author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Ralph Douglas McCOMMONS.
    No. 80-K-2754.
    Supreme Court of Louisiana.
    May 18, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman L. Lawson, Asst. Dist. Atty., for plaintiff-relator.
    Brett Brunson, Lowther & Boone, Many, for defendant-respondent.
   DIXON, Chief Justice.

The state applies from a ruling of the trial judge granting a motion to suppress a seizure under a warrant.

On September 10, 1980 defendant was charged by bill of information with possession of marijuana with intent to produce or cultivate, a violation of R.S. 40:967(A)(1). The indictment was based on contraband seized from the defendant’s home on January 7, 1980 pursuant to a search warrant issued that same day. In the affidavit sworn out for the search warrant, Sabine Parish Deputy Sheriff McComic stated that he had probable cause to believe that there was contraband in the defendant’s residence because he had personally observed a bottle filled with marijuana seeds and because a reliable informant had told him that a wood box on the living room coffee table contained smoking paraphernalia. He stated that the informant was known to him to be reliable because he had furnished reliable information on more than one occasion in the past to the sheriff’s office.

On October 8, 1980 defendant filed a motion to suppress the evidence. He contended that Deputy McComic’s observations could not serve as a valid basis for the search warrant because they resulted from an unconstitutional search. He urged that if the unconstitutionally obtained portion of the affidavit were excised, the remainder would not support issuance of a search warrant, because the informant’s reliability was not adequately established and his observations were not sufficiently detailed.

Testimony adduced at the hearing on the motion to suppress revealed that an acquaintance of the defendant, Randy Coth-ern, told Deputy McComic he had seen a bottle containing marijuana seeds at the defendant’s home. Deputy McComic, in plainclothes, and Cothern returned to the defendant’s home. Cothern introduced the deputy as his cousin and said that he wished to see the defendant’s stepfather about a personal matter. The defendant “let them in.” After a few minutes of conversation, McComic asked to use the “restroom;” he had been told by Cothern that the bottle was being used as a doorstop and was visible from the bathroom door. McComic was in fact able to see the bottle at the door to the bedroom. He approached it, concluded on the basis of his narcotics training that the seeds were indeed marijuana, placed a fingerprint on the bottle, and returned to the living room. After a few more minutes of conversation, he and Cothern left, and Cothern apprised him of the contents of the wood box on the coffee table. McComic then obtained the search warrant, which he executed that evening.

The trial judge granted defendant’s motion to suppress the evidence. He found no justification for the failure to obtain a search warrant before the initial entry. Before this court, the state argues that Deputy McComic’s initial visit to the defendant’s residence was not an illegal search and therefore does not invalidate the warrant or taint the evidence seized thereunder. The state contends that the defendant did not display any reasonable expectation of privacy in regard to the contraband, since he kept it in a place where it could be seen by any visitor to the home.

Defendant does not deny that McComic was in his house with defendant’s consent. Defendant did not know McComic was a deputy, and made no inquiries when Coth-ern introduced McComic as his cousin. McComic did nothing illegal in entering, and took nothing from the house. He was entitled to see what was openly displayed while he was in the house. He properly reported his find to a magistrate and obtained a warrant to seize the contraband.

The trial judge erred in granting the motion to suppress. Deputy McComic’s original visit was not an unreasonable search violative of the defendant’s Fourth Amendment rights. The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Its essential purpose is to shield the citizen from unwarranted intrusion into his privacy. Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). To invoke the protection of the Fourth Amendment, a person must show that he had a reasonable expectation of privacy which was invaded by the government’s action. There are two facets to the proof:

“. . . first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable’ ...” Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 588 (1967) (Harlan, J. concurring).

In the case before us, the defendant kept the marijuana seeds in a clear glass bottle by the door of his bedroom. The bottle was not hidden by the door and was visible from the hall. Since the bedroom door was only a few feet from the bathroom, anyone who came to the house and went to the bathroom could see the bottle. The smoking paraphernalia was in a box on the coffee table in the living room. The record does not show how Cothern learned the contents of the box. We affirm that:

“. .. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection ...” Katz v. United States, supra, 389 U.S. at 351, 88 S.Ct. at 511, 19 L.Ed.2d at 582.

We recognize that the defendant might not have left the bottle in such an exposed position if he had known that Cothern’s “cousin” was in fact a police officer who could recognize the seeds for what they were. Obviously, the defendant trusted Cothern, who had been to his home on several previous occasions, and did not think that he would betray him. Nevertheless, the Fourth Amendment does not protect “.. . a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. . . . ” Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413,17 L.Ed.2d 374, 382 (1966). The defendant in Hoffa argued that an informer’s failure to disclose his role vitiated the consent given to this presence; he claimed that the informer conducted an “illegal search” for verbal evidence by listening to the defendant’s statements. The court held the evidence admissible, concluding:

“... no interest legitimately protected by the Fourth Amendment is involved. ... the petitioner was not relying on the security of his hotel suite when he made the incriminating statements to Partin or in Partin’s presence. ... he was relying upon his misplaced confidence that Partin would not reveal his wrongdoing. ...” Hoffa v. United States, supra, 385 U.S. at 302, 87 S.Ct. at 413, 17 L.Ed.2d at 382.

The court also recognized the need for decoys and undercover police work in other cases. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). In Lopez the defendant, charged with attempted bribery of an Internal Revenue Service agent, contended that the evidence obtained by the agent, that is, his conversation with the agent, was illegally “seized” because the agent had gained access to his office by misrepresentation. A majority of the court held that the agent did not unlawfully invade the privacy of the defendant’s office, since he was there with defendant’s consent and obtained as evidence only statements that the defendant made with full knowledge that those statements could be used against him. Even the dissenting justices commented:

“... The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak....” Lopez v. United States, supra, 373 U.S. at 465, 83 S.Ct. at 1402, 10 L.Ed.2d at 486.

Deputy McComic’s actions during his first visit to defendant’s home did not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. His observations could serve as a valid basis for the issuance of the search warrant and the seizure of the contraband. Moreover, since those observations themselves furnish sufficient probable cause for the issuance of the warrant, the reliability or credibility of the informant’s assertions becomes immaterial.

The ruling of the district court sustaining the motion to suppress is reversed, and the motion to suppress is denied. The case is remanded to the district court for further proceedings.

       Judges O. E. Price and Fred W. Jones, Jr. of the Second Circuit and Judge G. William Swift, Jr. of the Third Circuit participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Dennis and Watson.

      . The evidence seized consisted of a one gallon bottle containing marijuana seeds, a plastic bag containing marijuana seeds, and a wooden box containing smoking paraphernalia.


source: Caselaw Access Project

author: LEMMON, Justice. WATSON, Justice,

license: Public Domain

text:
    Gerald James BORDELON v. LOUISIANA DEPARTMENT OF CORRECTIONS, et al.
    No. 80-C-2800.
    Supreme Court of Louisiana.
    May 18, 1981.
    Kathleen Stewart Richey, of Richey & Price, Baton Rouge, for plaintiff-relator.
    S. Dwayne Broussard, Carmack M. Black-mon, Asst. Atty. Gen., for defendants-respondents.
    David R. Poynter, Poynter & Speer, Baton Rouge, Sp. Counsel.
   LEMMON, Justice.

We granted certiorari to review a district court’s ruling that a commissioner of the Nineteenth Judicial District Court has the authority to conduct a hearing on plaintiff’s motion for injunctive relief and to submit proposed findings of fact and recommendations for disposition to the district judge. We now affirm the ruling.

Plaintiff initiated the underlying litigation with a petition that claimed damages from the Department of Corrections because of mistreatment he received while committed to Louisiana Training Institute in East Baton Rouge Parish. The petition included a rule for injunctive relief. The district judge, to whom the case was allotted, scheduled a hearing on the motion for a preliminary injunction and referred the case to a commissioner to conduct the hearing.

During the hearing plaintiff questioned the commissioner’s authority to conduct the hearing and to make proposed factual findings and recommendations. The commissioner halted the hearing and submitted a report to the district judge on the issue of the commissioner’s authority, recommending that his authority be confirmed. The district judge ruled that the commissioner could be designated to “hear and make recommendations not only on preliminary injunctions but on ‘any matter or motion pending before the court’ ” pursuant to R.S. 13:713. Plaintiff then applied for supervisory writs to the court of appeal, which denied the application on the basis that there was no error in the district judge’s reasons and ruling. We granted certiorari. 394 So.2d 1245.

R.S. 13:711, adopted by Act No. 62 of 1979, created the offices of two commissioners of the Nineteenth Judicial District Court. The commissioners may perform duties assigned to them by the district judges which are consistent with the constitution and laws of the state. R.S. 13:713 A. In performing these duties, commissioners have all the powers of a district judge, except adjudicatory powers. R.S. 13:713 B. Moreover, R.S. 13:713 C provides:

“In furtherance of the above, a commissioner may be designated and assigned to hear and determine any pretrial matter pending before the court, except motions for injunctive relief and temporary restraining orders in civil matters and preliminary hearings, motions for discovery, motions to suppress, and motions to quash in criminal matters, or any motion or exception which adjudicates any question of law or fact with regard to that matter. A commissioner may be designated to conduct hearings, including evi-dentiary hearings, and to submit to the judge of the appropriate division, proposed findings of fact and recommendations for the disposition thereof of any matter or motion pending before the court, or any application for post trial relief made therein. In such cases, the commissioner shall file his proposed findings and recommendations with the court, and a copy shall forthwith be mailed, postage prepaid, to all parties or their counsel of record. Any party, within ten days after transmittal of such copy, may traverse such findings or recommendations in writing in such manner as shall be specified by the rules of the district court. The judge of the appropriate division shall make a de novo determination of any findings or recommendations to which objection is made. The judge may accept, reject, or modify in whole or in part the findings or recommendations made by the commissioner and also may receive further evidence or recommit the matter to the commissioner with instructions.”

Thus, a commissioner, pursuant to the second sentence of subsection C, may conduct hearings and submit proposed findings of facts and recommendations for disposition on any matter or motion pending before the court. Additionally, a commissioner, pursuant to the first sentence of subsection C, may conduct hearings and determine any pretrial matter pending before the court with certain enumerated exceptions, one of the exceptions being motions for injunctive relief.

We interpret the two provisions, read together, as authorizing commissioners to conduct hearings on any motions, including motions for injunctive relief, and to submit proposed factual findings and recommendations, while prohibiting commissioners from determining or deciding certain pretrial motions. This interpretation accords with the remainder of the legislative scheme that outlines the role of commissioners. After the findings and recommendations are submitted by the commissioner and the parties are afforded an opportunity to traverse in writing, the district judge makes a de novo determination of any disputed finding or recommendation and accepts, rejects or modifies the commissioner’s report in whole or in part. If necessary, the judge can receive further evidence or recommit the matter to the commissioner with instructions. The overall scheme clearly reserves all adjudicatory power to the district judge, although the commissioner may determine some pretrial motions which are not disposi-tive of the case.

We therefore conclude that pursuant to R.S. 13:713 C a commissioner may be designated to conduct a hearing on a motion for injunctive relief and to submit to the district judge proposed findings of fact and recommendations for disposition, but may not be designated to decide the motion.

Plaintiff further contends that R.S. 13:713, if interpreted in this manner, unconstitutionally denies his “access to a constitutionally sanctioned court”. In this respect plaintiff argues that La.Const. Art. V, § 1 (1974) vests the judicial power in those courts created by the constitution.

Certain judicial power may be delegated without any abdication of the judge’s fundamental responsibility for deciding cases. Delegation of power to conduct evi-dentiary hearings and to prepare proposed findings of fact and recommendations for disposition based on the evidence and the arguments is not inconsistent with the constitution and laws which vest the judicial power in judges of enumerated courts, as long as the judges retain the responsibility for making ultimate decisions in the case. Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Under R.S. 13:713, as under the Federal Magistrates Act attacked in the Mathews case, the authority and responsibility to make the final determination remains with the district judge. The fundamental responsibility of the judge to make the final determination, after the commissioner conducts a hearing and submits proposed findings and recommendations, is insured by the requirement of a de novo determination of disputed findings or recommendations. Compare United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).

We conclude that this plaintiffs constitutional due process is adequately protected by the procedure outlined in R.S. 13:713, in which the trial judge makes a de novo determination of disputed findings or recommendations and may accept, reject, or modify those findings or recommendations or require additional evidence. We accordingly reject plaintiff’s contentions that his constitutional rights are impaired by the designation of a commissioner to conduct a hearing and to submit proposed findings of fact and recommendations for disposition.

The ruling of the district court is affirmed.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

I dissent from the holding that LSA-R.S. 13:713 does not violate the Louisiana Constitution of 1974.

Article 5, Section 1, Louisiana Constitution of 1974, states:

“The judicial power is vested in a supreme court, courts of appeal, district courts, and other courts authorized by this article.”

In a suit against the Department of Corrections, a branch of the state, the district courts have exclusive original jurisdiction under Article 5, Section 16, of the Louisiana Constitution of 1974.

Article 5, Section 22, Louisiana Constitution of 1974, requires that all judges shall be elected except for appointments to fill temporary vacancies in office.

The drafters of Act 62 of 1979 attempted to comply with the constitutional mandates by providing that commissioners can only determine certain pretrial matters and are otherwise limited to findings of fact and recommendations for disposition. LSA-R.S. 13:713 gives the commissioners all the powers of a district judge except the adjudicatory power. However, “judicial power”, the term used in Art. 5, § 1, LSA-Const.1974, supra, has a broader meaning than adjudicatory power. An adjudication is a final decree or judgment. Judicial power, which is often defined in terms of jurisdiction, is the power to hear and determine a particular matter. Thus, judicial power is more than the authority to make a final adjudication; it also encompasses hearing testimony and arguments.

LSA-R.S. 13:713 allows commissioners to hear any matter pending in the Nineteenth Judicial District Court. Hearing evidence and reaching findings of fact is a function of judges and jurors. When jurors perform this function, the presiding judge must agree that their conclusions are supported by the evidence. A similar judicial rein bridles the fact finding powers of administrative tribunals. These tribunals perform a quasi-judicial function with constitutional authorization. See, for example, Art. 12 § 14 and Art. 10 § 8, LSA-Const. of 1974.

The 1974 Constitution provides that the “. . . magistrate courts existing on the effective date of this constitution are retained.” Art. 5 § 15. Thus, the magistrate section of the criminal district court for the Parish of Orleans provided by Act No. 548 of 1974 was retained on December 31, 1974, when the new constitution became effective. However, the commissioners or magistrates of the Nineteenth Judicial District Court do not have this constitutional recognition.

LSA-R.S. 13:713 provides for a “de novo” or second determination of those findings to which objection is made by one of the parties. De novo consideration does not mean that there must be a hearing. The provision that the judge “may receive further evidence” indicates that any evidentiary hearing by the judge is purely discretionary. See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Apparently, the practice is not to transcribe the commissioner’s hearing, the only trial the parties may receive, unless there is to be an appeal. LSA-R.S. 13:713 does not require that the judge even review a recording of the testimony on disputed points. There are no standards for his “de novo” determination. Here, the commissioner’s court” interpreted LSA-R.S. 13:713 and that interpretation of the law was adopted by the district court judge. It does not appear from the record what “de novo” attention was given to the contested ruling.

“[0]ne of the essential elements in the determination of the crucial facts is the weighing and appraising of the testimony.” Wingo v. Wedding, 418 U.S. 461 at 474, 94 S.Ct. 2842 at 2846, 41 L.Ed.2d 879, at 884 (1974). The performance of judicial duties cannot be delegated to others. Mount v. State, 45 Ala.App. 244, 228 So.2d 857 (1969).

“The assumption that the .. . court can perform its judicial duties through the medium of ... commissioners ... is without foundation.... Independently of any constitutional provision this would be so, because judicial powers cannot be delegated.... Those who are chosen by the people to sit as judges must themselves discharge all the judicial duties of their offices... The people have a right to the judgment of those whom they have made judges, and this right the judges cannot surrender, ... it cannot be delegated by the judges themselves, nor by any one else for them.” State v. Noble, 118 Ind. 350, 21 N.E. 244 at 249 (1889).

The commissioners of the Nineteenth Judicial District Court are not called judges but they exercise judicial powers. They hold court, hear evidence and make decisions. Those decisions are subject to review and not necessarily final, but that is true of all court decisions, except those of the United States Supreme Court. Appointment of the commissioners by the district judge subverts the Louisiana Constitutional scheme of elected judges. See Opinion of the Justices, 280 Ala. 653, 197 So.2d 456 (Ala., 1967).

The judicial economy argument advanced by defendants is fallacious. Paramedics and paralegals are economical because less highly trained than their mentors. These parajudges, on the other hand, possess all the qualifications of a judge and should, if needed, be judges. Economizing on the title by calling some judges “commissioners” is not true judicial economy. See the discussion in Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941) about the convenience and speedy justice arguments.

Defendants rely in brief on Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976), which considered the Federal Magistrates Act of 1968. Act 62 of 1979 was allegedly modeled on that Act. However, the powers conferred on these commissioners are both broader and less specifically delineated than those possessed by federal magistrates. See the analysis in Wingo v. Wedding, supra. The United States Constitution does not require that judges be elected and does not limit the inferior courts which may be established by Congress. Article III, Section 1, United States Constitution. The legislature, absent constitutional amendment, cannot create permanent appointed judges. Judicial innovations are available to Congress which are not allowed the Louisiana legislature. Moreover, Mathews did not treat the constitutional issue of whether Congress had improperly delegated to magistrates duties reserved to Article III judges. See Footnote 5, 423 U.S. at 269, 96 S.Ct. at 554, 46 L.Ed.2d at 491.

Although one purpose of creating the office of commissioner is alleged to be the hearing of prisoner applications for post-conviction relief, federal magistrates did not have the authority to hear habeas corpus applications until the Federal Magistrate’s Act was amended after the decision in Wingo v. Wedding, supra.

“Magistrates are judicial officers of the Federal district courts.” (Emphasis added) Mathews, supra, Footnote 7, 423 U.S. at 272,96 S.Ct. at 555, 46 L.Ed.2d at 492. Also see the dissent by Chief Justice Burger in Wingo v. Wedding, supra, which discusses the magistrates’ status as a “lower tier of judicial officers" 418 U.S. at 475, 94 S.Ct. at 2850, 41 L.Ed.2d at 889.

These commissioners, like federal magistrates, constitute a lower tier of the judiciary serving in a type of limited jurisdiction court. The Louisiana Constitution requires that they be elected. Even so, they would have no jurisdiction in this case. The district courts have exclusive original jurisdiction of suits against the State. Art. 5, § 16, La.Const. of 1974.

LSA-R.S. 13:711 is unconstitutional in that it provides for commissioners who function as appointed judges. LSA-R.S. 13:713 is unconstitutional in that it allows the commissioners of the Nineteenth Judicial District Court to exercise a portion of judicial power which is restricted by the Louisiana Constitution to elected judges of authorized courts and persons temporarily appointed by the Supreme Court to fill vacancies on those courts.

I respectfully dissent.

      . Perhaps there are other pretrial motions which involve such ultimate determinations that a commissioner cannot properly determine them. That issue is not presented in this case.

      . The Mathews decision considered the Federal Magistrates Act, which is very similar (in all respects essential to this case) to R.S. 13:711-713.

      .The divided court in the Raddatz case only disagreed on the issue of whether the district judge in the de novo determination must hear witnesses when the dispositive issue in a particular case turns on credibility.

      . LSA-C.C.P. art. 1 provides:
      “Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.”

      . LSA-Const. of 1974, Art. 12 § 14 provides:
      “Rules, regulations, and procedures adopted by all state administrative and quasi-judicial agencies, boards, and commissions shall be published in one or more codes and made available to the public.”
      LSA-Const. of 1974, Art. 10 § 8 provides:
      “(A) Disciplinary Actions. No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission. The burden of proof on appeal, as to the facts, shall be on the appointing authority.
      “(B) Discrimination. No classified employee shall be discriminated against because of his political or religious beliefs, sex or race. A classified employee so discriminated against shall have the right of appeal to the appropriate commission. The burden of proof on appeal, as to the facts, shall be on the employee.”

      . See State v. Turner, 389 So.2d 714 (La., 1980) which held that the magistrate created by LSA-R.S. 13:1346 is a judge. The constitutional issue was apparently not raised in State v. Porter, 344 So.2d 1031 (La., 1977) which upheld the validity of a search warrant signed by a commissioner in the Parish of Orleans. The question of the constitutionality of Act 548 of 1974, which created commissioners in Orleans Parish, was pretermitted in State v. Stripling, 354 So.2d 1297 (La., 1978) which held that they were de facto public officers.”

      . Quoting from the transcript.

      . Quoting Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941).

      . The Louisiana judicial power is vested in constitutional courts. Similarly, the “... judicial power of the United States may only be exercised by article III courts, ... However, courts appear to recognize three categories of exceptional circumstances in which other constitutional grants of power may authorize performance of judicial functions by tribunals not subject to article III constraints.” 88 Harvard Law Review 779 at 781.

      .Article III, Section 1, United States Constitution:
      “The judicial power of the United States shall be vested in one supreme court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”


author: PRICE, Justice Ad Hoe.

text:
    STATE of Louisiana v. David TYLER.
    No. 80-K-2823.
    Supreme Court of Louisiana.
    May 18, 1981.

      D. G. Tyler, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John Harrison, Sam A. Smith, Asst. Dist. Attys., for plaintiff-respondent.
   PRICE, Justice Ad Hoe.

Remedial writs were granted in this case to review the trial court’s denial of a motion to appoint a sanity commission made by a person arrested and detained in Louisiana pending extradition to Texas. The issue presented is the extent to which the alleged mental incapacity of the accused is relevant to the extradition proceedings in Louisiana, the asylum state.

On October 10, 1980, the relator herein, David Tyler, was arrested by Ouachita Parish law enforcement authorities pursuant to a fugitive arrest warrant issued upon information supplied by Harris County, Texas officials. The Texas authorities seek Tyler’s extradition in connection with a murder charge pending in Harris County. On October 15, 1980, Tyler’s counsel of record filed a motion in the district court for the appointment of a sanity commission for the purpose of ascertaining relator’s mental capacity to proceed with the extradition procedure. The trial court initially denied the motion but subsequently held a contradictory hearing to hear argument on this issue. The trial court concluded that the question of relator’s mental incapacity was a matter for resolution in the Texas court. Accordingly, counsel’s request for appointment of a sanity commission was denied.

This court granted relator’s application for writs in order to consider whether the issue of mental competency is properly within the scope of inquiry in this extradition proceeding. Subsequent to relator’s application, a formal extradition requisition was filed by the state of Texas and a warrant of arrest has been signed by the governor of the state of Louisiana. Further proceedings have been stayed pending resolution of this application.

Counsel for relator contends that his client is presently mentally incapable of understanding the proceedings against him or of assisting in his defense. He contends that these extradition proceedings form a critical step in the criminal prosecution of his client, and therefore the provisions of Chapter 1 of Title XXI of the Louisiana Code of Criminal Procedure (Mental Incapacity to Proceed) are applicable.

Interstate extradition of persons charged with crime in one state and found in another is provided for by the federal constitution and statutory authority. Art. IV, § 2 of the United States Constitution provides:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

To implement this provision Congress has provided:

Wherever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. 18 U.S.C. § 3182.

The purpose of the Extradition Clause was expounded by the United States Supreme Court in Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978):

. . . The Extradition Clause was intended to enable each state to bring offenders to trial as swiftly as possible in the state where the alleged offense was committed. Biddinger v. Commissioner of Police, 245 U.S. 128, 132-133, 38 S.Ct. 41, 42, 62 L.Ed. 193 (1917); Appleyard v. Massachusetts, 203 U.S. 222, 227, 27 S.Ct. 122, 123, 51 L.Ed. 161 (1906). The purpose of the Clause was to preclude any state from becoming a sanctuary for fugitives from the justice of another state and thus “balkanize” the administration of criminal justice among the several states. It articulated, in mandatory language, the concepts of comity and full faith and credit, found in the immediately preceding clause of Art. IV. The Extradition Clause, like the Commerce Clause served important national objectives of a newly developing country striving to foster national unity. Compare Biddinger, supra, with McLeod v. Dilworth Co., 322 U.S. 327, 330, 64 S.Ct. 1023, 1025, 88 L.Ed. 1304 (1944). In the administration of justice, no less than in trade and commerce, national unity was thought to be served by de-emphasizing state lines for certain purposes, without impinging on essential state autonomy. Doran, supra, 99 S.Ct. at 534-535

Interstate extradition was intended to be a summary and mandatory executive proceeding in which it was never contemplated that an asylum state would conduct the kind of preliminary inquiry traditionally intervening between arrest and trial. Doran, supra, 99 S.Ct. at 535; Biddinger v. Commissioner of Police, 245 U.S. 128, 38 S.Ct. 41, 62 L.Ed. 193 (1917); In re Strauss, 197 U.S. 324, 25 S.Ct. 535, 49 L.Ed. 774 (1905).

The Louisiana statutes implementing the federal extradition provisions are found in Title VI of the Code of Criminal Procedure (C.Cr.P. Arts. 261-280). The Uniform Criminal Extradition Act provides the basis for the Louisiana provisions. The extradition process is initiated when the prosecuting officer or the executive authority of another state makes a written demand upon the governor of this state for the return of a person wanted in that state (La.C.Cr.P. Art. 263). After investigation of the extradition demand the governor of this state may issue a warrant of arrest if satisfied that the person sought should be surrendered (La.C.Cr.P. Arts. 264, 265).

A governor’s grant of extradition is prima facie evidence that constitutional and statutory requirements have been met. Doran, supra, 99 S.Ct. at 535. Once the governor has granted extradition, a court considering release of a person arrested on a governor’s warrant can do no more than decide:

(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable. Doran, supra.

In view of the limited nature of an extradition hearing to determine the validity of an arrest, the competency of the person arrested would usually have no probative value. Accordingly, evidence of an accused’s insanity at the time of the offense, as a matter relevant to his guilt or innocence, is properly excluded in any extradition proceeding. Similarly, it has generally been held that evidence introduced only for the purpose of showing present insanity by reason of which the accused is not capable of defending a charge of crime is properly heard by the court having jurisdiction of the crime. Annotation, Sanity or Insanity, or Pendency of Lunacy Proceedings as Matters for Consideration in Extradition Proceedings, 114 A.L.R. 693 (1938); Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); State ex rel. Davey v, Owen, 133 Ohio St. 96, 12 N.E.2d 144 (1937).

In the context of a Louisiana extradition, the issues which may be raised by the accused are even more narrowly circumscribed than those cited in Doran. La.C. Cr.P. Art. 268 provides in part:

A. The grounds for discharge at the extradition hearing are that:
(1) The accused is not the person mentioned in the governor’s warrant, in the requisition, or in the judgment of conviction, sentence, indictment, information, or affidavit which is the basis of the requisition;
(2) The governor’s warrant is not signed; or
(3) A requirement of Art. 263 has not been met.
B. The guilt or innocence of the accused as to the crime of which he is charged is not an issue at the hearing. Unless one of the grounds for discharge is proven, the accused shall, without further delay, be delivered into the custody of the designated agent of the demanding state. * * * * * *

With the possible exception of the identity issue, the accused’s competence and his ability to assist counsel will have no impact upon the resolution of these issues at the extradition hearing. Even should the accused in this instance raise the defense that he is not the person sought to be extradited, our review of the record, including a psychiatrist’s report submitted by counsel for relator, shows that the accused is sufficiently aware of his identity and whereabouts at the time in question to participate in the extradition hearing. Relator’s mental condition, regardless of the effect it may have on a defense to the merits of the Texas charge, has not rendered him unable to assist his counsel or to sufficiently understand the nature of the extradition proceedings to the degree required by the narrow grounds properly at issue. Compare Kostic v. Smedley, 522 P.2d 535 (Alaska 1974).

We are unable to agree with relator’s contention that these extradition proceedings form a critical stage of a criminal prosecution. La.C.Cr.P. Art. 642 provides that the raising of a question as to a defendant’s mental capacity to proceed halts all further steps in the criminal prosecution. Louisiana courts have no jurisdiction over the crime with which relator is charged in Texas and cannot prosecute him for it. The extradition process by which persons are delivered to the state with jurisdiction over the crime “is but one step in securing the presence of the defendant in the court in which he may be tried, and in no manner determines the question of guilt.” In re Strauss, supra, 25 S.Ct. at 537. To allow a person held for extradition to raise the full panoply of issues which will ultimately arise upon defense of the crime Would unduly restrict and burden the extradition process and defeat the purpose of the intended summary procedure. In re Strauss, supra, 25 S.Ct. at 537. See also Pacileo v. Walker, 446 U.S. 1307, 100 S.Ct. 1633, 64 L.Ed.2d 221 (1980).

In view of the intended summary nature of extradition proceedings, the limited scope of issues relevant to the process in the asylum state, and the opportunity to raise the issue of mental incompetency in the demanding state, we hold that the trial court properly denied relator’s motion for the appointment of a sanity commission. We are not faced with a situation in which the relator is so incompetent as to be totally unable to assist his counsel in ascertaining his identity as the person being sought in the demanding state.

For the reasons assigned the judgment is affirmed and the case is remanded to the trial court for further proceedings in accordance with law.

DENNIS, J., dissents with reasons.

WATSON, J., dissents.

       Judges O. E. Price of the Court of Appeal, Second Circuit, G. William Swift, Jr„ of the Court of Appeal, Third Circuit, and Fred W. Jones, Jr., of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., James L. Dennis, and Jack C. Watson.

      . La.C.Cr.P. Art. 269 provides the means for an immediate arrest pending the arrival of formal extradition papers:
      A judge may issue a warrant for the arrest of a person in this state, prior to a demand for extradition in conformity with Article 263, when on the oath or affidavit of a credible person, taken before a judge or clerk of court, the person to be arrested is charged with:
      (1) Being a fugitive from justice of another state;
      (2) Commission of a crime in another state; or
      (3) Having been convicted of a crime in another state, and having escaped from confinement or having broken the terms of his bail, probation, parole, furlough, or reprieve.
      In this article, “judge” means any judge of a district, city, or parish court with criminal jurisdiction.

      . The revision comments to La.C.Cr.P. Art. 267 which delineates certain rights to be accorded the accused states in pertinent part:
      This article retains Louisiana’s procedure from former R.S. 15:166, whereby the judge is required to set an extradition hearing if the accused desires to test the legality of his arrest under the governor’s warrant. This is simpler than the Uniform Extradition Act procedure, which requires an application for a writ of habeas corpus by the accused.

      . Criminal prosecution is defined in La.C.Cr.P. Art. 381:
      A criminal prosecution is brought in the name of the state in a court of criminal jurisdiction, for the purpose of bringing to punishment one who has violated a criminal law.
      The person injured by the commission of an offense is not a party to the criminal prosecution, and his rights are not affected thereby.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. David WILLIAMS.
    No. 80-K-2840.
    Supreme Court of Louisiana.
    May 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David J. Cortes & Louise Korns, Asst. Dist. Attys., for plaintiff-relator.
    Morris Hyman, Orleans Indigent Defender Program, New Orleans, for defendant-respondent.
   DENNIS, Justice.

Defendant, David Williams, was charged by bill of information with possession of pentazocine, La.R.S. 40:969, and moved to suppress evidence. After a hearing, the trial judge granted defendant’s motion without stating reasons. We granted the state’s application for writs and now reverse the ruling of the trial judge.

The only evidence educed at the motion to suppress hearing was the testimony of the two arresting officers. The testified that they observed the defendant smoking a cigarette in a manner characteristic of marijuana users on a city street in New Orleans after one o’clock in the morning. As they approached in their unmarked police vehicle, the defendant threw the cigarette down and began to walk away. The officers stopped and got out of their vehicle. One policeman retrieved the cigarette and determined it was marijuana and the other officer then arrested the defendant. Subsequent to the arrest, the officers frisked the defendant and found in his pants pocket a brown envelope similar to those used by traffickers of tolwin and pyrobenzamine, or, in the argot of the drug milieu, Ts and Blues. Inside the envelope the officers discovered a substance resembling Ts and Blues.

The defendant successfully moved the trial court to suppress the envelope and its contents as evidence. We granted the state’s application for writs to determine whether the evidence was seized as an incident of a lawful arrest. The issues presented are (1) whether the officers acted lawfully in picking up the marijuana cigarette and arresting the defendant; and (2) if so, whether the subsequent search and seizure fell within the ambit of the incidents of a lawful arrest.

When officers do not have the right to make an investigatory stop, property abandoned or otherwise disposed of as a result thereof cannot be legally seized by the police officers. If, however, property is abandoned without any unlawful intrusion into a citizen’s right of freedom from governmental interference, then such property may be lawfully seized. State v. Chopin, 372 So.2d 1222 (La.1979); State v. Ryan, 358 So.2d 1274 (La.1978); State v. Perique, 340 So.2d 1369 (La.1976); State v. Lawson, 256 La. 471, 236 So.2d 804 (La.1970).

When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it is reasonable for the arresting officer to conduct a prompt, warrantless “search of the arres-tee’s person, and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” United States v. Chadwick, 433 U.S. 1, 14, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538, 550 (1977); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Clift, 339 So.2d 755 (La. 1976).

A search incident to a lawful arrest not only may be conducted without a warrant, but it may also be made whether or not there is probable cause to believe that the person arrested has a weapon or is about to destroy evidence. “The potential dangers lurking in all custodial arrests make warrantless searches of items within the ‘immediate control’ area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved.” United States v. Chadwick, supra; United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

Applying these rules to the present case, it is clear that the evidence was seized pursuant to a lawful arrest of the defendant. The officers did not make an investigatory stop or approach the defendant until he had abandoned the cigarette. The defendant discarded his cigarette and walked away before the officers had even stopped their automobile and alighted. The officers, therefore, were entitled to inspect the cigarette as abandoned property. Upon inspecting the cigarette and determining that it was indeed marijuana, the officers had probable cause to arrest the defendant for unlawful possession of a controlled dangerous substance. The arrest, which was not effected until probable cause arose, led to a lawful search incident to an arrest and consequent lawful seizure of contraband.

Accordingly, the ruling of the trial judge suppressing the evidence is reversed, and the case is remanded for further proceedings.

REVERSED AND REMANDED.

       The Honorables Pike Hall, Jr., Charles A. Marvin and Jasper E. Jones of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices pro tempore, joined by Asso-cíate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr., and Harry T. Lem-mon.


author: WATSON, Justice.

text:
    Tommy E. McCRORY v. Earl C. ROCHESTER, et al.
    No. 80-C-2866.
    Supreme Court of Louisiana.
    May 18, 1981.
    J. Michael Parker, and Louis M. Phillips of Taylor, Porter, Brooks & Phillips, Baton Rouge, for plaintiff-applicant.
    Daniel R. Atkinson and Richard Creed, of Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendants-respondents.
   WATSON, Justice.

This lawsuit arises from a vehicle accident; the issue is whether plaintiff’s recovery is barred by contributory negligence.

The accident occurred in heavy afternoon traffic on a four-lane highway. Plaintiff, Thomas R. McCrory, was driving a Dodge van in the right lane at the legal speed limit of 55. A Trans-Am pulled into the right lane ahead of him and then swerved into the left lane. McCrory was confronted by a stationary truck with heavy pipe extending nine feet, nine inches, from the bed. McCrory had seen the truck prior to the intervention of the Trans-Am but had not realized it was stopped. McCrory applied his brakes and attempted to turn into the left lane but the projecting pipe caught the roof brace at the right front corner of the van. The roof was ripped off. There was a car in the left lane, but it pulled toward the median and avoided a collision with the van. Defendants are the driver of the truck, Earl C. Rochester, and his employer, Truck Service, Inc.

Rochester was waiting to make a right turn into a private driveway. This would have swung the overhanging pipe into the left lane, and it was necessary for traffic to clear. There was room for the truck on the gravel shoulder, but he could not negotiate the turn from there. Although Rochester said he had placed red flags on the pipe, they were missing when the accident occurred. The truck displayed a right turn signal. It was partially obscured by the pipe hanging down from the bed of the truck, but McCrory admitted seeing it. The signal indicated to him that the truck was moving slowly, but not stopped. Rochester did not turn on his hazard lights until after the accident.

The driver of the Trans-Am, Darryl Ven-tress, was 50 to 55 feet from the truck before he realized it was stopped. He “ . . . narrowly avoided the accident . ... ” himself. (Tr. 55) Ven tress could not tell the pipe protruded until he was quite near the truck.

The trial court concluded that Rochester’s negligence was tantamount to gross negligence and that McCrory was free of contributory negligence. The trial court found that the truck had nothing to indicate the pipe extended beyond the bed. LSA-R.S. 32:313 requires that red flags be displayed during daylight hours when a load projects four feet or more. The trial court decided that McCrory was confronted with a sudden emergency when the Trans-Am changed lanes, and his reaction was reasonable. McCrory received a judgment for $7,228.74.

The Court of Appeal reversed, 393 So.2d 176 (La.App. 1 Cir. 1980). The Court of Appeal did not consider whether defendant breached LSA-R.S. 32:313 because it held Rochester negligent in stopping without utilizing his emergency flashers. However, plaintiff was found contributorily negligent in failing to reduce his speed when he first saw the truck. A writ was granted to review the judgment of the Court of Appeal. 395 So.2d 1354 (La., 1981).

The cause of the collision was the pipe which extended from the rear of the truck. Since McCrory avoided the truck body itself, the accident would not have happened but for the dangerous extension of the pipe into the roadway. McCrory’s view was obscured by the Trans-Am. That vehicle’s belated lane change was caused by the fact that the truck was stopped without warning signals or any indication that the oversized pipe extended beyond the truck bed. After the Trans-Am moved, it was too late for McCrory in his less maneuverable van. The unbroken chain of causation leads back to the truck. See Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

Red flags should have been displayed on the projecting pipe. LSA-R.S. 32:313. They would have assisted Ventress and McCrory in perceiving that the truck’s load was oversized. This is their purpose. Hazard blinkers would have indicated that the truck was stopped. See LSA-R.S. 32:320.-1(A). The flashing of hazard light would have drawn attention to the danger ahead before it was otherwise apparent. This is their purpose. Rochester was negligent in failing to display a warning flag and in stopping his truck on the roadway without using his hazard lights.

The Court of Appeal concluded that McCrory did not exonerate himself from the presumption of negligence which attaches to a motorist striking a preceding vehicle from the rear. LSA-R.S. 32:81(A). This analysis overlooks the fact that McCro-ry did not strike the truck, but the pipe. Had the truck presented a normal profile, the collision would have been averted. Although McCrory admitted that he had seen the truck with its load of pipe before the Trans-Am moved in front of him, he did not realize that the pipe projected past the bed of the truck. The same was true of Ven-tress in the Trans-Am. As the trial court astutely observed, depth perception is difficult at a distance and that is the purpose behind the statute requiring warning flags on oversized loads. McCrory could have reduced his speed when he saw the truck ahead of him displaying a right turn blinker. However, the average reasonable motorist would assume, absent evidence to the contrary, that the truck was moving slowly. Had the truck been in motion, the accident would not have occurred. McCrory almost avoided the collision as it was. McCrory acted like a reasonable motorist. One is not required to drive in a super-cautious manner. Both McCrory and Ventress realized the truck’s situation at approximately the same distance. Ventress had a narrow miss and McCrory did not. McCrory was confronted with an emergency; his reaction was not substandard or negligent. Compare Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972).

For the reasons assigned, the judgment of the Court of Appeal is reversed and the judgment of the trial court reinstated.

REVERSED.

      . LSA-R.S. 32:313 provides, in pertinent part:
      “Whenever the load upon any vehicle extends to the rear four feet or more beyond the bed or body of such vehicle there shall be displayed at the extreme rear end of the load, ... a red flag or cloth not less than 12 inches square and so hung that the entire area is visible to the driver of a vehicle approaching from the rear.”

      . LSA-R.S. 32:320.1(A) provides:
      “A. Any vehicle may be equipped with lamps for the purpose of warning the operators of other vehicles of the presence of a vehicular traffic hazard requiring the exercise of unusual care in approaching, overtaking or passing.”

      .LSA-R.S. 32:81(A) provides:
      “A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”


author:
MARCUS, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. William Arthur WOLFE.
    No. 80-K-2945.
    Supreme Court of Louisiana.
    May 18, 1981.

      Thomas W. Davenport, Jr. of Davenport, Files, Kelly, Marsh & Graham, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Martha E. Minnieweather, Lavalle B. Salomon, Asst. Dist. Attys., for plaintiff-respondent.
   MARCUS, Justice.

William Arthur Wolfe was charged by bill of information with possession with intent to distribute marijuana in violation of La.R.S. 40:967. Defendant filed a pretrial motion to suppress any evidence from use at the trial on the merit on the ground that it was unconstitutionally obtained. After an evidentiary hearing, the trial judge denied the motion. Upon defendant’s application, we granted a writ under our supervisory jurisdiction to review the correctness of that ruling.

Ouachita Parish Sheriff’s Officer Jay Via testified that on May 22, 1980, he received information from a reliable confidential informer that Dena Riser had at one time lived at apartment # 21 at the Walker Apartments in Monroe. At the time, he possessed an arrest warrant for Ms. Riser, a young woman suspected of passing worthless checks, and had attempted to locate her at several apartments in and around Monroe for the past four months. At approximately 2:00 a. m., Officer Via, accompanied by Officer Mike Schoonover, approached apartment # 21 and noticed a light in the kitchen area. The officers were in uniform and were equipped with service revolvers, handcuffs, nightsticks and walkie-talkie radios. Officer Via knocked on the door and it was opened by defendant. Officer Via testified that he saw a female sitting on the sofa in the living room of the apartment. He asked defendant if Dena Riser was in the apartment, and defendant replied in the negative. He then asked defendant if he minded if they stepped inside to check the identity of the female, to which defendant gave his permission. However, Officer Via admitted on cross-examination that had defendant refused to let him into the apartment, he most probably would have entered anyway to discover the identity of the female based on his information from the informer. Officer Via approached the sofa and asked the young woman to produce some identification. She procured a driver’s license that identified her as Linda Renee Wilson. Ms. Wilson was defendant’s fiancee and resided with him at the apartment. As he approached the woman, Officer Via noticed a hemostat with marijuana residue on the end protruding from beneath the sofa where she was sitting. He placed both defendant and Ms. Wilson under arrest and advised them of their rights. The officers then asked permission to search the apartment. Officer Via told defendant if he refused to grant permission they would procure a warrant from a judge. After defendant and Ms. Wilson discussed the situation, they signed a consent to search form. Officer Via further testified that he advised defendant to turn over any marijuana in the apartment in order to save time and trouble and avoid disarranging the apartment as a result of a search. Ms. Wilson then retrieved twenty-four bags of suspected marijuana out of a bedroom closet and handed it over to Officer Via. Officer Schoonover’s testimony generally corroborated that of Officer Via.

The testimony of defendant and his girlfriend differed from that of the officers. Defendant testified that after answering a knock at his door, Officer Via crossed the threshold of his apartment and stated that he had an arrest warrant for a Dena Riser. He informed the officers that Dena Riser did not live there. Defendant emphatically denied giving the officers permission to enter the apartment. Defendant further stated that upon entering the apartment, the officers’ view of the sofa where Ms. Wilson was seated and where the hemostat was later discovered would be blocked by the door. Defendant stated that Ms. Wilson got up from the sofa and came to stand by him at the doorway. At the officers’ request, she produced a driver’s license to show that she was not Dena Riser. Officer Via started to look around the apartment, then took six to eight steps until he stood in front of the sofa and discovered the hemostat. Defendant stated that after Officer Via read him his rights, he was taken outside and told by the officer that “he doesn’t turn people in for just one lid,” and that if he had any controlled substances in the apartment to just turn them over. Defendant handed over one lid of marijuana. Defendant further testified that Officer Via, after stating that he believed there was more marijuana in the apartment, insisted that he would obtain a search warrant unless defendant consented to a search. The officer told him that unless he consented to a search, he and Ms. Wilson would be detained at police headquarters and officers would be stationed in and around the apartment until a search warrant was obtained. Moreover, defendant was told that it was better not to bother the judge to obtain a warrant at that time in the morning. After further discussion, defendant stated that he signed the form and Ms. Wilson retrieved the twenty-four bags of marijuana. Ms. Wilson’s testimony generally corroborated that of defendant.

The issue in this case is whether, under the fourth amendment, a law enforcement officer may legally search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant.

The same issue was recently addressed by the United States Supreme Court in Steagald v. United States, - U.S. -, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). In that case, the Supreme Court held that a “search warrant must be obtained absent exigent circumstances or consent.” The Court stated in different words that “warrantless searches of a home are impermissible absent consent or exigent circumstances.” In determining that an arrest warrant by itself was not adequate to safeguard the right of a third person to be free from unreasonable searches and seizures in his own home, the Court stated:

To be sure, the warrant embodied a judicial finding that there was probable cause to believe that Ricky Lyons had committed a felony, and the warrant therefore authorized the officers to seize Lyons. However, the agents sought to do more than use the warrant to arrest Lyons in a public place or in his home; instead, they relied on the warrant as legal authority to enter the home of a third person based on their belief that Ricky Lyons might be a guest there. Regardless of how reasonable this belief might have been, it was never subjected to the detached scrutiny of a judicial officer. Thus, while the warrant in this case may have protected Lyons from an unreasonable seizure, it did absolutely nothing to protect petitioner’s privacy interest in being free from an unreasonable invasion and search of his home. Instead, petitioner’s only protection from an illegal entry and search was the agent’s personal determination of probable cause. In the absence of exigent circumstances, we have consistently held that such judicially untested determinations are not reliable enough to justify an entry into a person’s home to arrest him without a warrant, or a search of a home for objects in the absence of a search warrant. Payton v. New York, [445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639] supra; Johnson v. United States, [333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436] supra. We see no reason to depart from this settled course when the search of a home is for a person rather than an object.

In the instant case, the police officers had a warrant for the arrest of Dena Riser for allegedly passing worthless checks. The arrest warrant had been issued four months earlier but had not been executed. At about two in the morning on the day in question, based on a tip from a confidential informer, the officers attempted to enter defendant’s apartment to execute the arrest warrant. They did not have a search warrant for defendant’s apartment. Other than the tip from the informer, they had no reason to believe that Dena Riser was located there. There was no showing of how the informer had proven reliable in the past or that the information supplied by him was credible. Nor did the officers taken any steps to independently corroborate the tip that had been supplied by the informer. Under these circumstances, the officers lacked probable cause to believe that Dena Riser, the subject of the arrest warrant, would be found in defendant’s apartment. Moreover, no exigent circumstances existed that would permit the officers to dispense with the requirement of a search warrant. Hence, under Steagald, the warrantless search of defendant’s apartment was impermissible unless based upon defendant’s consent.

The state has the burden of proving that the consent was valid, that is, that it was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); State v. Bourgeois, 388 So.2d 359 (La.1980); State v. Johnson, 380 So.2d 32 (La.1980). It is only by analyzing all the circumstances of an individual consent that it can be ascertained whether it was voluntary or coerced. Therefore, the validity of the consent is determined by the facts and circumstances of each case. State v. Bourgeois, supra; State v. Johnson, supra; State v. Temple, 343 So.2d 1024 (La.1977).

The testimony at the suppression hearing relative to defendant’s consent to the officers’ initial entry into the apartment was brief. Moreover, the trial judge did not give reasons for denying defendant’s motion to suppress. Hence, we are unable to determine if his denial was based on a finding that the informer’s tip furnished probable cause for the entry or that defendant consented to the officers’ entry. The testimony of the officers conflicts with that of defendant and his girlfriend. The officers testified that defendant gave them permission to enter the premises to learn the identity of the female whom they observed sitting on the sofa when defendant opened the door. On the other hand, defendant denied ever giving the officers permission to enter the apartment. He testified that Officer Via crossed the threshold of his apartment immediately upon opening the door. He further stated that the door of the apartment obscured the officers’ view of the sofa where Ms. Wilson was seated and where the hemostat was partially concealed. Ms. Wilson’s testimony was generally to the same effect as that of defendant.

We consider that the officers’ entry into the apartment was impermissible whether or not defendant consented to the entry because even if defendant consented, the consent was coerced and therefore invalid. Defendant answered a knock at his door at two in the morning to find two uniformed officers who informed him that they had an arrest warrant for someone he did not know. Each officer was equipped with a service revolver, handcuffs, a nightstick and a walkie-talkie radio. The officers were not satisfied with defendant’s reply that Dena Riser did not live there and insisted upon checking the identity of his companion. In fact, Officer Via testified that if defendant had refused to let him come into the apartment, he most probably would have entered anyway to discover the identity of the female whom he observed on the sofa. We are unable to say under these facts and circumstances that defendant’s consent to enter the apartment, if in fact it was given, was valid. Hence, the hemostat, which the officers subsequently seized within their plain view, must be suppressed as the fruit of an impermissible entry into the apartment.

After illegally entering the apartment, discovering the hemostat with the marijuana residue and placing defendant and his girlfriend under arrest, the officers repeatedly told them that their failure to sign the consent form would not prevent the search; rather, the officers would take them to headquarters, assign an officer to the surveillance of the apartment, awaken a “Duty Judge” in order to procure a warrant, and then search the apartment and possibly damage the belongings therein in the process. As a consequence, defendant turned over a lid of marijuana to the officers, defendant and his girlfriend signed the consent to search form, and Ms. Wilson turned over twenty-four bags of marijuana to the officers. Under the circumstances, we consider that the signing of the consent to search form and the turning over of the marijuana by defendant and his girlfriend were inextricably linked to the illegal entry and constituted an exploitation of that illegal activity. Brown v. Illinois, 422 U.S 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); State v. Zielman, 384 So.2d 359 (La.1980); State v. Mitchell, 360 So.2d 189 (La.1978). Hence, the marijuana obtained by the officers from defendant and Ms. Wilson must be suppressed.

For the foregoing reasons, we find that the trial judge erred in denying defendant’s motion to suppress. We must reverse.

DECREE

The ruling of the trial judge denying defendant’s motion to suppress is reversed. Defendant’s motion to suppress is granted and the case is remanded to the district court for further proceedings.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The narrow holding of Steagald v. United States, - U.S. -, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), is that an arrest warrant — as opposed to a search warrant — is not an adequate basis for the search of a home of a person not named in the warrant, absent his consent or exigent circumstances. The officers testified that the defendant voluntarily gave them permission to enter the premises to question one of its occupants. Although their testimony conflicted with that of the defendant, the trial judge apparently believed the officers and denied defendant’s motion to suppress. Since the trial judge saw the witnesses and heard them testify, he is in a better position than this court to assess their credibility. I believe, therefore, that the trial judge’s decision should be upheld.

       Judges O. E. Price and Fred W. Jones, Jr. of the Court of Appeal, Second Circuit, and Judge G. William Swift, Jr. of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate .Justices Marcus, Dennis and Watson.

      . 396 So.2d 888 (La.1981).


text:
    STATE of Louisiana v. ROLLINS ENVIRONMENTAL SERVICES OF LOUISIANA, INCORPORATED.
    No. 80-K-2968.
    Supreme Court of Louisiana.
    May 18, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Prem Chumbley, and Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-relator.
    Sera H. Russell, III, Baton Rouge, for defendant-respondent.
   WATSON, Justice.

This is a criminal prosecution against Rollins Environmental Services of Louisiana, Inc. for the keeping and burning of substances offensive to smell and/or injurious to health contrary to the East Baton Rouge Parish Code. The trial court quashed the twelve bills of information because of lack of jurisdiction on the ground that state law has preempted the field of hazardous waste regulation. A writ was granted to review the ruling.

The issues are: (1) whether the state has exclusive jurisdiction in the field of hazardous waste; and (2) if so, whether the parochial ordinance impinges on that jurisdiction.

Rollins Environmental Serv. v. Iberville Parish declared a parochial ordinance against hazardous waste unconstitutional as an attempt to regulate a field which had been preempted by the state and federal governments. At that time, Act 334 of 1978 gave the State Department of Natural Resources “.. . exclusive jurisdiction for the development, implementation, and enforcement of a comprehensive state hazardous waste control program consistent with .. . federal laws and regulations.” LSA-R.S. 30:1103(A).

Since Rollins, supra, the Louisiana Hazardous Waste Control Law has replaced the prior legislation, but the Department of Natural Resources has the same “exclusive jurisdiction”. LSA-R.S. 30:1134(A). The Louisiana Hazardous Waste Control Law was amended by Act 748 of 1980, effective September 12, 1980, to provide:

“... the State shall have exclusive jurisdiction over the generation, transportation and/or disposal of hazardous wastes and no subordinate political subdivision of this state shall enact, pass, or otherwise approve any ordinance or other regulatory measure regulating or purporting to regulate any activity pertaining to the generation, transportation and/or disposal of hazardous wastes. ... ” LSA-R.S. 30:1136{C).

The 1980 amendment took effect after this prosecution was initiated in July of 1980. However, it only adds greater specificity to the exclusive jurisdiction conferred by LSA-R.S. 30:1134(A), supra. The legislative intention is clear. The State of Louisiana has exclusive jurisdiction over the regulation of hazardous waste.

“Hazardous waste” is defined as follows: “. .. any waste, or combination of wastes, which because of its quantity, concentration, physical, chemical, or infectious characteristics may (a) cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or (b) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed. Such definition shall be applied only to those wastes identified and designated as such by the department, consistent with applicable federal laws and regulations.” LSA-R.S. 30:1133(2) [emphasis added].

Thus, the designation of “hazardous waste” does not apply to all health hazards but only those identified by the department as constituting a “hazardous waste”. Another section of the law, LSA-R.S. 30:1138(A) provides that objective criteria for identifying hazardous wastes shall be established.

Rollins contends that the offensive matter for which it is being prosecuted is a hazardous waste. However, there is no stipulation to this effect. Nothing in the record shows that the objectionable substances at Rollins' have been identified by the Department of Natural Resources as hazardous wastes, and there is no evidence that the noxious odors stem from hazardous wastes. The Parish has authority to regulate the keeping and burning of other debris under LSA-R.S. 33:1236(31). That section of the statute allows police juries:

“To enact ordinances to require, prohibit or regulate the destruction, disposal, or burning of trash, garbage, leaves, limbs and branches, or debris of any kind and to regulate dumping and the use of borrow pits for sanitary fill. However, no parish or municipality shall engage in any regulation of the generation, transportation and/or disposal of hazardous wastes other than the initial siting of facilities pursuant to general land use planning, zoning, or solid waste disposal ordinances.”

In the Iberville Parish Rollins case, the parish ordinance undertook to regulate “Hazardous Waste” itself, 371 So.2d 1127 at 1129. Here, that conflict with state law does not appear on the face of the ordinance. In the absence of evidence that the debris disposed of by Rollins has been classified by the Department of Natural Resources as a hazardous waste, prosecution under the parish ordinance does not infringe on the State’s area of authority.

For the foregoing reasons, the judgment of the trial court herein is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

       Judges O. E. Price and Fred W. Jones, Jr., of the Court of Appeal, Second Circuit, and Judge G. William Swift, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Dennis and Watson.

      . Title 12, Section 501, subsections (1) and (2), which provide:
      “All persons, firms or corporations are forbidden from:
      “(1) Allowing, keeping, throwing, dropping or depositing any ordure, excrement, offal, filth, manure, foul and offensive matter, stagnant, corrupt or putrid water, dead animals or fowls, shells, hay, straw, kitchen stuff, paper, cloth or any substance of any kind which may be offensive to the smell or injurious to health, in any private yard, tract of land, lot, room or on any sidewalk, road, street, alley, public right of way, or any public place, or in any drainage channel within the parish; or
      “(2) From burning any such substance, automobiles or other material in such a manner as to be offensive to the smell or injurious to health. The burning of wrecked or discarded automobiles shall be done only in designated open spaces or incinerator enclosures approved for burning by the building official.”

      . 371 So.2d 1127 (La., 1979).

      . Federal law allows the states and political subdivisions to regulate hazardous wastes as long as their requirements are not “less stringent” than the federal provisions. 42 U.S.C.A. § 6929.

      . LSA-R.S. 30:1101-1116.

      . Act 449 of 1979, effective January 1, 1980, LSA-R.S. 30:1131-1149.

      . LSA-R.S. 30-1138(A) provides:
      “The commission shall develop, consistent with federal regulations, objective criteria for identifying characteristics of hazardous wastes and for listing the hazardous wastes which shall be subject to the provisions of this Part.”


text:
    ESTATE OF Hollis G. BORER et al. v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY.
    No. 80-C-2971.
    Supreme Court of Louisiana.
    May 18, 1981.

      James D. Johnson, Jr., Tom H. Matheny, Alton B. Lewis, Jr., and Charles G. Walker, of Pittman & Matheny, Hammond, for defendant-applicant.
    Thomas B. Waterman, of Schmidt & Waterman, Hammond, for plaintiff-respondent.
   DIXON, Chief Justice.

Hollis Borer was admitted into Baton Rouge General Hospital on May 3, 1978. Despite surgery and extensive testing, he died in the hospital six weeks later from causes which his physicians were unable to specifically determine.

Borer had previously obtained two hospital and medical insurance policies from defendant. One was an individual policy issued October 28, 1977, and the other was a group policy obtained through Borer’s employer on April 1,1978. Borer had completed application forms for each policy, but the applications were not attached to the policies when issued.

Borer’s heirs filed claims with defendant under both policies. Payment was refused on the ground that Borer’s hospitalization was due to a preexisting condition and therefore excluded from coverage by the following provision contained in both policies:

“No Health Care allowance will be provided for:
1. services rendered during the first year of coverage for, or as a result of, any ailment, disease, or physical condition, the symptoms of which exhibit themselves before the Original Effective Date.”

Borer’s heirs then instituted this lawsuit. The trial judge held that the defendant could not assert the preexisting condition defense because the applications had not been attached to the policies when issued. The trial judge’s ruling was based upon language from this court’s opinion in Smith v. North American Company for Life, Accident and Health Insurance, 306 So.2d 751 (La.1975). The Court of Appeal affirmed, agreeing that the “broad sweep” of Smith mandates such a result. Estate of Hollis G. Borer et al. v. Louisiana Health Service & Indemnity Co., 398 So.2d 584 (La.App. 1st Cir. 1980). We granted writs to consider whether failure to attach the application to the policy should preclude an insurer from asserting a defense based upon a preexisting condition. 399 So.2d 585 (La.)

The policy at issue in Smith was a group credit accident and health insurance policy. Smith had procured the insurance by completing an application card in which he was instructed to list previous injuries and sicknesses. After the policy was issued, he was treated for left neck and shoulder pain, and he filed a claim with the insurer. The company determined that Smith had previously experienced neck trouble, but that this fact had not been disclosed by Smith in his application. The company attempted to rescind the contract by returning to Smith the premiums he had paid.

In the lawsuit which followed, the company asserted two defenses. First, it contended that the contract was null because of misrepresentations in the application. Second, conceding the validity of the contract, it claimed that the policy excluded coverage because this was a • preexisting condition.

The trial judge, after admitting the application into evidence, determined that the contract was null because of misrepresentations by Smith. The Court of Appeal agreed that Smith could not recover, but its holding was based upon the provisions of the policy. Smith v. North American Company for Life, Accident & Health Insurance Co., 295 So.2d 483 (La.App. 3d Cir. 1974). The court found that the policy expressly denied coverage for preexisting conditions. The court further agreed with defendant that Smith’s claim was based on treatment for a condition which had manifested itself before the policy was issued. Finding that the policy denied coverage, the Court of Appeal did not address the defendant’s defense of misrepresentation.

This court reversed, and allowed Smith to recover under the policy. The court correctly noted that, under R.S. 22:618(A), applications for insurance are not admissible in evidence unless attached to, or otherwise made a part of the policy, when issued and delivered. Because Smith’s application had not been so attached, the court held that the application should not have been admitted into evidence. The court then reasoned:

“... Thus all evidence concerning pre-ex-isting conditions not disclosed in the application which may have resulted in Smith’s disability of February-September 1968 was improperly considered. Failure to disclose that evidence is not available to the insurer as a defense because a correct copy of the application for insurance was not ‘attached to or otherwise made a part of the policy.’ ” 306 So.2d at 754.

When applied to the defense of misrepresentation, this rationale is valid. False statements by the insured in the application for insurance vitiate the contract if they were made with the actual intent to deceive, or if such statements “materially affected either the acceptance of the risk or the hazard assumed by the insurer.” R.S. 22:619(B). However, unless the application was attached to the policy when issued and delivered, the application does not become part of the contract, and therefore cannot be admitted into evidence in any action relative to such contract. R.S. 22:618(A). Thus, false statements by the insured in the application cannot be used in evidence if the application is not made part of the contract.

This aspect of the Smith opinion was correctly followed in Page v. American Motorist Insurance Co., Ltd., 381 So.2d 889 (La.App. 2d Cir. 1980). The issue in that case was whether the insurance policy included uninsured motorist coverage. The policy did not address the matter, but the application by the insured indicated that he did not desire such coverage. Since the application was not attached to, or otherwise made a part of the policy, the Court of Appeal held that the application could not be introduced into evidence to show the terms of the policy. This conclusion is sound. The application did not become part of the contract, and therefore cannot be used to define the terms of the policy.

As mentioned earlier, the insurer in Smith had asserted a second defense. The company contended that the policy’s provisions excluded coverage for Smith’s treatment because such treatment was for a condition which had manifested itself prior to the effective date of the contract.

The so-called preexisting condition defense, unlike the misrepresentation defense is a question of contract interpretation. The availability of the defense is not dependent upon statements made by the insured in the application; the question is whether the policy excludes coverage for preexisting conditions. Thus, whether the application is attached to the policy is irrelevant when the defense is based on the preexisting defense exclusion.

The sweeping nature of the Smith court’s conclusions was noted by the Court of Appeal in the instant case, and had previously been commented upon by Second Circuit Court of Appeal. Truelove v. Blue Cross of Louisiana, 356 So.2d 1113 (La.App. 2d Cir. 1978), cert. denied, 358 So.2d 644 (La.1978); Henderson v. The Minnesota Mutual Life Insurance Co., 347 So.2d 53 (La.App. 2d Cir. 1977), cert. denied, 351 So.2d 167 (La.1977). We hold that failure to attach the application to the policy when issued and delivered does not affect the insurer’s right to defend on the basis that, by the terms of the policy, coverage is excluded. To the extent that Smith v. North American Company for Life, Accident and Health Insurance, 306 So.2d 751 (La.1975), is contrary, that case is overruled.

In the instant case, the defendant has not invoked the defense of misrepresentation. This insurer is not attempting to rescind the contract because of false statements by the insured in the application. Rather, the defendant seeks to prove that, because of an exclusionary clause in the contract, the instant claim is not covered by the contract. Presentation of this defense is not dependent upon statements by the insured in the application, and failure of the insurer to attach the application to the policy does not preclude assertion of this defense.

For the foregoing reasons, the judgments of the lower courts are reversed, and the cause remanded to the trial court for a trial on the issue of whether the policies excluded coverage in the instant case. Costs of these proceedings to be borne equally by both parties.

      . The deposition of Dr. Charles Prosser, Borer’s internist, was admitted into the record as an offer of proof. According to Dr. Prosser, Borer had previously experienced abdominal pain due to a gall bladder condition. His May 3, 1978 admission was because of similar abdominal pain, but was complicated by the presence of marked anemia. Surgery was performed to remove the gall bladder and to explore for the causes of the anemia. Postsurgery tests revealed that Borer was suffering from ulcerative colitis. Additionally, hospital records attributed Borer’s death to cardiac arrest secondary to arrhythmia caused by coronary artery disease.

      ; The Court of Appeal based its conclusions . upon two provisions of the insurance contract. First, the policy defined sickness as “sickness or disease contracted and first manifesting itself after the Effective Date ...” Second, in. broad typed red print was the statement, “Disability caused by preexisting conditions is not covered.”


author: CALOGERO, Justice.

text:
    COMMERCIAL NATIONAL BANK IN SHREVEPORT v. James C. SCOTT and Lelia T. Scott.
    No. 81-CA-0330.
    Supreme Court of Louisiana.
    May 18, 1981.

      W. Deryl Medlin, and James Robert Jet-er, of Cook, Clark, Egan, Yancey & King, Shreveport, for plaintiff-appellant.
    Marvin F. Gahagan, of Gahagan & Gaha-gan, Natchitoches, for defendant-appellee.
   CALOGERO, Justice.

This case comes before the Court on direct appeal from a trial court judgment which held that the Louisiana Consumer Credit Law (R.S. 9:3510-3571) is unconstitutional.

The facts surrounding this issue are essentially as follows. On July 27, 1974, James C. Scott and Lelia T. Scott, defendants, bought on credit a mobile home from Instant Living Mobile Home Sales which assigned the promissory note and chattel mortgage to plaintiff Commercial National Bank in Shreveport. Defendants neglected to make payments when due, and pursuant to the terms of the chattel mortgage, plaintiff accelerated the due date of the promissory note and foreclosed by executory process on October 1, 1975. Subsequent to the sheriff’s sale, plaintiff filed a petition for deficiency judgment. Defendant answered this petition urging therein, as an affirmative defense, the unconstitutionality of the Louisiana Consumer Credit Law which, according to defendants, “apparently” formed the basis for the interest rate charged to the defendants.

After trial on January 13, 1977, the trial court ruled in favor of defendants, finding that “the law applicable to this mobile home transaction is unconstitutional” and, therefore, that the interest charged was usurious. The trial court ordered the debt extinguished.

On appeal, plaintiff contended that the trial judge declared unconstitutional a statute which was irrelevant to the proceedings, arguing that the Louisiana Consumer Credit Law had no applicability to this mobile home transaction, the transaction being governed instead by the Motor Vehicle Sales Finance Act. Notwithstanding these contentions by plaintiff, the Court of Appeal ordered the appeal transferred to this Court pursuant to Article V, Section 5(D) of the Louisiana Constitution of 1974 which provides in pertinent part that “a case shall be appealable to the Supreme Court if . . . a law or ordinance has been declared unconstitutional.”

Before this Court, plaintiff reurges his contention that the Louisiana Consumer Credit Law is not applicable to the financing transaction involved in this case.

In an effort to protect consumers from unfair and deceptive trade practices the Legislature, in 1972, enacted the Louisiana Consumer Credit Law. Basically, the Consumer Credit Law applies to all purchases of goods, services and property by a natural person for personal, family, household or agricultural purposes unless expressly excluded. R.S. 9:3516(8).

A “Consumer Credit Transaction” is specifically defined in R.S. 9:3516(11) as “a consumer loan, • consumer credit sale or a consumer lease, but does not include a retail installment contract made pursuant to the Motor Vehicle Sales Finance Act.” Also, as pointed out by plaintiff, R.S. 9:3512, the general provision on what is excluded from coverage under this Legislation, provides in pertinent part:

“This law does not apply to ... (4) retail installment transactions made pursuant to the Motor Vehicle Sales Finance Act.”

As is readily apparent, the transaction in the present case, the purchase of a mobile home on credit by a natural person, would be covered by the Consumer Credit Law unless it meets the definition of a “retail installment transaction made pursuant to the Motor Vehicle Finance Act”, in which case the Consumer Credit Law is expressly not applicable. R.S. 9:3512(4); R.S. 9:3516(11).

Under the Motor Vehicle Sales Finance Act, specifically R.S. 6:951(4), a “Retail Installment Transaction” is defined as

“any transaction evidence by a retail installment contract entered into between a retail buyer and a retail seller wherein the retail buyer buys a motor vehicle from the retail seller at a time price payable in one or more deferred installments or wherein a retail seller within sixty days of the sale of a motor vehicle, lends money on a promissory note secured by a lien or mortgage on such motor vehicle payable in one or more deferred installments.”

Under section 1 of the same statute, “Motor vehicle” is defined as

“any device, new or used, including automobiles, motorcycles, trucks, semi-trailers, truck trailers, mobile homes, and all other vehicles operated over public highways and streets of this state and propelled by power other than muscular power, .... ” (emphasis provided)

In the instant case, defendants purchased a mobile home from Instant Living Mobile Home Sales, signing both a promissory note and chattel mortgage which were later assigned to plaintiff. This transaction meets the definition of a “retail installment transaction made pursuant to the Motor Vehicle Sales Finance Act” and as such is specifically excluded from coverage under the Consumer Credit Law under R.S. 9:3512(4) and R.S. 9:3516(11).

Finding the instant transaction covered by the Motor Vehicle Sales Finance Act, we agree with plaintiff’s contention that the Consumer Credit Law has no application to the instant transaction. Thus, the determination concerning the constitutionality of that statute was inappropriate in this case.

Decree

For the foregoing reasons, the judgment of the trial court holding the Consumer Credit Law unconstitutional, the interest usurious and the debt extinguished is reversed and the case is remanded to the trial court for further proceedings in accordance with the views expressed herein.

REVERSED AND REMANDED.

      . We assume that the “applicable law” to which the trial judge referred was the Louisiana Consumer Credit Law since that was the challenged law in defendant’s answer and further since the trial judge, in his reasons for judgment, relied on the case of All-State Credit Plan, Inc. v. Ficklin, District Ct. No. 41,791, which dealt with the Louisiana Consumer Credit Law.

      . There is an outset contention that the Court of Appeal erroneously transferred the case to this Court since the question presented to the Court of Appeal did not involve a constitutional issue but rather, simply, whether the Consumer Credit Law or the Motor Vehicle Sales Finance Act applied to the case. Even if this contention is correct, under our supervisory powers (La. Const, of 1974, Art. V, § 5(A)) and in the interest of judicial economy, we choose to retain jurisdiction over it and address the merits rather than remand it to the Court of Appeal.