text:
    STATE of Louisiana v. Frank THOMAS and Alberta Talbert.
    No. 59088.
    Supreme Court of Louisiana.
    June 20, 1977.
    Rehearing Denied Sept. 2, 1977.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
    Elizabeth A. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   PER CURIAM.

Defendants were charged with possession of heroin with intent to distribute, La.R.S. 40:966(A). Frank Thomas was convicted as charged and sentenced to life imprisonment at hard labor. Alberta Talbert was convicted of possession of heroin and sentenced as a multiple offender, La.R.S. 15:529.1, to four years at hard labor. Upon appeal, we find merit in their assignment of error relating to the denial of the motion to suppress the heroin seized incidental to defendants’ arrests.

On August 8, 1975, at approximately 1:25 p.m., two New Orleans policemen on routine patrol drove through a semi-circular driveway in a housing project. They observed Alberta Talbert, whom they did not know at the time, seated on the passenger side of an automobile legally parked in the driveway. Then the officers saw Frank Thomas walking towards the car carrying in his hands a tinfoil covered object about the size of a baseball. One policeman had previously participated in numerous arrests involving heroin wrapped in foil. The patrol car was unmarked and the policemen were in plain clothes. Frank Thomas looked in the direction of the officers, lowered the package to his side and quickened his pace. He entered the parked vehicle as the patrol car pulled alongside. One officer observed Thomas hand the tinfoil package to Alberta Talbert, who transferred it to her right side. After coming to a stop slightly past the parked car, the officers got out and approached Thomas’ vehicle. The officers told Thomas and Talbert that they were under arrest and asked them to step out of the car. One of the policemen then recovered the package from behind the door handle on the passenger side of the car. He removed the tinfoil wrapper and found two inner packages containing 49 packets of brownish powder. The officers testified that they had recognized Frank Thomas before the arrest. Both claimed to know that he was a user of heroin and a suspected pusher. However, the officers did not disclose any of the facts upon which they based these conclusions.

The Fourth Amendment to the United States Constitution provides:

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

Article I, § 5 of the 1974 Louisiana Constitution provides:

“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.”

A warrantless arrest, no less than an arrest pursuant to a validly issued warrant, must be based on probable cause. State v. Ranker, 343 So.2d 189 (La.1977); State v. Jackson, 337 So.2d 508 (La.1976); State v. Scott, 320 So.2d 538 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975); State v. Odom, 292 So.2d 189 (La.1974). Probable cause exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Marks, 337 So.2d 1177 (La.1976); State v. Randolph, 337 So.2d 498 (La.1976); State v. Gilmore, 323 So.2d 459 (La.1975); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). While the officer need not have sufficient proof to convict, mere suspicion is not enough to justify an arrest. State v. Ranker, supra; State v. Randolph, supra.

LaPave, “Street Encounters" and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich.L.Rev. 40, 73-74 (1968) observes:

“As to the probability required for an arrest, it may generally be stated that it must be more probable than not that the person has committed an offense, although this is less certain as to the probability that a particular person is the offender than to the probability that a crime has been committed by someone. In the latter situation, which assumes central importance when there is no doubt who the offender is if a crime has been committed, courts ordinarily require that criminal conduct be more probable than non-criminal activity. This approach is reflected in those decisions which say that there must be ‘more evidence for [the existence of criminal conduct] than against’ or that the suspect’s actions must be ‘inconsistent with any innocent pursuit,’ and also in the many cases where grounds for arrest have been found lacking because the conduct of the suspect was equivocal, that is, where the possibility of criminal conduct was no greater than the possibility of innocent behavior.” (Footnotes omitted.)

Applying these principles to the instant case, we conclude that the facts and circumstances within the officers’ knowledge were insufficient to provide probable cause for the arrests. In essence, the officers acted on the following observed facts: (1) Prank Thomas was seen carrying an object wrapped in tinfoil, and one of the officers had seen foil used for packaging heroin in numerous other cases; (2) Thomas held the package on his side and quickened his pace, as if startled, after seeing the two plain clothes officers in the unmarked patrol car; and (3) after Thomas handed Alberta Talbert the package, she wedged it behind the door handle on her side of the car.

Undoubtedly, the policemen also acted on their belief that Prank Thomas was a user of heroin and their suspicion that he was also a distributor. However, without the underlying facts upon which this allegation was based, it is but a “bald and unillu-minating assertion of suspicion” that is entitled to no weight in appraising the decision to seize and search the defendants. Spinelli v. United States, 393 U.S. 410, 414, 89 S.Ct. 584, 588, 21 L.Ed.2d 637, 643 (1969); Nathanson v. United States, 290 U.S. 41, 46, 54 S.Ct. 11, 78 L.Ed. 159, 161 (1933).

Assessing the trustworthy information that the record indicates was available to the officers before the arrest, it is apparent that there was less evidence pointing toward the existence of criminal conduct than against it at that time. Indeed, one suspect’s actions in the middle of the day of walking from a residential housing project to his car with a tinfoil covered parcel and handing it to his female companion are not inconsistent with innocent pursuits. Nor did her conduct in placing the package on the other side of her person necessarily indicate an intention to secrete, rather than secure, the bundle. Thomas’ behavior in dropping the package to his side and quickening his pace does seem somewhat suspicious. But even if it be assumed that he also looked “startled,” which is so much a matter of subjective judgment as to be of little reliability, the suspicions aroused are far outweighed by the possibilities of innocent behavior, considering all of the circumstances.

We conclude, then, that in the present case the facts and circumstances known to the arresting officers determinable from the record were not sufficient to provide probable cause for the arrests. This is not to say that the evidence would have failed to justify an investigatory stop for questioning. See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny. See also, State v. Shivers, 346 So.2d 657 (La.1977) No. 59,080; State v. Kinnemann, 337 So.2d 441 (La.1976); State v. Cook, 332 So.2d 760 (La.1976); State v. Truss, 317 So.2d 177 (La.1975); State v. Saia, 302 So.2d 869 (La.1974). However, it is clear that the officers fully arrested the defendants for the commission of a crime and did not merely detain them for questioning. Accordingly, we need not reach the issue of whether such a detention would have been permissible.

As a consequence of the unconstitutional arrest or seizure of the defendants, the search and seizure of evidence incidental thereto was also unlawful. Any evidence produced as a result of an illegal search and seizure is tainted and thus inadmissible under the state and federal constitutions. U.S.Const. amend. IV; La.Const. art. I, § 5 (1974); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Fearn, 345 So.2d 468 (La.1977); State v. Ranker, supra; State v. Kinnemann, supra. Therefore, we hold that the trial court erred in denying defendants’ motion to suppress.

For the reasons assigned, the convictions and sentences are reversed, and the case is remanded for a new trial.

SANDERS, C. J., and SUMMERS, J., dissents.

MARCUS, J., concurs.

       For purposes of this opinion we will accept the version of facts as testified to by the officers.


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Roger SIMMONS.
    No. 59110.
    Supreme Court of Louisiana.
    June 20, 1977.
    Rehearing Denied Sept. 2, 1977.

      Carey J. Ellis, Jr., Glynn D. Roberts, Ray-ville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., William R. Coenen, Jr., Asst. Dist., Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant Roger Simmons was indicted by the Richland Parish Grand Jury for the second degree murder of Harrison Lee Ignont, a violation of R.S. 14:30.1. A jury of twelve found the defendant guilty as charged. The defendant was sentenced to life imprisonment. The defendant assigns three errors for reversal of his conviction and sentence. Since we find merit in the defendant’s third assignment of error, we pretermit discussion of the defendant’s other assignments.

On February 15, 1975 Roger Simmons shot and killed Harrison Lee Ignont with a shotgun at the Goldmine Club in Richland Parish. After the State had put on its case in chief, the defendant attempted to elicit testimony concerning the victim’s dangerous character. The refusal of the trial judge to permit this line of questioning forms the basis of the defendant’s assignment of error.

R.S. 15:482 provides:

“In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”

In order to introduce evidence of the decedent’s dangerous character or of his threats against the accused, the defendant must first present appreciable evidence tending to establish a hostile demonstration or an overt act on the part of the decedent which act or demonstration creates in the mind of a reasonable person a belief that he is in immediate danger of losing his life or of suffering great bodily harm. State v. Green, 335 So.2d 430 (La. 1976); State v. Lee, 331 So.2d 455 (La. 1975); State v. Groves, 311 So.2d 230 (La. 1975). The inquiry is not whether in fact the decedent was going to inflict great bodily harm on the defendant, but whether the defendant reasonably was in apprehension of an attack by the victim. State v. Burkhalter, 319 So.2d 392 (La. 1975). In the absence of evidence (not proof) of hostile demonstration or of overt act by the victim, evidence of his threats or dangerous character is not admissible. La.Acts 1952, No. 239, § 1 (now enrolled as R.S. 15:482) amending former C.Cr.P. 482. State v. Lee, supra.

The trial judge sustained the State’s objection to questions concerning the dangerous character of the deceased on the ground that no proper foundation had been laid; i. e., there was no “evidence” of an overt act. Those facts surrounding the incident reveal the following. A fight had occurred between the defendant and the decedent on the night of the shooting in which the defendant was badly beaten. (The evidence also reveals that a fight had taken place between the same two men some months before). Both men left the scene promising that they would return. The defendant testified that Ignont had told him that he was going to go home, get his gun and come back and kill the defendant. The defendant testified that he replied that he could go home too.

After the defendant had returned and was waiting at the cook shed, the decedent drove up with his wife. Mrs. Ignont testified that she saw the defendant and that she was certain that her husband had also. (The evidence revealed that the area outside the club was well lighted). The defendant testified that when the decedent and his wife drove up, he saw Ola Ignont take a pistol out of her purse and give it to her husband, after which Ignont got out of the passenger side of the car and turned toward the defendant. It was at this point that the defendant fired at the decedent. The defendant testified: “Yes, sir, when he went to turn, that is when I shot, because I had seen the gun and knowed that he was going to shoot me.” The victim’s wife testified at trial that she had not given her husband a gun.

In his per curiam, the trial judge found that the only evidence of an overt act was the defendant’s testimony that the victim had turned toward him. The trial judge found that this testimony was uncorroborated, unsupported by other evidence and completely self-serving. He also found that no pistol was found at the scene of the crime or on the victim. Therefore, he concluded that the “unsupported, self-serving statement of defendant was not ‘evidence’ of an overt act which would justify the introduction of the evidence offered.”

However, the following evidence was also adduced at trial. Deputy Burgess Cumpton of the Richland Parish sheriff’s office was called as a witness for the State. He was the first deputy to arrive at the hospital to which the victim was brought. The deputy was informed by the treating physician that the victim’s right hand pants pocket had been emptied. Deputy Cumpton went to the victim’s car and discovered a basket of blood stained clothing in the back seat. The deputy found a lighter, some money and a pistol together in the basket about midway down in the clothing. When asked by the deputy who these objects belonged to, Mrs. Ignont replied that the gun was hers but that she didn’t know where the other articles had come from. At trial, however, Mrs. Ignont testified that while she and the victim were being driven to the hospital she took the money out of her husband’s pocket and put it in the basket. She also explained that it was her habit to always carry a gun with her and that she had done her laundry that day and had left the gun in the basket.

In summary, the following evidence was adduced to show an overt act or hostile demonstration. (1) The defendant and the victim had fought on the night of the incident and each indicated that he was going home to get his gun and would return. (2) The defendant testified that he actually saw Mrs. Ignont take a gun from her purse and hand it to her husband before he left the car and that the victim turned toward the defendant just before the defendant fired. (3) Mrs. Ignont testified at trial that she had emptied her husband’s pocket on the way to the hospital, which testimony was directly contrary to her initial statements at the hospital. (4) Deputy Cumpton testified that a pistol was found in Mrs. Ignont’s car halfway down in the basket of laundry, which was in the same spot as the items taken from the victim’s pocket, indicating that in fact there was another gun at the scene of the crime. The testimony of Deputy Cumpton and the contradictory testimony of Mrs. Ignont does tend to corroborate the defendant’s testimony and, taken together with the defendant’s testimony, constitutes appreciable evidence of an overt act or hostile demonstration. Therefore, the defendant should have been permitted to elicit testimony as to the victim’s dangerous character or of his threats against the accused.

For these reasons the conviction and sentence of the defendant are reversed and the case is remanded for further proceedings not inconsistent with this opinion.

SUMMER, J., dissents.

      . The evidence of the decedent’s dangerous character or of his threats against the defendant would be relevant to support a plea of self-defense. In addition to the trial court’s ruling that no proper foundation had been laid, both the trial judge and the State (in brief) argue that the thrust of the accused’s defense at trial was that he never intended to hit the victim with the buckshot, but merely intended to scare him. Therefore, they conclude that the testimony concerning the decedent’s dangerous character was properly excluded because the defense was accidental shooting and not self-defense.
      The defendant testified that he intentionally shot “high” in an attempt to scare the decedent after the decedent had turned toward him with a gun in his hand. (The center of the buckshot pattern found on the wall behind the decedent was 6'4" from the ground, indicating that the defendant probably had aimed “high.”) However, he also testified that at the time he shot he was in fear that the decedent was immediately going to kill him and that by firing first he could scare the decedent and avoid being shot. The fact that the defendant did not wish to kill the decedent is not inconsistent with his claim of self-defense.


author: TATE, Justice. SUMMERS, Justice

text:
    In the Matter of the Succession of Joseph L. ROBINS.
    No. 59138.
    Supreme Court of Louisiana.
    June 20, 1977.
    Rehearing Denied Sept. 2, 1977.
    Ashton L. Stewart, Laycock, Stewart & Preis, Baton Rouge, for plaintiff-appellant.
    Vanue B. Lacour, Lacour & Calloway, Baton Rouge, for defendants-appellees.
   TATE, Justice.

May the state validly prohibit an illegitimate child from receiving a legacy intended for him by his father, solely because the child’s conception resulted from an adultery committed by the father? Simply stated, that is the issue before this court.

The deceased testator willed his estate, composed entirely of his separate property, to two illegitimate sons. Relying upon Civil Code Article 1488 (1870), his surviving widow by a second marriage opposed the judicial recognition of these legacies. The trial court held the code article to be unconstitutional and, accordingly, dismissed the widow’s claim to receive the decedent’s estate instead of his testamentary heirs, i. e., his illegitimate sons. An appeal is taken for her claim.

Article 1488 prohibits natural parents from giving or willing any part of their estate to their illegitimate children, if these children were conceived as a result of an adultery or of incest. No such prohibition applies to gifts or legacies made by a father to his illegitimate children conceived under other circumstances, at least where (as here) the decedent is not survived by lawful descendants, ascendants, or collateral relations. Articles 1483-87.

The district court held that Article 1488 violates Article 1, Section 3, Louisiana Constitution of 1974, in that the code article unreasonably discriminates against adultery-conceived illegitimates solely on the basis of their birth. The constitutional provision states: “No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth * *

I.

In this direct appeal to this court from the judgment holding Article 1488 unconstitutional, see La.Const. Art. 5, Sec. 5(D)(1) (1974), the narrow legal issue is:

Does a statute unreasonably discriminate against illegitimate children because of their birth, in violation of our state constitution, when it prohibits a natural parent from giving or willing an illegitimate child any substantial part of the parent’s estate solely because the child’s conception resulted from the parent’s adultery? (The narrowed issue essentially involves the reasonableness of the legislative classification of adultery-conceived illegitimates as being incapable of receiving testamentary dispositions from their parents, when such dispositions are not prohibited as to other illegitimate children, nor as to (technically) “illegitimate” children likewise conceived as the result of an adultery.)

Preliminarily, we emphasize that the present issue does not arise in the context of passing upon the reasonableness of legislative classifications of legitimate versus illegitimate children for purposes of intestate heirship, Articles 886-88, 902, 917-920, nor even for purposes of testamentary succession, Article 1483. Nor does it arise in the context of the legislative reasonableness of the intestate succession of a surviving widow to her husband’s property in default of legitimate descendants, to the exclusion of the husband’s illegitimate children. Articles 917, 919.

Rather, the issue is narrowed to the reasonableness of a legislative classification by which, solely because his conception resulted from an adultery, an illegitimate child is deprived of any right whatsoever to receive his father’s estate should the latter desire to will it to his natural child.

In the present case, for instance, the sons’ illegitimacy did not by itself invalidate the legacies by their deceased father to them. The testamentary disposition to these illegitimate sons would have been valid, except for their adulterous conception. Likewise, no statutory bar invalidated the right to the father to make a testamentary disposition of his estate to a third person (rather than to his adultery-conceived children), nor even to the adultery-conceived children of a third person, despite the existence of a surviving spouse (to whom the testator did not wish to will his separate property).

Thus, in all the world, only the children of this father conceived as a result of his adultery are prohibited from receiving his estate if he wills it to them — and for the sole reason that their conception was a consequence of his adultery.

II.

Article 1, Section 3, of our state constitution prohibits laws which “unreasonably discriminate against a person because of [his] birth * * In the constitutional- debates, both proponents and opponents of the provision noted that it included within its scope unreasonable discrimination against persons because of illegitimacy.

The equal protection guarantee of the constitution essentially requires that state laws affect alike all persons and interests similarly situated. Nevertheless, differences in legislative treatment may validly be accorded to persons or interests classified differently, provided there be shown a rational basis for the differentiation which is reasonably related to a legitimate governmental purpose.

See: Williams v. Williams, 331 So.2d 438 (La.1976); State v. Barton, 315 So.2d 289 (La.1975); Petition of Sewerage & Water Bd. of New Orleans, 257 La. 716, 243 So.2d 809, 813 (1971); Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 6-10 (1974). See also: Trimble v. Gordon, 430 U.S. 763, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).

In the present instance, children were denied by statute the right to receive testamentary legacies intended for them by their father. The sole statutory reason was that, at the time of their conception, their father was married to another woman than their mother, i. e., because their conception resulted from a proven adultery. Except for those conceived of an incestuous relationship, no other illegitimates are so penalized.

The thrust of our analysis must be: What valid state purpose is rationally served by a legislative classification which prevents only illegitimates conceived in adultery from having the capacity to receive testamentary legacies from their father, but (save for incestuous children) does not similarly prevent other illegitimates from doing so?

The valid state purpose said to be served is to help preserve the sanctity of the marriage by penalizing adulteries. Does the denial of any right of the adulterous children to receive legacies provide a rational basis for this differentiated effect accorded these illegitimates and no others?

We find no rational basis for this hence-invidious discrimination against ille-gitimates solely because their birth resulted from an adultery.

Assuming that adulteries are a social evil that endanger the sanctity of marriages, we note that the legislature has not seen fit to provide sanctions against the adulterous parents — only against their children. “ * * * [V]isiting this condemnation [by society “of irresponsible liaisons beyond the bonds of marriage”] on the head of an infant is illogical and unjust. . . . Obviously, no child is responsible for this birth and penalizing the child is an ineffectual— as well as unjust — way of deterring the parent.” Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768 (1972).

The irrationality of the sanction provided by the legislative classification is highlighted by the arbitrariness by which it is brought into play so as to affect some children conceived of an adultery and not others.

In practical effect, the only adulterous children affected are those born of a married father and an unmarried mother — and then only if the father admits his parentage, Article 209(1), (2), or else it be proved that “the mother of the child was known as living in a state of concubinage with the father, and resided as such in his house at the time the child was conceived,” Article 209(3), Succession of Cervini, 228 La. 1054, 84 So.2d 818 (1956).

On the other hand, children conceived of other adulterous connections are not practically subject to Article 1488’s severe sanctions, which bar some illegitimates and not others from receiving testamentary dispositions from their own parents.

If both natural parents are married to other persons at the time of an adultery, or if an unmarried father has committed the adultery with a married woman, then any child thereby conceived is afforded protection from illegitimate status by the presumption that the husband of the mother is the father of children born or conceived during the marriage. Article 185. This presumption presents what until now has been an almost insurmountable bar to proving that the child’s legal parent is not the mother’s husband but is instead, the adulterer, Articles 185-90 (as amended in 1976). See Spaht, The Strongest Presumption Challenged, 37 La.L.Rev. 59, 64-67, 83-86 (1976). Children of such adulteries therefore ordinarily escape the sanction sought to be imposed against the present illegiti-mates, which deprives them alone of the right to receive testamentary legacies intended for them by their father — essentially because their father claimed them as his own children conceived in adultery.

In the present case, for instance, if the father’s ancient adulteries during his childless marriages had been with women separated from (but technically married to) legal husbands, the present father could have willed his property to his biological sons of these liaisons: Technically, they were then not adulterous bastards, but rather were legitimate offspring of their mothers’ marriages with their respective husbands.

Thus, under the present circumstances, the deceased father could have willed his estate not only to his own illegitimate children if not conceived in adultery, but also to any other “legitimate” or illegitimate children, whether or not they were conceived in adultery.

Without reaching other contentions of invidious discrimination against adulterous children solely because of their birth, it suffices in deciding the present litigation that we affirm the trial court’s holding that Article 1488, by denying adulterous children the right to receive gifts or legacies intended for them by their parent, offends our state constitution’s prohibition against unreasonable discrimination against persons because of their birth. This drastic penalty affecting only illegitimates proven to be conceived in adultery is not shown to be supported by any rational basis reasonably related to the governmental interest sought to be advanced by it. In similar context, the United States Supreme Court has observed: “* * * We have expressly considered and rejected the argument that a State may attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships.” Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 1464-65, 52 L.Ed.2d 31 (1977).

III.

In contending that the complete denial of inheritance rights to adulterous children is founded upon a rational basis, the appellant principally relies upon Succession of Vincent, 229 So.2d 449 (La.App. 3d Cir. 1969), certiorari denied 255 La. 480, 231 So.2d 395 (1970), affirmed eo nomine Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). In that case, no unreasonable discrimination under the federal constitution was found to result from Louisiana’s denial to illegitimates of intestate inheritance rights which are granted to legitimate children.

The reliance is misplaced. The issue in Vincent involved the statutory regulation of the distribution of estates of decedents who died without making a will. The rational basis for the discrimination between legitimate and illegitimate children was found to exist in facilitating the prompt and definitive determination of property left by an intestate decedent, as well as in the social policy of encouraging marriage and discouraging illegitimacy.

However valid these may be as rational bases for differentiated treatment of legitimate or illegitimate children for purposes of intestate succession, these reasons do not afford any rational basis to deny completely by statute any right of an illegitimate child to receive a legacy given him by his father’s will solely because the child’s conception resulted from his father’s admitted adultery — especially where, as here, the father could have willed his estate to non-adulterous illegitimates or to complete strangers.

Our holding that Article 1488 constitutes invidious discrimination against adultery-conceived illegitimates solely because of their birth, where other illegitimate children of the parent are not so penalized, is in accord with similar interpretations of the federal constitution’s equal protection guarantees: Trimble v. Gordon, 430 U.S. 763, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977); Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). See also Warren v. Richard, 296 So.2d 813 (La.1974). However, since we have found that this invidious discrimination is barred by our state constitution, we need not ground our decision upon this additional basis.

Conclusion

Accordingly, we affirm the judgment of the district court, which granted judgment in favor of the decedent’s sons and which held Civil Code Article 1488 violated our state constitution by denying the decedent’s illegitimate sons the capacity to receive the legacies intended for them by their father’s will. All costs to be paid by the appellee.

AFFIRMED.

DENNIS, J., concurs.

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

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

Decedent Joseph Lee Robins died in East Baton Rouge Parish on July 24, 1975 at the age of 93 leaving substantial property, both real and personal, belonging to his separate estate. He was first married to Fannie Holmes on March 19, 1908. During this marriage the child Ernest James Robins was born on September 21,1918 of a liaison between decedent and Mamie Hausey. Fannie Holmes died on October 2, 1929. Her succession proceedings disclose there were no children born of her union with decedent, and decedent accordingly was placed in possession of her entire estate.

Thereafter decedent was married to Neo-netta Hardnett on January 6, 1931. While married to Neonetta Hardnett a child named James Wilson was born on November 11, 1938 of a liaison between decedent and Dorothy Wilson.

By a statutory last will and testament dated June 12,1970 and a codicil dated July 17, 1970 decedent bequeathed all of his property to Ernest James Robins and James Wilson, acknowledging by this will that they were his children. On July 17, 1970 decedent executed a notarial adoption of Ernest James Robins and on July 20, 1970 adopted James Wilson in the same manner. La.Rev.Stat. 9:461. These purported adoptions, however, are not relied upon and were ineffective because decedent could not under Louisiana law adopt anyone without the concurrence of his wife. La.Civil Code art. 214.

At the time of his death on July 24,1975, decedent was survived by his widow Neo-netta Hardnett. She intervened in his succession, alleging that Ernest James Robins and James Wilson were adulterine children, that there was no issue of the marriage, and asserting that, as surviving spouse of decedent and his sole heir, she was entitled to be placed in pQssession of his entire estate. While these proceedings were in progress Neonetta Hardnett died on June 7, 1976, and her sister Deola Hardnett as her universal legatee and sole heir was substituted in her stead.

It is contended on behalf of Neonetta Hardnett’s succession that the legacies in favor of Ernest James Robins and James Wilson are absolute nullities upon the authority of Article 1488 of the Civil Code, which provides that: “Natural fathers and mothers can, in no case, dispose of property in favor of their adulterine or incestuous children, unless to the mere amount of what is necessary to their sustenance, or to procure them an occupation or profession by which to support themselves.” Since both children are shown by this record to have occupations and to be fully capable of supporting themselves, the alimentary exception to the prohibition against parents disposing of property to their adulterine children is inapplicable to this case.

A plea to the constitutionality of Article 1488 was filed in the trial court on behalf of Ernest James Robins and James Wilson claiming that the article: 1) arbitrarily, capriciously, or unreasonably discriminates against them because of birth and culture contrary to Article I, Section 3, of the Louisiana Constitution of 1974; 2) deprives them of life, liberty and property without due process of law in contravention of Arti-ele I, Section 2, of the Louisiana Constitution of 1974; 3) deprives them of life, liberty and property without due process of law and equal protection of laws in violation of the Fourteenth Amendment to the Constitution of the United States; and 4) constitutes a bill of attainder in violation of Article I, Section 9, of the Constitution of the United States.

The trial judge found that Article 1488 was not contrary to the United States Constitution on the basis of the decision of the United States Supreme Court in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). He decided, however, that prohibiting a natural father from making a disposition of property to his adulte-rine children was a clear violation of Article I, Section 3, of the Louisiana Constitution. That article provides:

“No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.”

Based upon the trial court declaration of unconstitutionality, the case was appealed directly to this Court on behalf of the Succession of Neonetta Hardnett. La.Const. art. V, § 5(D)(1).

I.

In my view the trial judge erred in holding Article 1488 to be unconstitutional in contravention of Article I, Section 3, of the Louisiana Constitution of 1974 and this Court’s majority erred in sustaining that holding. In an initial and careful analysis of Section 3 this Court noted in State v. Barton, 315 So.2d 289 (La.1975) that the first and second sentences of Section 3 point up the special consideration the framers of the Constitution gave to the third sentence, which is pertinent to this case. By stipulating in the third sentence that no law shall “arbitrarily, capriciously, or unreasonably discriminate” against a person because of “birth”, the Constitution does not impose absolute prohibition as it does in the first two sentences of Section 3 which pertain to equal protection, race and religion. Consequently, if there is a rational basis for a birth classification the legislation is not unreasonably discriminatory and meets the constitutional test.

Distinctions based upon sex, legitimacy, minority and mental infirmity were referred to as “natural” distinctions by Do-mat. See 1 Domat, prel. bk. 2.73. Historically Louisiana has also recognized that rights in property are closely related to the family unit. Stability of the family and certainty of property rights are sought to be protected by the Civil Code. So interrelated with this purpose is the treatment of illegitimate children that our courts have declined attacks upon the elaborate plan regulating family life embodied in the Code.

Illustrations of this complex structure are pervasive in the Code. The class of legitimate children is limited to those who are conceived during the marriage of their parents. All other children are classed as illegitimate, while this class is further divided into numerous subclasses: Those illegitimate children who could not be acknowledged or legitimated, illegitimate children who obtained a judgment of paternity or maternity against the biological parent (La. Civ.Code arts. 208-12), illegitimates who were acknowledged by their biological parent (La.Civ.Code arts. 202-07), and illegitimate children who were legitimated. La. Civ.Code arts. 198-201.

Article 181 of the Civil Code mentions two sorts of illegitimates: “Those who are born from two persons, who, at the moment when such children were conceived might have legally contracted marriage with each other; and those who are born from persons to whose marriage there existed at the time some legal impediment.” Into the latter category fall: 1) adulterous bastards, “those produced by an unlawful connection between two persons, who, at the time when the child was conceived, were, either of them or both, connected by marriage with some other person,” (La.Civ.Code art. 182) and 2) incestuous bastards, “those who are produced by the illegal connection of two persons who are relations within the degrees prohibited by law.” La.Civ.Code art. 183.

Adulterous and incestuous bastards, generally speaking, cannot be acknowledged or legitimated. La.Civil Code arts. 198, 200 and 204. However, there are exceptions. In the case of adulterous bastards, if there is a subsequent legal marriage of the biological parents, after the impediment to the marriage is removed, the child may be acknowledged. La.Civil Code art. 204. If he is so acknowledged, he is automatically legitimated. La.Civ.Code art. 198.

Furthermore, once the impediment to the marriage is removed, a biological parent can in some instances legitimate the child by notarial act. La.Civ.Code art. 200. There is a specific prohibition in Article 198 of the Civil Code against legitimation of incestuous bastards by subsequent marriage of the natural parents.

Under Article 208 an illegitimate who has “not been legally acknowledged, may be allowed to prove” his paternal descent by proof as outlined in Articles 209 and 210. Upon establishing descent, the illegitimate becomes entitled to claim financial support in the form of alimony. La.Civ.Code arts. 240-5.

An illegitimate child who is acknowledged by his natural parent enjoys not only the right to claim alimony from the parent so acknowledging (La.Civ.Code art. 242), but also a restricted right of intestate inheritance. La.Civ.Code arts. 918-19. See 37 La.L.Rev. 59 (1976).

Legitimate descendants always exclude illegitimate descendants in intestate successions. La.Civ.Code art. 902, 915, 918-19. Legitimate descendants and fathers and mothers are forced heirs, but their illegitimate counterparts are not. La.Civ.Code arts. 1493-95. Legitimate ascendants and descendants in need may claim alimony from each other regardless of their abilities to provide for themselves (La.Civ.Code art. 229); illegitimates may claim alimony only if not able to provide for themselves. La. Civ.Code arts. 240-45. On the other hand, illegitimates cannot be said to be without substantial rights. From their mother who has acknowledged them, illegitimate children inherit her patrimony to the exclusion of her surviving spouse and of all relatives other than her legitimate descendants. La. Civ.Code art. 918. From their father who has acknowledged them, they inherit only in the absence of even remote legitimate relatives and a surviving spouse (La.Civ. Code art. 919); but the father may donate to his illegitimate acknowledged offspring up to one-fourth of his patrimony (and sometimes one-third) if he leaves legitimate relations. La.Civ.Code arts. 1486-87. All illegitimates who either have been acknowledged or, being acknowledgeablé but not acknowledged, have proven who their parents are, may demand alimony from them. La.Civ.Code arts. 24(M5. And, even the unacknowledgeable illegitimate may prove who his mother is, unless she is a married woman (La.Civ.Code art. 212), and may claim alimony from her and her ascendants. La.Civ.Code art. 245. See 46 Tul.L.Rev. 167, 173 (1971).

Considering the attention the drafters of the Code have devoted to this extensive and thorough legal system designed to sustain the family unit, protect the rights of property and accord to illegitimate children some benefits of inheritance, and a measure of support and sustenance, it is inconceivable that these classifications were intended to be abolished by Article I, Section 3, of the Constitution of 1974 as the holding of the trial judge and the majority would require. Reference to the debates at the Convention assures me that such a result was never intended. Verbatim Transcript, Vol. 12, August 29,1973, pp. 57, 62, 76, 80,90, 97; also Vol. 37, January 10, 1974, p. 3. It is implicit from these proceedings that the delegates intended that a reasonable classification should be sanctioned by the Constitution, and this Court has so held. See Williams v. Williams, 331 So.2d 438 (La. 1976); State v. Barton, 315 So.2d 289 (La. 1975). The classifications established by the Code between legitimate and illegitimate children are part of a logical and rational system. They are reasonably fair and humane. Since Article 1488 is such an integral component of this system the classification based upon birth which it embodies is neither arbitrary, capricious nor unreasonable and it does not offend the Constitution. The continuing legislative approval of these articles of the Code affecting illegitimates is illustrated by repeated rejection of proposals to alter them.

Without any record evidence to support its position, and without setting forth wherein the article of the Code constitutes an unreasonable classification, the majority has declared Article 1488 unconstitutional. In doing so the established doctrine that a presumption exists in favor of validity has been disregarded, a presumption which should be more compelling where the legislation has been an integral part of the body of Louisiana’s vital domestic private law for more than 175 years.

Thus the careful deliberation which requires that a court never declare a statute void unless its invalidity is beyond reasonable doubt has been cast aside in this wholesale emasculation of Louisiana’s laws affecting illegitimates. For, in my view, all other legislation affecting illegitimates is jeopardized with this decision. Parish of Jefferson v. Sharlo Corp., 283 So.2d 246 (La.1973); Hamilton v. McKeithen, 254 La. 683, 226 So.2d 494 (1969), appeal dismissed 397 U.S. 245, 90 S.Ct. 1104, 25 L.Ed.2d 278, reh’g den. 397 U.S. 1059, 90 S.Ct. 1351, 25 L.Ed.2d 680; Jones v. State Bd. of Ed., 219 La. 630, 53 So.2d 792 (1951); DeFrancis v. City of Bossier, 322 So.2d 333 (La.App. 2nd 1975), writ denied 325 So.2d 611 (La.1976), cert. den. 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81.

Since no contention has been advanced in argument to support the claim that Article 1488 offends the “culture” clause of Article I, Section 3, that part of the plea of unconstitutionality is considered abandoned.

II.

Insofar as the issues before us are concerned the due process and equal protection guarantees of the State and Federal Constitutions are essentially founded upon like principles. These principles limit the passage of legislation which imposes burdens upon or grants benefits to certain groups or classes of individuals without reason. They require that there be some justification in fact for the statutory classification drawn by the legislature to the end that those similarly situated are similarly classified and treated. Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); see State v. Pebworth, 260 La. 647, 257 So.2d 136, 140-141 (1972).

The test is employed in Section 3 of Article I of the Louisiana Constitution of 1974: that the legislation not be arbitrary, capricious or unreasonable. It must rest upon some ground of difference having a fair and substantial relation to the object to be accomplished so that all persons similarly circumstanced are treated alike. The degree of accuracy required of birth-based classifications may be compared to that applied to sex-based classifications referred to in State v. Barton, 315 So.2d 289 (La.1975). The classification is tested by the traditional standards of review demanding only that there be a rational relation between the classification as drawn and the achievement of a legitimate state objective found to be the purpose of the statute. See Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975).

Obviously Louisiana’s system of testate and intestate succession is not more unfair or discriminatory than the laws of states which permit a man to leave his entire estate to one of his children — or in some instances to strangers — disinheriting his remaining legitimate children entirely. Where is the rational basis for such a result? What stated purpose does such a system of laws serve? Is it not permissible under such a system for a person to discriminate against his legitimate children in favor of his illegitimate children?

“It is surely entirely reasonable for Louisiana to provide that a man who has entered into a marital relationship thereby undertakes obligations to any resulting offspring beyond those which he owes to the products of a casual liaison, and this whether or not he admits the fact of fatherhood in the latter case. With respect to a substantial portion of a man’s estate, these greater obligations stemming from marriage are imposed by the provisions of Louisiana law making a man’s legitimate children his forced heirs. For the remainder of his estate, these obligations are not absolute, but are conditional upon his not disposing of his property in other ways.” Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971) (Harlan, J., concurring).

In Succession of Vincent, 229 So.2d 449 (La.App.1969), cert. denied, 255 La. 480, 231 So.2d 395 (1970), the Third Circuit held, with the author of the present opinion writing, that within the broad powers of classification invested in the state legislature, there is a reasonable basis for the denial of inheritance to illegitimates equal to that of legitimate children. The opinion continued: A state has a great latitude in regulating descent and distribution, matters peculiarly reserved to the states. United States v. Burnison, 339 U.S. 87, 70 S.Ct. 503, 94 L.Ed. 675 (1950); Harris v. Zion’s Savings Bank & Trust Co., 317 U.S. 447, 63 S.Ct. 354, 87 L.Ed. 390 (1943). The classification of illegitimate children in Louisiana law does, in the Legislature’s discretion, have a tendency to encourage marriage and to discourage illegitimacy, valid social aims of the state. Since all men must die and leave their property for their successors, the denial of full rights of inheritance to illegitimate children may reasonably be viewed as encouraging marriage and legitimation of children.

I would add to the foregoing, what Louisiana has historically recognized, that the prohibition against incestuous children may reasonably guard against genetic abnormalities in the progeny. In either instance, whether the illegitimacy is adulterine or incestuous, public moral standards are sought to be preserved — all legitimate state concerns. The decision today cannot be reconciled with the expressions in Succession of Vincent.

The Third Circuit’s holding in Succession of Vincent, supra, was approved by this Court when we denied writs and by the United States Supreme Court in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), where Mr. Justice Black as organ of the Court wrote: “[T]he power to make rules to establish, protect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State.”

Counsel for Ernest James Robins and James Wilson has referred the Court to the recent decision of Trimble v. Gordon, 430 U.S. 763, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). As we read this decision it does not overrule Labine v. Vincent insofar as the rationale which we adopt for decision of the instant case. In any event the decision in Trimble v. Gordon is prospective in application and cannot constitutionally retroactively divest vested rights. U.S.Const. art. I, §§ 9 and 10; amends. 5 and 14. Here the rights of inheritance have vested to the exclusion of James Robins and James Wilson long before Trimble v. Gordon. I would, therefore, adhere to Louisiana’s time-tested code structure until the laws upon which this case rests are specifically abrogated by the Legislature or declared unconstitutional by the United States Supreme Court. In my opinion Article 1488 of the Civil Code does not deny equal protection or due process of law.

While the majority professes to confine the rationale of today’s holding to the particular facts of this case, the end result will effectively invalidate all laws of this state based upon illegitimate births. The decision directly invalidates Articles 204, 920 and 1488 of the Civil Code and Section 391 of Title 9 of the Revised Statutes. If I understand the decision today, such a result will follow so long as this majority sits, whether the rights denied illegitimates are based upon a reasonable classification or not — the Constitution to the contrary notwithstanding.

Because the decision fails to declare whether its effect is prospective or retroactive, the titles to properties throughout the State will remain in question until the rights of illegitimates in them are fixed by a court more conscious of the law’s stability.

This expansive interpretation of the law by this majority in this and many other decisions and decrees has caused principles and procedures designed to guarantee at least a minimum quality of justice to be abandoned. The resulting judicial proliferation of rights, legal principles and procedures in the legislative domain has cast the people of this State into a deluge of litigation producing a docket which this Court and many other courts of this State can no longer manage. Because of this the burdens the administration of justice has placed upon the taxpayers of this State has become inordinate and will continue. So long as this Court disregards judicial restraint, usurps the legislative, and indeed as in this case constitutional prerogatives, and seeks to impose upon Louisiana its innovative concepts of social and other reforms repugnant to this Nation’s fundamental principles, the future holds no promise for a better day.

I would uphold Louisiana’s laws of 175 years designed to strengthen and uphold the family unit, a concept which goes to the very fabric of an orderly society.

      . Actually, by the date of the trial judgment the widow had died. The widow’s legatee, her sister, is substituted as the party who asserts the widow’s claim to receive the decedent’s entire estate in lieu of the illegitimate sons to whom he had willed his separate property.

      . Article 1488 provides: “Natural fathers and mothers can, in no case, dispose of property in favor of their adulterine or incestuous children, unless to the mere amount of what is necessary to their sustenance, or to procure them an occupation or profession by which to support themselves.”
      See also:
      Article 182: “Adulterous bastards are those produced by an unlawful connection between two persons, who, at the time when the child was conceived, were, either of them or both, connected by marriage with some other person.”
      Article 183: “Incestuous bastards are those who are produced by the illegal connection of two persons who are relations within the degrees prohibited by law.” (Articles 94, 95 prescribe the degrees of relationships between whom marriage is prohibited by law, which for instance include first cousins.)

      . Article 1, Section 3 is titled “Right to Individual Dignity”; it provides:
      “No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.” (Italics ours.)

      . The present widow claims to be the sole heir of her deceased husband, since the adultery-conceived sons were incapable of receiving their father’s legacies. Article 1488. Where there is no valid testamentary disposition, a surviving wife succeeds to her husband’s estate if there be no lawful descendants, ascendants, or collateral relations of the decedent. Article 917. However, if the present illegitimates had not been conceived of an adultery, the testamentary disposition to them of the decedent’s separate estate is permitted by our code, despite the existence of a surviving widow. Articles 1483, 1486, 1487.

      . The legislative classification distinguishing adulterous illegitimates from other illegitimates also prevents an adulterous child from inheriting by intestacy, even if there are no other surviving heirs or spouse, Article 920 (unlike other illegitimates, who may inherit by intestacy under these circumstances. Articles 919, 920). In the event the decedent is survived only by adulterous children, their parent’s estate escheats to the state. Article 920.

      . State of Louisiana, Constitutional Convention of 1973, Verbatim Transcripts (39 Volumes; 1973-1974) at 12 Proceedings (38th day, August 29) 57, 62, 63, 76, 90.

      . If the father had not claimed the sons as his own, no such statutory bar prevented his willing his property to them. The son of a friend may receive a legacy from the decedent, but not his own illegitimate son if (and only if) that son was conceived in an adultery committed with that friend.

      . In Weber, the United States Supreme Court (reversing our decision at 257 La. 424, 242 So.2d 567 (1970)) invalidated a provision of the Louisiana workmen’s compensation act as offending the federal Equal Protection Clause of the Fourteenth Amendment. Our statutory provision prevented an unacknowledged illegitimate child from receiving dependency benefits available to acknowledged illegitimates, as well as to legitimate children. In doing so, the court also noted that article 204 of our Civil Code prevents a father from acknowledging his illegitimate child, if adulterous (as was the Weber claimant), and commented: “The burdens of illegitimacy, already weighty, become doubly so when neither parent nor child can legally lighten them.” 406 U.S. 171, 92 S.Ct. 1404.

      . Under certain limited circumstances, the oath of the mother can also prove paternity. Article 210; McConkey v. Pinto, 305 So.2d 469 (La. 1974). We do not regard this possibility as practically applicable where the effect of the mother’s oath and other testimony by her (as to information known only by her) would be to accomplish the disinhersion of her child.

      . But note, for federal equal protection purposes, the United States Supreme Court’s recent express modification of Vincent in Trimble v. Gordon, 430 U.S. 763, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).

      . In Vincent, the United States Supreme Court itself recognized this contextual limiting circumstance of its ruling: “* * * There is not the slightest suggestion in this case that Louisiana has barred this illegitimate from inheriting from her father. * * *” 401 U.S. 539, 91 S.Ct. 1021.

      . An Illinois statute which allowed illegitimate children to inherit by intestate succession only from their mothers was invalidated as denying equal protection to an illegitimate who sought recognition as an intestate heir of her father.

      . A provision of the Louisiana workmen’s compensation act was invalidated as denying equal protection to an un acknowledged illegitimate child, where acknowledged illegitimates were permitted to receive dependency benefits.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Willie WILLIAMS.
    No. 59142.
    Supreme Court of Louisiana.
    June 20, 1977.
    Rehearing Denied Sept. 2, 1977.

      Irwin R. Sanders, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Willie Williams was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged and sentenced to serve ninety-nine years at hard labor with credit given toward service of sentence for time spent in actual custody prior to imposition of sentence. The trial judge granted defendant an out-of-time appeal. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to suppress certain physical evidence seized in an allegedly unconstitutional search and in failing to suppress in-field identifications of defendant by Jerome Squatrito and Doris Robinson.

The record of the suppression hearing reflects that at approximately 11:30 p.m. on April 1, 1973, defendant and two companions, Earnest Durand, Jr. and Joseph Smith, Jr., were present at Jerome’s Bar in New Orleans. The barmaid, Doris Robinson, testified that one of the three men remained seated while the other two asked her to change pennies for a nickel and dime. Shortly thereafter, Joseph Smith exited the establishment and asked the proprietor of the bar, Jerome Squatrito, who was standing outside on the sidewalk whether he was the owner of the business and where he could catch a local bus. A few minutes later, Earnest Durand also exited the bar and told Squatrito that he was waiting for a friend. After another few moments had elapsed, defendant joined the others outside and whispered something to Durand. The three subjects then drew pistols and marched Squatrito back into his establishment at gunpoint. The bar owner testified that they rifled his pockets as they went inside and that defendant forced him up against a wall and held a gun to his stomach while the other men robbed the cash register and dealt with customers present in the barroom. As soon as the perpetrators fled, Squatrito instructed his employee, Doris Robinson, to call the police, tell them that he was following the robbers and that they should wait for him to return to the barroom. He followed the robbers’ green Chevrolet in his car as they made their getaway. At a red light, Squatrito pulled alongside the subjects’ car and verified that besides the driver, there were two other occupants crouched down in the automobile. Squatrito then dropped back behind the vehicle, took down its license number and continued to follow until the subjects turned into a housing project. When the robbery victim got back to his place of business about ten minutes later, Officers Saacks and Lombos were waiting for him, having already obtained a physical description of the suspects from Doris Robinson. Squatrito gave the officers a description of the getaway car and its license number and then accompanied them as they backtracked over the escape route and began combing the project area for the suspects’ car. In the meantime, Officers Kinler and Cutrer, manning a marked police unit in the area, spotted an automobile matching the description and bearing the license number dispatched moments earlier over the police radio. They communicated this information via radio to other units in the area and, after following for a few blocks, stopped the suspects’ vehicle. The officers ordered the three occupants to get out of the car and “hit the ground.” They informed them that they were under arrest for armed robbery and advised them of their Miranda rights. Responding to the broadcast that the car had been located and stopped, the police unit carrying Officers Saaks and Lombos, as well as Squatrito, and another unit manned by Officers Mendoza and Del-sa converged on the scene of the arrest.

After the suspects were handcuffed and moved in front of the automobile headlights, Squatrito, who had been told to wait in the car till the area was secured, was asked to get out and see if the subjects apprehended were the ones who had robbed him. The victim testified that he immediately recognized the three and positively identified them as the perpetrators of the armed robbery.

As the suspects were being placed in the police vehicles, Officer Saaks walked closer to the getaway car. Both doors had been left open when the suspects exited the automobile. On the floor of the vehicle partially pushed under the driver’s seat, Officer Saaks observed a cash register drawer sticking out of a brown paper bag. He removed the bag from the car and on closer inspection found that, besides the register drawer, the bag additionally contained Squatrito’s wallet and keys which had been removed from his pockets during the robbery. Also plainly visible on top of the car’s front seat was a paper bag which contained a black hood and either in the bag or alongside of it was a nickelplated .22 revolver.

At this point, only one hour after the offense, the suspects were transported back to the scene of the robbery where they were positioned under bright lights outside a screen door of the establishment. The officers asked the barmaid, Doris Robinson, if she knew the three men. The witness maintained that the suspects were presented to her without any explanation by the police. The officers did not indicate that they had arrested the culprits or ask her to identify them as such. Both she and Squa-trito identified the subjects in custody as the individuals who had earlier robbed the barroom. While Doris Robinson recalled that she had recognized one of the subjects by his distinctive plaited hairstyle, she was unable to identify defendant either at the suppression hearing or at trial, claiming that she had forgotten what the perpetrators of the offense looked like.

Defendant first contends that the evidence removed from the green Chevrolet was the product of an improper search and should have been suppressed by the trial judge.

La.Code Crim.P. art. 213 provides in pertinent part:
A peace officer may, without a warrant, arrest a person when:
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer;

Recently in State v. Marks, 337 So.2d 1177 (La.1976), this court stated:

Reasonable cause, which we have treated as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). Reasonable or probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Sarrazin, 291 So.2d 393 (La.1974). Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Warren, 283 So.2d 740 (La.1973).

In the instant case, defendant and his companions were stopped and apprehended shortly after the offense while still traveling in the getaway car bearing the license number and matching the description given by the victim and broadcast over the police radio. Moreover, the suspects were in the same area where they had been last seen by the pursuing victim before he returned to his business to report the information he had gained to the police. Under these circumstances, we are satisfied that the officers had ample probable cause to stop the getaway car and to arrest the suspects. When they exited their car, leaving the doors open, the suspects thereby exposed to the view of the arresting officers evidence of the armed robbery.

It is well settled that objects falling within the plain view of an officer who had a right to be in a position to have that view áre subject to seizure and may be introduced into evidence. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Dixon, 337 So.2d 1165 (La.1976); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). The facts of this case clearly demonstrate that the police officers had a right to arrest defendant and therefore had a right to be standing in a position where they could see the evidence of the crime through the open doors of the getaway car. Our appreciation of the record is that all of the evidence seized could fairly be considered to have been within the plain view of the arresting officers and was therefore lawfully seized and admissible as evidence against defendant at trial on the merits.

Even assuming that some of the articles were not in plain view, we are nevertheless satisfied that their seizure was constitutionally justifiable. One of the widely recognized exceptions to the general prohibition of warrantless searches deals with the search of automobiles and other mobile vehicles. Where probable cause exists for the search of a moving vehicle and circumstances render the securing of a warrant impracticable, a warrantless search of an automobile does not violate the fourth amendment. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In the instant case, the suspects’ vehicle was stopped on a public street at which time the victim of the offense identified the occupants of the vehicle as the perpetrators of the armed robbery which had taken place less than an hour before. Moreover, at least some evidence of the crime was within the plain view of the officers. Clearly, there was probable cause and exigent circumstances to support the warrantless search of the suspects’ vehicle. Hence, the search was not unconstitutional. Chambers v. Maroney, supra; Carroll v. United States, supra; State v. Lain, 347 So.2d 167 (La., 1977); State v. Hollingsworth, 292 So.2d 516 (La.1974); State v. Tant, 287 So.2d 458 (La.1973). The trial judge did not err in denying defendant’s motion to suppress the evidence.

Defendant next contends that the trial judge erred in denying his motion to suppress the in-field identifications of defendant by Jerome Squatrito and Doris Robinson. He argues that the identifications were made under circumstances that were unnecessarily suggestive and conducive to irreparable misidentification.

We have recognized that the law does not favor one-on-one confrontations between the victim and a suspect. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); State v. Frank, 344 So.2d 1039 (La.1977); State v. Lee, 340 So.2d 1339 (La.1977); State v. Peevy, 321 So.2d 324 (La.1975). On a number of occasions, this court has approved in-field identifications closely associated in time with the criminal transaction. Prompt confrontations have been recognized as promoting fairness by assuring reliability and the expeditious release of innocent suspects. State v. Frank, supra; State v. Lee, supra; State v. Maduell, 326 So.2d 820 (La.1976); State v. Bland, 260 La. 153, 255 So.2d 723 (1971); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971).

In the instant case, both Jerome Squatrito and Doris Robinson were confronted with the suspects within one hour after the commission of the crime. They had ample opportunity to observe the suspects at close range both during and shortly before the robbery. Considering all of the evidence revealed in the record and the absence of any intentionally suggestive conduct by the police, we find that the totality of the circumstances can properly be held to show that the in-field identifications in this case were based on observations made at the time of the offense. The confrontations were neither impermissibly suggestive nor conducive to irreparable misidentification. Accordingly, the trial judge did not err in denying defendant’s motion to suppress the identifications of defendant by these witnesses.

In sum, Assignment of Error No. 1 lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his oral motion prior to cross-examination of the robbery victim for state production of mugshots taken of defendant and his companions after arrest. He argues that these photographs would have been useful in impeaching the victim’s identification of the accused and that he was entitled to their production under the decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We do not agree.

It is well settled that the prosecution may not suppress evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material to either guilt or punishment. Brady v. Maryland, supra; United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Robinson, 342 So.2d 183 (La.1977). However, the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of trial, does not establish “materiality” in the constitutional sense. United States v. Agurs, supra. Evidence is considered material and failure to produce it requires reversal of a conviction only if, when considered in the context of the full record, such evidence creates a reasonable doubt that did not otherwise exist. United States v. Agurs, supra.

The record in the instant case simply does not demonstrate that mugshots of the robbery suspects would have in any manner proved exculpatory. It is purely speculative as to whether or not defendant would have been able to successfully use the photographs to impeach the victim’s identification of the accused. In fact, the record suggests the contrary. In any event, any minor discrepancies in the victim’s identification of the suspects which might possibly have been demonstrated by use of the mugshots during cross-examination would not have created a reasonable doubt as to defendant’s guilt in view of the entire record and particularly in view of the physical evidence admitted against him. United States v. Agurs, supra. Clearly, the proposed use of the mugshots was not of “sufficient significance to result in the denial of the defendant’s right to a fair trial.” United States v. Agurs, supra. Accordingly, the requested mugshots did not constitute evidence required to be disclosed under the decisions in Brady v. Maryland and United States v. Agurs.

Assignment of Error No. 2 lacks merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Defendant contends the trial judge erred in dismissing as witnesses Earnest Durand, Jr. and Joseph Smith, Jr., both of whom were jointly charged with defendant in this case but whose trials had been severed from defendant’s on motion of the state.

During the presentation of his case, defendant called Earnest Durand and Joseph Smith as witnesses for the defense. Attorneys for the witnesses informed the court that they had advised their clients to assert their fifth amendment privilege against self-incrimination and to refuse to answer any questions which might incriminate them in these proceedings. Each witness invoked his fifth amendment privilege in response to preliminary defense questions. The trial judge asked both co-defendants whether they intended to refuse to answer every question posed on the ground that it might incriminate them because they were also defendants in this case. Each witness responded in the affirmative. Thereupon, the trial judge ruled that the co-defendants had a right to assert the privilege against self-incrimination and excused them as witnesses.

Defendant contends that irrespective of the witnesses’ avowed intentions, he had a right to ask his questions and have the witnesses determine whether to answer or refuse to answer each one individually. The state argues that, since the witnesses indicated that they would not respond to the inquiries, the only thing to be gained by posing the questions would be an opportunity for defense counsel to testify to the jury through the phraseology of his questions.

In State v. Berry, 324 So.2d 822 (La.1975), we held that claims of privilege are preferably determined outside the presence of the jury, since undue weight may be given by a jury to the claim of privilege and due to the impossibility of cross-examination on its assertion. We rejected defendant’s claim of error based upon the denial of his request that a witness assert his claim of privilege before the jury. In the instant case, defendant did not ask that he be allowed to question the witnesses outside the presence of the jury. Rather, he insisted that he had a right to examine them in open court although they had already personally invoked the privilege against self-incrimination and clearly indicated to the trial judge that they would continue to do so.

La. R.S. 15:275 vests the trial judge with the sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether that examination be direct or cross. Under the circumstances presented herein, the trial judge did not err in excusing as witnesses Earnest Durand and Joseph Smith.

Defendant additionally contends that the state had entered into an off-the-record plea bargaining arrangement with Joseph Smith by virtue of which the charges against Smith were to be dismissed. He argues that, by delaying dismissal of the charge, the state retained a threat against this co-defendant, thereby assuring that he would refuse to testify at defendant’s trial concerning the offense. Defendant contends that this practice had the effect of preventing the testimony of a co-defendant who rightfully should no longer have been exposed to prosecution in the case.

In ruling on defendant’s argument, the trial judge disclosed that he was not privy to any plea bargain between the state and the codefendants and that so far as the public records were concerned, Joseph Smith was still charged with this offense and therefore had a right to invoke his fifth amendment privilege.

Moreover, the record before us on appeal contains no evidence of the terms or even the existence of the alleged plea bargain at the time Smith refused to testify. Nor is there any indication that the district attorney had reason to believe that the co-defendant’s testimony would have been favorable to the accused had he not invoked his fifth amendment privilege. Accordingly, based on the showing made herein, we are unable to review the merits of defendant’s contention.

Assignments of Error Nos. 3 and 4 have no merit.

DECREE

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

      . Joseph Smith, Jr. and Earnest Durand, Jr. were charged in the same information with Willie Williams for the same offense. On motion of the state, the trial judge ordered a severance of the indictment with regard to these two defendants.

      . Defendant is not precluded from attempting to assert this contention in a post-conviction proceeding.