author: BLANCHE, Justice. DIXON, Chief Justice

text:
    Roger Wayne SMITH v. CAJUN INSULATION, INC. et al.
    No. 80-C-1418.
    Supreme Court of Louisiana.
    Dec. 15, 1980.

      J. Courtney Wilson, Metairie, for plaintiff-applicant.
    Paul. B. Deal, Darryl J. Foster, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-respondents.
   BLANCHE, Justice.

Plaintiff, Roger Wayne Smith, sued his employer and its insurer for compensation benefits allegedly due as the result of a job related injury. On September 18, 1978, a compromise of that suit was approved by a judge of the 29th Judicial District Court and a judgment was rendered.

On December 1, 1978, plaintiff, after retaining new counsel, filed this nullity action alleging that the compromise settlement judgment was confected without compliance with the statutory requirement that the trial judge personally discussed the proposed settlement with the employee. La. R.S. 23:1272. In response to the petition, defendants filed a peremptory exception of no cause of action and an alternative motion for summary judgment. Their contentions were that the only basis for attacking a judgment approving a compromise are fraud and misrepresentation, La.R.S. 23:1273, and that in the absence of pleaded facts indicative of these, they were entitled to judgment in their favor. Defendants then filed an “Exception of Estoppel”, alleging that plaintiff was barred from recovery by the doctrine of accord and satisfaction. The trial court sustained the exception of no cause of action and granted a summary judgment in defendants’ favor. In addition, the court ruled that the doctrine of accord and satisfaction was also applicable to defeat plaintiff’s claim. The Fourth Circuit affirmed, 383 So.2d 451, as to the exception of no cause of action and declined to reach the estoppel claim. We granted writs to consider the correctness of these rulings.

The primary issue before us is whether or not an allegation of a judge’s' failure to discuss the settlement and its terms with an employee before approving a judgment of compromise states a cause of action for nullity. A further issue is whether or not the doctrine of accord and satisfaction is applicable to a workmen’s compensation compromise settlement.

The procedure governing the approval of compromise settlement of disputed workmen’s compensation claims is set forth in La. R.S. 23:1272, which states in part:

“The agreement entered into between the employee or his dependents and the employer or his insurer, shall be presented to the court for its approval upon a joint petition verified by all parties thereto. The judge to whom the petition is presented shall, in every case, discuss the settlement and its terms with the employee or his dependents. When the employee or his dependents are not represented by a lawyer . .. the judge shall appoint one to advise them relative to the proposed compromise settlement. A reasonable fee for such services shall be fixed by the court and taxed as costs. The judge shall require such proof of the dispute between the parties and of the other facts set out in the joint petition as he thinks proper.”

La.R.S. 23:1273, dealing with the rendition of the judgment of compromise, states:

“If the court believes the compromise agreed upon to be fair and equitable, and that it was entered into primarily to avoid or to end litigation, it shall approve the same, and immediately enter it as the judgment of the court, and the said judgment shall not thereafter be set aside except for fraud or misrepresentation made or induced by the employer or his insurer. The judge may, however, refuse to approve the settlement if he does not believe that it does substantial justice to the parties.”

It is well established that statutes are to be construed in such a manner as to effectuate their purpose. J. M. Brown Construction Co., Inc. v. D & M Mechanical Contractors, Inc., 275 So.2d 401 (La.1973); Curatorship of Parks, 210 La. 63, 26 So.2d 289 (La.1946); Melancon v. Mizell, 216 La. 711, 44 So.2d 826 (La.1950); Breaux v. City of Lake Charles, 338 So.2d 1205 (3rd Cir. 1976). When a statute is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is to be preferred over one which renders part thereof ridiculous or nugatory. State v. Cazes, 262 La. 202, 263 So.2d 8 (La.1972); Hayes v. Orleans Parish School Board, 256 La. 677, 237 So.2d 681 (La.1970); Hall v. Rosteet, 247 La. 45, 169 So.2d 903 (La.1964). A particular statutory provision should be construed along with the remainder of the statute and in connection with all laws on the same subject matter. Melancon v. Mizell, supra. The word “shall” as found in a statute is mandatory while the word “may” is permissive according to the express provisions of La.R.S. 1:3.

A reading of La.R.S. 23:1273 alone appears to indicate that a signed judgment approving a compromise settlement rendered under any circumstances can only be collaterally attacked if fraud or misrepresentation was present. However, this cannot be reconciled with the language of La. R.S. 23:1272 nor the first two classes of La.R.S. 23:1273. A reading of these provisions clearly indicates that the legislature intended to set mandatory guidelines for the approval of a compensation settlement. The parties to the agreement “shall” present a verified petition. The judge “shall, in every case”, discuss the settlement terms with the employee. If the employee is not represented by counsel, the judge “shall” appoint an attorney to represent him. If the judge feels the settlement was fair and entered into primarily to avoid litigation, he “shall” approve it. That these provisions are commands is fortified by the legislature’s use of the word “may” in La. R.S. 23:1273, wherein it allows the judge discretion to refuse to approve a settlement if he does not believe it will do justice to the parties. We regard the use of language so antonymous in interpretive effect in the same section indicates as a legislative cognizance of the difference between the two terms. Finally, with respect to the specific subsection in question here, the settlement discussion requirement, the legislature strengthened the word “shall” by further specifying that the requirement was to be applicable “in every case”.

With this in mind, we conclude that the legislature contemplated that no judgment was to be signed unless all the procedural requirements were met and that a judgment obtained in compliance with those sections would be virtually unassailable. The commanding nature of La.R.S. 23:1272 also convinces us that the legislature did not intend that a compromise judgment rendered without compliance with that section could only be attacked when fraud or misrepresentation was present. Thus, an effectuation of the purpose of these two sections can only be accomplished by this Court holding that the portion of La.R.S. 23:1273 limiting attacks on compensation settlement judgments is only applicable to judgments signed in compliance with the procedural requirements of La.R.S. 23:1272. See Jasmin v. Gafney, Inc., 357 So.2d 539 (La.1978); Puchner v. Employers’ Liability Assurance Corporation, 198 La. 921, 5 So.2d 288 (1941).

In the absence of a statutorily specified method of attacking a compromise settlement judgment for non-compliance with procedural mandates, plaintiff is entitled to rely upon the general procedural devices found in the Code of Civil Procedure, and he has chosen to pursue the nullity action.

Louisiana Code of Civil Procedure, art. 2004, provides that “A final judgment obtained by fraud or ill practices may be annulled.” The action provided by this article is not a substitute for an appeal from a judgment that might be erroneous due to insufficiency of evidence or misinterpretation of substantive law, but, rather, is a separate remedy designed to afford relief against a judgment procured by methods viewed with disdain by the judiciary. Walsh v. Walsh, 215 La. 1099, 42 So.2d 860 (La.1949); Schoen v. Burns, 321 So.2d 908 (La.App. 1st Cir. 1975); Alleman v. Guillot, 225 So.2d 607 (La.App. 1st Cir. 1969), writ ref. 254 La. 858, 227 So.2d 596. In discussing “ill practices” under the Code of Practice, art. 607, the predecessor of La.C.C.P. art. 2004, this Court stated in Alonso v. Bowers, 22 La. 1093, 64 So.2d 443 (La.1953):

“Under the jurisprudence any improper practice or procedure which enables a party to obtain a definitive judgment comes within the meaning of this article. The courts have looked at each case from a purely equitable viewpoint to ascertain whether allowing the judgment to stand would be inequitable or unconscionable in view of the practice or procedure which enabled the party to obtain such judgment.”

This language has been clarified to mean that there need not necessarily be a showing of intentional fraud or wrongdoing for a plaintiff to prevail. Even innocent acts which deprive a party case in judgment of some legal right can form the basis of this nullity action. Leidig v. Leidig, 187 So.2d 201 (3d Cir. 1966); Collins v. Collins, 325 So.2d 773 (La.App. 2d Cir. 1976); Tapp v. Guaranty Finance Co., 158 So.2d 228 (La.App. 1st Cir. 1963), writ den. 160 So.2d 228 (La.1964).

Plaintiff’s sole factual statement in support of his nullity claim is the following:

(1) As appears from the face of the judgment, it was read, rendered and signed, but was not discussed with the employee by the judge to whom the petition was presented in accordance with 23:1272.

The discussion requirement is a mandatory provision of La.R.S. 23:1272 and was enacted for the purpose of insuring that the trial judge would satisfy himself that the employee or his dependents know and understand the terms of the settlement. After complying with this procedure the court is in a better position to judge the fairness of the settlement, as required by La.R.S. 23:1273, and the employee’s thoughts on that subject should carry great weight. Since we regard the settlement discussion as an essential requirement of the compromise settlement, we hold that plaintiff’s petition alleging non-compliance with the settlement discussion requirement states a cause of action for nullity because of ill practices. Thus, the trial court erred in sustaining defendants’ exception of no cause of action and in granting a summary judgment based upon that exception.

The defendant also argues that regardless of whether plaintiff had stated a cause of action, he should be estopped from asserting his claim because of the doctrine of accord and satisfaction. The trial court agreed with this contention, apparently relying on testimony and exhibits not contained in the record lodged with this Court. Even assuming that there was evidence sufficient presented to support a finding of compromise under La.C.C. art. 3071, however, defendants’ claim must fall.

The courts of this state have repeatedly stated that when two statutes are in conflict, the statute that is more specifically directed to the matter at issue must prevail as an exception to the statute that is more general. State ex rel. Bickman v. Dees, 367 So.2d 283 (La.1978); Esteve v. Allstate Ins. Co., 351 So.2d 117 (La.1977); State v. Maduell, 326 So.2d 820 (La.1976); Teacher's Retirement System of La. v. Vial, 317 So.2d 179 (La.1975); Lambert v. Michel, 364 So.2d 248 (La.App. 3d Cir. 1978), writ den. 366 So.2d 917 (La.1979); Braddy v. Triangle Timber, Inc., 345 So.2d 1252 (La.App. 1st Cir. 1977); State ex rel. Jones v. Carradine, 125 So. 135 (Orl.App.1929). Here, the Workmen’s Compensation Act creates a specific authorization for the compromising of disputed claims. La.R.S. 23:1271. It provides specific mandatory requirements for the confection of the compromise. La.R.S. 23:1272. It therefore creates an exception to other general statutory or jurisprudential rules of compromise and supersedes them in the area in which it is intended to operate. Thus, the doctrine of compromise and accord and satisfaction are inapplicable in the present situation. It was error for the trial court to conclude otherwise.

For the reasons assigned, the judgment of the Fourth Circuit Court of Appeal is reversed and the case remanded to the trial court for further proceedings.

DIXON, C. J., dissents with reasons.

DENNIS, J., dissents for reasons assigned by DIXON, C. J.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

I find no support for holding that this judgment may be set aside in an action for nullity as a “fraud or ill practice.” The majority suggests no inequity or unconscionable act suffered by plaintiff as a result of the failure of the trial judge to discuss the settlement with him, and such inequity, as pointed out by the majority, is an essential element of “fraud or ill practice.” Furthermore, R.S. 23:1273 itself specifically prohibits setting aside a compromise judgment except for fraud or misrepresentation.

Plaintiff had an adequate remedy; he could have appealed the compromise judgment because of the failure of discussion. In the absence of even an allegation of inequity, we should not hold that the failure of the judge to discuss the settlement with the workman constitutes an “ill practice” giving rise to an action in nullity.

      . Code of Practice, art. 607, in force until the time of the adoption of the Code of Civil Procedure, provided in part:
      “A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud, or other ill practices ...”
      La.C.C.P. art. 2004 adopts the jurisprudence of this article as it relates to this provision. La.C. C.P. art. 2004, Comment (b).

      . Courts should look through the caption of pleadings in order to ascertain their substance and to do substantial justice to the parties. La.C.C.P. art. 865; Griffith v. Roy, 263 La. 712, 269 So.2d 217 (La.1972); Pence v. Ketchum, 326 So.2d 831 (La.1976), overruled on other grounds, Thrasher v. Leggett, 373 So.2d 494 (La.1979). Although estoppel is literally an affirmative defense, La.C.C.P. art. 1005, it is possible that proof of accord and satisfaction could meet the requirement of compromise under La. C.C. art. 3071 and qualify as a judgment having the authority of the thing adjudged, La.C.C. art. 3078, thereby sufficing as grounds for the peremptory plea of res judicata. Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3d Cir. 1967); Louisiana National Bank of Baton Rouge v. Heindei, 365 So.2d 37 (La.App. 4th Cir. 1978).


source: Caselaw Access Project

author: CALOGERO, Justice. WATSON, Justice, BLANCHE, Justice LEMMON, Justice, MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Blaise J. MANZELLA.
    No. 80-K-1496.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Dissenting Opinion Jan. 9, 1981.

      William J. O’Hara, III, Bernard E. Burk, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David L. L’Hoste, Kevin McNary, Asst. Dist. Attys., for plaintiff-respondent.
   CALOGERO, Justice.

Defendant Blaise J. Manzella, charged with pornography involving juveniles (R.S. 14:81.1) and aggravated crime against nature (R.S. 14:89.1), seeks review of the trial court’s ruling denying suppression of evidence seized pursuant to a search warrant which incorrectly listed his address as 6176 Pontchartrain Boulevard in the city of New Orleans. Because the United States Constitution, Amendment IV, and the Louisiana Constitution Article 1, § 5, require the warrant to “particularly describ[e] the place to be searched,” we reverse the ruling on the motion to suppress. See also C.Cr.P. art. 162. Relator’s alternate contentions regarding, as to the warrant, staleness of the information and the reliability of the informant need not be addressed.

Acting on information from a named informant, police obtained a search warrant for 6176 Pontchartrain Boulevard. The application for the warrant describes the premises to be searched as a “One (1) story, brick frame double residence.”

Defendant lives in the front portion of a brick double located on the corner of Pontchartrain Boulevard and 18th Street. Defendant’s apartment fronts on Pontchartrain Boulevard and bears the municipal number 6178 Pontchartrain. On the 18th Street side of the house is a common patio shared by defendant and the occupant of the rear portion of the house. An iron fence with two gates separates this patio from the street. The gates require separate keys to unlock them and each gate has its own doorbell. A mailbox with the address 6176 is on or beside the gate which is farther away from Pontchartrain Boulevard. Defendant’s gate, which is the one nearer Pontchartrain Boulevard, has no address or mailbox. Rather, his mailbox is on the front of the house, facing Pontchartrain Boulevard, and has the numerals 6178 on it. Defendant’s kitchen and bedroom both have doors opening directly onto the patio on 18th Street and the kitchen door has the number 6178 on it.

In executing the warrant, the police rang the doorbell at the gate with the mailbox marked 6176, the number appearing in the warrant. When a woman answered the door right beside the locked gate bearing the number 6176, the police asked her whether this was 6176 Pontchartrain Boulevard. She answered affirmatively and the police next asked whether it was the residence of Blaise Manzella. The woman, who was defendant Manzella’s sister, informed police that Mr. Manzella lived in the other half of the house.

The police then rang the bell on the other gate and defendant answered the bell. Defendant asserts that the police came through the gate, went into his kitchen, the door which is to the right of the gate and from there, within the house, proceeded into his bedroom. The police executing the warrant testified that they went through the gate, turned to the left and entered defendant’s bedroom directly from the patio.

A search warrant must describe with particularity the place to be searched. U.S.Const., Amend. IV; La.Const. art. 1, § 5; C.Cr.P. art. 162. As we said in State v. Cobbs, 350 So.2d 168, 177 (La.1977):

“The object of the description in a search warrant is to prevent the search of the wrong premises. If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises, the description is sufficient.”

Thus, a minor error in the description of the premises to be searched does not necessarily render the evidence seized inadmissible. State v. Korman, 379 So.2d 1061 (La.1980); State v. Petta, 354 So.2d 563 (La.1978); State v. Alexander, 337 So.2d 1111 (La.1976). However, our decisions in the cited cases turned on special circumstances present in those cases.

In Korman, the search warrant authorized the search of 6656 Harry Drive, Apartment # 119. The correct municipal number was 6636 Harry Drive, the address on the search warrant being that shown on the sign for the Georgetown Apartments and not the municipal number for the individual building in which apartment # 119 was located. Nevertheless, we upheld the search warrant as sufficiently descriptive of the place to be searched because there was only one apartment numbered 119 in the Georgetown Apartments complex. We noted that “there was little possibility that an apartment not intended to be searched could have been searched by mistake — as indeed it was not.” 379 So.2d at 1063.

The warrant in Petta authorized a search of 1433 Crete Street, Apartment C, and described the premises as a two-story pink stucco house trimmed in white. In actuality, the address of the pink stucco house was 1435 Crete Street, there being no 1433. The house did not display a street number, but was separated only by an alley from an adjacent residence showing the number 1431. Observing that “a description is sufficient when it reasonably enables the searching officers to ascertain and identify the place alone intended to be searched,” we found that the description in the search warrant was sufficiently particular. 354 So.2d at 564, 565.

The facts of Alexander are similar to those of Petta. The warrant specified a non-existent street number, 243 Pearl Street. The police searched a house which had no number on it but which apparently was somehow designated 245, the very same number adorning a next door church. We upheld the search because it was logical that the house “to the side and behind the church,” would have a number close to but different from the church. 337 So.2d at 1113. It was reasonable for the officer seeking the warrant to assume that the address of the residence would be 243 Pearl Street and the description of this number in the warrant would logically facilitate a search of the unnumbered residence adjoining the church. The house searched was the place intended to be searched. That this building, for some municipal purposes, was designated 245 Pearl Street was therefore irrelevant for the purpose of the search warrant.

In the case before us, unlike Petta and Alexander, we have a warrant for an actual address. Unlike the warrant in Korman, this warrant is not for the only complex apartment bearing the described number although naming the wrong building of the complex. Indeed, police were informed that defendant Manzella lived in the very apartment they sought to search and their information was erroneous.

The apartment which was searched by the police was not “particularly described” in the warrant. In fact, another apartment, not defendant’s, was so particularly described. The description employed would not have prevented the search of the wrong premises; rather, the description would have facilitated search of the wrong premises. That 6176 Pontchartrain was not searched was due to the lucky happenstance that defendant’s sister answered the bell at 6176 Pontchartrain Boulevard and informed police that defendant lived at 6178 rather than 6176.

The constitutional provision regarding search warrants is not a set of meaningless words, but is a real stricture on the right of the state to search a citizen’s home, business or vehicle. Less than candid and forthright application of the constitution disserves the law. The fact that ultimately the correct individual’s apartment was searched and incriminating evidence seized does not obviate the violation of a constitutional provision designed not to shield the criminal but to protect the remainder of society.

Decree

Consequently, the trial judge erred in denying defendant’s motion to suppress and we hereby reverse that ruling and order the evidence seized pursuant to the search warrant suppressed.

RULING REVERSED.

WATSON, J., concurs and assigns reasons.

BLANCHE, LEMMON and MARCUS, JJ., dissent and assign reasons.

WATSON, Justice,

concurring.

The State’s theory is that the informant and the affiants made an inconsequential error in noting defendant’s residence number. However, since the observation was made approximately five months before the search warrant was issued, it is entirely possible that defendant moved from one half of the double apartment to the other during the interim.

I respectfully concur.

BLANCHE, Justice

(dissenting).

The circumstances surrounding the informant’s entry into the apartment in which the defendant lived, and the physical layout of the residential structure (a one-story, brick frame double residence bearing the municipal number 6176 Pontchartrain), is a sufficient description of the premises, even though the warrant described defendant’s sister’s apartment instead of that of defendant.

Furthermore, in spite of the error (i. e., defendant actually lived at 6178 Pontchartrain Blvd.), the defendant’s dwelling was the only one searched. The trial judge correctly denied the motion to suppress.

LEMMON, Justice,

dissenting.

As required by La.Const. art. 1, § 5 (1974) and C.Cr.P. art. 162, the warrant in this case particularly described the place to be searched — the one story double residence of Blaise Manzella. The warrant, however, inaccurately listed the municipal number of the half of that double residence occupied by Manzella. This case more closely approaches those “minor inaccuracy” cases, cited by the majority, in which this court has refused to order suppression. Moreover, when the inaccuracy of the warrant was discovered, the police thereafter acted reasonably, and the United States Constitution only prohibits unreasonable searches.

The error in this case was a reasonable and understandable one, and was not of the type that results from arbitrary action or bad faith on the part of the law enforcement officers. The officers listed the number that appears on the gate into the common patio pointed out by the informer, and that number was, in fact, the only numerical designation that appeared on that side of the building through which the informer had usually entered.

The law enforcement officers in this case first established probable cause and then sought judicial approval of that probable cause; they executed the warrant promptly after its issuance; and, in executing the warrant, they restricted their search to the area of the house actually occupied by the defendant. In the final result, there was no invasion of anyone’s privacy which was not judicially approved based upon a proper showing of probable cause.

The exclusionary rule is designed to deter police misconduct and should not be applied to acceptable conduct in which a good faith error occurs. Since the error has nothing to do with guilt or innocence, suppression of the evidence because the officers made an understandable and reasonable mistake in getting the number off the wrong mailbox places an unduly technical obstruction in the path of the search for the truth.

Our past cases dealing with minor inaccuracies have, in effect, recognized that the exclusionary rule should be hesitatingly invoked when judicially approved, good faith efforts at compliance have been made. To invoke exclusionary policy in a case of this nature neither enhances the accuracy of the fact finding process nor compels respect by law enforcement officers for the Fourth Amendment’s commands.

I would affirm the denial of the motion to suppress.

MARCUS, Justice

(dissenting).

Under the facts of this case, I consider that the warrant described the place to be searched with sufficient particularity to satisfy the constitutional requirement. Accordingly, I respectfully dissent.

      . The evidence which defendant seeks to suppress is mostly a number of photographs of nude juvenile males.

      . The trial judge thus heard conflicting testimony regarding which door the police entered. The testimony also creates a bit of confusion concerning the physical location of the doors opening onto the patio. Photographic exhibits which were filed into evidence apparently cannot be located at the present time. At oral argument, the state presented us with a photograph of the patio entrance to the two apartments. From this photograph we can probably conclude that Manzella’s kitchen door is immediately inside his gate and to the right thereof while his bedroom door, also opening into the patio, is to the left of his kitchen door and on the patio wall parallel to 18th Street. The policeman’s testimony that he entered the gate and turned to the left apparently means that he proceeded to the left of the kitchen door after entering the gate. In any event, it seems from the evidence that the two apartments, each basically rectangular in shape and joined in the middle (with 6178 on the corner of Pontchartrain Boulevard and 18th Street, and 6176 occupying the area adjacent to 6178 and having street access only from 18th Street), share a common patio with gate, kitchen and bedroom doors for the two apartments located respectively on the right and left of the patio upon approaching the patio from 18th Street.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Debbie Lynn ROME.
    No. 80-K-1970.
    Supreme Court of Louisiana.
    Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Robert Bryant, Evelyn Oubre, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-respondent.
    Richard P. Ieyoub, Baggett, McCall, Singleton, Thomas P. Quirk, for defendant-relator.
   DIXON, Chief Justice.

In this case we granted writs to review a trial court judgment revoking the defendant’s probation. The defendant contends the revocation was illegal because it was ordered at a hearing held after the probationary period had expired.

We affirm the judgment revoking the probation. Probation revocation proceedings are not untimely when the arrest warrant for the violation is issued and executed before the expiration of the probation term, and judicial proceedings to revoke are commenced before the probation expires, even though the actual revocation hearing is not held (absent undue delay) until after the expiration of the probation term.

On March 8,1977 the defendant was convicted of two counts of forgery (R.S. 14:72). She was sentenced to serve two years in jail on each count, the terms to run concurrently. The sentences were suspended and she was placed on probation for three years, subject to several conditions. The record indicates that during 1977 and 1978 defendant was arrested for numerous offenses. At a probation violation hearing on January 23, 1979 the defendant admitted she had violated two conditions of probation. The court amended the probation conditions and sentenced her to serve ten months in the parish jail.

The defendant was released on March 28, 1979. On May 6,1979 she visited her probation officer and completed a monthly report for April. It was the last report she filed. She missed a subsequent meeting and the probatioh officer’s attempts to reach her at home were unsuccessful. A certified letter sent to her address on July 18, 1979 was returned as “unclaimed” August 20, 1979. On August 24, 1979 the probation officer obtained a warrant for the defendant’s arrest for probation violation. She made no further attempts to contact the defendant but notified the sheriff’s office, the state police and the Federal Bureau of Investigation of the warrant. On November 8, 1979 the probation officer learned that the defendant had been arrested in Opelousas for attempting to obtain preludin by fraud (R.S. 40:971B) and had given her address as Bridge City, Texas. At the probation officer’s request, the police detained the defendant when she appeared in court, and the probation officer was able to execute the warrant on December 20, 1979. She accompanied the defendant to Calcasieu Parish where the defendant was incarcerated.

On December 27, 1979 the defendant was told that she had been charged with violating probation conditions 1, 2, 3,4,5, 8, 9 and 10 and that a preliminary hearing was scheduled for January 4, 1980. On January 14 she was arraigned and pleaded not guilty. A probation revocation hearing was set for January 28. On that date defendant and counsel did not appear and the state moved to reset the hearing for February 11. Unfortunately, there is no record of the events of that day. On March 14 both defendant and defense counsel were absent, apparently because they were not notified of the hearing. On March 19 the defendant appeared without counsel. Finally, on April 16,1980, the hearing was held with all parties present. Defense counsel moved for dismissal of the allegations of probation violation, arguing that the probationary period had expired March 7, 1980. The court found that the state’s inability to execute the warrant from August to November triggered the operation of C.Cr.P. 899(D) and suspended the running of the probationary period for three months. It affirmed the legality of the hearing, revoked the defendant’s probation and ordered her to serve the remainder of the original sentence imposed. Defense counsel did not appeal, and on June 24, 1980 defendant, with new counsel, filed a writ of habeas, corpus. The trial judge denied the writ. He thought it was not the proper procedural vehicle for obtaining review of the revocation decision; further, he stated that the revocation was valid because the evidence established that the running of the probationary period had been suspended under C.Cr.P. 899(D) by the state’s inability to execute the warrant.

Defendant argues that the revocation is illegal because the revocation hearing was held one month after the probationary period ended, four months after she was taken into custody, and eight months after the warrant was issued. She suggests that the warrant could have been executed earlier if the probation officer had exercised greater diligence. She claims that she never concealed herself or fled the jurisdiction of the court to prevent execution of the warrant, but at all times retained her residence in Calcasieu Parish. She challenges the utilization of C.Cr.P. 899(D) to suspend the running of the probationary term. She also asserts that the delays in- executing the warrant and in holding the revocation hearing were the state’s fault and should operate to its prejudice.

This case differs from previous revocation cases because here the warrant was both issued and executed within the probation period. Furthermore, the revocation proceedings were initiated during the probation period. While both the state and the defense base their arguments on different interpretations of C.Cr.P. 899(D), that article is not really necessary to the resolution of this case. We have previously held that the running of the probationary period is not suspended simply by the issuance of the warrant during the period; the warrant must be executed to suspend the running of the period. State v. Martens, 338 So.2d 95 (La.1976); State v. Jones, 285 So.2d 231 (La.1973). C.Cr.P. 899(D) provides a limited exception to this general rule; it permits the state to stop the running of the period by proving that the warrant cannot be executed. However, the state must demonstrate that the failure to execute the warrant is due to the defendant’s actions, not the state’s inaction. The state must show that the defendant concealed himself or fled the jurisdiction of the court in order to make execution of the warrant impossible. State ex rel. DeGreat v. Phelps, 377 So.2d 341 (La.1979); State v. Harris, 342 So.2d 179 (La.1977). Where the state can execute a warrant timely but makes no attempt to do so, the running of the probationary period is not suspended, and a subsequent untimely revocation will be declared illegal.

This case, however, does not involve the untimely execution of a warrant which was timely issued. Here both the issuance and execution were timely. Moreover, the judicial proceedings were commenced before the probationary period expired. The defendant was notified of the charges against her and was arraigned on them soon after her arrest and well within the probationary period. The state satisfied due process requirements that the hearing and determination on the revocation charges be held within a reasonably prompt time after the charges are made. Although the hearing at which the defendant’s probation was revoked occurred after the probation term ended, it is not clear that the delays were caused by the fault of the state. Neither defendant nor her counsel was present at the first scheduled hearing and the state reset the hearing for February 11. That date was still within the probationary period. There is no February 11 entry in the record. The next entries show that on March 14 neither defendant nor her attorney appeared, and on March 19 defendant appeared without counsel. At the revocation hearing, defense counsel admitted that he had requested one delay, but he could not recall which one. The record indicates that he was not present at three of the four scheduled appearances which preceded the actual hearing; it is not unfair to conjecture that he appeared at the hearing on February 11 and requested a delay at that time. There is no indication of any objection by the defense to the continuances. Under the circumstances, we cannot say that the delays were clearly the state’s fault.

Since the record supports the state’s allegations that defendant violated her probation conditions, and the probation revocation proceedings were instituted within the probationary period, the judgment revoking the defendant’s probation is affirmed.

      .The following probation conditions were delineated:
      “1. Refrain from criminal conduct, specifically the violation of any State, Federal, Local or Municipal Law.
      2. Support your legal dependents to the best of your ability.
      3. Report to your Probation Officer as directed.
      4. Permit the Probation Officer to visit you at home or elsewhere.
      5. Devote yourself to an occupation approved by your Probation Officer.
      6. Refrain from owning or possessing firearms or other dangerous weapons.
      7. Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by your offense in an amount determined by court, if any, as follows: Make restitution of Vi of the amounts involved in the checks, same to be done within a period of time to be set by the Probation Officer.
      8. Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons.
      9. Remain within the jurisdiction of the court and get the permission of the Probation Officer before any change in your address or employment.
      10. Make a full and truthful report at the end of each month to your Probation Officer.
      11. Special Conditions are as follows:
      1. Same as stated in Condition # 7.
      2. Defendant is to serve 4 months in jail, with credit for time served.”

      . C.Cr.P. 899 provides in part:
      “A. At any time during probation and suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation, or may issue a summons to appear to answer to a charge of violation or threatened violation.
      * * * * * *
      D. When a warrant for a defendant’s arrest, issued under Paragraph A, cannot be executed, the defendant shall be deemed a fugitive from justice and the running of the period of probation shall cease as of the time the warrant was issued.”

      . The four cases cited by the defense counsel all involved warrants issued during the probationary period but not executed during that period. The state argued that the issuance of the warrant was enough to toll the running of the probationary period because the warrant could not be executed. We found that nothing prevented the officials from executing the warrants within the probationary period and therefore declared the revocations illegal.
      In State v. Martens, supra, the warrant was issued the last day of the probation term and was never executed; the state then filed a rule to revoke probation nine months after the period had ended.
      In State v. Jones, supra, the warrant was not executed until five months after the probation period had ended, twenty-two months after it was issued.
      In State ex rel. DeGreat v. Phelps, supra, the warrant was executed thirty-seven months after its issuance, about six months after the end of the probation period.
      In State v. Harris, supra, the warrant was never executed. A rule to show cause was filed two months after the probation period had terminated.

      . C.Cr.P. 900 also requires the court to bring the defendant before it “without unnecessary delay” for a hearing.


author:
LEMMON, Justice. DIXON, Chief Justice
      MARCUS, Justice BLANCHE, Justice

text:
    STATE of Louisiana v. Charles K. WALLACE.
    No. 80-K-2327.
    Supreme Court of Louisiana.
    Dec. 15, 1980.

      Salvador J. Liberto, Jr., Folsom, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion Farmer, Dist. Atty., Abbott J. Reeves, John Williams, Asst. Dist. Attys., for plaintiff-respondent.
   LEMMON, Justice.

This case presents the following issue: if an arrested person has been ordered released from custody (pursuant to C.Cr.P. art. 230.1 C) because of the sheriff’s failure to bring him before a judge for the purpose of appointment of counsel within 72 hours of his arrest (as mandated by C.Cr.P. art. 230.1 A), is the person immune from rearrest and incarceration pending trial when a legal ground for arrest otherwise exists?

I.

Defendant was arrested on November 29, 1979 on numerous charges, but was not brought before a judge, as required by C.Cr.P. art. 230.1 A, until January 21, 1980. However, counsel for defendant had apparently been appointed within a short time after the arrest, because the public defender had on December 5, 1979 filed a motion for preliminary examination.

On January 29, 1980, following the preliminary examination, the trial court ruled that probable cause existed for holding defendant on two of the charges, aggravated battery and aggravated assault..

Being unable to furnish bail, defendant filed numerous writs, but remained incarcerated until September 5, 1980, when the trial court, in response to an application for a writ of habeas corpus, ordered defendant released from custody on the grounds that the sheriff had initially failed to bring him before a judge in 72 hours. The prosecution did not seek review of the trial court’s order.

The sheriff, however, rearrested defendant on the same charges immediately after his release, virtually on the courthouse steps. Defendant filed a second application for habeas corpus on September 18, contesting the validity of the rearrest and again seeking release from custody. The trial court denied relief on September 25.

This court granted defendant’s application for certiorari in order to review the trial court’s refusal to order his release.

II.

This court decided in State v. Chaney, 384 So.2d 442 (1980), that an arrested person is entitled to release from custody and from bail if the sheriff fails to comply with art. 230.1 A, even when the arrested person has been interviewed by an indigent defendant’s attorney within 96 hours of his arrest and before filing his application for habeas corpus to enforce art. 230.1 C. Although the concurring opinion suggested that rearrest was available, the facts of the Chaney case did not present the issues of whether and under what circumstances a person released pursuant to art. 230.1 C may be rearrested for the same offense. Those issues are squarely presented by the facts of this case.

Defendant contends that once he was released from custody in the habeas corpus proceedings pursuant to a finding that the sheriff had failed to comply with art. 230.1, he is immune from rearrest on those same charges and cannot be incarcerated pending trial of those charges. He argues that art. 230.1 C’s sanction would be rendered totally ineffective if rearrest is allowed under those circumstances. On the other hand, the prosecution contends the Legislature did not intend to provide a possibly dangerous criminal (even one charged with a capital offense) with absolute immunity from incarceration pending trial when law enforcement officers, perhaps inadvertently, were tardy in bringing the person before a judge.

The code and statutes do not expressly address the issue of rearrest following release ordered under the authority of art. 230.1C. C.Cr.P. art. 367 does provide that “[a] person discharged from custody in a habeas corpus proceeding may be rearrested if a legal ground exists therefor”. Clearly, art. 367 (adopted in 1966) was not specifically designed to authorize rearrest after release ordered pursuant to art. 230.1 C (which was not adopted until 1972). Nevertheless, art. 367 literally applies by its terms to the situation presented here. And when the Legislature enacted art. 230.1 in 1972, it did nothing to except a release under art. 230.1 from the rearrest provisions of art. 367.

The ultimate issue for judicial interpretation is the intended extent of the legislative sanction when the sheriff fails to bring an arrested person before a judge within 72 hours. The Legislature simply provided for release of that person.

We note that a person who is not brought before a judge within 72 hours of his arrest, as required by art. 230.1 A, not only is statutorily entitled to obtain release, but also has a claim for civil damages resulting from violation of the article’s mandate. When an arrested person is released within (or at the expiration of) 72 hours, the sanction of release does not come into play, and the arrested person has only a claim for civil damages and then only if his initial arrest and the detention (of less than 72 hours) were illegal. But when an arrested person is held in custody more than 72 hours without being brought before a judge, then any detention thereafter is illegal, whether or not the initial detention was proper, and that detention (in excess of 72 hours) gives rise to (1) the right to immediate release and (2) a claim for civil damages for that illegal detention.

We conclude that the availability of civil damages for detention beyond 72 hours without being brought before a judge is a sufficiently effective deterrent against intentional or inadvertent violations of art. 230.1A. Therefore, we decline to interpret art. 230.1 C as entitling an arrested person to absolute immunity from rearrest and incarceration pending trial after release ordered pursuant to C.Cr.P. art. 230.1 C. The Legislature arguably could provide such an immunity as a sanction for intentional or non-intentional violations of art. 230.1’s mandate, but the Legislature has not done so in express terms, and we decline to imply legislative intent for such a drastic action.

Furthermore, the illegality of detention beyond 72 hours ends (and the accrual to civil damages ceases) when a significant judicial event (such as the finding of probable cause at a preliminary hearing in the present case) subsequently occurs. Therefore, even if we interpreted C.Cr.P. art. 230.1to prohibit rearrest generally after release because of illegal detention beyond 72 hours, such an interpretation would not apply in this case, inasmuch as the defendant waived his art. 230.1 rights to release by provoking a preliminary examination that resulted in a finding of probable cause.

Finally, defendant contends that even if he could be rearrested under the authority of art. 367, no legal ground existed for his rearrest.

As noted above, the present case does not present a situation in which an arrest was followed by non-compliance with art. 230.1 A, and then followed by release ordered in a habeas corpus proceeding, and finally followed by rearrest. Here, after the 72-hour period elapsed, there was an intervening adversary judicial determination of probable cause at a preliminary examination, and the period of illegal detention (following the 72-hour period) ended with that judicial determination. Moreover, in this case the court had promptly appointed counsel to represent the interests of the defendant shortly after his initial arrest, and that counsel acted promptly in seeking the preliminary examination.

The “legal ground” for rearrest was not only the initial police determination of probable cause, but also the trial court’s judgment ordering that the defendant be held in custody (unless released on bail) pending trial. C.Cr.P. art. 296. Thus, we find no difficulty in this case in determining that the defendant’s rearrest was legally justified based on the intervening judicial event which culminated in the determination of probable cause.

The ruling of the trial court is affirmed.

AFFIRMED.

CALOGERO, J., concurs.

DIXON, C. J., and MARCUS and BLANCHE, JJ., concur and assign reasons.

DENNIS, J., concurs for reasons assigned by DIXON, C. J.

WATSON, J., concurs in the result.

DIXON, Chief Justice

(concurring).

Only because the trial judge was probably in error in ordering the initial release of this defendant should we approve his rearrest. Counsel was appointed promptly; a motion for a preliminary examination was filed within a week; the hearing on the preliminary examination was held promptly. The record does not disclose any effort to make bail. Appointed counsel did not seek to have defendant brought before a judge for any purpose other than a preliminary examination.

This defendant received every safeguard provided for in C.Cr.P. 230.1 except a personal appearance before a judge within three days. In the absence of waiver, that prompt appearance before a judge is essential and must be provided. State v. Chaney, 384 So.2d 442 (La.1980). This opinion must not be construed as minimizing the important statutory obligation of the custodian to bring the accused before a magistrate promptly.

The disturbing element of the case is the failure of the state to seek an easily available, legally provided for, adequate remedy. The state did not even request a stay order to apply to this court. What happened (the sheriff rearrested the defendant as soon as the judge ordered him released) was too cute to be spontaneous. In all probability the unfortunate suggestion in the concurring opinion in State v. Chaney, supra, was considered and taken as an expression of this court. It was not, and must not be so considered. When a judge orders the release of a prisoner, he must not be rearrested on the same charges unless the illegality which caused his release has been removed. (See, for illustration, the Official Revision Comment to C.Cr.P. 367).

For these reasons, I respectfully concur in the majority opinion.

MARCUS, Justice

(concurring).

I agree that an arrested person released pursuant to La.Code Crim.P. art. 230.1 can be rearrested for the same offense. Naturally, the rearrest must satisfy the requirements of law in order to be valid. Accordingly, I respectfully concur.

BLANCHE, Justice

(concurring).

I concur, as the defendant was not immune from rearrest and incarceration pending trial when a legal ground for arrest otherwise existed. The statue provided no sanction whatsoever for non-compliance and the writer would not be willing to supply one that would permit dangerous persons charged with serious crimes to roam the streets until trial because of the sheriff’s failure to comply with the law.

With regard to relator’s right to damages against the sheriff, this writer does not have the slightest idea of what they may be or whether they are even due, preferring to cross that bridge when it is reached.

In short, the legislature has placed a duty on the sheriff without providing a sanction for his non-compliance therewith.

      .C.Cr.P. art. 230.1 provides:
      “A. The sheriff having custody of an arrested person shall bring him promptly, and in any case within seventy-two hours from the time of the arrest, before a judge for the purpose of appointment of counsel. Saturdays, Sundays, and legal holidays shall be excluded in computing the seventy-two hour period referred to herein.
      “B. At this appearance, if a defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or review a prior determination of the amount of bail.
      “C. If the arrested person is not brought before a judge in accordance with the provisions of Paragraph A of this Article, he shall be released forthwith.
      “D. The failure of the sheriff to comply with the requirements herein shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant.”

      . Prior decisions had held that the issue became moot once the defendant was tried and convicted. The decisions in appeals following convictions held that the initial failure did not invalidate subsequent proceedings.

      . Clearly, defendant could be arrested for subsequently committed offenses or for previously committed offenses for which he was not initially arrested.

      . See Acts 1972, No. 700. A 1977 amendment reduced the hours from 144 to 72. See Acts 1977, No. 395.

      . This analysis assumes that the proper procedural device for challenging the sheriff’s failure to comply with C.Cr.P. art. 230.1 is the application for a writ of habeas corpus. The “Great Writ” historically has been used to challenge preconviction custody which was unlawful at its inception or which, although initially lawful, had become unlawful due to some omission or event occurring after the arrest. See C.Cr.P. arts. 361 and 362(2). See also Acts 1980, No. 429. In enacting C.Cr.P. art. 230.1, the Legislature did not create a new procedural device for release under art. 230.1 C, and one could logically infer that the rearrest provisions of art. 367 are also applicable to release from custody in a habeas corpus proceeding brought to enforce art. 230.1 C.

      .For an interesting discussion of civil liability of a sheriff arising from his illegal detention of a prisoner after charges had been dismissed, see Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969).

      . “This article is taken from the source article, but it is considerably broader, since the source article permitted rearrest only under certain limited conditions. It is unlikely that this article leaves the door open for considerable abuse. In addition to the fact that another writ of habeas corpus is immediately available to the person in custody, any public official, who rearrests without legal cause and by the same methods or on the same grounds which the habeas corpus proceeding had declared illegal, not only subjects himself to a damage suit, but is probably guilty of malfeasance in office. Some states have specific provisions against rearrest except under certain circumstances and provide severe sanctions for violations of such provisions.. .. ”


author: CALOGERO, Justice. WATSON, Justice, LEMMON, Justice,

text:
    Pat BROWN, Jr. v. STATE of Louisiana, Through DEPARTMENT OF PUBLIC SAFETY, DIVISION OF LOUISIANA STATE POLICE.
    No. 67720.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.
    Howard P. Elliott, Jr., Baton Rouge, for defendant-applicant.
    Carolyn Pratt Perry, Daniel J. Dziuba, Franklin, Moore & Walsh, Baton Rouge, for plaintiff-respondent.
   CALOGERO, Justice.

The State of Louisiana, relator herein, seeks review of a holding of the First Circuit Court of Appeal, 385 So.2d 436, affirming a judgment of the trial court and declaring R.S. 15:31 unconstitutional. Louisiana Revised Statute 15:31 mandates that law enforcement officers confiscate and immediately destroy all gambling devices that come to their attention.... “gambling devices means: (1) any slot machine; ...” R.S. 15:31B(1).

The Louisiana State Police, acting on information that there was a slot machine in the women’s restroom of Pat Brown’s Claim Service located in Baton Rouge, seized the machine. Pat Brown, Jr., filed suit seeking an injunction to prevent the police from destroying the slot machine, and requesting that the police be ordered to return it. Plaintiff and defendant stipulated to a number of facts regarding the slot machine: that it was an antique slot machine; that it was a one-cerit machine, operable by the insertion of a penny, and not operable by insertion of other coins of greater monetary value; that the machine was operable at the time of seizure; that the machine was not used for gambling purposes; and that the coin box of the machine where deposited coins are stored did not have a lock, so that the coins once deposited could be reclaimed by anyone depositing a penny in the coin slot. Both sides further stipulated that no criminal charges for gambling had been filed against Pat Brown, Jr., as a result of his possession of the slot machine and that the restroom from which the slot machine was seized is not generally open to the public.

The trial court granted the relief sought by plaintiff, ordering that the slot machine be returned to plaintiff. The state appealed that decision to the First Circuit Court of Appeal which affirmed the trial court and declared R.S. 15:31 unconstitutional. The statute at issue requires law enforcement officers to confiscate and destroy three kinds of specified “gambling devices” and also orders the destruction, following conviction of an individual for gambling, of other kinds of “machines used for gambling.” In pertinent part, R.S. 15:31 reads:

“A. All law enforcement officers of municipal police forces, sheriffs’ departments and the division of state police are hereby authorized and empowered and it is made mandatory and compulsory on their part to confiscate and immediately destroy all gambling devices or machines used for gambling that come to their attention.
“B. As used in this section the term “gambling device” means:
(1) any slot machine; or (2) any machine, mechanical or electronic device of any sort whatsoever with a cash automatic payout device; or (3) a pinball or other ball machine, mechanical or electronic device equipped with a mechanism to release the number of free games or replays and a mechanism to record the free games or free plays so released.
“C. Whenever any other machine, mechanical or electronic device, including but not limited to roulette wheels and similar devices, designed and manufactured primarily for use in connection with garhbling, and (1) which, when operated, may deliver, as the result of the application of an element of chance, any money or property, or (2) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property, is used to conduct gambling, then following the conviction of any person for the crime of gambling by use of any such machine or device, the court wherein the verdict of guilty was returned shall order the immediate destruction of the machine or device by the proper law enforcement agency of the parish wherein the machine or device was used for gambling.
“D. Whenever any machine or other mechanical or electronic device of any kind whatsoever, not designed and manufactured primarily for use in connection with gambling, including specifically but not limited to coin-operated bowling games, shuffle alleys, mechanical baseball games, pinball games, mechanical guns, electronic ray guns, digger type machines, iron claws, and all similar types of coin-operated games, is used to conduct gambling, then following the conviction of any person for the crime of gambling by use of any such machine or device, the court wherein the verdict of guilty was returned shall order the immediate destruction of the machine or device by the proper law enforcement agency of the parish wherein the machine or device was used for gambling.
“E_”

It is plaintiff’s contention, and the Court of Appeal so ruled, that the above statute allows the state to take personal property without due process of law. We disagree and reverse the holding of the lower court.

In State v. Madere, 352 So.2d 666 (La.1977), we declined to address the constitutionality of R.S. 15:31 because the issue had not been raised in the lower court. In Madere we did hold, however, that the statute provides for the destruction of slot machines irrespective of their use for gambling. In our view, the legislature distinguished “gambling devices” from “machines used for gambling” and defined gambling devices without reference to use. A slot machine is one of three machines included in the group of items referred to as “gambling devices.”

In State v. Ricks, 215 La. 602, 41 So.2d 232 (1949), we upheld a predecessor statute to R.S. 15:31 against a similar due process attack. Our decision in Ricks was grounded on Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894). In Lawton, the United States Supreme Court was asked to declare that a New York statute, which provided for summary destruction of nets used for taking or capturing fish illegally, violated the Fourteenth Amendment of the United States Constitution because it ordered the confiscation of property without a hearing. The United States Supreme Court, instead, held that the law did not violate the Constitution because “the summary abatement of nuisances without judicial process or proceeding was well known to the common law long prior to the adoption of the constitution...” 152 U.S. at 142, 14 S.Ct. at 503.

The provisions of the Louisiana Constitution pertinent to our determination are Article I, § 2; Article I, § 4 and Article XII, § 6. Article I, § 2 provides: “No one shall be deprived of life, liberty, or property, except by due process of law.” Regarding property, Article I, § 4 makes provision for the right to the ownership, use and enjoyment of private property. The statement of the right to private property is immediately followed by the pronouncement that the right is subject to “reasonable statutory restrictions and the reasonable exercise of the police power.” The second paragraph of that very section makes indirect reference to the fact that personal effects which constitute contraband are subject to taking by the government. Finally, Article XII, § 6, separate and distinct from the two foregoing provisions, directs the Legislature to define and suppress gambling.

Louisiana constitutions since 1879 have contained directives similar to that now found in Article XII, § 6. In response to these directives, the legislature passed the predecessor acts to the current R.S. 15:31. Acts 1898, No. 57, and Acts 1908, No. 107, made it a misdemeanor to use or play slot machines and a misdemeanor to have slot machines on the premises if the machines were in use or if any business was being conducted on the premises. In 1928, the legislature enacted Act No. 231 providing for the summary destruction by the police of “all gambling devices known as slot machines that may come to their attention, or that they may find in operation.” With the codification of the criminal statutes of the state in 1942 (Act No. 43), the legislature repealed the acts which made it a misdemeanor to play or possess slot machines. Acts 1928, No. 231, has been refined and embellished by the legislature through the years but the essential elements remain the same: the police may summarily destroy slot machines.

Respondent argues that the absence of a statute prohibiting the possession and use of slot machines removes them from the designation contraband. We answer this argument by observing that slot machines have historically been treated as contraband. Since the repeal of the statutes making possession and use of slot machines illegal, this Court has consistently referred to slot machines as contraband. In State v. Ricks, supra, we noted that Acts 1928, No. 231, declared slot machines to be contraband and the destruction of slot machines without notice or hearing did not render the statute unconstitutional because Mr. Ricks “cannot have or acquire property rights in the condemned article.” 41 So.2d at 234.

In Killian v. Craft, 226 La. 374, 379, 76 So.2d 401, 402 (1954), we said that “slot machines are contraband and not property capable of private ownership.” Following Gascon v. State, Department of Public Safety, 263 So.2d 81 (La.App. 1st Cir. 1972), in which the appellate court held that slot machines not being used in gambling were not contraband, the legislature amended R.S. 15:31 in such a way as to remove any doubt that the slot machines did not have to be used in gambling to subject them to summary destruction. This amendment formed the basis of our holding in Madere, supra.

The legislature, by providing for the summary destruction of slot machines, has followed the constitutional mandate to suppress gambling. R.S. 15:31 constitutes at least as direct a legislative pronouncement that slot machines are contraband as would a statute simply making their possession illegal.

In summary, the challenged statute does not violate the federal constitution for the reasons expressed by the United States Supreme Court in Sentell v. New Orleans & C. R. Co., 166 U.S. 698, 705, 17 S.Ct. 693, 696, 41 L.Ed. 1169 (1897):

“It is true that under the fourteenth amendment no state can deprive a person of his life, liberty, or property without due process of law; but in determining what is due process of law we are bound to consider the nature of the property, the necessity for its sacrifice, and the extent in which it has heretofore been regarded as within the police power. So far as property is inoffensive or harmless, it can only be condemned or destroyed by legal proceedings, with due notice to the owner; but, so far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction.”

Nor does R.S. 15:31 offend the Louisiana constitutional provisions regarding due process and the right to private property. As we interpret these provisions alongside others which direct the legislature to suppress gambling and which make reference to contraband, we find no intention on the part of the Constitutional Convention or the people to prohibit legislation such as R.S. 15:31. The legislature followed the constitutional directive to suppress gambling by providing for the summary destruction of slot machines. In the latest definitive statutory expression of the legislature of this state, slot machines are inherently detrimental to the community and thus properly the subject of summary destruction.

Decree

Accordingly, the holding of the Court of Appeal that R.S. 15:31 is unconstitutional is reversed and the trial court’s order that the state return the slot machine to the plaintiff is dissolved.

REVERSED.

WATSON, J., dissents and assigns reasons.

LEMMON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

I disagree with the majority’s conclusion that an antique slot machine operated with pennies is so dangerous to the community that its summary destruction is authorized. Since it was stipulated that the machine was not used for gambling purposes, it cannot be included constitutionally in the statutory prohibition of LSA-R.S. 15:31. The Court of Appeal opinion presents a correct analysis.

Therefore, I respectfully dissent.

LEMMON, Justice,

dissenting.

Since the coin box did not have a lock, this machine could not in fact be used for gambling purposes and therefore could not reasonably be classified as either a gambling device or an instrumentality which is so dangerous to the safety or health of the community that its summary destruction is warranted. Accordingly, R.S. 15:31 is inapplicable, and it is unnecessary to reach the constitutional issue.

I dissent from the decision declaring the statute unconstitutional.

      . The other two are “any machine, mechanical or electronic device of any sort whatsoever with a cash automatic payout device” and a “pinball or other ball machine, mechanical or electronic device equipped with a mechanism to release the number of free games or replays and a mechanism to record the free games or free plays so released.” R.S. 15:31B(2), (3).

      . Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 12 notes: “The background of [this] provision indicates an understanding that the statutory limitations and police power regulations are to be given a broad ambit.”

      . "... Personal effects, other than contraband, shall never be taken.” This is the last sentence of a paragraph which speaks of expropriation. Nevertheless, the reference to contraband is clear.

      . “Neither the state nor any of its political subdivisions shall conduct a lottery. Gambling shall be defined by and suppressed by the legislature.” La.Const. Art. XII, § 6.

      . In this regard, we do note that SB 470 of 1980 removed antique gaming machines (those constructed prior to October 1, 1950, and presumably including slot machines of that early vintage) from the classification as a gambling device. The bill authorized the ownership and possession of such machines, unless used for unlawful gambling. In that situation, the bill authorized their seizure, but only when found being used for gambling, and required that they not be destroyed until there was judgment of a court that they were indeed used for unlawful gambling. SB 470 passed both houses of the Louisiana Legislature unanimously, but was vetoed by the governor after the close of the 1980 • legislative session.

      . Our holding in this case is limited to the issue of summary seizure and destruction of “gambling devices” as defined in paragraph B of the above statute. We are specifically not considering the right of the police to seize and destroy “machines used for gambling” other than the “gambling devices” listed in B. While paragraph A of the statute seems to give the police the right to summarily seize and destroy these other machines also, we note that paragraphs C and D require, prior to destruction, conviction of a person for the crime of gambling, R.S. 14:90. R.S. 14:90.1, added by the legislature in 1979, reiterates the conviction requirement before machines other than “gambling devices” are to be disposed of:
      “Upon conviction of a person for the crime of gambling, the evidence, property, and paraphernalia seized as instruments of such crime shall, upon order of the Court, be destroyed when it is no longer needed as evidence and all such evidence, property, and paraphernalia found to be in use in the conduct of such unlawful activity and having a value for lawful purposes, shall be sold under the orders of the Court at public auction by a duly licensed auctioneer and the proceeds paid into the Court. Upon conviction, as aforesaid, any monies and other things of value, except as herein provided, shall be transferred to the state general fund.”
      Furthermore, even without the statutory limitations, there are more serious due process and right to private property considerations regarding machines not specifically enumerated and identified as “gambling devices” in the statute.


author: MARCUS, Justice. DIXON, Chief Justice

text:
    STATE of Louisiana v. Richard WICHERS.
    No. 66855.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, Asst. Dist. Atty., for plaintiff-appellee.
    Ronald L. Monroe, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Richard Wichers was charged by one information with possession of marijuana in violation of La.R.S. 40:967 and by another information in separate counts with possession of diazepam in violation of La.R.S. 40:969 and of methaqualone in violation of La.R.S. 40:967. Defendant entered pleas of not guilty to the charges. After a hearing, the trial judge denied defendant’s motion to suppress. Thereafter, defendant withdrew his former pleas of not guilty and entered pleas of guilty as charged, reserving his right to appeal the court’s denial of his motion to suppress. The court placed defendant on probation for one year in connection with his marijuana conviction and on probation for three years on each of the other convictions to run concurrently with each other and the probation for the marijuana conviction. On appeal, defendant relies on one assignment of error for reversal of his convictions and sentences.

Defendant contends the trial judge erred in denying his motion to suppress physical evidence. He argues first that the search warrant was improperly issued and second, even if the warrant was valid, the search of his person was illegal; hence, the drugs seized as a result of the search must be suppressed.

The search warrant was issued to search the premises located at 9301 Airline Highway, London Lodge Motel, room 712, for the purpose of seizing “[a]ll contraband controlled dangerous substances, more particularly Marijuana and all documents and in-strumentalities related to its distribution.” The warrant was issued based upon facts recited in the affidavit by Officers Ronald Jenkins, Harry O’Neal and Kenneth Baudouin. The facts recited in the affidavit to establish probable cause were based on information received from a reliable confidential informant and independent observations by the officers. The affidavit was signed and the search warrant was issued and executed on October 19, 1979.

Shortly before 7:45 p. m. on that date, the officers arrived at the London Lodge Motel to execute the search warrant. When no one responded to their knocks on the door of room 712, the officers obtained a pass key to gain entry. Approximately fifteen minutes later, while the officers were in the process of completing the search of the room, defendant Wiehers, Ben Levy and a woman arrived at the motel and opened the door with a key. One of the officers stated that they were police officers and that they had a search warrant. Defendant and his companions closed the door and began running. One of the officers caught defendant, pushed him to the ground, and conducted a search of his person, resulting in the recovery of the drugs upon which these prosecutions are based.

The affidavit generally recited the following facts to establish probable cause for issuance of the search warrant:

(1) On October 19, 1979, Narcotics Officer Ronald Jenkins spoke with a reliable confidential informant whose information in the past had been instrumental in the arrest and conviction of narcotics violators. The informant advised the officer that two white males named Ben Levy and “Richie Wishes” were '“secreting” and selling wholesale quántities of marijuana at room 712 of the London Lodge Motel. He stated that the selling price was $400 per pound and that at the last visit to the motel “between 50-100 pounds was seen.” He further advised that on October 14, 1979, “200 pounds was seen, so the marijuana was being sold at a good rate.”

(2) A check with the management of the London Lodge Motel reflected that a Ben Levy was registered in room 712.

(3) At about 2:30 that afternoon, affiants established a surveillance of room 712 of the London Lodge Motel. At 2:40 p. m., the officers observed a car pull up to the front of the motel. Its driver, a white male, exited the vehicle and knocked on the door of room 712. He was let into the room and about five minutes later exited the room carrying a brown paper bag with newspaper on the top which was placed in the trunk of the car. The driver once again entered room 712 and left carrying a paper bag similar to the first one. The bag was also placed in the trunk of the car. The driver then reentered his car and departed.

(4) At 3:10_ p. m., officers observed a pickup truck pull up to the front of the motel. The driver exited the vehicle, took what appeared to be currency out of his wallet, walked up to room 712 and knocked on the door. As the door was opened, the driver handed the suspected currency to one of the room’s occupants and then entered the room. Seven minutes later, he left the room carrying a partially-compressed green plastic garbage bag under his arm. He then placed the bag behind the front seat of the truck and departed.

Based on the information received from the confidential informant and the observations of the officers, the affiants stated that it was their belief that “contraband controlled dangerous substances were being secreted and sold from room 712 of the London Lodge Motel located at 9301 Airline Highway” and requested that a search warrant be issued.

Constitutional provisions insure a person from unreasonable search and seizure of his house, papers and effects. No such search or seizure shall be made except upon warrant issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. U.S. Const, amend. IV; La.Const. art. 1 § 5. Conformably, our Code of Criminal Procedure in art. 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

We have held that probable cause exists when the facts, and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. State v. Richards, 357 So.2d 1128 (La.1978); State v. Smith, 350 So.2d 1178 (La.1977); State v. Williams, 338 So.2d 1365 (La.1976); State v. Sierra, 338 So.2d 609 (La.1976); State v. Hightower, 272 So.2d 363 (La.1973). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Richards, supra; State v. Smith, supra; State Williams, supra; State v. Sierra, supra; State v. Holmes, 254 La. 501, 225 So.2d 1 (1969).

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court set forth, in a “two-pronged test,” the criteria which a magistrate must follow in determining if an affidavit based upon hearsay has established probable cause for the issuance of a search warrant; (1) the affiant must articulate the basis for his belief that the informant is trustworthy, and (2) the affidavit must indicate the underlying circumstances from which the informant concluded that the narcotics were where he contended they would be. State v. Richards, supra; State v. Joseph, 351 So.2d 1162 (La.1977). Hence, the reliability of both the informant and his information must be demonstrated in the affidavit. Later, the Court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), made the criteria more flexible by allowing an informant’s tip which is inadequate under Aguilar standards to be corroborated by independent sources. These rules were adopted by this court in State v. Paciera, 290 So.2d 681, 685-86 (La.1974):

The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.

The affidavit in the instant case satisfies the first Aguilar standard. It states that the informant has given information in the past that was instrumental in the arrest and conviction of narcotics violators.

In addition, the affidavit must satisfy the second Aguilar standard by demonstrating the reliability of the informant’s information. In the instant case, the affidavit states that on October 19, 1979, the informant advised Officer Jenkins that defendant and Ben Levy were “secreting” and selling wholesale quantities of marijuana from room 712 of the London Lodge Motel. The informant stated that on October 14 (some five days earlier), 200 pounds “was seen” but that at the last visit to the motel “between 50-100 pounds was seen.” It is obvious that the last observation of the marijuana was made at some point in time between October 14 and 19. While the marijuana was selling at a good rate, the observations of the officers of apparent drug transactions at room 712 of the motel on the afternoon of October 19 made it reasonable for the affiants to believe that drugs were still located in and being sold from the motel room. Moreover, it is reasonable to infer from the facts related to the officer that the marijuana was personally observed by the informant. Thus, the reliability of the informant’s information is supported by the direct personal observation of the marijuana by the informant and the independent observations of the officers.

In sum, the reliability of both the informant and his information were demonstrated in the affidavit. Hence, there was ample probable cause for the issuance of the search warrant.

Defendant further contends that, even if the warrant to search room 712 was valid, the search of his person was nonetheless illegal. Hence, the recovery of the drugs seized as the result of the search must be suppressed. We do not agree.

It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable — subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search incident to a lawful arrest made of a person and the area in his immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Tomasetti, 381 So.2d 420 (La.1980). An arrest occurs when circumstances indicate an intent to effect an extended restraint on the liberty of an accused, rather than at the precise time the officer tells an accused he is under arrest. State v. Marks, 337 So.2d 1177 (La.1976).

In the instant case, defendant was arrested when he was tackled by the officer and his freedom of movement curtailed. The arrest was also lawful. The officers had legal authority to be present in room 712 as they were executing a valid search warrant. The warrant was based on probable cause that marijuana was located in and being sold from the motel room by its two male occupants. While the officers were conducting the search, defendant, a woman, and another man arrived at the motel and opened the door to room 712 with a key. It was reasonable for the officers to believe that a person accompanied by his companions opening a locked motel door with a key was the room’s occupant or was connected with the room’s occupant. One of the officers announced their authority. Upon seeing the officers, defendant and his companions closed the door and ran away. Defendant was chased by one of the officers who, after tackling him, searched him and found the drugs in question. Under these circumstances, probable cause existed to arrest defendant as it was reasonable for the officers to believe that defendant was either the person named in the warrant as the occupant of the room where the drugs were allegedly located and being sold or was connected with the alleged illegal activity. Hence, the search made by the officer fell within the search incident to a lawful arrest exception to the warrant requirement.

DECREE

For the reasons assigned, defendant’s convictions and sentences are affirmed.

DIXON, C. J., dissents with reasons.

CALOGERO, J., dissents.

DENNIS, J., dissents for reasons assigned by DIXON, C. J.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The officer who arrested Wichers testified that he had searched the defendant pursuant to an arrest for resisting a lawful arrest. R.S. 14:108. The defendant testified that he was not placed under arrest until after the seizure of the narcotics. This court stated in State v. Marks, 337 So.2d 1177, 1182 (La.1976):

“... It is the circumstances indicating an intent to effect an extended restraint on the liberty of an accused, rather than the precise timing of an officer’s statement: ‘You are under arrest,’ that are determinative of when an arrest is actually made. State v. Warren, 283 So.2d 740 (La.1973)....”

As the majority opinion states, the defendant was “arrested” when he was tackled by the officer and his freedom of movement curtailed. The question is whether probable cause to arrest existed at this time. The defendant contends that no probable cause existed to make a lawful arrest, because the “facts and circumstances within the arresting officer’s knowledge” were .not “sufficient to justify a man of average caution” in the belief that the defendant had committed or was committing an offense. State v. Herbert, 351 So.2d 434, 440 (La.1977).

Neither the officer who arrested Wichers nor any of the other officers knew what Wichers looked like. Therefore, probable cause could not have been based upon the officer’s recognition of the defendant as the man referred to in the search warrant. Furthermore, the officers who were conducting the search had not found any drugs in the motel room. Thus, probable cause could not be based on information discovered during the search. The only concrete fact within the arresting officer’s knowledge was that Wichers had initially attempted to enter a room where suspected drug sales had occurred, but later ran when he saw the room filled with strangers. As this court stated in State v. Franklin, 353 So.2d 1315, 1319 (La.1977):

“... the fact that a person runs or flees does not in and of itself establish probable cause. See, State v. Herbert, 351 So.2d 434 (La.1977). Flight does not always indicate guilt; it may result from fear and possibly other causes. Even where flight does reasonably appear designed to avoid apprehension, reasonable cause will not arise unless the flight, combined with other information upon which the officers are entitled to rely, would indicate to- a reasonable mind that the combination of circumstances is inconsistent with any innocent pursuit.

In the instant case, the defendant’s flight at the sight of the officers in his room is indicative of fear. The officers were not in uniform, and the defendant says that he did not hear them announce their authority. His fright would have been justified when he saw the room full of strangers who were going through his belongings. Even assuming that the defendant’s flight was designed to avoid apprehension, that fact, standing alone, does not constitute probable cause.

As an alternative justification for the search of defendant, the state contends that the search was conducted pursuant to an investigatory stop. C.Cr.P. 215.1. This argument is unpersuasive. Even assuming that the seizure of Wichers was a detention authorized by article 215.1, an officer is not authorized to frisk the detainee unless he “reasonably suspects that he is in danger of life or limb.” In the instant case, the defendant made no menacing or threatening moves which might have led the officer to believe he was armed. Furthermore, the arresting officer testified that he was conducting a full search for both weapons and evidence, and that the search was pursuant to an arrest. This was an arrest and a search, not a limited pat down of the outer clothing.

Because the search conducted In the instant case was not justified by any of the exceptions to the warrant requirement, the trial judge erred in denying the defendant’s motion to suppress the evidence seized from him, and we should reverse the conviction and sentence.