Cr.P. art. 220:

“When a peace officer is arresting a person, and is identified or identifies himself as a peace officer, it is the person’s duty to refrain from using force or any weapon in resisting arrest regardless of whether or not the arrest is lawful.
U * * * »

Proposed amendment to La.R.S. 14:108:

“Resisting an officer is the intentional opposition or . resistance to, or obstruction of, a peace officer acting in his official capacity in making an arrest, detaining an arrested person after arrest, seizing property, or serving any process or court order. When the officer is identified or has identified himself as a peace officer, the opposition, resistance, or obstruction shall be an offense, regardless of whether or not the arrest, detention, seizure of property, or service of process was lawful.
“ * * * .” Report of the Louisiana State law Institute Council Meeting of December 12, 1969.

These proposals were considered in the 1970 regular session of the legislature, see, House Bills Nos. 88 and 89, and rejected. 1970 La. Legislative Calendar, p. 26. Another such attempt failed in the 1975 regular session. See, House Bill No. 563. 1975 La. Legislative Calendar, p. 164.

Plaintiff urges that we join the several American states which have abandoned the centuries old common-law right to resist an unlawful arrest, see, Queen v. Tooley, 2 Ld.Raym. 1297, 92 Eng.Rep. 349 (K.B. 1710); John Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900), by adopting the view that a citizen may not resist an arrest by one whom he knows, or has reason to know, is an authorized peace officer, regardless of whether the arrest is lawful or unlawful. See, Ann., “Modern Status of Rules as to Right to Forcefully Resist Illegal Arrest,” 44 A.L.R.3d 1078. In light of our legislature’s conscious rejection of such a rule, we cannot abrogate our citizens’ time honored right to resist an unlawful arrest.

Indeed, there is respectable judicial and scholarly authority for the proposition that the right to resist an unlawful arrest is protected as part of the guaranty against unreasonable seizures of the person by the Fourth Amendment to the United States Constitution. See, Wainwright v. New Orleans, 392 U.S. 598, 610, 88 S.Ct. 2243, 2253, 20 L.Ed.2d 1322, 1328 (1968) (Douglas, J., dissenting) (per curiam dismissal of certio-rari as improvidently granted); United States v. Di Re, 332 U.S. 581, 594, 68 S.Ct. 222, 228, 92 L.Ed. 210, 220 (1948); Chevig-ny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128 (1969); Comment, 31 La. L.Rev. 120 (1970). Furthermore, we should not overlook the perhaps broader protection of personal liberty afforded by our state constitution which secures a citizen against unreasonable “invasions of privacy” as well as unreasonable searches and seizures. La. Const, of 1974, Art. I, § 5.

We agree with the trial judge that defendant, in exercising his right to resist the unlawful arrest, used only so much force as was necessary to repel the officer’s aggression. The evidence indicates that a single blow struck by defendant gave rise to this litigation. Prior to that time, defendant had been manhandled by Deputy White, who wrestled defendant to the ground and gripped him in an armlock around his throat. Defendant’s struggles brought him a momentary release from this difficulty, but after his retreat from the affray, White advanced upon him again. In finding that Morris used excessive force in his defense, the court of appeal noted that “the officer approached the defendant in a calm and unthreatening manner and drew neither his pistol nor billyclub.” Neither did the defendant arm himself, however, and only after his verbal warning was ignored did he employ physical force; he struck one blow with his fist and ran. Under the circumstances, we consider that the force used was reasonable. See, Pohl v. Licata, 236 So.2d 259 (La.App.4th Cir. 1970); Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969); Caroli v. Britt, 284 So.2d 188 (La.App.2d Cir. 1973); Flores v. Black, 260 So.2d 144 (La.App.2d Cir. 1972).

For the foregoing reasons, the judgment of the Third Circuit Court of Appeal is reversed and set aside, and the judgment of the trial court dismissing plaintiff’s suit is reinstated. Costs are assessed against plaintiff.

SANDERS, C. J., dissents, being of the opinion that the judgment of the Court of Appeal is correct. See 337 So.2d 237.

SUMMERS, J., dissents.

DIXON, J., concurs, fully subscribing only to the principal holding.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I respectfully dissent. .The plaintiff, Officer L. P. White and his partner, Officer O. C. Tynes, had reasonable cause to stop and investigate when they saw two figures run from behind a parked truck toward a closed restaurant at 12:30 a. m. in an area where a number of burglaries had recently been committed. When the' officers discovered five young men in the parking lot of the closed business establishment, they had reasonable cause to detain the youths and demand their names, addresses and an explanation of their actions. La.Code Crim.P. art. 215.1. When one of the youths, De-Wayne Morris, refused to comply with the officer’s lawful request, the officer attempted to escort him in the direction of the patrol car. At that point, while still subject to reasonable investigatory detention, Morris broke away and ultimately struck Officer White in the face as the officer and his partner tried to subdue him. In my view, the striking of a police officer during a lawful period of investigatory detention constitutes a breach of a civil duty requiring the defendant, Morris, to respond in damages.

       “Justice Brennan of the United States Supreme Court made a similar observation in Lewis v. City of New Orleans when he observed that a police officer is trained to exercise a higher degree of restraint than the average citizen. 415 U.S. 130 at note 2, pp. 132-133, 94 S.Ct. 970, 39 L.Ed.2d 214.”


source: Caselaw Access Project

author: DIXON, Justice. DENNIS, J., SANDERS, Chief Justice MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana v. David C. FEARN.
    No. 58730.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Douglas P. Moreau, Asst. Dist. Atty., for plaintiff-relator.
    Stephen K. Peters, Gill, Lindsay, Seago & Beckner, Baton Rouge, for defendant-respondent.
   DIXON, Justice.

By bill of information defendant David C. Fearn was charged with possession of marijuana in violation of R.S. 40:966(C). On August 24,1976 defendant filed a motion to suppress the marijuana on the basis that it was unconstitutionally seized without a warrant. After a hearing, conducted on September 9, 1976, the trial judge granted the motion. We granted the State’s application for writs to review the correctness of this ruling.

Defendant lives with his parents in Baton Rouge. His parents’ property is bounded on the rear by a drainage ditch. Another ditch intersects this drainage canal at approximately a thirty degree angle. This second ditch (approximately eight feet wide) is totally on the Fearn’s property and runs generally along the side property line which extends several feet beyond the ditch. On the edge of this ditch on the side nearest defendant’s house he had planted twelve marijuana plants. Defendant’s neighbor, Mr. Arthur Penton, observed defendant and some other boys near some strange looking plants on occasion and on July 1, 1976 called the East Baton Rouge Parish sheriff’s office to report his observations. Five days later, on July 6, 1976, Deputy Pete Humble, responding to a second call by Mr. Penton, went to Mr. Penton’s residence to observe the plants to determine if they were, as suspected, marijuana. Deputy Humble testified that he could not determine that the plants were marijuana until he walked closer to the ditch, although he stated that he affirmatively identified the suspect plants before he crossed the property line. Deputy Humble made a call and observed the ditch area until another deputy arrived. The deputies then went to the Fearn residence and arrested defendant. Following the arrest the officers and defendant went back yard and pulled up six marijuana plants about eight inches tall and six plants about thirty inches tall. The police testified that they could have obtained a warrant, but did not.

The question here, as in State v. Nine, 315 So.2d 667 (La.1975), is whether the defendant’s justified expectation of privacy under the Fourth Amendment of the United States Constitution and under Article 1, § 5 of the Louisiana Constitution of 1974 was violated by the warrantless seizure. The record reveals that the ditch where defendant was growing the plants was entirely upon the property belonging to defendant’s parents, whose property line extended beyond the far side of the ditch. Four to five foot weeds were growing in the ditch; six of the twelve plants, which were less than a foot high, were not visible except upon close inspection. The remaining plants, approximately thirty inches high, although visible among the weeds from the next door neighbor’s house, were not identified by the police except from the edge of defendant’s property line. The ditch where the plants were located was screened from view of defendant’s parents’ house by a shed and a fence around a swimming pool. Defendant apparently relied on the high weeds in the ditch (he had planted the marijuana in April) and the distance to the property line to preserve the privacy of his activities. Although this expectation was not fully justified (Mr. Pen-ton testified that he could observe the plants from some distance) it was reasonable. The area of the ditch in which the plants were cultivated apparently could not be seen from the public street. Therefore, though in fact visible, the plants were located in a position on defendant’s parents’ property which could be reasonably expected to assure defendant’s privacy and were not openly displayed to public view.

Since the area of the ditch in which the plants were grown was an area in which defendant had a reasonable expectation of privacy, the protections of the Fourth Amendment against unreasonable searches and seizures are applicable. It is clear that a fundamental constitutional rule in this area is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). See also Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971).

In brief the State suggested that this search was justifiable as a search incident to an arrest. However, this argument has no merit for, assuming the validity of the arrest, it is clear that the plants were not in defendant’s immediate control. E. g. Coolidge v. New Hampshire, supra; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Defendant was arrested at his front door and the plants were located in the back yard, behind a swimming pool fence and some eighty feet from the front door. The officers told defendant why they were there, and required him to accompany them to the plants.

The State further relies on the “plain view” exception to the prohibition against warrantless searches. In Coolidge v. New Hampshire, supra, the United States Supreme Court set out the elements, rationale and scope of the “plain view” exception. The conditions necessary for the applicability of the exception are: (1) there must be a prior justification for an intrusion into a protected area, (2) in the course of which evidence is discovered inadvertently, and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. See also State v. Meichel, 290 So.2d 878 (La.1974). Upon analysis of the circumstances of this seizure and the rationale and scope of the “plain view” exception it is evident that the first and second requisites are not met in this case.

One explanation of the “plain view” exception is that it complements, rather than subverts, the objective of the Fourth Amendment in precluding searches without warrants unless there is a well-delineated exception. Plain view justifies a seizure only when an intrusion into a protected area has already validly taken place by virtue of a warrant or another exception to the warrant requirement. If an officer has already legally entered a protected area then evidence in open view may be seized because the intrusion upon the defendant’s privacy is not substantially increased, whereas the inconvenience and danger of loss would be great if seizure is prevented until a warrant could be secured.

The State argues that there was a prior valid intrusion in this case because the officer had the permission of Mr. Penton to go onto Mr. Penton’s property from which the officer viewed the marijuana plants. This argument misses the point. The intrusion into the protected area, the ditch, did not take place until after defendant was arrested. The initial view of the contraband occurred before any valid intrusion into the protected area was made, and at a time when the police could have obtained a warrant. Plain view alone is never enough to justify a warrantless seizure. As the United States Supreme Court noted in Coolidge:

“The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. . . . ” 403 U.S. at 468, 91 S.Ct. at 2039, 29 L.Ed.2d at 584.

Hence, the plain view doctrine does not apply in this case because the exception cannot be used alone to justify a search and seizure.

The other rationale for the “plain view” exception is that it does not conflict with the other purpose of the Fourth Amendment in preventing general, exploratory searches. The Fourth Amendment recognizes that necessary searches should be as limited as possible. Thus, when a search is made pursuant to a warrant, the warrant should particularly describe the place to be searched and the persons or things to be seized. Likewise, searches made pursuant to some recognized exception have been limited in scope; a search incident to an arrest, justified by the need to protect the arresting officer and prevent destruction of evidence, is limited in scope to those areas near the suspect where he might obtain a weapon or destroy evidence. If the officers are searching pursuant to a prior valid justification for the intrusion, then evidence in open view may be seized because the individual’s privacy is not infringed to any greater degree, but the inconvenience of getting a warrant to justify an inadvertent discovery is substantial. However, if officers intend to search for an item, planning to justify its seizure by the “plain view” exception, then the search will naturally expand to a “general” search. To restrict the seizure of evidence under this exception to those items “inadvertently” discovered precludes a general warrantless search, yet does not impose any “inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ ” Coolidge v. New Hampshire, 403 U.S. at 470-71, 91 S.Ct. at 2040, 29 L.Ed.2d at 585-86.

Therefore, as an additional reason, the seizure of the evidence was illegal because the discovery of the marijuana plants was far from inadvertent. The officers were specifically called to inspect defendant’s property to determine if the plants he was growing were, as anticipated, marijuana. The officer did not visit Mr. Penton for some other reason, and then happen to notice the marijuana. Rather, this was a planned search, and,,as the Supreme Court of the United States noted in Coolidge v. New Hampshire, supra, that court has never validated planned warrantless seizures on plain view grounds. 403 U.S. at 471, n. 27, 91 S.Ct. at 2041, n. 27, 29 L.Ed.2d at 586, n. 27. Likewise, opinions rendered by this court discussing the “plain view” exception have not justified a search on this ground if the evidence was not inadvertently seen. See State v. Bourg, 332 So.2d 235 (La.1976); State v. Navarro, 312 So.2d 848 (La.1975); State v. Meichel, supra; State v. Hargiss, 288 So.2d 633 (La.1974). In fact, in Hargiss the officers had gone to the vehicle in question with the purpose of searching it for contraband and the court held that the plain view doctrine did not justify the seizure of evidence in open view on the floor of the car. (But see State v. Jones, 263 La. 164, 267 So.2d 559 (1972).

The officers testified that they could have kept the area under surveillance until they secured a warrant but that they did not. There was no exigency. Since there is no recognized exception applicable to the facts of this case to justify the warrantless search and seizure, the motion to suppress was properly granted.

For the foregoing reasons the ruling of the trial judge is affirmed, and the case is remanded for further proceedings consistent with this opinion.

DENNIS, J.,

concurs. The trial judge apparently found the plants to have been located in a place reasonably expected to be private by the defendant. The evidence is conflicting but sufficient to support this finding, considering the discretion to be accorded the finder of facts.

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

MARCUS, J., dissents and assigns reasons.

SUMMERS, J., dissents.

SANDERS, Chief Justice

(dissenting).

The Fourth Amendment of the United States Constitution prohibits “unreasonable searches and seizures.” The right protected is that of privacy, which has been described as “one of the unique values of our civilization.” McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). Hence, under well-established principles, the protection of the Constitution applies only when there is a justifiable expectation of privacy. Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Nine, La., 315 So.2d 667 (1975).

In the instant case, the defendant’s land was unenclosed. The marijuana plants were growing IV2 feet east of an 8-foot-wide ditch. They ranged from 8 to 30 inches in height.

On the west, there was no fence or physical barrier between the plants and the land owned by Penton, defendant’s neighbor. Penton could see the marijuana plants from his back porch. He cut the grass in the area west of the ditch, which area included some of the defendant’s property. While doing so, Penton could readily observe the marijuana.

On the north, similarly, there was no fence or enclosure on the 20 to 25 feet between the defendant’s northern neighbor and the plants. Thus, nothing obstructed observation of the marijuana plants from the north.

On the east, 5-foot-high bushes stood approximately 100 feet from the plants and separated the defendant’s property from the eastern tract of land. Thus, anyone over five feet tall could see the plants from this direction.

On the south, the only obstruction between the row of plant’s southern edge and the street was four intermittently placed trees. Without difficulty, one could position himself on the street to see that portion of the yard where the marijuana grew.

The defendant’s residence was on the southeastern side of the marijuana plants. No one from the residence could see the plants, since a small shed and a fence surrounding a pool blocked the view.

I am convinced that defendant had no reasonable expectation of privacy in this unenclosed area. The marijuana plants were visible from all directions. The neighbor had access to an area only 9Vz feet from the plants. Hence, defendant has no valid complaint under the Fourth Amendment. People v. Superior Court for County of Los Angeles, 37 Cal.App.3d 836, 112 Cal.Rptr. 764 (1974); Dillon v. Superior Court of Santa Barbara County, 7 Cal.3d 305, 102 Cal.Rptr. 161, 497 P.2d 505 (1972); People v. Ortega, 175 Colo. 136, 485 P.2d 894 (1971); People v. Bradley, 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129 (1969). See also, Smith v. State, Tenn.Cr.App., 519 S.W.2d 407, cert. denied (1974).

In People v. Bradley, supra, in somewhat similar circumstances, the Supreme Court of California held that a seizure of marijuana plants violated no constitutional prohibition. The court stated:

“A number of cases in upholding searches in open fields or grounds around a house have stated their conclusions in terms of whether the place was a ‘constitutionally protected area.’ (See e. g., cases cited in People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713). That phrase, however, does not afford a solution to every case involving a claim of an illegal search and seizure (see Katz v. United States, 389 U.S. 347, 350-352, 88 S.Ct. 507, 19 L.Ed.2d 576), and we believe that an appropriate test is whether the person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable governmental intrusion (People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, and cases cited therein).
“Measured by that test we are satisfied that the officer’s discovery and seizure of the marijuana plants in the yard adjacent to defendant’s residence did not violate the constitutional prohibitions against unreasonable searches and seizures. From the recited evidence it may be inferred that the marijuana plants were partially but not totally covered by foliage. It does not appear that the plants were covered by nontransparent material, and it may be inferred that at least part of the plants were in plain sight of anyone within a foot of the tree. Although they were in a rear yard that was fenced to an undisclosed extent, they were located a scant 20 feet from defendant’s door to which presumably delivery men and others came, and the front house, as well as defendant’s house, apparently had access to the yard. Under the circumstances it does not appear that defendant exhibited a subjective expectation of privacy as to the plants. Furthermore, any such expectation would have been unreasonable. (Cf., e. g., Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; People v. Terry, 70 Cal.2d 410, 77 Cal.Rptr. 460, 454 P.2d 36; People v. Alexander, 253 Cal.App.2d 691, 700, 61 Cal.Rptr. 814; see Katz v. United States, supra, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 [concurring opinion by Harlan, J., containing statements to the effect that there is no reasonable expectation of privacy in an open field or with respect to ‘conversations of the open’].)”

The majority relies on the “high weeds in the ditch” as a support for the expectation of privacy. In my view, this reliance is unjustified. Growing from the bed of the ditch, these weeds extended less than one foot above the ditch bank. At least portions of the marijuana plants were visible above the weeds. In any event, I know of no constitutional doctrine that gives a person who does not cut his weeds greater rights than one who does.

For the reasons assigned, I would reverse the ruling of the district court and overrule defendant’s motion to suppress the evidence.

MARCUS, Justice

(dissenting).

I respectfully dissent. In every case where a violation of the fourth amendment is alleged, analysis must begin with the question of whether the fourth amendment is applicable. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the United States Supreme Court announced the principle that the fourth amendment protects people and not places. Regardless of an individual’s subjective expectation of privacy, however, the protection of the fourth amendment extends only to those expectations of privacy that are constitutionally justified. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). In Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), the Court held that the special protection accorded by the fourth amendment to the people in their “persons, houses, papers and effects” is not extended to open fields, notwithstanding the fact that those fields may be the property of the defendant. The decision in Hester has been cited with approval in the recent cases of Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974) and United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). In Santana, the Court noted that while the porch of a dwelling as well as the yard surrounding a home may be considered “private” under the common law of property, they may nonetheless in certain circumstances be considered “public” places under cases interpreting the fourth amendment. What a person knowingly exposes to the public is not a subject of fourth amendment protection. United States v. Santana, supra; Katz v. United States, supra.

The disputed evidence in this case consisted of marijuana plants growing in an open drainage ditch just inside the unfenced back yard of defendant’s parents. The plants, some of which were thirty inches high, were plainly visible from the adjacent yard by defendant’s neighbor and anyone the neighbor chose to invite onto his property, including the local police. In my view, the facts of this case do not warrant the conclusion that defendant had a justifiable expectation of privacy in the area where the contraband marijuana plants were growing. Accordingly, the fourth amendment is not applicable in this case.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Clarence LEDET.
    No. 58829.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      Harold L. Savoie, Duson Bar, Inc., Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Byron P. Legendre, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Clarence Ledet was charged, tried, convicted and sentenced to death for committing the crime of aggravated rape upon one Ms. C in Lafayette, Louisiana in March of 1975. Because we find merit in one of defendant’s assignments of error, we will not discuss any of his other assignments, or the propriety of the sentence, but reverse his conviction and sentence and remand the case to the district court.

That assignment in which we find reversible error, assignment number two, concerns the admission into evidence of the testimony of one Ms. D who told the jury of defendant’s brutalization and kidnapping of her, and of various sexual offenses committed against her some five months after the rape for which defendant was on trial. In order to understand the error here discussed, some background is necessary. Two days before trial, on June 14,1976, the state filed notice of intent to introduce extraneous offenses to prove “motive, system, intent and identity.” The offenses were described as follows:

“. . . the crimes of Kidnapping and Crime Against Nature, which had occurred on August 26, 1975, beginning in Galveston, Texas, leading through Houston, Texas and into Louisiana and ending in Eunice, Louisiana on August 27, 1975. “The State intends to introduce evidence that one [Ms. D] was abducted from the streets of Galveston, Texas at high noon on August 26, 1975 by the defendant, Clarence Ledet, and another male. Thereafter, they drove into the city of Houston, Texas against the will and desire of the victim, [Ms. D]. From the city of Houston, Texas they drove accross [sic] the Louisiana state line into the area of Lake Charles and continuing to the city of Eunice, Louisiana. During this ride, the victim was forced to commit crimes against nature on the defendant, Clarence Ledet. The victim, [Ms. D], was able to escape her abductors in Eunice by jumping from the vehicle and running away and seeking the help of a passing motorist.
“The above evidence is material to the prosecution of Clarence Ledet in that it is similar to the force and fear that was exerted on [Ms. C] in this case. The vehicle used in the crime against [Ms. D] was the same automobile used in the crime concerning [Ms. C]. During the ride, [Ms. D] was threatened and beat about the body, preventing her escape from the vehicle during most of the ride.”

No hearing was held in the matter but the state urged, over defendant’s objections, that the testimony be allowed so as to prove system and motive. Specifically, the state urged that the system involved was that defendant Ledet took young females previously unknown to him for trips in his car and threatened them with serious bodily harm and committed physical violence upon them. The details of the testimony to be presented by Ms. D and one George Arcen-eaux, a male companion of Ledet’s, was not made known to the trial judge who ruled the evidence admissible. Defendant reserved a bill of exceptions. When the state at trial sought to introduce the extraneous offense testimony, defense counsel again strenuously objected, arguing, as before, that on the authority of State v. Moore, 278 So.2d 781 (La.1973) the evidence was not relevant to a material issue in the case, and that its only purpose was to inflame the jury by showing the defendant’s despicable and criminal conduct on another occasion. The trial judge ruled the evidence admissible and permitted its introduction.

When the state filed its notice of intention to introduce evidence of extraneous offenses committed by Ledet, these two legal issues were raised:

1) Was proof of criminal activity with Ms. D relevant to the issue of the innocence or guilt of the accused as to the present charge of aggravated rape; and,
2) Even if relevant, did the prejudicial effect outweigh whatever probative value it may have had so as to require its exclusion as unfairly denying the accused a fair trial upon his guilt or innocence of the crime with which he stands charged.

Initially we note that these two complicated and delicate issues can rarely receive proper consideration by a trial judge without his knowing what the testimony will actually be. In order for this Court to determine whether this case was one of those special cases in which evidence of other crimes is admissible, we must recapitulate the facts surrounding these two separate and unrelated incidents.

On the evening of March 18, 1975, defendant Clarence Ledet went to a house in Eunice, Louisiana where Ms. C, the alleged victim of the crime, was living at the time and was introduced to her there. She left the house voluntarily with him and another female companion and they embarked on a journey that would last until the early hours of the morning, would traverse several Louisiana towns including Ville Platte, Crowley and Lafayette, and would include a visit by the two of them to a motel room in Lafayette. Throughout the evening Ledet cursed Ms. C, forced her to drink whiskey, struck her repeatedly, on one occasion striking her above the eye. Early in the evening Ms. C left Ledet’s car in a barroom parking lot and asked Daniel Lee, a stranger to her, to help her get home to see her baby. Mr. Lee, a friend of Ledet’s, joined the group and made no effort to help Ms. C get home. Ms. C testified that she never repeated her plea for help, that she never requested help from any of the many people (including bartenders, the motel owner, and even a group of policemen who helped them when their car was towed into Ville Platte after being stuck beside the road) but that she failed to ask for help was because she was afraid of Ledet. She claimed she had seen what she believed to be a knife in his possession. She insisted that her seeming calm during much of this time, her seeming willingness at times to accept Ledet’s advances, and her submission to a single act of sexual intercourse in the motel were predicated on her fear of Ledet. It was on her testimony alone that the state could establish that an aggravated rape occurred, because only Ledet and Ms. C were present in the motel room where the charged crime allegedly occurred.

In order to bolster the state’s contention that Ms. C was raped by Ledet, the state introduced evidence of an unrelated offense which took place in Louisiana and Texas some five months after the Ms. C incident. As to the later incident, Ms. D testified that she was abducted off the streets of Galveston, Texas, by Ledet and a male companion, who tied her up with towels and gagged her and then held her in the car as it was driven first to Houston and then back to Louisiana. She testified that she was repeatedly beaten, was forced to commit crime against nature on Ledet, and made to submit to an act of attempted sodomy. At about seven o’clock that night, she testified that defendant parked the car on a deserted side road off the highway and told her she could get out if she wanted to. When she did get out to run, defendant chased her, caught her, beat and kicked her, and dragged her back to the car. Inside the car, defendant struck at her head with a knife, exclaiming that he ought to kill her, and cut the hand she raised in protection of her face. She also claimed that Ledet stole twelve dollars from her. Although she reported the incident to police, no charges were prosecuted.

In order for a person to be found guilty of a crime, the state must prove beyond a reasonable doubt that the accused committed the crime with which he stands charged, not that he may have committed it because he is a bad man who has committed other offenses on other occasions. State v. Frederick, 340 So.2d 1353 (La.1976); State v. Slayton, 338 So.2d 694 (La.1976); State v. Gaines, 340 So.2d 1294 (La.1976). Only under certain limited circumstances may the state introduce evidence of other criminal acts committed by an accused. See R.S. 15:481, 491, 495. One of these special circumstances is referred to in R.S. 15:445 and 446 which provide as follows:

“In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”
***** *
“When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”

As we stated in State v. Gaines, supra, at 1296,

“These statutes and the jurisprudence construing them rest on the proposition that if the sole relevance of other acts is to prove the defendant’s criminal disposition/then the evidence is inadmissible character evidence. Although it can be effectively argued that evidence of other offenses is inadmissible because it is irrelevant to any issue in the trial for the crime charged, it can also be argued that this character evidence is relevant to guilt generally, because, having committed this kind of crime before, the defendant is at least capable of the criminal activity charged. Under either analysis, however, the evidence has been uniformly excluded due to the fact that the evidence presents an inordinate risk of prejudice. The prejudice results from various factors, among which are: (1) the strong possibility that the jury will be unduly swayed in its determination of guilt merely because the defendant is a ‘bad man,’ (2) the possibility that the evidence may confuse the jury in collateral issues and detract their attention from the main issue of the defendant’s guilt for the crime charged, and (3) the danger of unfair surprise.
“Therefore, accepting the argument that this evidence is highly relevant, the evidence is nonetheless excluded, not because it fails to tend to prove the defendant’s guilt, but because it does it too well and thereby deprives the ‘bad man’ of the fair trial and benefit of the presumption of innocence and the State’s burden of proof. However, when the extraneous offense is logically relevant to prove a material issue before the jury and is not merely offered to prove that on this occasion the accused probably acted in conformity with his ‘criminal disposition,’ then the evidence should not be excluded merely because it shows that the accused has committed other offenses.” [footnote omitted]

In State v. Moore, supra, we held that in order for evidence of an extraneous offense to be admissible, it must first be found relevant to a material fact actually at issue, and, second, the court must have weighed its probative value against its inherent prejudicial effect, and found the former predominant. State v. Gaines, supra; State v. Slayton, supra; State v. Clark, 338 So.2d 690 (La.1976); State v. Waddles, 336 So.2d 810 (La.1976); State v. Moore, supra; State v. Prieur, 277 So.2d 126 (La.1973). As these decisions indicate, because of the substantial risk that the extraneous evidence may detract from the constitutional right to be presumed innocent until proven guilty beyond a reasonable doubt of the crime charged, other crimes evidence can only be admitted after a “showing by the State that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant’s bad character or his propensity for bad behavior, and that it serves that actual purpose for which it is offered.” State v. Prieur, supra, at 130; see State v. Frederick supra.

Under these legal principles, the evidence of the Ms. D incident was not admissible to prove knowledge or intent because, as we held in State v. Moore, supra, no proof of intent is required in an aggravated rape prosecution. See R.S. 14:42 which defines aggravated rape as “a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female . . .” and R.S. 15:444 which provides that “If a statute has made it a crime to do a .particular act, no further proof of intent is required than that accused voluntarily did the act . . . In Moore, we explained that a not guilty plea by itself does not make intent an issue, saying that the “prosecution cannot credit the accused with fancy defense in order to rebut them at the outset with some damning piece of evidence.” State v. Moore, supra, at 785-86; see also State v. Waddles, supra.

Nor was the question of identity ever at issue. This is not a case where a woman has been assaulted at night by an unknown assailant who is later captured and convicted partially on the basis of some special criminal “signature” which had made this rape, like others with the same “signature,” distinctly his. Instead, there was never any question that if Ms. C was raped on the evening in question that Clarence Ledet was the man who did it. Defendant never disputed that both of these women were in his car on the dates in question and that sexual advances were made toward them. His consistent defense, both pre-trial and when he took the stand, was that the sexual encounters between him and these women were business arrangements to which they had consented, and that in fact no crimes occurred on these evenings. The only real issue at trial, then was not who had committed the crime, but whether, in fact, a crime had been committed. In such situation, other crimes evidence established not “identity” but only that Ledet is a “bad man” because he had committed another violent sexual act in the past and that it is therefore likely that he committed the crime for which he now stands charged. State v. Frederick, supra; State v. Harrison, 291 So.2d 782 (La.1974); State v. Moore, supra.

Similarly, the state had no reason to introduce proof of “modus operandi,” or system, in this prosecution. In the first place, these two incidents are more noteworthy for their differences than for their similarities. Ms. D was forceably abducted; Ms. C was not. Ms. D was bound and gagged; Ms. C was not. Ms. D was subjected to unnatural sexual activities; Ms. C was not. Ms. D was abused in a car and behind an abandoned service station; Ms. C was taken to a motel. Ms. D was struck by a knife; Ms. C was not. Ms. D was robbed; Ms. C was not. Ms. D was picked up in Texas; Ms. C. in Louisiana. Ms. D was abducted in August of 1975; Ms. C some five months before. Although there are similarities between the two incidents — notably, the long distance car travel punctuated by beatings and drinking and witnessed by other passengers — these similarities, in the face of the many dissimilarities, would not make the two acts “so similar and individual as preponderantly to demonstrate that the perpetrator of both must be identical.” State v. Waddles, supra, at 815. Moreover, proof of system simply is not relevant in a case such as this one where there is absolutely no question that the accused was the person involved in both incidents. The entire point of the state’s establishing that a “system” existed is to show that because of the unique aspects of an extraneous crime committed by the accused that he must have been the perpetrator of the crime at issue because it, too, was marked by the same distinctive hallmarks. However, when there is no contest at all over the participation of the accused in the alleged incident, but the only question is whether any crime at all took place, evidence of extraneous offenses serves only to establish that defendant is capable of and thus likely to have committed the crime in question, and as such the evidence is inadmissible.

Because the extraneous evidence was not admissible to prove knowledge, intent, system, or identity, the evidence tended only to prove the bad character of Clarence Ledet, an inquiry prohibited in Louisiana. The evidence of defendant’s actions in relation to Ms. D did not tend to show that on March 18, 1975 defendant Ledet aggrava-tedly raped Ms. C, and such evidence was therefore mistakenly introduced at the trial.

Even were we to find the extraneous act relevant to a material issue in the case (as it clearly was not) we would still have to decide whether the trial judge erred when he decided that the probative value of the extraneous offense outweighed its prejudicial effect. Initially, we cannot understand how such a determination could even be made by a trial judge without knowing what the testimony would be so as to evaluate it and weigh its prejudicial impact against its probative value. Here, the failure to hold a hearing meant that the trial judge did not know until trial about the aggravated nature of the extraneous offense, details such as the forcible abduction, the binding and gagging, the unnatural sexual acts, the visible presence of a large knife, the robbery, and the cutting of her hand in anger. These aggravating circumstances, none of them present in the crime for which defendant was being tried, painted Ledet as a violent, brutal man and outweighed whatever probative value the evidence might have had so as to require its exclusion as a matter of fundamental fairness under state and federal due process standards. See Hills v. Henderson, 529 F.2d 397 (5th Cir. 1976); State v. Waddles, supra.

Therefore, because the extraneous offense was not relevant to any material matter at issue the evidence was improperly introduced.

Accordingly, for the reasons assigned, the conviction and death sentence of defendant Clarence Ledet are reversed, and the case is remanded to the district court.

SANDERS, C. J., concurs in the decree.

SUMMERS, J., dissents.

MARCUS and DIXON, JJ., concur.

      . The state’s witnesses established no physical evidence at all that Ms. C was raped. The coroner who examined Ms. C testified that although he found “mechanical irritation” of her vagina that he found no seminal fluid there and no indication that the irritation had been caused by human insertion. The criminologist who examined the clothes of the pair and the bedclothes testified that she found no rips or tears (other than one broken brassiere strap) or any seminal fluid in any of the material. The officer who took Ms. C’s initial complaint to police testified that she reported a beating, not a rape, although later she did report the incident as a rape. Furthermore, it was established at trial that defendant paid her two hundred dollars in exchange for her agreement to drop the rape charges against him, although she testified that she recanted on the deal because of what she considered continued harassment by Ledet and his wife.

      . In this case, unlike other cases on this issue, see State v. Gaines, supra; State v. Lee, 340 So.2d 1339 (La.1976); State v. Waddles, supra; State v. Clark, supra; State v. Moore, supra; State v. Prieur, supra, the extraneous offense occurred under factual circumstances so much more violent and brutal than the charged offense as to make the evidence too prejudicial for admission even had it been extremely relevant. The prejudice inherent in this situation was exacerbated when defendant, who took the stand in his own defense, was forced to deny or explain not only the details of the charged offense, but also the details of the lurid Ms. D escapade. See State v. Frederick, supra.


author: DENNIS, Justice.

text:
    LOUISIANA NATIONAL LEASING CORPORATION v. FAMILY POOLS, INC., et al.
    No. 58834.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.
    Philippi P. St. Pee, Francipane, Regan & St. Pee, Metairie, for defendants-applicants.
    Charles S. McCowan, Jr., John Dale Powers, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for plaintiff-respondent.
   DENNIS, Justice.

This case arises out of Louisiana National Leasing Corporation’s (National Leasing’s) efforts to recover, under five separate contracts denominated as leases, delinquent payments and future payments for the full term of each contract. Named as defendants in solido were Family Pools, Inc., designated the lessee of certain movable construction equipment, and three gratuitous sureties, J. Stanley Middleton, Jr., Sherard Fabacher, and Peter Fabacher, who had guaranteed the lessee’s performance of its obligations under each contract.

Family Pools’ default on each of the leases was stipulated. After trial, the district judge ruled that the leases had been terminated following the lessee’s default, but that National Leasing failed to comply with the final accounting provisions of the leases, which required it, upon termination, to obtain the leased equipment, have it sold, and apply the proceeds against the balance due by the lessee. The effect of this failure was, according to the district judge, to prejudice the subrogation rights of the sureties, because the equipment, which remained in the hands of the lessee continued to depreciate, so that the court, at the time of trial, found it

“ * * * difficult, if not impossible to determine the extent of the sureties’ liabilities at the time of the default of the lessee,”

several months earlier. On the authority of Louisiana Civil Code Article 3061 the district court ruled that the Fabachers were discharged from their suretyship obligations, and rendered judgment accordingly, dismissing National Leasing’s suit against them. However, the district judge found National Leasing entitled to recover from defendant-lessee on four of the five contracts, and so rendered judgment in favor of National Leasing and against Family Pools, Inc., and J. Stanley Middleton, Jr., in the amount of $62,199.44 together with legal interest and attorney’s fees.

National Leasing devolutively appealed, arguing that the district court erroneously dismissed its suit on one of the five contracts, and further urging that the court improperly dismissed its claims against the Fabachers as solidary sureties on all five of the contracts. The Fourth Circuit Court of Appeal reversed, finding that “ * * * none of the ‘leases’ * * * [had] been terminated in such manner as to extinguish the ‘lessee’s’ liability for ‘rent,’ ” and that the Fabachers’ “general defensive contentions” were without merit. 338 So.2d 1156 (La.App. 4th Cir. 1976). Accordingly, the court of appeal rendered judgment in favor of Louisiana National Leasing Corporation and against Family Pools, Inc., J. Stanley Middleton, Jr., Sherard Fabacher and Peter Fabacher, in solido, in the amount of $72,-020.80, together with legal interest plus attorney’s fees, and subject to credit for all sums paid by any of the defendants since suit was filed.

Additionally, the court of appeal recognized the Fabachers’ third-party claims against Family Pools, Inc., and J. Stanley Middleton, Jr., and in its decree rendered judgment in favor of Sherard and Peter Fabacher against Family Pools, Inc., and J. Stanley Middleton, Jr., in solido, for “such amounts as they may ultimately be obliged to pay, as sureties, to Louisiana National Leasing Corporation” under the judgment rendered in its favor.

On application of the solidary sureties, Sherard and Peter Fabacher, we granted writs to review the correctness of the ruling of the court of appeal. For the reasons hereinafter assigned, we affirm the judgment of the court of appeal.

The issues presented by this appeal must be resolved principally by reference to the contracts which form the law between the parties. La.C.C. art. 1901; Oil Field Supply & Scrap Material Co. v. Gifford Hill & Co., 204 La. 929, 16 So.2d 483 (1944); Brignac v. Boisdore, 272 So.2d 463 (La.App. 4th Cir. 1973), affirmed, 288 So.2d 31 (La.1973).

Ten Day Termination Letter

Each of the five contracts sued upon by National Leasing contained the following, or almost identical, language:

“DEFAULT, (a) The following acts shall each constitute a default: (1) Lessee’s failure to pay any installment of rental when due * * *. Upon such default, Lessor may, at Lessor’s option, by written notice to Lessee, terminate this lease.” (Emphasis supplied.)

Default by Family Pools, Inc., the lessee, on payment of the monthly sums due under the contract was stipulated by the parties. In the closing months of 1972, considerable correspondence was exchanged, and a number of discussions were held between the parties regarding Family Pools’ default. Then, on January 5, 1973, a letter bearing the notation, “TEN DAY TERMINATION NOTICE,” was sent by National Leasing’s accounts manager to its attorney. Copies of this letter were mailed to J. Stanley Middleton, Jr., Sherard Fabacher and Peter Fabacher. However, a copy of the letter was never mailed to the lessee, Family Pools, Inc. Moreover, the evidence is un-controverted, and the fact conceded by all parties, that the letter sent to Mr. Middleton was never received by him, but was returned to National Leasing undelivered.

The Fabachers contend that their receipt of this letter, as solidary sureties, coupled with the lessee’s failure to make good the delinquent payments by January 19, 1973, as stated in the letter, effectively terminated each of the five contracts, on that date, and rendered applicable certain contract provisions requiring National Leasing to obtain the leased equipment as soon as practicable, sell it for the highest price available, and credit the lessee’s account, in accordance with the final accounting provisions of the contracts.

Having carefully examined the testimony and exhibits offered at the trial of this matter, and particularly in view of the clear language in each of the contracts, we are unable to accept appellants’ theory. We do not find that the Fabachers’ receipt of a copy of the January 5, 1973 letter from National Leasing to its attorney satisfied the contractual requisite that the lessor, electing to terminate the contracts upon lessee’s default, so inform the lessee in writing.

In the first place, the text of the letter evidences no intention on the part of National Leasing to exercise its optional right to terminate the contracts. The letter simply authorizes National Leasing’s attorney to take necessary steps to obtain payment, and copies were mailed to Mr. Middleton and the Fabachers undoubtedly in the hope that they would take some action to bring the accounts current. Admittedly the letter bears the caption “TEN DAY TERMINATION NOTICE.” Nevertheless, we are not disposed, in considering the legal effect to be given this letter, to disregard its content, and place complete reliance upon its caption, which we regard as ambiguous.

Appellants emphasize certain testimony given at trial by National Leasing’s accounts manager. They maintain that his testimony shows National Leasing actually intended the January 5, 1973 letter to serve as notice of its election to terminate the contracts. We regard as the best evidence of whether National Leasing intended to terminate the contracts, the text of the letter itself, which does not, in our view, demonstrate an election to terminate them. While the testimony of National Leasing’s accounts manager some ten months after the letter was written certainly demonstrates some personal confusion in his mind regarding the legal effect of the letter, National Leasing’s actions subsequent to the letter clearly reflect its intention to accelerate and collect payments for the full terms of each contract rather than to terminate them.

Finally, as we previously noted, the letter was never received by the lessee, Family Pools, Inc., or its president, J. Stanley Middleton. Cf. Southern Fleet Leasing Corporation v. McAndrew, 219 So.2d 215 (La.App. 1st Cir. 1969). Nor does the evidence establish that Mr. Middleton or the lessee was informed in any manner that National Leasing regarded the contracts terminated. Lessee remained in possession of the leased equipment, and continued to make sporadic payments on the accounts.

In view of the foregoing, we conclude that National Leasing’s letter of January 5, 1973, did not effect a termination of the five contracts. The Fabachers were not entitled to conclude, on the basis of having received a copy of the letter, that the contracts were terminated by National Leasing as of January 19, 1973.

Release of the Sureties

The next question presented by this litigation is whether National Leasing’s handling of the Family Pools accounts amounted to an impairment of the Fabachers’ sub-rogation rights under Louisiana Civil Code Article 3061, or otherwise prejudiced them in their status as solidary sureties, and thus entitled them to discharge from their sure-tyship obligations. In other words, was National Leasing permitted first to accept sporadic payments and then to accelerate the rentals after lessee had long been in default, rather than to exercise its contractual right to terminate the leases, and thereafter obtain the leased equipment and sell it so as to reduce the outstanding liability of the lessee?

The Fabachers’ personal liability to National Leasing for payments owed by Family Pools, Inc., rests on the following solidary suretyship agreement, gratuitously executed by them in connection with each of the five contracts sued upon:

“In consideration of the Lessor entering into this lease with the Lessee, the undersigned hereby guarantees and becomes surety for the Lessee in favor of the Lessor for the full and faithful performance of all Lessee’s obligations under this lease. This obligation of the undersigned surety is joint, several and in soli-do with the Lessee. The undersigned shall be bound as if principal obligors for all amounts due under this lease, both for the basic term and for the continued month to month basis thereafter, and consents in advance to all extensions. The undersigned renounce any plea and benefit of discussion or division granted by law to sureties; it is understood and agreed that without this guarantee or surety agreement, Lessor would be unwilling to enter into this contract of lease with the Lessee.” (Emphasis supplied.)

Appellants, in addition to obligating themselves in solido with the lessee, expressly consented in advance to all extensions of time given to the lessee by National Leasing. Louisiana Civil Code Article 3063 provides that an extension of time granted the principal debtor by the creditor without consent of the surety operates to release the surety, and this right has been held to extend to solidary sureties. See, Jones v. Fleming, 15 La.Ann. 522 (1860); cf. Moriarty v. Bagnetto, 110 La. 598, 34 So. 701 (1903); Hubert, The Nature and Essentials of Conventional Suretyship, 13 Tul.L. Rev. 519, 523 n. 27 (1939); 2 M. Planiol, Traité élémentaire de droit civil, No. 2384 at 354-55 (La.St.Law Inst, transl.1959); Comment, Article 3045 and Solidary Surety-ship, 39 Tul.L.Rev. 85, 93-94 (1964). Appellants, however, having expressly consented in advance to all extensions in each surety agreement, cannot complain that the creditor, National Leasing, has not insisted upon timely payment of the rental obligations by the principal debtor, Family Pools, Inc.

Likewise, we do not find that National Leasing’s election to accelerate the rentals upon lessee’s default, rather than to exercise its contractually authorized option to terminate the lease, effected an impairment of the Fabachers’ subrogation to National Leasing's rights, mortgages and privileges within the contemplation of La.C.C. art. 3061.

The only right which the Fabachers contend has been impaired is the right to obtain possession and sell the leased equipment. However, this argument overlooks the fact that Article 3061 provides that the surety is discharged when an act of the creditor causes the surety loss of subrogation to the creditor’s rights against the principal debtor. In the instant case National Leasing never acquired the right to repossess and sell the equipment because it did not terminate the lease. By electing to accelerate the payments, and sue for all rentals, under the contract National Leasing could only acquire a judgment against the principal debtor to which the Fabachers’ rights of subrogation have not been impaired.

The Fabachers urge, in what we consider to be an alternative argument, that we adopt the findings and reasons for judgment of the trial court. The trial judge found that the contracts were terminated as of January 19, 1973, and that

“ * * * [t]he failure of the lessor to comply with the final accounting provisions [of the contracts] and to sell the vehicles in question, prejudiced the rights of the two sureties in that no effort was made by the parties upon default and termination to determine the value of the property and to sell it before there was further depreciation.” (Emphasis supplied.)

The theory relied on by the trial judge was that the sureties’ obligations were fixed at the time he determined the contracts were terminated, and that National Leasing failed to take steps to protect the sureties’ subrogation, rights by allowing the equipment to remain in the lessee’s hands — continually depreciating in value all the while.

Having concluded that the leases did not end on January 19, 1973, and that the sureties’ liabilities were not “fixed” as of that date, we cannot accept the rationale expressed by the trial court and urged on appeal by the Fabachers.

We find that the court of appeal correctly declined to release the Fabachers, as solida-ry sureties on the contracts, from the obligations they willingly undertook by executing the surety agreements.

Exception of No Cause of Action

The Fabachers filed an exception of no cause of action in the trial court on the ground that the agreements sued upon were not leases but “contracts.” The district court referred the exception to the merits and rendered judgment without ruling upon it.

This exception was reurged and a similar one was filed in the court of appeal. On rehearing that court overruled the exceptions because it found the Fabachers had judicially admitted the contracts to be leases in their pleadings. We disagree with the reasoning of the appellate court. Although the Fabachers referred to the contracts as “leases” in responsive pleadings in order to answer plaintiff’s allegations which spoke in such terms, we find no evidence that the Fabachers intended to admit that the nature of each contract was, in fact, that of a lease. Nevertheless, the exception was correctly overruled, because whether the principal contract was a lease, conditional sale or an innominate contract, we have concluded that it was sufficient to give rise to a valid obligation enforceable against the Fa-bachers as solidary sureties.

For the foregoing reasons,the judgment of the Fourth Circuit Court of Appeal is affirmed.

      . Louisiana Civil Code Article 3061 provides:
      “The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.”

      . The following clause found in only one of the five contracts, formed the basis of the' district court’s ruling that National Leasing could not recover for future rentals on one of the leases:
      “ * * * if Lessor terminates this lease in writing, as to any item of equipment, Lessee shall not be liable for rent for such item accruing after the date of such termination.”
      The district court’s judgment, however, reserved National Leasing’s rights to pursue other claims under that contract.

      . This award was subject to a credit of $16,-491.67, which the evidence demonstrated had been paid to National Leasing by Family Pools, Inc., since suit was filed.

      . The court of appeal added to the amount of the district court’s original judgment $9,825.36, representing National Leasing’s claims under contract number 5347, docket number 160-297 in the district court.

      . Four of the leases additionally specified that the written notice be sent by the lessor to lessee’s address as indicated in the contract.

      . The text of the January 5, 1973 letter read as follows:
      “This will be your authority to proceed in the collection of the above leases. We have attempted to obtain the cooperation of our customer, but to no avail.
      “At this writing the lessee is in default in the amount of $4,592.53, including the current month that was due on the first.
      “Please prepare the necessary papers to protect our interests and hold them in your office until January 19, 1973, in order to give Mr. Middleton one more opportunity to come in and make satisfactory arrangements with Troy W. Chiek, Collection Manager of Louisiana National Leasing Corporation, to avoid further expense and embarrassment. If the past due lease rental payments or other satisfactory arrangements are not make [sic] by January 19, 1973, please proceed at once without further notification.
      “A copy of this letter is being sent to Mr. Middleton so that there will be no misunderstanding in this matter.”

      . Although styled as a “termination notice,” the letter’s caption also contains notice that the outstanding balance on the contracts exceeded $71,000.00. This notation is indicative of National Leasing’s intention to accelerate the lessee’s obligations, rather than terminate the contracts, and under each contract the two remedies are mutually exclusive. See, Henry Rose Mercantile & Mfg. Co. v. Stearns, 154 La. 946, 98 So. 429 (1923); Mid-Continent Refrigerator Company v. Williams, 285 So.2d 247 (La.App.3d Cir. 1973); Note, 35 La.L.Rev. 644-46 (1975).

      . Had this letter actually been received by the lessee, a closer question regarding the “terminating effect” of this letter would be presented.

      . La.C.C. art. 3063 provides:
      “The prolongation of the terms granted to the principal debtor without the consent of the surety, operates a discharge of the latter.

      . “The mere decline in value of property held by the creditor as security is not a basis for discharge of the surety. * * * It has been held that depreciation of collateral after the debt is due but before it is paid is not of itself sufficient to extinguish the surety’s obligation. [Commercial Nat’I Bank v. Richardson, 163 La. 933, 113 So. 152 (1927)] The creditor is not required to police the security, particularly when the security is not within his sole control and is readily available to the surety. The surety, if he wishes to protect himself against the danger of collateral losing value, can pay an exigible debt [La.C.C. art. 3056] and execute upon the collateral or, even before paying the debt, can bring an action for security against the principal debtor. [La.C.C. art. 3057]” Slovenko, Suretyship, 39 Tul.L.Rev. 427, 481 (1965).
      La.C.C. art. 3056 provides:
      “When the surety has paid without being sued and without informing the principal debt- or, he shall have no recourse against the latter, provided that, at the time of payment, the debt- or was in possession of such means as would have enabled him to have the debt declared extinct; but in this case the surety has recourse to the creditor for restitution.”
      La.C.C. art. 3057 provides:
      “A surety may, even before making any payment, bring suit against the debtor to be indemnified by him:
      “1. When there exists a lawsuit against him for payment.
      “2. When the debtor has become a bankrupt, or is in a state of insolvency.
      “3. When the debtor was bound to discharge him within a certain time.
      “4. When the debt has become due by the expiration of the term for which it was contracted.
      “5. At the expiration of ten years, when the principal obligation is of a nature to last a longer time; unless the principal obligation, such as that of guardianship, be of a nature not to be extinguished before a determinate time.”