text:
    HAFT-GAINES COMPANY and Inverrary Country Club, Inc., Appellants, v. The LAKES OF INVERRARY CONDOMINIUMS, INC., Appellee.
    No. 79-632.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    E. Bruce Johnson and Paul R. Regensdorf of Fleming, O’Bryan & Fleming, P. A., Fort Lauderdale, for appellants.
    Michael H. Gora of Wolff & Gora, P. A., Fort Lauderdale, for appellee.
   PER CURIAM.

The appellants seek review of a final judgment entered in favor of appellee upon its complaint for declaratory relief.

A full recitation of the factual situation involved here would not be productive because it is somewhat unique. Suffice to say that appellant Haft-Gaines Company, the developer of a large condominium complex, prepared documentation, including purchase contracts and the declaration of condominium, which provided that the unit owners in a condominium building known as R-40 would have memberships and privileges in a Racquet Club different in kind from the Racquet Club membership available to others. After the condominium units in R-40 were sold difficulties arose between the developer and some of the unit owners which led the developer, through its Vice-President, to change the membership requirements contemplated in the original documentation. The trial judge held that the developer was bound by the changes and therefore:

1. No owners in the R40 Building, or their successors, would have to pay initiation fe.es in order to become members of the Inverrary Racquet Club;

2. No owners in the R40 Building would have to pay dues to the Inverrary Racquet Club in order to use the pool at the Racquet Club, provided, however, that these owners could not use the locker room or any other club facilities;

3. That by virtue of the representations made to owners in R40 at the time that they purchased and because of the documentation, the owners in R40 were entitled to a discount in their Racquet Club dues, which discount was set at the time to be 20%.

We have carefully considered the extensive findings and conclusions set out in the final judgment and it appears to us that the result reached is just and fair under the peculiar circumstances of this case. It is especially noteworthy that the predicament here was created by the appellant/developer so that any hardship incurred by appellant from the trial judge’s resolution of the issues is self imposed.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

LETTS, C. J., DOWNEY and HURLEY, JJ., concur.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    FIRESTONE TIRE & RUBBER CO., INC., a Foreign Corporation, Appellant, v. Joyanne LIPPINCOTT, Appellee.
    No. 79-194.
    District Court of Appeal of Florida, Fifth District.
    June 4, 1980.
    David L. Holbrook of Wells, Gattis & Hallowes, P. A., Orlando, for appellant.

      Robert J. Telfer, Jr. of Ciangrogna, Tel-fer & Evans, P. A., Titusville, for appellee.
   COBB, Judge.

Mrs. Lippincott purchased two new tires at one of Firestone’s stores. The new tires were mounted on the front, the old front tires were mounted on the rear, and one of the old rear tires was placed in the wheel well of the car as a spare.

On the way home from the Firestone store Mrs. Lippincott went over a railroad track and heard a loud metal clatter coming from her car. When she got home she investigated and determined that the noise had come from the spare tire, which was loose because it had been placed in the wheel well upside down. She decided to take the spare tire out and turn it right side up. She got the tire out of the wheel well, but her back was hurting and she felt sick to her stomach; so she went and got a neighbor to put the spare tire back into the wheel well for her. Afterwards, Mrs. Lip-pincott noticed a bump in the area above her navel. She continued to have physical discomfort with her abdomen and went to her doctor. She had a hernia which was operated upon.

Mrs. Lippincott sued Firestone for negligently causing her hernia. Firestone moved for a directed verdict on the ground that the injury was not reasonably foreseeable. The trial court denied the motion. The jury returned a verdict in favor of Mrs. Lippincott and the trial court entered a final judgment accordingly. Firestone appeals that judgment, claiming that the trial court erred in not granting Firestone’s motion for directed verdict.

Foreseeability of injury is a prerequisite to the imposition of a duty upon a defendant. Smith’s Bakery, Inc. v. Jernigan, 134 So.2d 519 (Fla. 1st DCA 1961); Memorial Park, Inc. v. Spinelli, 342 So.2d 829 (Fla. 2d DCA 1977). If injury is not reasonably foreseeable, then there can be no recovery. Smith v. City Products Corp., 147 So.2d 590 (Fla. 1st DCA 1963); Pope v. Pinkerton-Hayes Lumber Co., 120 So.2d 227 (Fla. 1st DCA 1960), cert. denied, 127 So.2d 441 (Fla.1961).

A foreseeable consequence is one which a prudent man would anticipate as likely to result from an act. Jacksonville, Tampa, and Key West Railway Co. v. Peninsular Land Transport and Mfg. Co., 27 Fla. 1, 9 So. 661 (1891), rehearing denied, 27 Fla. 157, 9 So. 689 (1891); Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330 (1925); Sharon v. Luten, 165 So.2d 806 (Fla. 1st DCA 1964). The consequences that a prudent man would anticipate as likely to result from an act are those consequences that happen so frequently that they may be expected to happen again and are, therefore, probable consequences. Cone v. Intercounty Telephone & Telegraph Co., 40 So.2d 148 (Fla.1949); General Telephone Co. v. Mahr, 153 So.2d 13 (Fla. 2d DCA 1963), cert. denied, 163 So.2d 285 (Fla.1964). Foreseeable consequences are not “what might possibly occur.” Stanage v. Bilbo, 382 So.2d 423 (Fla. 5th DCA 1980); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977).

The very purpose of having a spare tire presumes its lifting and removal from the wheel well of a car when needed. The lifting of the tire, which was the cause of the hernia, would require the same effort regardless of the fact that the tire rattled when the car was in motion.

In the case sub judice, it was not reasonably foreseeable that placing the spare tire upside down in the wheel well would cause physical injury to someone removing it.

REVERSED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Justice Cardozo described it as the risk reasonably to be perceived by the eye of vigilance. Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99 (1928).

      . One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Id.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Karen E. STRICKLIN, Appellant, v. Robert E. STRICKLIN, Appellee.
    No. 79-1232/T4-583.
    District Court of Appeal of Florida, Fifth District.
    June 4, 1980.
    Tobe Lev, Sanford, for appellant.
    W. J. Heffernan, Jr., Altamonte Springs, and Robert E. Stricklin, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final order modifying a final judgment and changing child custody.

In the original dissolution proceedings, husband and wife executed a stipulation resolving custody, alimony and support. The stipulation was incorporated in the judgment which was entered August 2, 1977, awarding custody to the wife. Subsequently, problems developed concerning visitation and proper care culminating in a “motion for determination of custody” filed by the husband. The court ordered a social investigation. After the hearing, the court entered the order, now appealed, transferring custody to the husband. The single question presented is whether the court erred in transferring custody.

We are extremely reluctant to interfere with a custody determination of a trial judge. His opportunity to observe the parties and the child gives him an important advantage over this court which can only rely upon the cold record. In this instance, however, there has been a departure from established rules, commanding a reversal.

When considering a petition for modification of custody, the court does not have the same degree of discretion as it does in entering the original decree. Robinson v. Robinson, 333 So.2d 526 (Fla. 2d DCA 1976); Avery v. Avery, 314 So.2d 198 (Fla. 1st DCA 1975). To warrant modification of a custody award, there must be competent, substantial evidence that (1) there has been a substantial or material change in the condition of the parties and (2) the best welfare of the child will be promoted by the change in custody. Sanders v. Sanders, 376 So.2d 880 (Fla. 1st DCA 1979). The order changing custody need not include a finding that the prior custodial parent is unfit. Negative factors in the circumstances of the custodial parent when coupled with the intervening special needs of the child and increased ability of the non-custodial parent to provide for the child, may be sufficient to justify change. Jayne v. Dennison, 284 So.2d 237 (Fla. 2d DCA 1973). However, the fact that the father had remarried, that the mother was working while her parents cared for the child, that she was having marital difficulties and that she had changed her place of residence several times, was not sufficient to justify a change in custody absent a finding that the child was adversely affected by the conditions. Spradley v. Spradley, 312 So.2d 215 (Fla. 1st DCA 1975). Likewise, the remarriage of the non-custodial parent and the acquisition' by that parent of a suitable home are not changes of circumstances which of themselves justify a transfer. Ritsi v. Ritsi, 160 So.2d 159 (Fla. 3d DCA 1964).

In the case before this court, the trial court found both parties to be physically, mentally and morally fit to care for the child. Custody, however, was transferred to the husband predicated upon a showing of a more stable environment which apparently was based on his remarriage and work success. The social investigation described the child as a healthy, happy, well-behaved child and developing in a normal fashion.

During closing argument, counsel for Mrs. Stricklin argued that it was necessary for petitioner to show a substantial change in circumstances. The following exchange took place:

The Court: Counsel, the law has been changed since those cases came out. The statute no longer requires a change of circumstances.
Mr. Lev: On modification?
The Court: That’s right.

It is clear that the lower court in its decision to change custody misunderstood the requirements discussed in Sanders v. Sanders, and we must therefore reverse.

REVERSED.

ORFINGER and COBB, JJ., concur.


author: ORFINGER, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Sherilyn Marie PIERCE, Appellee.
    No. 79-825/T4-495.
    District Court of Appeal of Florida, Fifth District.
    June 4, 1980.

      James 0. Driscoll of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appellant.
    Walter A. Ketcham, Jr. of Walker & Buckmaster, P. A., Orlando, for appellee.
   ORFINGER, Judge.

Sherilyn Marie Pierce was injured when, as a pedestrian, she was struck by an automobile driven by Mark J. Giere and insured by appellant State Farm. Sherilyn did not own an automobile and lived with her husband, appellee James A. Pierce, who did own an automobile but who had no insurance. When Sherilyn filed suit against State Farm claiming personal injury protection benefits under Giere’s policy, State Farm filed a third-party complaint against her husband alleging that he was required to carry insurance; that had he carried the required insurance, his carrier would have been responsible for Sherilyn’s personal injury protection benefits; and because he had no insurance he became personally liable for the benefits with all the rights and obligations of an insurer.

On motion by the husband, the trial court entered a final order dismissing the third-party complaint, and State Farm appeals.

The issues presented here have already been answered by our sister courts contrary to appellant s contentions. Farley v. Gateway Insurance Company, 302 So.2d 177 (Fla.2d DCA 1974) succinctly covers the points raised here, and gives adequate support to the trial judge’s order, and we adopt the reasoning of that case. State Farm’s contention that those cases did not involve an attempt by the insurer to compel the uninsured owner to share in payment of benefits and thus distinguishes this case from those cited is without merit. As stated in Farley, supra, section 627.733(4) does not make the uninsured owner an insurer, so there is no basis upon which State Farm can invoke the statute requiring two or more insurers to share the payment pro-rata.

(4) An owner of a motor vehicle with respect to which security is required by this section who fails to have such security in effect at the time of an accident shall have no immunity from tort liability, but shall be personally liable for the payment of benefits under s. 627.736. With respect to such benefits, such an owner shall have ail of the rights and obligations of an insurer under ss. 627.730-627.741.

In the third-party complaint, State Farm alludes to a separate action filed by Sherilyn against Giere and State Farm for damages arising out of the same incident, in which appellee, as Sherilyn’s husband, joined for his derivative claim. It is appellant’s position that the trial judge’s dismissal here gives appellee the opportunity to collect the same benefits twice, but this is not so, since section 627.736(3), Florida Statutes (1977), specifically precludes the recovery of any damages in a tort action for which personal injury protection benefits have been paid or are payable, without reference to who pays them.

The trial court’s order of dismissal was correct and is therefore

AFFIRMED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . § 627.736(4)(d), Fla.Stat. (1977): The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
      » * * * * *
      (3) Accidental bodily injury sustained by a relative of the owner residing in the same household, under the circumstances described in subparagraph 1. or subparagraph 2., provided the relative at the time of the accident is domiciled in the owner’s household and is not himself the owner of a motor vehicle with respect to which security is required under ss. 627.730-627.741.
      (4) Accidental bodily injury sustained in this state by any other person while occupying the owner’s motor vehicle or, if a resident of this state, while not an occupant of a self-propelled vehicle, if the injury is caused by physical contact with such motor vehicle, provided the injured person is not himself:
      (a) The owner of a motor vehicle with respect to which security is required under ss. 627.730-627.741, or
      (b) Entitled to personal injury benefits from the insurer of the owner or owners of such a motor vehicle.

      . § 627.733, Fla.Stat. (1977):

      . See also: Gateway Insurance Company v. Butler, 293 So.2d 738 (Fla.3d DCA 1974); Commercial Union Insurance Company v. Williams, 309 So.2d 617 (Fla. 1st DCA 1975); Witko v. Liberty Mutual Insurance Company, 348 So.2d 52 (Fla.4th DCA 1977).

      . § 627.736, Fla.Stat. (1977): (4.)(e) If two or more insurers are liable to pay personal injury protection benefits for the same injury to any one person, the maximum payment shall be as specified in subsection (1), and any insurer paying the benefits shall be entitled to recover from each of the other insurers and equitable pro rata share of the benefits paid and expenses incurred in processing the claim.


author: BOOTH, Judge.

text:
    H. Glenn BEUGNET, Appellant, v. Genevieve BEUGNET, Appellee.
    No. LL-464.
    District Court of Appeal of Florida, First District.
    June 5, 1980.
    Samuel S. Jacobson of Datz, Jacobson & Lembcke, Jacksonville, for appellant.
    Lacy Mahon, Jr. of Mahon, Mahon & Farley, Jacksonville, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the order of the trial court dissolving the marriage of the parties and holding, in pertinent part, as follows:

That the parties hereto were married on July 27, 1964, and lived together as husband and wife until September, 1977, a period of approximately thirteen years. That no children have been born as a result of the marriage, and none are expected. That the wife is approximately 64 years of age, and the husband is approximately 52 years of age. That neither of the parties are in particularly good health, the wife being presently under the care of a physician, having suffered a radical mastectomy during the recent past and is apparently unable to perform manual labor and has no skill training.
That approximately two months prior to the marriage of the parties, the husband acquired an alcoholic beverage license and commenced the operation of a liquor store and bar in Nassau County, Florida. That the wife worked in said bar for the two month period prior to the marriage, and after the marriage for a period of approximately three years full time and for approximately ten years on a part time basis as a bartender, bookkeeper and waitress, etc. That the wife was paid approximately $300.00 per month for the two months preceding the marriage, but has received no salary for her employment in the bar since the marriage. That the husband has contributed to the bar cash contributions, and in addition to his previous regular employment at the Paper Mill, has himself worked in the bar, managing the same and serving as a bartender. The license is presently held in the joint names of the parties and has been so held for .approximately twelve years. In addition to the foregoing assets, the parties own as an estate by the entireties a home and adjacent lots, located at 2030 South Fletcher Avenue, Fernandina Beach, Florida, and the furniture and fixtures located therein. The parties also won or owned a 1977 Che-vette, a 1973 LTD and a Ford pick-up truck. The wife is presently using the 1977 Chevette, the other two vehicles being in the possession of the husband. From the financial affidavit and testimony of the parties, it appears that the wife is presently drawing Social Security benefits in the sum of $54.85 per week, and has no other income other than the husband’s payments of temporary support. The husband receives the income from the aforementioned bar operation in the approximate sum of $1,000.00 per month, according to his testimony.
Based upon the foregoing findings of facts, the Court finds:
The business known as “Beach Bar”, located at 120 Sadler Road, Fernandina Beach, Florida, including the alcoholic beverage license or licenses, fixtures and inventory, is declared to be an estate by the entireties and shall be the joint property of the parties. So long as the husband shall continue to operate said business and receive the profits therefrom, with the consent of the wife, the husband shall pay to the wife the sum of $250.00 per month, as and for alimony for the support of the wife.
In the event that the aforementioned bar business shall be sold, either of the parties shall have ‘the right to apply to this Court for a modification of the alimony provisions provided herein.

The sole question presented on appeal is whether the trial court erred in its ruling that the bar, including beverage license, fixtures and inventory, was the joint property of the parties. We have reviewed the record in the light of the recent decisions of the Florida Supreme Court in Canakaris v. Canakaris, 382 So.2d 1197, Case No. 54,124 (opinion filed January 31, 1980), and Duncan v. Duncan, 379 So.2d 949 (1980), as they pertain to the finding of special equity and the duty of the appellate court in reviewing the “discretionary ruling” of the trial court in these matters. Here, the record supports the reasonableness and propriety of the trial court’s exercise of its discretion in ruling that appellee’s contributions established her special equity and joint ownership of the bar.

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness’ test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the'propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

The trial court’s order allows the continued operation of the business as a source of income for husband, with payment of alimony of $250 per month to wife, and expressly reserves jurisdiction for modification of the alimony provisions in the event of sale of the business.

Accordingly, the judgment below is AFFIRMED.

ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.

      . Canakaris v. Canakaris, 382 So.2d 1197:
      The judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose, including lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, a vested special equity in property, and an award of exclusive possession of property. As considered by the trial court, these remedies are interrelated; to the extent of their eventual use, the remedies are part of one overall scheme.


author: CALOGERO, Justice. MARCUS, Justice DENNIS, Justice,

text:
    STATE of Louisiana v. Rene J. NEYREY.

    No. 64712.
    Supreme Court of Louisiana.
    Nov. 12, 1979.
    Concurring Opinion May 23, 1980.

      Provino Mosca, Tucker & Schonekas, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Harry Hardin, Asst. Dist. Attys., for plaintiff-ap-pellee.

       Chief Judge PAUL B. LANDRY, Retired, is sitting by Assignment as Associate Justice Ad Hoc in place of TATE, J., upon this case.

   CALOGERO, Justice.

Rene J. Neyrey was charged with possession of cocaine with intent to distribute. (R.S. 40:967) After his motion to suppress the cocaine was denied, he pleaded guilty to the charge, but reserved the right to appeal the denial of the motion to suppress. State v. Crosby, 338 So.2d 584, (La.1976). The court sentenced the defendant to one year at hard labor, but suspended the sentence on the condition that defendant be placed on inactive probation and required to serve ninety days in parish prison. On the appeal defendant contests the trial court’s ruling denying his motion to suppress evidence.

On December 14, 1978, around 1:30 a. m., Jefferson Parish Deputy Sheriff Jules Pine-ro received a complaint about a “suspicious person” sitting in a car in an apartment complex parking lot. Upon arrival, Mr. Rhinehart Richards, the security guard at the complex, informed the officers that the defendant had been in the ear for some time with the windshield wipers on. Richards stated that the defendant was unconscious or asleep and that knocking on the windshield had failed to arouse him. Defendant did not respond when the deputy knocked on the glass, whereupon the deputy opened the car, shook the defendant awake and asked him for identification.

The defendant got out of the car, showed the officers his Louisiana State Insurance Commission card, and explained that he had been partying with friends and had fallen asleep on his way home. Deputy Pinero told the defendant to get back into his car and move it as it was blocking a doorway. While the officers were asking the security guard for his name and address, the security guard noticed that defendant’s car was not moving and defendant, who was at the wheel, appeared to have his eyes closed. Deputy Pinero walked over to the car again, opened the door, and in an effort to obtain some identification with a picture on it asked the defendant-to show him some additional identification, like a driver’s license. The defendant got out of the car a second time. His words were slurred and he appeared intoxicated.

When defendant reached inside the left side of his sports coat for identification, a plastic bag with white powder in it fell to the ground. The deputy picked up the bag and ordered defendant to place his hands on the car. Pinero’s partner then searched Neyrey and found a bulging bag containing around fifteen tablets and capsules in defendant’s left pocket. After defendant was given his Miranda warning, he informed the officers that the white powder in the plastic bag was cocaine. We are concerned here only with the seizure of the cocaine, which had occurred before any arrest or search.

Essentially the defendant’s first contention is that the cocaine should be suppressed as the fruit of an unlawful Terry search. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). C.Cr.P. art. 215.1(A) authorizes a police officer to stop a person in a public place whom he reasonably suspects is committing or has recently committed a crime and ask that person his name, address, and an explanation of his actions. The validity of the investigatory stop depends on whether the officer has adequate articulable knowledge of particular facts, enough to warrant infringement upon the individual’s constitutional right to be left alone. State v. Shy, 373 So.2d 145, (La.1979); State v. Wilson, 366 So.2d 1328 (La.1978).

In the case at bar the arresting officer testified that he had no suspicion, let alone a reasonable suspicion, that defendant Neyrey had committed a crime or was committing a crime. Therefore, the stop and subsequent seizure cannot be justified under Article 215.1(A).

However, the articulable suspicion requirement of C.Cr.P. art 215.1(A), Article I, Section 5 of the Louisiana Constitution of 1974, and the Fourth Amendment of the United States Constitution is necessary only where the stop is forcible. See Terry v. Ohio, supra; State v. Saia, 302 So.2d 869, (La.1974). Police officers do not need probable cause to arrest, or reasonable cause to detain, in order to converse with citizens. State v. Shy, supra, at 147. The fact that police approach a citizen and address him does not compel the citizen to respond to the officer. The citizen has the legal right to walk away from the encounter, or simply not to respond. State v. Shy, supra; State v. Brown, 370 So.2d 547 (La.1979). Under the circumstances of this case we do not think it was unreasonable for the officers to open the door and shake the defendant awake so that they could talk to him.

Policemen in the course of their duties initiate or respond to a wide variety of encounters, many of which are not related to the pursuit of criminals — providing first aid, mediating disputes or just talking to citizens. Policemen may defuse arguments. They may act as good Samaritans in checking to see if someone is in trouble, sick, too drunk to care for themselves and in need of assistance.

Policemen could not perform such valuable non-prosecutorial services nor could they effectively pursue criminals if they did not initiate or respond to encounters with citizens. While unsolicited assistance, unasked for conversation, and unrequested advice are not always welcome, the Constitution provides no protection from these everyday annoyances whether the source of irritation is a policeman or a citizen. The citizen’s remedy in either instance is the same, decline the assistance, refuse to converse, or walk away. State v. Shy, supra.

In the case at bar the officers were called to an apartment house because a security guard complained of a “suspicious” person sitting in a car. The security guard explained that the person was sleeping or unconscious and failed to respond when the security guard knocked on the car window. The security guard was also concerned because the defendant’s car was blocking the doorway to the apartment house. There was no question that the officers had the right to be on the apartment house premises.

When the officer first knocked on the window, he had no intention to arrest the defendant or to forcibly detain him. The testimony of the arresting officer and the security guard indicates that the officer wanted to make sure that the defendant was sufficiently awake to drive home safely and that the car was moved from the driveway so that it no longer blocked the apartment house door.

After the defendant did not move the car and apparently passed out again, the officers were justified in asking the defendant for better identification where the defendant had given no indication that he objected to their questioning. At no time did the defendant attempt to leave the area or request that the police not talk to him. State v. Shy, supra. He readily consented to the officers’ request to get out of the car. The officers’ approach did not make it seem that some form of detention was imminent. State v. Saia, supra; State v. Cook, 332 So.2d 760 (La.1976). In fact the security guard was under the impression that the officers were offering to take the defendant home. Thus, no Terry stop occurred here because the defendant was not subjected to a forcible detention. Terry v. Ohio, supra.

The other contention raised by the defense concerns what happened when the bag of cocaine fell to the ground. Defendant contends that the seizure of the cocaine did not meet the requirements of the plain view exception to the fourth amendment warrant requirement. This contention is without merit; those requirements were in fact met:

(1) A prior justification for an intrusion into a protected area;

(2) in the course of which evidence is discovered inadvertently,

(3) where it is immediately apparent without close inspection that the items are evidence or contraband,

(4) and exigent circumstances justify the police proceeding without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Fearn, 345 So.2d 468 (La.1977).

As discussed previously, the police officers were justified in asking the defendant to get out of the car and produce some identification. While they were standing where they had a right to be, the officers saw a bag containing white powder fall out of defendant’s pocket onto the ground. The officers had no suspicion at the outset that defendant was carrying contraband and could hardly have planned for the bag to fall out of defendant’s pocket, so there is no question but that the discovery was inadvertent.

The defense contends that the seizure was illegal because the arresting officer did not “immediately” recognize what the bag contained. Admittedly the officer testified on cross-examination that he did not know what the bag contained (the court might have concluded that the officer meant that he did not know the exact nature of the substance in the bag), but on redirect the officer testified that he believed the bag contained “some sort of control substance.”

Finally, the officer had a right to pick up the contraband from the ground. And even if we assume that defendant’s interest in his property preponderated over the officer’s right to seize it under these circumstances, exigent circumstances dictated that the officer seize it at that time rather than allow defendant to reclaim it and possibly dispose of it before the officer would be able to get a search warrant.

There is no merit to defendant’s assignment. The trial judge properly refused to suppress the cocaine, for it was not procured by the deputy as a consequence of an illegal search or seizure.

Decree

For these reasons the conviction and sentence of defendant are affirmed.

MARCUS and DENNIS, JJ., concur and assign reasons.

MARCUS, Justice

(concurring).

Under the circumstances here presented, the police officers had a legitimate right to be where they were when the bag of cocaine fell to the ground in their plain view. Objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Accordingly, I respectfully concur.

DENNIS, Justice,

concurring.

I concur in the holding that the motion to suppress was properly denied. However, I respectfully continue to disagree with the majority’s presumptions that citizens are free to “walk away” from a police encounter and are generally aware of this freedom. See State v. Shy, 373 So.2d 145, 148 (La.1979) (dissenting opinion).

      . Louisiana Code of Criminal Procedure, Article 215.1(A) provides:
      “A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.”

      . We are not discussing repeated unwelcomed intrusions.


author:
MARCUS, Justice.
     DIXON, Justice CALOGERO, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. John A. DUPART and Reginald Adams.
    No. 64767.
    Supreme Court of Louisiana.
    Nov. 12, 1979.
    Dissenting Opinion May 23, 1980.
    William Noland, New Orleans, for defendant-appellant Reginald Adams.
    James S. Weidner, Jr., Gretna, for defendant-appellant John Dupart.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, William W. Hall, Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

John A. Dupart and Reginald Adams were charged in the same information with simple burglary in violation of La.R.S. 14:62. Defendants pleaded not guilty at the arraignment. After the trial judge denied defendants’ motions to suppress physical evidence, the state amended the information to charge defendants with receiving stolen things valued at two Hundred dollars in violation of La.R.S. 14:69. Defendants moved to withdraw their former pleas of not guilty and to enter pleas of guilty to the amended charge, expressly reserving their right to appeal the court’s denial of their pre-plea motions to suppress. The trial judge accepted the pleas of guilty after determining that the pleas were made voluntarily with understanding of the nature of the charges. Dupart was sentenced to serve two years at hard labor; Adams was sentenced to serve eighteen months at hard labor. On appeal, defendants rely on two assignments of error for reversal of their convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendants contend the trial judge erred in denying their motions to suppress physical evidence. They argue the police officers did not have reasonable cause to stop their automobile. Hence, the subsequent search of the vehicle was invalid and the items seized therein should have been suppressed.

At 10:29 on the night of September 26, 1978, Deputy Richard Schomaker, who had six years experience with the Jefferson Parish Sheriff’s Office, was notified of a burglary in progress at 3730 Jean Street in Metairie, Louisiana. When he arrived at the scene, the deputy was advised by several officers already present that one or more suspects had fled on foot south from Jean Street and were being chased by several other officers. Deputy Schomaker proceeded south from Jean Street on Division Street. At Stefano Street, one block south of Jean Street, he observed a vehicle containing two occupants turn south from a stop sign on Stefano Street onto Division Street. The automobile was traveling at approximately ten miles per hour in a twenty mile per hour zone. Believing that the burglars might be in this slow-moving car, Deputy Schomaker decided to stop it and turned on his red light and sounded his horn. At this time, the vehicle accelerated to approximately thirty-five miles per hour and the deputy noticed a “great deal of activity inside the car.” About four blocks further down Division Street, he managed to pull the vehicle over. The two occupants (defendants herein) were ordered out of the car and to place their hands on the police vehicle; the doors of defendants’ vehicle were left open. The deputy quickly searched defendants for weapons and walked over to their car and noticed through an open door several pieces of jewelry on the right side of the front seat. The inside of the car was illuminated by its interior light. After other officers arrived to assist, Deputy Schomaker searched the vehicle and found more pieces of jewelry, a sledge hammer, two screw drivers, a flashlight and brown gloves.

In determining the validity of the warrantless search of the vehicle, there are three points in time which must be examined: the initial stop of the vehicle, the police officer’s observation of the jewelry on the front seat, and the subsequent search of the vehicle. If the initial stop was not justified, then the subsequent acts are illegal fruits of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.Code Crim.P. art. 215.1, as well as both the federal and state jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Chopin, 372 So.2d 1222 (La.1979); State v. Drew, 360 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979). Probable cause is not required to justify an investigatory stop; reasonable suspicion is sufficient. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Hall, 557 F.2d 1114 (5th Cir. 1977), cert. denied, 434 U.S. 907, 98 S.Ct. 308, 54 L.Ed.2d 195 (1978); State v. Chopin, supra; State v. Drew, supra. Terry v. Ohio and Adams v. Williams approved investigatory stops of individuals based on reasonable suspicion. The standards set forth in Terry and Adams have been applied to the stopping of automobiles based on reasonable suspicion. United States v. Wright, 565 F.2d 486 (8th Cir. 1977), cert. denied, 435 U.S. 974, 98 S.Ct. 1621, 56 L.Ed.2d 67 (1978); United States v. Hall, supra; State v. Rogers, 324 So.2d 403 (La.1975); State v. Weathers, 320 So.2d 892 (La.1975); State v. Scott, 307 So.2d 291 (La.1975); State v. Herron, 301 So.2d 312 (La.1974); State v. Jefferson, 284 So.2d 882 (La.1973).

In the instant case, the police officer was justified in stopping defendants’ vehicle for investigatory purposes. The officer spotted the vehicle in the immediate vicinity of the crime, in an area toward which the suspects had fled, immediately after the occurrence of the crime. They were driving very slowly. Moreover, defendants’ conduct after the officer turned on his red light and sounded his horn was consistent with one who had just committed , a crime. Defendants’ attempt to escape and their activities in the car increased the officer’s suspicion that the burglars were in the car. Clearly, the officer had reasonable cause to make an investigatory stop of the vehicle and to question defendants.

Having made the investigatory stop, Deputy Schomaker, through the open door in the lighted car, saw jewelry on the front seat. Objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Rogers, supra; State v. Scott, supra; State v. Herron, supra; State v. Jefferson, supra.

We believe that the officer’s observation of the jewelry on the front seat of the car together with the previous suspicious circumstances gave Deputy Schomak-. er probable cause to believe that evidence of the burglary was inside the vehicle. When probable cause exists for the searching of a vehicle and circumstances render securing a warrant impractical, a warrant-less search of the automobile does not violate the fourth amendment. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Hollingsworth, 292 So.2d 516 (La.1974). In the instant case, the suspects’ vehicle was stopped on a public street at night in the immediate area where the crime had just previously been committed. Clearly, the circumstances rendered securing a warrant impractical. Since there were probable cause and exigent circumstances, the warrantless search of the suspects’ vehicle was not unconstitutional. The trial judge did not err in denying defendants’ motions to suppress the evidence. Assignments of Error Nos. 1 and 2 are without merit.

DECREE

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

DIXON, J., concurs with reasons.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., dissents and assigns reasons.

DIXON, Justice

(concurring).

I respectfully concur.

The initial attempt to stop defendants was not unreasonable. State v. Jefferson, 284 So.2d 882 (La.1973). The use of the phrase “reasonable suspicion” to justify police intrusion, or a “stop” is, to my mind, dangerous. This is due principally to the proclivity of persons connected with law enforcement to seize on such catchy phrases as “stop and frisk” and “reasonable suspicion.” These shorthand phrases are frequently interpreted too literally to give them real meaning.

The majority also cites Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), to support a proposition for which I do not think they stand. The two cases would permit police intrusion into privacy for reasons which did not constitute “probable cause” under the warrant requirements of the federal system. Nevertheless, both cases do require police intrusions into privacy which are less than custodial arrests to be governed by the constitutional standard of reasonableness. That standard, I believe, is met in the case before us.

That reliance on “stop and frisk” statutes is dangerous and confusing was specifically treated in Terry v. Ohio, where the court said:

“. . . There is some suggestion in the use of such terms as ‘stop’ and ‘frisk’ that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a ‘search’ or ‘seizure’ within the meaning of ■the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime — ‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.’ Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.' It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.
In this case there can be no question, then, that Officer McFadden ‘seized’ petitioner and subjected him to a ‘search’ when he took hold of him and patted down the outer surfaces of his clothing. We must decide whether at that point it was reasonable for Officer McFadden to have interfered with petitioner’s personal security as he did. And in determining whether the seizure and search were ‘-unreasonable’ our inquiry is a dual one— whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.
If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether ‘probable cause’ existed to justify the search and seizure which took place. However, that is not the case. We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, ... or that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances, . . . But we deal here with an entire rúbric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.
Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this context.” . . (Underscoring added).
We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.” 88 S.Ct. 1868 at 1877, 1879, 1884-1885.

In the case before us, when the defendants Dupart and Adams discovered the presence of police, they began to do something in the automobile which could have been attempts to hide things from the police, and then fled the' scene rapidly. The proximity of the defendants both in time and place to the scene of the burglary, added to their flight and furtive actions, and added to the fact that a burglary had occurred, to the knowledge of the policeman, was enough to create probable cause to stop them.

CALOGERO, Justice,

concurring.

The trial judge did not err in refusing to grant the motion to suppress. The significant inquiry here is whether the officer made a lawful stop of defendant’s vehicle. In my view he did. The articulable facts known by the officer and set forth fully in the majority opinion were sufficient to justify the intrusion attendant upon stopping the vehicle.

DENNIS, Justice,

dissenting.

I respectfully dissent. The police officer did not have reasonable grounds to make the initial'stop of the vehicle from which the evidence was seized. The motion to suppress, therefore, should have been granted.

In State v. Saia, 302 So.2d 869 (La.1974), this Court held that the police did not have “probable cause to arrest the individual or reasonable grounds to detain the individual” at p. 873, when the defendant Saia was seen leaving a residence which was a known drug outlet and turned to walk away when the police pulled up beside her in their police car. The facts in this case mandate the same result. The officer’s only articula-ble reasons for stopping the car were that it was going at a slow rate of speed and it was relatively near the place where the burglary occurred. This was not sufficient to warrant the initial stop of the vehicle.

The majority opinion states: “Moreover, defendants’ conduct after the officer turned on his red light and sounded his horn was consistent with one who had just committed a crime. Defendants’ attempt to escape and their activities in the car increased the officer’s suspicion that the burglars were in the car. Clearly, the officer had reasonable cause to make an investigatory stop of the vehicle and to question defendants.” At p. 1228. In Saia, it was noted that once the officers caught the defendant and then saw the glassine envelope that they had probable cause to arrest. The evidence was held inadmissible, however, because of their initial actions in approaching Saia “under circumstances that [made] it seem that some form of detention [was] imminent” at p. 873, was not held to be a reasonable stop. In the instant case it may be true that once the car was stopped and the officer saw the jewelry in the car, he had probable cause to arrest. As in Saia, however, the officer did not have reasonable grounds to make the initial stop. The initial stop being illegal, the evidence seized as a result should not have been admitted at trial.

       Chief Judge Paul B. Landry, Retired, is sitting by assignment as Associate Justice Ad Hoc in place of Tate, J., upon this case.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . Apparently, Deputy Schomaker did not actually seize the jewelry from the front seat of the car at this time. The record indicates that, after Schomaker checked the vehicle, he waited for assistance to arrive. After assistance arrived, he made a search of the vehicle and seized all the items found therein.


author:
SUMMERS, Chief Justice.
     DENNIS, Justice, WATSON, Justice.
     DENNIS, Justice,

text:
    Granville Ray CLEETON v. Sonja Petersen CLEETON.
    No. 64649.
    Supreme Court of Louisiana.
    Dec. 13, 1979.
    On Rehearing May 19, 1980.
    Philip P. Spencer, New Orleans, for plaintiff-applicant.
    Wendell E. Tanner, Slidell, for defendant-respondent.
   SUMMERS, Chief Justice.

Granville Ray Cleeton and Sonja Petersen Cleeton were married at Mexico, Missouri, on July 4, 1961. Three daughters were born of this marriage, who in March 1978 were 15, 10 and 7 years of age. On May 22, 1976 the parties separated. Neither sued for a separation from bed and board, the husband moving to St. Bernard Parish and the wife and children remaining in the house belonging to the community in Slidell, St. Tammany Parish.

Thereafter the estranged couple sold the Slidell house occupied by the wife and children, and the wife and children occupied a rented apartment while the husband continued to reside in St. Bernard Parish where he was employed as manager of a variety department store.

In late November 1976, about six months after her separation, Mrs. Cleeton met Dave Breedlove, a married man living apart from his wife and children, whom he visited once, a year at Christmas time. They began to see each other regularly. From at least November 1977 until the beginning of April 1978, Mrs. Cleeton and Breedlove spent at least one night together each week in Mrs. Cleeton’s apartment with the children present. In addition, at times they were away together on weekends while the_ children visited their father. During one Mar-di Gras season Breedlove spent at least four or five days with Mrs. Cleeton and the children. He left clothes and toilet articles at the apartment and was regularly there when their father arrived to take the children for weekends and other visitations with him. On one such occasion Mr. Clee-ton observed Breedlove asleep in Mrs. Clee-ton’s bedroom.

From time to time Breedlove ate with Mrs. Cleeton and the children, bringing food and presents to them. They were often together in public places.

Breedlove’s open association with Mrs. Cleeton and her children did not cease until suit demanding a change of child custody was filed against her by her husband. Furthermore, it is significant to note that Mrs. Cleeton found nothing wrong with this arrangement.

At the hearing Mr. Cleeton established that he had been regularly employed for 27 years, earned $31,000 per annum and was able to provide a home for the children under proper care and supervision should he be awarded their custody. His testimony was without contradiction and was, in fact, conceded by Mrs. Cleeton. The only testimony militating against Mr. Cleeton’s claim for custody was the self-serving statement of Mrs. Cleeton that the children wanted to stay with her.

At the conclusion of the hearing the trial judge dismissed Mr. Cleeton’s rule for custody and granted custody to Mrs. Cleeton. The same evidence, by stipulation, was considered by the judge in rendering a judgment of divorce in favor of Mr. Cleeton.

In deciding that Mrs. Cleeton should have custody of the children, the trial judge considered in this “close case” that Mrs. Clee-ton was providing a good home and was caring for and educating her daughters. “The only thing that’s wrong with her lifestyle is that, whether some of the more progressive people care to admit it or not, there are moral principles accepted by our society and they are at present against any lifestyle that would, as I understand the law, allow a woman to live with a man in open concubinage.”

He then proceeded to find that Mr. Clee-ton could Very quickly provide a very good home for the children and a proper environment for their upbringing. Finding that the relationship between Breedlove and Mrs. Cleeton could not long continue without having some adverse effect on the children “for the rest of their lives,” he nevertheless decided that the state of open concubinage in which Mrs. Cleeton had lived for at least six months did not outweigh the other favorable factors involved in Mrs. Cleeton’s relationship with her children.

In conclusion the trial judge admonished Mrs. Cleeton that if her lifestyle with Breedlove continued the question of the children’s welfare would be brought before the court in his capacity as Juvenile Judge, and he would declare them wards of the court, inferentially indicating that she would be deprived of their custody. As we understand his decision, the trial judge was of the opinion that the adverse effects on children involved in such a relationship had not yet influenced the Cleeton girls.

On appeal the First Circuit, in a unanimous opinion, reversed the decree of custody and awarded custody to the father. The case was then remanded to the trial court to fix the visitation rights of Mrs. Cleeton. 369 So.2d 1072. The Court of Appeal restated long prevailing principles which ordain that in matters of child custody trial courts are vested with considerable discretion; the mother is preferred as custodian of children of tender years, unless she is unfit and her conduct affects the children adversely; the paramount consideration is the welfare of the children; decisions must be based upon the particular facts and circumstances of each case; moral values of parents are likely to be reflected in their children when they become adults; and a heavy burden is imposed upon the party seeking to change custody to establish, not only that the present circumstances are harmful to the physical or moral welfare of the children, it must be shown that a better and more wholesome atmosphere can be provided. 369 So.2d 1075.

On these principles the Court of Appeal declared it had no hesitance in concluding that Mrs. Cleeton’s conduct could not provide the wholesome atmosphere her children were entitled to. She made no effort, the Court found, to conceal her illicit relationship with Breedlove until her husband sued for divorce and custody of the children. According to the Court of Appeal, Mrs. Cleeton permitted Breedlove to stand in loco parentis with her children, conferring upon him regular access to their home, permitting him the privilege of intimate relations with their mother, and otherwise accepting him as a member of the family unit.

The court likened the case to Morris v. Morris, 152 So.2d 291 (La.App.1963) where the trial court granted the husband a divorce on the ground of adultery but awarded the wife custody of the minor children. In Morris this same circuit held that the trial court erred in granting the wife custody of the children where the evidence indicated that the wife was guilty of a calculated, continuous course of misconduct of such an open and public nature involving intimate relations with a married man as to render her unsuitable as custodian of her children.

In the instant case the burden imposed upon the husband to establish that the mother was guilty of immoral and illicit conduct is satisfied by the sworn testimony of Mrs. Cleeton. It is therefore unnecessary to dwell on that phase of the case. The issue is whether the mother’s illicit, immoral and notoriously public conduct was such that it affected these children of tender and formative years adversely.

Apparently exposure of the' children to their mother’s illicit, adulterous arrangement with Breedlove did not impair their accomplishments in school. Their progress there was both commendable and above average. In other respects, the mother’s testimony and the testimony, of others support a finding that the children were happy, healthy and well-behaved. It remains therefore, to determine whether the mother’s conduct and indiscretions were such that her example would otherwise adversely affect the children.

The effect of conduct of this nature.instilled in the hearts and minds of children of tender years by their mother cannot manifest itself until they attain a stage in life where their physical state permits, and they are called upon to decide, what their own standards of conduct will be. And if we accept, as we do, the premise that an open and notorious adulterous relationship by the mother of children of tender years will influence those children in later life to consider such conduct acceptable, we must then decide the effect in law of that standard.

Adultery on the part of one of the spouses is a cause for the other to claim an immediate divorce. La.Civil Code art. 139. While it was, at the time of this liaison, a principle of the Civil Code that the custody of the children be awarded to the spouse in whose favor the decree of divorce was granted, it is now prescribed that custody shall be awarded to the husband or wife in accordance with the best interest of the child. La.Civil Code art. 157.

Adultery of the mother, especially when it is open and public for a substantial period of time, in total disregard of the moral principles of society, has repeatedly been held to establish that the mother is morally unfit to maintain custody of her children. La.Civil Code art. 157; Beck v. Beck, 341 So.2d 580 (La.App.1977); Fontenot v. Fontenot, 315 So.2d 830 (La.App.1975); Kaufman v. Kaufman, 271 So.2d 629 (La.App.1972); Johnson v. Johnson, 268 So.2d 114 (La.App.1972).

Obviously both the Code and numerous decisions of the courts of this State have recognized that adultery is immoral and contrary to acceptable standards of conduct in our society. The trial judge recognized this, and the Court of Appeal did also.

We think the trial judge erred, however, when he decided that the mother’s six-month arrangement with her paramour had not yet had an adverse effect upon these young girls. This decision in what he termed a “close case” was apparently based upon the testimony of Mrs. Cleeton elicited by the judge at the hearing. She testified that her bedroom was in the lower level of a split-level apartment, and the children slept on the upper level bedrooms. We think it is unrealistic to conclude from this testimony that the fifteen and ten-year old girls were not aware of the fact that Mrs. Cleeton and her paramour engaged in sexual intercourse while they slept together. Nor is it realistic to conclude that Breed-love’s repeated presence in their mother’s company did not influence these children adversely and to their detriment, especially the fifteen-year-old.

It was the duty and responsibility of the father of these children to file suit to obtain their custody and remove them from the immoral atmosphere created by the illicit adulterous arrangement of the wife and her paramour. This Court’s decision in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), relied upon by Mrs, Cleeton, is factually distinguishable from the case at bar, although that case does recognize that the mother’s right to custody should be denied where she is morally unfit, or where she engages in a calculated and continued public course of immoral conduct. That is the distinction to be drawn here. In Fulco the evidence was that the mother’s consort frequently spent late evenings at her home and at least once spent the night with her; and on at least two occasions they spent weekends together out of town. This conduct is, of course, entirely different from Mrs. Cleeton’s lengthy arrangement with her lover as the facts already set forth demonstrate. Mrs. Cleeton’s arrangement was not a casual affair, it was such as this Court reprobated in Fulco: a situation in which she engaged in a calculated and continued public course of immoral conduct.

For the reasons assigned, the judgment of the Court of Appeal is affirmed,

DIXON and CALOGERO, JJ., dissent.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

I do not find this case legally distinguishable from Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). In Fulco the husband and wife were judicially separated on June 18, 1969. Sometime during that month, the wife, who had custody of the children, met a local dentist who was married at the time and they began going out. The evidence showed that the affair continued on through the dentist’s separation from his wife in December, 1969, and in fact was continuing through the trial on the custody change. The trial judge found that the wife at the time the rule to change custody was filed in August, 1970, had moved in with her parents. Although the wife’s conduct might have furnished grounds for a change of custody on July 24, 1970, the judge felt that since that date the wife did not commit illicit acts to the detriment of her children. Considering that the environment which the wife furnished for her children was excellent, the trial judge denied the change of custody. On review of the court of appeal reversal of the trial judge, we stated:

“ * * * [W]e are unable to hold that the trial judge erred in continuing custody in the mother, subject to her continued reformation from any previous course of open indiscretion and probable immorality. These young children have been with their mother since they were born. There is no showing that the mother was not providing a good and moral home for them at the time of custody hearing below, nor that any conduct on her part is having any adverse effect upon their welfare. The purpose of a custody determination is not to punish a parent for any past misconduct, it is rather to serve the best interests of the children of the marriage.”

In this case, the wife testified at the hearing that she had stopped seeing Breed-love shortly after the husband filed his rule to change custody. The evidence demonstrated that the prior illicit arrangement between Mrs. Cleeton and Mr. Breedlove had had no effect on the children. As the majority states, “the mother’s testimony and the testimony of others support a finding that the children were happy, healthy and well-behaved.”

The majority focuses on the long-range detrimental effects upon the children of a continuation of the relationship between Mrs. Cleeton and Mr. Breedlove. Be that as it may, the fact remains that Mrs. Cleeton testified without contradiction that her affair with Breedlove had ceased at the time the rule was filed. This should be enough to sustain the trial judge’s decision to leave custody with the wife' until the husband makes a showing that the present atmosphere of the wife’s household is detrimental to the best interests of the children. The purpose of a custody determination is not to punish a parent for misdeeds but to promote the children’s welfare.

ON REHEARING

WATSON, Justice.

This is a custody contest in which a rehearing was granted to reconsider the question of whether the welfare of three minor girls would be best served by a change of custody from their mother to their father.

Plaintiff, Granville Ray Cleeton, and defendant, Sonja Petersen Cleeton, were married at Mexico, Missouri, on July 4, 1961, and separated on May 22, 1976. The three daughters born of the marriage are now seventeen, twelve and nine years of age. The trier of fact decided that they should remain with their mother. The trial- court noted that the mother’s relationship with Dave Breedlove had not adversely affected the children at the time of trial and that she had discontinued her open association with him.

The Court of Appeal, First Circuit, reversed the judgment of the trial court. Cleeton v. Cleeton, 369 So.2d 1072 (La.1979). The appellate court found that the mother was morally unfit and that the father could provide a better moral atmosphere. A writ was granted to review the judgment of the Court of Appeal, 373 So.2d 522 (La.1979), and this court originally affirmed that judgment.

The prior opinion of this court overlooked several important particulars:

First, the original opinion, as well as the Court of Appeal, failed to give adequate weight to the trial judge’s determination. The inferential effect of the decision is that such determinations will be reversed for error. See the Court of Appeal opinion at 369 So.2d 1074 which uses the “manifest error” test. The better standard of review in custody matters gives trial court decisions great weight, to be overturned only when there is a clear abuse of discretion. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

The prior opinion erroneously described the relationship between Sonja Cleeton and Dave Breedlove as “concubinage”. Concubinage is a “cohabitation of persons not legally married”. Webster’s Third New International Dictionary, 1976 Edition, at page 472. The word implies a permanent living arrangement similar to that between man and wife and implies a “kept woman” element. The- evidence here is that Dave Breedlove occasionally stayed overnight with Sonja Cleeton, but maintained a separate residence. He did not support her. According to Sonja Cleeton’s testimony, the relationship was discreet. The girls slept in second floor bedrooms, and she had a first floor bedroom. When Breedlove remained overnight, he generally departed before her daughters awakened. While adulterous, the relationship was not one of “concubinage”. Mrs. Cleeton met Dave Breedlove after she had been separated from her husband for six months. Her marriage had terminated in fact although not in law.

The most important factor to the trier of fact was insufficiently considered on original hearing. These children are “accustomed” (Tr. 179) to their mother’s care. Her nurturing has resulted in happy, healthy, well-behaved, scholastically successful children. According to Sonja Clee-ton’s testimony, their hard working father had little time for them prior to the separation. He now has regular visitation rights but his long hours of employment do not allow him to be a house husband. Their nonworking mother has had their day to day care. It would be traumatic to change á situation of many years standing. The father’s custody, although not detrimental, would be a substantial change in the children’s lives.

To change the custody of these girls would punish their mother for past behavior when there is no proof of a detrimental effect on her daughters. An award of custody is not a tool to regulate human behavior. The only object is the best' interest of the child. LSA-C.C. art. 157. The trial court correctly decided in favor of stability, noted that the children have prospered, and gave custody to the parent most intimately involved with their care. We now hold that there was no abuse of discretion by the trial court and that our original opinion was incorrect.

For the foregoing reasons, the judgment of the Court of Appeal, First Circuit, is reversed; the prior opinion of this court is vacated; and, the judgment of the trial court is reinstated.

REVERSED AND RENDERED.

DENNIS, J., concurs with reasons.

BLANCHE, J., dissents.

MARCUS, J., dissents, adhering to original opinion.

DENNIS, Justice,

concurring.

I respectfully concur in the majority opinion. This court should clearly reaffirm its holding in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). The result reached by the majority is correct under Fulco, however, because the evidence supports findings that the mother had repented in her course of open indiscretion and that the best interests of the children would be served by their remaining in her custody.

       Judge Patrick M. Schott participated in this decision as Associate Justice ad hoc.

       Honorable Frederick Stephen Ellis participated in this decision as Associate Justice Ad Hoc.


author: SUMMERS, Chief Justice. DENNIS, Justice, CALOGERO, Justice.

text:
    STATE of Louisiana v. James C. BENNETT.
    No. 65222.
    Supreme Court of Louisiana.
    Dec. 13, 1979.
    On Rehearing May 19, 1980.

      J. David Garrett, Giddens, McKenzie & Garrett, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., James C. McMichael, Jr., Asst. Dist. Atty.¡ Shreveport, for plaintiff-appellee.
   SUMMERS, Chief Justice.

James Bennett pled guilty to a charge of possession of a controlled dangerous substance, reserving the right to appeal the trial court’s denial of his motion to suppress the evidence. For the reasons assigned below, we affirm the judgment of the trial court.

At about 5:00 on the afternoon of Sunday, March 4, 1979 Officer Ray Copeland of the Vivian Police Department, Caddo Parish, Louisiana, was patrolling Highway 1 in Vivian. On a gravel parking lot he saw a 1975 Ford automobile moving toward the highway, its rear wheels throwing gravel several feet. The vehicle took off at what he believed to be a high speed, “fishtailing”, and pulled out as if to enter the highway. To stop these erratic movements Officer Copeland had to turn on his blinking lights and pull in front of the car. At that point he recognized the driver as James Bennett whom he knew previously. Bennett’s eyes were bloodshot and his manner of speech slurred and not his normal manner.

The officer asked Bennett to step from his vehicle. As he did so, Copeland saw on the front floorboards, on the driver’s side, a paper bag. Although he could not see the contents of the bag, he testified that he had determined to arrest Bennett for careless and reckless operation of a vehicle, and, in addition he suspected that Bennett might be intoxicated. Copeland therefore leaned into the car to see if the bag contained a six-pack of beer or a liquor bottle; he saw that the bag contained a large quantity of white pills.

As Officer Copeland straightened up, Bennett began explaining that he did not know how the pills came to be there. Officer Copeland said, “Craig, you don’t have to tell me nothing.” Copeland radioed the Sheriff’s Department for assistance; Bennett was still trying to explain the presence of the pills and Copeland again told him, “You’ve got certain rights. You don’t have to say anything, Craig.” Copeland asked Bennett if he knew and understood his rights and Bennett later testified that he had in fact been warned and had understood the rights referred to. Copeland then asked Bennett what the pills were and Bennett said he thought they were Quaaludes.

About three minutes after Copeland’s radio call, a Caddo Parish Sheriff’s car with two deputies arrived. The two deputies looked into the car and saw the bag of pills. Copeland obtained a formal Miranda warning card from them, read it to Bennett, Bennett indicated he understood the rights and then signed the form to indicate further his understanding. Bennett’s car was locked with the bag of pills inside and Copeland drove Bennett to the Sheriff’s Substation while the two deputies waited for a tow truck. Copeland then told Bennett he was under arrest for careless and reckless operation and for possession of a controlled dangerous substance. The car was towed to a local body shop and the deputies then went to the substation.

After the deputies arrived at the substation, Officer Copeland read Bennett the Miranda warnings a second time and then asked him to consent to a search of the vehicle. Bennett was warned that he did not need to consent to the search; Copeland read the consent form to him and he read it for himself. Bennett then signed the form giving consent to the search of the vehicle. Later Bennett testified that he believed that the officers had already seized the bag of pills and that the search was for anything left in the car, but he also testified that he did not see the officers remove anything, including the pills, from the car before he was driven away from the scene. Thus his belief, if true, rested on an unsupported assumption.

Armed with the consent form, the officers went to the body shop to which Bennett’s car had been towed and searched it, seizing the bag of pills in the process.

On March 27, 1979 the District Attorney for the First Judicial District filed a bill of information, charging Bennett with possession, with intent to distribute, of a class II Controlled Dangerous Substance, Metha-qualone, a violation of La.Rev.Stat. 40:967(A)(1). On April 10,1979 the defense filed a motion to suppress the evidence; on April 25, 1979 the motion was heard. The defense argued that the officers’ peering into the bag on the floor of the car was a search contrary to the Fourth Amendment to the United States Constitution and to Article 1, Section 5, of the Louisiana Constitution of 1974, and that the towing of the ear to impound it at a body shop selected by the police constituted an actual seizure of the bag of pills contained in the car. The defense further argued that the consent given by Bennett for the later search of the ear was vitiated by the prior illegal search and by his arrest.

The State conceded that the officers’ looking into the bag while it was in the car was an illegal search but argued that Bennett’s later consent was freely and voluntarily given and cured the taint of the prior illegal search. Thus the State argued the later search was consensual, a valid exception to the warrant requirement.

The trial judge denied the motion to suppress, holding that the later consent was valid and cured the defect in the prior search. On May 25, 1979 the State filed an amended bill of information, charging Bennett with simple possession of a controlled substance, a violation of La.Rev.Stat. 40:967(C); Bennett pled guilty, reserving the right to appeal the adverse ruling on the motion to suppress (a proceeding authorized by State v. Crosby, 338 So.2d 584 (La. 1976)), waived arraignment and was sentenced to pay a fine of $600 and to serve three years at hard labor, the incarceration to be suspended upon three years’ supervised probation under the statutory and special conditions.

On appeal, in brief, the defense argued that both the search and seizure were completed by the officers when the car was towed away, leaving the later consent without legal significance. This is based, in turn, upon the proposition that a seizure occurs when the owner is rendered unable to control his property. In oral argument the defense further suggested that the initial stop and arrest were without probable cause.

It is true that the police took control of the vehicle and it is true, as the defense contends, that the vehicle “served as the vessel containing the contraband.” However, it does not follow either logically or necessarily, that police custody of a container amounts to a seizure of the contents within the contemplation of the evidentiary law. To the contrary, there is a considerable jurisprudence on the issue of containers, such as suitcases, in which the owner has a reasonable expectation of privacy, and the point at which the police may enter that container to inspect the contents. See, e. g., State v. Mejia, 257 La. 310, 242 So.2d 525 (1971). This distinction between control of the container and right to search its contents is especially marked in the case of automobiles. See, e. g., State v. Rome, 354 So.2d 504 (La. 1978). Thus the contention that the police towing of the vehicle amounted to a seizure of its contents is untenable. We hold, rather, that the impounding of the car and the later seizure of the bag of pills were distinct acts, and the issue before us is whether the seizure flowed from the prior search or was independently authorized by virtue of the consent obtained from the defendant.

The defense argues that the consent of the defendant “was obtained through deceit and trickery and through the exploitation of the prior illegal search.” In support of this contention, the defense cites State v. Mitchell, 360 So.2d 189 (La. 1978), for the factors to be used in testing the voluntariness of such a consent. The State argues that the same factors support the trial judge’s conclusion that the consent was validly given.

It is uncontested that a valid consent will rehabilitate a prior warrantless search. State v. Williams, 353 So.2d 1299, 1304 (La. 1978) and cases there cited. In fact, in Williams the vehicle in question had been impounded by the police prior to the arrest of the defendant, yet a search conducted after a custodial consent was ruled permissible. In that same case, the defendant’s house had been searched prior to the consent, yet a later search of the house, pursuant to the same signed consent used to search the car, produced evidence which this Court held was admissible. The underlying theory is that the consent operates as a waiver of the constitutional protection against unreasonable searches and seizures.

In Williams, the factual voluntariness of the consent was not apparently contested and the attack on the admission of the evidence was predicated on the assumption that the searches were defective as a matter of law. This Court had occasion to consider the voluntariness of a consent in State v. Angel, 356 So.2d 986 (La. 1978), where the police illegally arrested the driver of a truck suspected of carrying narcotics. This Court upheld the search of the truck on the ground that the driver had voluntarily consented thereto. The driver was advised of his rights immediately after the illegal arrest, was advised of his right to refuse to consent to a search of the truck, and was then asked for permission to search it. He then gave the police oral permission. The truck was towed to police headquarters, the driver again advised of his rights, and again advised of his right to decline. He then signed a form giving his consent to the search.

In State v. Mitchell, 360 So.2d 189 (La. 1978), the defendant was stopped while driving down the street, his car searched over his objections, and two marijuana cigarettes seized. The police then told the defendant he might as well submit to a search of his home as they could get a warrant in twenty minutes, after which he signed a consent form. The trial court sustained the defense motion to suppress the evidence seized from the vehicle but denied the motion to suppress the evidence seized from the house. This Court reversed the conviction, holding that the seizure from the house was predicated upon a consent not the product of the defendant’s free will, but rather an exploitation of his illegal arrest. In the course of this decision, the Court remarked that

“. . . In deciding this issue, the court should take into account not only whether the governmental officers adequately informed the accused that he need not comply with their request, but also the temporal proximity between the arrest and the act (consent) alleged to be coerced, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct.” 360 So.2d 189, 191.

This remark was but another way of summarizing the facts in that case: where the officers clearly stopped the defendant because he was believed to be transporting a large quantity of contraband; where the arrest was illegal; where the defendant was not advised that he need not submit to the searches; where within a minute or so after his arrest and still on the scene of the arrest he was confronted with the request to search his home and warned that if he did not consent a warrant would be obtained. By these tests the official misconduct was found to have been' flagrant and for the purpose of obtaining evidence of controlled substances.

In the case at bar, however, Officer Copeland’s testimony was uncontradicted that he stopped the defendant because Bennett was driving erratically and dangerously; and that he intended to and did arrest Bennett for careless and reckless operation of a motor vehicle. The arresting officer testified that he warned Bennett twice informally and no less than twice with the full Miranda panoply that the defendant need not say anything and that he need not consent to the search. The two formal Miranda warnings and the warning that the defendant need not consent to the search were not contested by the defendant and wére corroborated by the one deputy who testified. In distinction to Mitchell, at least ten minutes elapsed between the arrest and the consent to search, and the consent was given not on the scene of the arrest in the face of threats to obtain a warrant, but in another location and after advice as to his right to decline his consent. Thus while the drive to the station and the wait for the two deputies presumably gave Bennett some time for reflection, it is undisputed that at lease five cautionary warnings intervened between the arrest and the consent to the search. One of those warnings bore specifically upon the consent itself.

Finally, it has not been demonstrated, or even seriously contended, that Copeland’s arrest of Bennett for careless and reckless operation was anything other than proper, and was, in addition, action taken to not only enforce the law but to prevent Bennett from injuries which would probably follow his reckless driving, further distinctions from Mitchell. That Bennett was validly and lawfully under arrest for one charge (reckless driving) cannot be obscured by contentions that he may not then have been charged upon sufficient probable cause on a second charge (i. e., possession).

In the final analysis, the determination rested upon the judge’s rejection of the defendant’s self-serving statement in which he assumed that the pills had been seized and that the consent was to apply to other materials in the car, weighed against the implicit determination that the officers’ testimony was credible that nothing had been removed from the car, and the defendant’s own admission that he had seen nothing removed from the cari As we said in State v. Dunbar, 356 So.2d 956 (La. 1978):

“Questions of consent are issues of fact, dealing as they do with witness credibility. State v. Temple, 343 So.2d 1024 (La. 1977); State v. Bartley, 329 So.2d 431 (La. 1976). The determination of the trial judge, who has the opportunity to hear and observe the witnesses, is entitled to great weight on review. State v. Temple, supra. . . . Under the circumstances of this case, we cannot say that the trial judge erred in finding that the state had carried its burden of showing that the entry fell under the exception to the warrant requirement which allows a lawful search without a warrant on proper consent.” 356 So.2d at 961-962.

Similarly, we accord to the trial judge’s determination the great weight it merits in a close case and find that the defense has failed to establish that the consent given was not voluntary, and thus did not cure the defect of the prior search.

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

CALOGERO, J., concurs.

STONE, J. Ad Hoc, and BLANCHE, J., dissent.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent. While defendant may have signed the consent form I believe any consent given was tainted by the preceding illegal search which led to defendant’s arrest for possession of methaqualone. At the time defendant signed the form, only a few minutes after the illegal search, he had been continuously in police custody, he knew that the police had already found the pills, and he had been informed that he was under arrest for possessing the pills. Under these facts, I believe that the consent was a product of the illegal search and, therefore, the trial judge was in error in denying the defendant’s motion to suppress.

ON REHEARING

CALOGERO, Justice.

Defendant James Bennett pled guilty to possession of methaqualone following the trial court’s denial of his pre-trial motion to suppress the pills. Defendant reserved his right to appeal the motion to suppress ruling under State v. Crosby, 338 So.2d 584 (La.1976) and on original hearing we affirmed the trial court’s ruling. We granted a rehearing to reconsider our ruling that defendant’s consent to search was voluntarily given.

The facts of the case are not seriously disputed. At approximately 5:00 p. m. on March 4, 1979, Vivian police officer Roy Copeland observed defendant driving a 1975 Ford, “fishtailing,” and throwing gravel in a parking lot adjacent to Highway 1 in Vivian. Officer Copeland stopped defendant and asked him if he had a problem. While defendant was attempting to explain to the officer that his brakes were locked, the officer (who knew defendant) noticed that defendant’s eyes were bloodshot and that his speech was slurred.

After defendant got out of the car at the officer’s request Copeland noticed a brown paper bag on the floorboard on the driver’s side. Suspecting that the bag might contain beer or wine (although the shape of the bag gave no such indication) the officer leaned into the car, opened the bag, and saw a large number of white pills therein.

When defendant began explaining that the pills weren’t his, the officer told the defendant that he didn’t have to tell him anything. After calling for assistance Officer Copeland informed defendant that he was under arrest for careless and reckless driving and for possession of controlled dangerous substances. The officer then asked defendant if he knew his rights, obtained an affirmative response, and asked defendant what the pills were. Defendant told Copeland that he thought the pills were called “Quaaludes”.

When two sheriff’s deputies arrived, Officer Copeland obtained a Miranda rights warning card from them, read it to defendant, and defendant signed the card. Officer Copeland took both deputies over to the car and both deputies opened the bag and looked in. Copeland then took défendant to the Caddo Parish Sheriff’s Department Substation where defendant was again told that he was under arrest for careless and reckless driving and for possession of controlled dangerous substances.

Defendant was read his Miranda rights a second time, was asked to sign a “consent to search” form, but was told that he didn’t have to sign, the form. Defendant read the form and signed it, whereupon the police went to the towing company where defendant’s car had been taken and removed the bag containing 475 pills later determined to be methaqualone. No other contraband was found in the car. Defendant also made a taped statement to the police which is not at issue here.

In oral argument on rehearing the state and defense conceded that the stop and arrest for careless driving was lawful and that the officer’s opening the bag was an illegal search. Defendant contended that at the time he signed the “consent” form he mistakenly believed that the officers had already removed the bag of pills from the car. This assertion was not seriously disputed by the state.

In our original opinion holding that the pills were admissible we focused almost entirely upon the voluntariness of the consent under Fifth Amendment standards. However, in determining that defendant’s consent was “voluntarily” given we failed to give sufficient weight to the “causal connection” test established in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) and further explained in Dunaway v. New York, 442 U.S. 200, 216-220, 99 S.Ct. 2248, 2258-2260, 60 L.Ed.2d 824 (1979). See also our analysis in State v. Giovanni, 375 So.2d 1360 (La.1979); State v. Mitchell, 360 So.2d 189 (La.1978); State v. Scott, 355 So.2d 231 (La.1978).

Satisfying the Fifth Amendment volun-tariness grounds is only the “threshold” condition of Fourth Amendment analysis required by Brown. Dunaway v. New York, 99 S.Ct. at 2260. In Brown, supra, the Supreme Court held that the taint of a confession resulting from an illegal arrest was not purged by Miranda warnings given defendant prior to his arrest. The Court stated:

“Thus, even if the statements in this case were found to be voluntary under the Fifth Amendment, the Fourth Amendment issue remains. In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken. Wong Sun v. U. S. requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be ‘sufficiently an act of free will to purge the primary taint’.” 371 U.S. 471 at 486, 83 S.Ct. 407 at 416, 9 L.Ed.2d 441. Brown, 96 S.Ct. at 2261.

Here, there is involved a consent to search following an illegal search. While in Brown, supra, the evidence in dispute was a confession which followed an illegal arrest, the critical question as to the admissibility of the evidence is the same: “. whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Maguire, Evidence of Guilt, 221 (1959); Wong Sun, 83 S.Ct. at 417. See also Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).

In deciding this issue the Court should consider not only whether the police informed defendant of his Miranda rights and his right to refuse to consent to search, but also the temporal proximity between the illegal act and the act alleged to be coerced, the presence of intervening circumstances, and the purpose and the flagrancy of the official misconduct. Brown, 95 S.Ct. at 2261-2262; Mitchell, 360 So.2d at 191; Giovanni, 375 So.2d at 1364; Scott, 355 So.2d at 235-236.

After considering those factors under the circumstances of this case we cannot say that defendant’s “consent” to search was sufficiently an act of free will so as to purge the taint of the illegal search. There was only a ten minute interval between the time of the illegal search and the “consent” to search. This short interval was not sufficient to attenuate the coercive influence of the illegal search and arrest for possession of controlled substances, especially where there were no intervening factors of any significance which would tend to show that defendant was acting of his own free will. The eighteen year old defendant was continuously in the presence of police officers and never consulted with his parents or an attorney. The “consent” was given while under arrest and in the confines of a police station.

These factors weigh heavily against the state. Furthermore, the officers’ leaving the pills in the car after the search (and of course defendant had been made aware of their discovery) bears strongly upon the question of whether defendant voluntarily consented to the second search and attendant seizure. The illegal search was absolutely instrumental in provoking the consent of defendant. State v. Hoven, 269 N.W.2d 849 (Minn.1978).

Defendant had seen three officers look into the bag containing the pills and had twice been told that he was under arrest for possession of controlled substances. At this point “the cat was out of the bag” as a result of the illegal search and defendant’s acquiescence to the subsequent search was at most a submission to police authority by a defendant who knew that there was no other contraband in the car. People v. Clark Memorial Home, 114 Ill.App.2d 249, 232 N.E.2d 546 (1969). See also State v. Dudley, 561 S.W.2d 403 (Mo.App.1977); People v. Bilderbach, 62 Cal.2d 757, 44 Cal.Rptr. 313, 401 P.2d 921 (1965). For all defendant knew, the police had already taken that which they had discovered and needed his permission to search for other drugs. The state has failed to show that the “consent” given was sufficiently the product of defendant’s free will to attenuate the taint of the warrantless illegal search. Therefore, the evidence seized should be suppressed.

Decree

For the foregoing reasons the judgment on the motion to suppress is reversed, and the motion is granted. Defendant’s conditional guilty plea is set aside, the conviction reversed, and the case remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

MARCUS, J., concurs.

       Honorable Richard H. Gauthier participated in this decision as an Associate Justice Pro Tem-pore.

      . Defendant here was unlawfully detained on the careless and reckless charge, but his arrest for possession of controlled substances was illegal; because it was based solely upon an illegal warrantless search of his vehicle. State v. Mitchell, 360 So.2d at 191.

      . In Giovanni, supra, we suppressed statements made seven days after an illegal arrest. In Scott, supra, we found fairly close temporal proximity between the arrest and confession where, the arrest occurred one night and the confession occurred the next morning and in Brown, supra, the court noted that the defendant’s first statement was separated from his illegal arrest by less than two hours. Of course, the importance of the time interval between the illegal act and the consent or confession of the defendant must be evaluated in the context of the facts of each' particular case.

      . The state’s burden of proving the voluntariness of a consent to search will be heavier where a defendant is in custody. United States v. Hearn, 496 F.2d 236 (6 Cir. 1974). The United States Supreme Court has pointed out on two occasions in Fourth Amendment cases where no illegal conduct was involved that the fact that a consent to search was given in a public place rather than in a police station is a relevant factor in determining the voluntariness of a consent to search. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973);