author: DIXON, Chief Justice.

text:
    PARISH NATIONAL BANK v. C. E. LANE.
    No. 80-C-2443.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearing Denied May 18, 1981.

      John N. Gallaspy, of Gallaspy & Paduda, Bogalusa, for defendant-relator.
    Edward A. Griffis, of Talley, Anthony, Hughes & Knight, Bogalusa, for plaintiff-respondent.
   DIXON, Chief Justice.

On February 4, 1980 plaintiff obtained a judgment against defendant on a promissory note in the amount of $6660 with interest, attorney fees and costs. Defendant did not pay the judgment, and plaintiff filed a motion for a judgment debtor examination. At this examination plaintiff learned that defendant’s homesite consisted of 10.46 acres of land on the outskirts of Bogalusa. Mr. Lane could place no value on the property because it had not been recently appraised. He claimed a $15,000 homestead exemption and also some outstanding mortgages on the property. To determine whether there was any nonexempt value in the property available for seizure, the bank requested permission to photograph and measure the premises. (The homesite was a considerable distance from the public road and not visible from it because the acreage was wooded). Defendant refused to allow the bank to enter his property. The bank then filed a motion to inspect and view the property under C.C.P. 2451 and 1462. The motion specifically sought entry in and upon defendant’s home and 10.46 acres of land for the purpose of inspecting, measuring, photographing and/or appraising the property. The district court granted the motion. The Court of Appeal refused writs, commenting: “We find no error in the ruling complained of.” This court granted writs to consider whether C.C.P. 2451-2456 allow a judgment creditor not only to examine the judgment debtor and his books, papers and documents, but also permit him to come upon the judgment debtor’s premises and into his home. We now affirm.

In his brief, defendant argues that entry would constitute an unreasonable invasion of privacy and would infringe on his constitutional right to be secure in his person and property. (Art. 1, § 5, La.Const. of 1974). He contends that C.C.P. 2451 merely mentions the discovery articles to indicate that a judgment debtor may be examined by means of the various procedures available for pretrial discovery, such as depositions, written interrogatories, etc. In his view, the reference is not intended to enlarge the scope of the examination. The bank believes that the wording of C.C.P. 2451 indicates that all discovery procedures mentioned in the Code of Civil Procedure are available to the judgment creditor. It notes that C.C.P. 1461 and 1462 authorize entry upon land or other property for the purpose of inspecting, measuring and surveying. The bank argues that as a judgment creditor it can legally seize the debt- or’s property and have it appraised and sold at a judicial sale, pursuant to C.C.P. 2291 and 2332, and should be permitted the lesser intrusion of inspection and appraisal before seizure. The bank further argues that the intrusion is not unreasonable. It claims that it does not intend to harass the defendant or to rummage through his possessions; it intends to observe the size and condition of the structures located on the property, as an appraiser would do for purposes of judicial sale. Finally, it argues that the right to privacy is not an absolute bar to entry and inspection of another’s premises. Plaintiff adds that in this case appropriate due process safeguards, such as notice and a hearing, have been observed, and that defendant has sought no protective order from the court.

C.C.P. 2451 provides:

“In aid of execution the judgment creditor may examine the judgment debtor, his books, papers, or documents, upon any matter relating to his property, either as provided in Articles 1421 through 1515 or as provided in Articles 2452 through 2456.”

The article, sometimes characterized as a discovery device, is intended to assist creditors in executing their judgments by providing them a means to discover assets or property belonging to the debtor which may be subject to seizure. One court has declared that “. .. the nature of the statute requires its liberal interpretation in favor of the creditor in order to foster its obvious purpose and intent.” Dunn & Bradstreet, Inc. v. Harrison, 289 So.2d 316, 317 (La.App. 1st Cir. 1973). Article 2451 was patterned on Rule 69(a) of the Federal Rules of Civil Procedure, specifically, according to the Official Revision Comment on C.C.P. 2451, to permit the use of depositions. Federal Rule 69(a) read in 1960, in pertinent part:

“. .. In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may examine any person, including the judgment debtor, in the manner provided in these rules for taking depositions or in the manner provided by the practice of the state in which the district court is held.” (Emphasis added).

The rule’s terminology aroused some dispute as to whether judgment creditors were limited to taking depositions or could use all the discovery devices provided by the federal rules. To eliminate this uncertainty and to assure that all discovery procedures provided in the rules, not just discovery via the taking of depositions, could be used in execution, the rule was amended in 1970 to read, in part:

“... In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules or in the manner provided by the practice of the state in which the district court is held.” (Emphasis added).

This amended version of the rule clearly entitles the judgment creditor in federal court to use the full panoply of federal discovery devices provided by Rules 26-37, or to obtain discovery in the manner provided by the state in which the federal district court sits. He may take oral depositions, submit written interrogatories and requests for admissions, and compel the production of documents and records to the same extent as is permitted during the progress of an action and subject to the same safeguards against abuse.

Since our article is essentially based upon the federal rule, the federal courts’ interpretations of the source rule would be a persuasive, though not controlling, guide to the intended scope of the article. Madison v. Travelers Insurance Co., 308 So.2d 784 (La.1975); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963). Cases and commentators indicate that judgment creditors have in fact been able to compel the production of documents under Rules 69(a) and 34. However, our examination of the jurisprudence has not produced any case in which a judgment creditor sought entry upon land under Rule 69(a) and 34.

Nevertheless, we believe that entry upon the debtor’s property is permissible under the particular circumstances before us here. Since the bank has the right to seize and appraise the property, it does not seem a substantial infringement to permit a limited inspection of the property prior to seizure. Where the debtor can place no value on the land, justice is not substantially impaired by permitting the judgment creditor to examine and appraise the property prior to seizure rather than after seizure. Defendant is free to seek any protective order from the court establishing the conditions and scope of the inspection.

Entry under the particular circumstances of this case does not constitute an unreasonable invasion of privacy. The right to privacy, first defined by Samuel Warren and Louis Brandéis as the “right to be let alone,” has been recognized by our courts since 1905. In that year, this court declared that: “Every one who does not violate the law can insist upon being let alone (the right of privacy).... ” Itzkovitch v. Whitaker, 115 La. 479, 482, 39 So. 499, 500 (1905). Later decisions held that violation of the right was a tort under C.C. 2315. Pack v. Wise, 155 So.2d 909 (La.App.3d Cir. 1963); Quina v. Robert’s, 16 So.2d 558 (La.App.Orl.1944). The Louisiana Constitution adopted in 1974 specifically states that: “Every person shall be secure in his person, property, communications, houses, papers, and effects against unrea-. sonable searches, seizures, or invasions of privacy.... ” La.Const. of 1974, Art. 1, § 5.

The right of privacy protects varied interests from invasion. Among the interests protected is the individual’s right to be free from unreasonable intrusion into his seclusion or solitude, or into his private affairs. This includes the right to be free of unwarranted intrusion into his own quarters. However, the right to privacy, like other personal rights, may be lost in many ways — by express or implied waiver or consent, or by a course of conduct which prevents its assertion. Moreover, the right is not absolute; it is qualified by the rights of others. The right of privacy is limited by the state’s reasonable exercise of the police power. Arrested persons may be fingerprinted; searches and seizures authorized by warrants based on probable cause are permissible. Zoning laws and environmental controls may restrict the use of private property. Premises may be inspected to determine if they are in compliance with safety and health regulations.

The right of privacy is also limited by society’s right to be informed about legitimate subjects of public interest. Individuals involved in civil litigation may be compelled to give evidence which tends to embarrass them or to produce documents of a confidential nature. A debtor’s right of privacy is subject to the creditor’s right to take reasonable steps to collect his debt. The creditor’s actions may result in some invasion of the debtor’s privacy, but the debtor will be held to have a cause of action only if the steps taken are unreasonable and oppressive, or expose the debtor to public disgrace.

In dealing with invasion of privacy allegations, courts have had to distinguish between actionable and nonactionable invasions. Generally, an actionable invasion of privacy exists only when the defendant’s conduct is unreasonable and seriously interferes with the plaintiff’s privacy interest. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386 (La.1979). The Right of Privacy in Louisiana, 28 La.L.Rev. 469 (1968). The reasonableness of the defendant’s conduct is assessed by balancing his interest in pursuing his course of conduct against the plaintiff’s interest in protecting his privacy. Where a defendant’s action is properly authorized or justified by circumstance, it may be found reasonable and nonactionable even though it amounts to a slight invasion of the plaintiff’s privacy. See Pitcher v. Iberia Parish School Board, 280 So.2d 603 (La.App. 3d Cir. 1973), writ denied, 283 So.2d 496 (La.1973), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 109 (1974).

In the case before us, the interest of the bank in appraising defendant’s property is substantial. Furthermore, the interest of an organized society in the execution of a judgment of court, under the order and supervision of the court, may be paramount to a single intrusion onto defendant’s land and into the privacy of his home. The inspection of defendant’s property is permitted by statute, and we find no unconstitutional infringement on defendant’s right to privacy. Defendant may yet exercise his right, which we specifically reserve to him, to obtain protective orders to minimize the intrusion by the creditor.

The judgment of the district court is affirmed, at the cost of defendant-relator.

WATSON and MARCUS, JJ., concur.

      .C.C.P. 2451-2456 replaced former R.S. 13:4311 — 4315, repealed by 1960 La.Acts, No. 32, § 2, effective January 1, 1961. These statutes were in turn derived from 1924 La.Acts, No. 198, § 1 and 1928 La.Acts, No. 263, § 2, which authorized creditors to examine debtors and to compel the production of books, papers and other documents pertaining to their estates and property. The constitutionality of these acts was upheld in Fithian v. Centanni, 159 La. 831, 106 So. 321 (1925) and Sealy v. Dussel, 157 La. 485, 102 So. 581 (1924).
      Article 2452 indicates the proper site for the examination.
      Article 2453 authorizes the court to order the judgment debtor to appear in court and to produce books, papers and documents relating to his property.
      Article 2454 requires the debtor to take an oath in the same manner as a witness in a civil proceeding.
      Article 2455 provides that the costs of the examination are to be taxed to the debtor unless the creditor has needlessly invoked the examination.
      Articlé 2456 states that a judgment debtor who refuses to appear or to produce documents or to answer questions regarded as pertinent by the court may be punished for contempt.
      The discovery section of the Code of Civil Procedure comprising articles 1421-1515 was amended and reenacted by 1976 La.Act, No. 574, § 1, and now includes articles 1421-1474.

      . The omission of the phrase “any person” from our code article was construed as a deliberate expression of the legislature’s desire to restrict examination to the judgment debtor alone in Simmesport State Bank v. Scallan, 134 So.2d 391 (La.App. 3d Cir. 1961).

      . One court held that discovery under Rule 34 was unavailable to the judgment creditor. M. Lowenstein and Sons, Inc. v. American Underwear Mfg. Co., 11 F.R.D. 172, 173 (E.D.Pa.1951). The court denied the plaintiffs request for an order compelling production of documents and records under F.R.C.P. 34, stating that the rule: “... permits the court to order production of documents only in an action pending before it. The action in which the order is sought has ripened into a final judgment and is no longer pending in this Court. The purpose of Rule 34 is to aid discovery in connection with trial, and its function is not expanded by Rule 69, ...”
      On the other hand, the Fifth Circuit relied heavily on the legislative history of Rule 33 to hold that Rule 69(a) authorized the judgment creditor to propound and serve written interrogatories on the judgment debtor. United States v.

        McWhirter, 376 F.2d 102, 106 (5th Cir. 1967). The court examined the testimony before the House Committee on the Judiciary which considered the rules and concluded that the drafters intended to give the judgment creditor the right to use all the discovery devices afforded by Rules 26-33. The court thought that limiting the construction of the rule to the taking of depositions would defeat its purpose and would be inconsistent with the general scheme of discovery practice in the federal courts:
      “... The discovery provisions of the Federal Rules of Civil Procedure were designed to afford the parties the right to obtain information pertinent to the pending controversy, and to effectuate that purpose they are to be liberally construed. That basic philosophy applies with equal force whether the information is sought in a pre-trial or in a post-judgment discovery proceeding....”

      . Note of the Advisory Committee, Rule 69, Federal Rules of Civil Procedure; Moore’s Federal Practice, ¶ 69.05(1) (2d ed. 1975); Wright and Miller, 12 Federal Practice and Procedure, § 3014 (1973).

      . Moore, supra; Wright and Miller, supra.

      . C.C.P. 1426 provides for the issuance of protective orders by the courts. It states, in part: “Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ...”

      . The Right to Privacy, 4 Harv.L.Rev. 193 (1890).

      .There is some question as to whether the section is intended to protect against private conduct as well as government conduct. The provision seems to be a counterpart to the Fourth Amendment of the Federal Constitution. However, Professor Lee Hargrave believes that the section establishes an affirmative right to privacy which goes beyond the domain of criminal law. He notes that the provision was deliberately placed apart from the criminal procedure guarantees. The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L. Rev. 1 (1974).

      . Dean Prosser has pointed out three other types of invasion which infringe upon privacy interests: (1) public disclosure of embarrassing private facts; (2) publicity which places the individual in a false light in the public eye; (3) appropriation of the individual’s name or likeness for another’s advantage. Privacy, 48 Calif.L.Rev. 383 (1960)

      . See The Right to Privacy, 14 A.L.R.2d 750.

      . See Public Disclosure of Person’s Indebtedness as Invasion of Privacy, 33 A.L.R.3d 154; Pack v. Wise, supra; Cunningham v. Securities Investment Co., 278 F.2d 600 (5th Cir. 1960).


source: Caselaw Access Project

author: DENNIS, Justice. CALOGERO, J., MARCUS, Justice BLANCHE, Justice LEMMON, Justice, PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Rowan WILLIAMS.
    No. 67478.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearing Denied May 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James D. Caldwell, Dist. Atty., John D. Crigler, Asst. Dist. Atty., for plaintiff-appellee.
    Raymond L. Cannon, Tallulah, for defendant-appellant.
   DENNIS, Justice.

Defendant, Rowan Williams, was indicted by the Tensas Parish Grand Jury for the crime of armed robbery, in violation of La. R.S. 14:64. He was found guilty after trial by jury and sentenced to serve seventy years at hard labor without benefit of parole, probation or suspension of sentence. He has appealed his conviction and sentence to this Court, urging eight of the twelve assignments of error filed below. While we affirm the conviction, we find the sentence to be excessive and accordingly remand for resentencing consistent with the views set forth herein.

On June 3,1979, four armed men wearing stocking masks entered a residence near Waterproof, Louisiana, bound the children they found alone in the house, and began to search for valuables. One of the intruders shot and killed the children’s father when he and his wife returned from a shopping trip. Some of the men fled in the victim’s automobile, taking with them his wallet, several guns, and an old coin collection.

Confessions obtained from three men subsequently arrested in connection with the crime implicated the defendant as being a “look-out” in the robbery and a warrant was issued for his arrest. On July 6, 1979 the defendant was arrested in California and returned to Louisiana. He was tried as a principal in the crime of armed robbery.

ASSIGNMENT OF ERROR NO. 1

Defendant asserts that the trial court erred in denying his motion to change venue, and in denying his motion for a new trial on the same ground.

Defendant contends that the district court erred in denying his motion to change venue and his motion for a new trial on the same ground because his sentencing judge remarked in her reasons for sentence that citizens of the parish lived in terror because of the cases of arson and robbery which occurred before the arrest of the defendant and several others. The sentencing judge, however, was not the judge who presided over the change of venue hearing. Furthermore, the remarks of the sentencing judge are not based upon the evidence introduced at that hearing or at any other stage of this case. Upon a review of the record evidence in this ease and considering this court’s prior disposition of a similar issue in State v. Williams, 385 So.2d 214 (La.1980), a co-defendant’s case arising from the same offense, we cannot say that the denials of defendant’s motions amount to reversible error.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment of error, defendant argues that the trial court erred in denying his motion for a preliminary examination. He contends that the ruling deprived him of protection from the shifting testimony of alibi witnesses who surprised him at trial by expressing uncertainty regarding the time periods defendant was with them the night the armed robbery took place. This court has implicitly held, however, that this value in the preliminary examination is not within the scope of the guaranteed constitutional right. State v. Sterling, 376 So.2d 103 (La.1979).

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 8

This assignment of error concerns an alleged prohibited judicial comment on the evidence which occurred as defense attempted to introduce an exhibit into evidence.

While the defendant was on the stand he explained that his presence in California at the time of his arrest was connected to his impending attendance at San Francisco City College on a football scholarship. Defendant further testified that because of his athletic scholarship he would have no inclination to jeopardize his future by participation in a crime. The state questioned the existence of the scholarship on cross-examination. On redirect, defense counsel sought to introduce a letter addressed to the defendant from G. Rush at San Francisco City College entitled “Financial Aid Acknowl-edgement.” Responding to a state objection on grounds of relevancy, defense counsel explained that it was offered to corroborate defendant’s testimony that there was a coach named Rush and a San Francisco City College. At that point the judge made the following observation:

“THE COURT: Mr. Cannon, the Court will let it in but it is not proof of any grant or scholarship. This is proof that the man is trying to get a scholarship service or a grant in aid which any student can do whether he is a good football player or whether he’s just a good student or whether he’s just a mediocre student. Any student in any class can apply for a grant from the Federal Government or for financial aid. That even includes people that I’m right close to.”

The jury was removed and pursuant to defense counsel’s objection, the judge agreed to withdraw the comment. When the jurors returned, they were admonished to disregard the remarks and reminded that they were the sole judge of the facts in the case. The defendant argues that the admonishment was insufficient and that this comment upon the relevancy of the evidence mandates reversal of the conviction pursuant to La.C.Cr.P. article 772, which provides:

The judge in the presence of the jury shall not comment upon the facts of the case either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.

The trial judge’s comments do not come within the prohibition of this article as interpreted by the jurisprudence. This court has consistently held that reasons given by the trial judge in the jury’s presence for his rulings on objections, for admitting or excluding evidence, or explaining the purpose for which evidence is offered or admitted are not objectionable as comments or expressions of an opinion provided they are not unfair or prejudicial to the accused. State v. Quincy, 363 So.2d 647 (La.1978); State v. Schouest, 351 So.2d 462 (La.1977); State v. Taylor, 347 So.2d 172 (La.1977). In the present case, defense counsel offered the letter as evidence tending to show the existence of a coach Rush at San Francisco City College, not as conclusive proof of defendant’s athletic scholarship. The trial judge’s remarks merely explained the limited purpose for which the evidence was offered and admitted.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant complains that he was deprived of his right to a full voir dire examination of a prospective juror. During voir dire the defense attorney was not permitted to ask one venireman his opinion of defendant’s guilt or innocence, although he had been permitted free inquiry into this subject with the other prospective jurors. However, the venireman gave answers to other questions which, in the context of this well publicized crime, clearly indicated his bias in favor of the prosecution. Defense counsel subsequently challenged the prospective juror peremptorily.

Parties have a right to question jurors on their examination not only for the purpose of showing grounds for a challenge for cause, but also, within reasonable limits, to elicit such facts as will enable them intelligently to exercise their right of peremptory challenge and it is error for the court to exclude questions which are pertinent for either purpose. State v. Hills, 241 La. 345, 129 So.2d 12 (1961). Accordingly, the trial judge erred in forbidding defense counsel to put to the venireman the pertinent question of his opinion with reference to the accused’s guilt or innocence. However, in this case, the defendant was not deprived of his right to a full voir dire because he received sufficient information through the prospective juror’s answers to other questions, to intelligently exercise defendant’s right of peremptory challenge.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant argues that the trial court erred by denying his motion to suppress confessions and inculpatory statements of a co-defendant and the evidence seized pursuant to a search warrant issued on the basis of those confessions.

The confessions and inculpatory statements, and the issuance of a search warrant based on them were upheld as valid by this court in State v. Williams, supra. For the reasons assigned in that case, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 12

Defendant argues that prejudicial error was committed by the state in closing argument when the district attorney made the following statement:

“The State did not know what the defendant’s alibi was. Indeed we did not have the right to find out until he took the stand.”

Defense counsel asked that the jury be removed and then objected to the statement, pointing out that a list of alibi witnesses was delivered to the assistant district attorney. On the jury’s return the judge gave instructions correcting the state’s inaccurate remark and the defendant did not object to these instructions.

La.C.Cr.P. article 771 requires the court to admonish the jury upon request of either the defendant or the state when an irrelevant or immaterial remark is made which may create prejudice, and that remark is not within the scope of the mistrial provisions of La.C.Cr.P. article 770. Since the objectionable remark was clearly not within the scope of Article 770, the admonishment was sufficient to rectify any prejudice which the remark may have caused.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 6

In this assignment defendant argues that the sentence imposed is excessive. For the reasons hereinafter assigned, we conclude that his argument is meritorious and the sentence must be set aside.

The excessiveness of a sentence is a question of law reviewable under the appellate jurisdiction of this court. La.Const. Art. 1, § 20; Art. 5, § 5(C); State v. Sepulvado, 367 So.2d 762 (La.1979). The imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable by this court on appellate review of his conviction. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, supra.

Louisiana Code of Criminal Procedure Article 894.1 sets forth criteria for a sentencing judge to use in determining whether (1) to suspend a defendant’s sentence or place him on probation, (2) to impose a sentence of imprisonment, and (3) if imprisonment is the appropriate disposition, whether the sentence should be closer to the maximum rather than to the minimum statutory range of sentence. State v. Sepulvado, supra, 367 So.2d at 768. The same criteria, which are similar to those evolved by courts in other American jurisdictions with a constitutional or statutory duty to review excessiveness, are appropriate for measuring whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives. State v. Sepulvado, supra, 367 So.2d at 769.

La.C.Cr.P. art. 894.1(C) provides that the trial court shall state for the record the considerations taken into account and the factual bases therefor in imposing sentence. This in most cases is crucial to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Sepulvado, supra, 367 So.2d at 769. Without the trial court’s articulation of the factual basis of each ground which influenced its disposition, the sentence may appear to have been arbitrary or excessive, unless there is evidence elsewhere of record which clearly illumines the sentencing choice.

In sentencing Rowan Williams to seventy years at hard labor without benefit of parole, probation or suspension of sentence, the trial court relied on as circumstances indicating that a sentence close to the statutory maximum was appropriate (1) its belief that Williams’ past conduct as a juvenile indicated that he might commit another crime if he were ever released, (2) its belief that the defendant’s criminal conduct caused serious harm, (3) its view that the defendant contemplated his conduct would cause or threaten serious harm, (4) its view that he did not act under strong provocation, (5) its view that there were no grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense, (6) its finding that the victim did not induce or facilitate the commission of the crime, (7) its assumption that the defendant’s criminal conduct was the result of circumstances likely to recur, (8) its belief that the defendant’s character or attitudes indicate that he is likely to commit another crime, (9) its belief that he would not respond affirmatively to probation, (10) its assumption that the defendant was in need of correctional treatment, (11) its view that any lesser sentence would deprecate the seriousness of the offense. The trial court also recognized that the defendant’s age at sentencing was twenty years in imposing a sentence of seventy years without parole. In view of all of the reasons given for sentencing it is evident that the trial court imposed a sentence calculated to incarcerate Williams for life.

The sentence is excessive based on the present record because (1) there is no factual basis for many of the sentencing grounds stated in the trial court’s sentencing reasons or contained elsewhere in the record, (2) the defendant’s juvenile conviction should not have been considered because it was vacated and annulled for lack of sufficient evidence, and (3) the record evidence and sentencing reasons do not support constitutionally a sentence in excess of fifteen years.

The defendant, Rowan Williams, at the time of the offense in question on June 3, 1979, was an eighteen year old black first offender. He had lived for about five years with his grandparents in Waterproof, Louisiana while his parents resided in New York. At the time of the crime, however, defendant was residing with his father who had returned to Waterproof. Defendant was influenced greatly by his father, a leader of a militant political organization. Defendant’s father aided, abetted and encouraged the robbery but apparently did not go to the crime scene himself. Juvenile court records filed in this case indicate that in 1975 defendant was in special education and his I.Q. scores ranged from 70 to 74. His grandparents reported that he was easily led by his peers. Three of his co-defendants, who testified for the prosecution, stated that defendant refused to enter the victim’s house during the robbery, that he participated only as a lookout, that he left his lookout post and did not warn them of the victim’s return, and that he had to be brought back by his cohorts during the offense. However, defendant was armed during the episode and accepted $100 of the robbery proceeds. The record evidence does not dispute this description of defendant’s relatively marginal participation. Although defendant’s father was sentenced to fifty years and two other co-defendants were sentenced to twenty-five years each for their much deeper involvement in the same offense, Rowan Williams was sentenced to seventy years at hard labor without probation, parole or suspension of sentence.

The trial court did not have discretion to withhold a sentence of imprisonment or place defendant on probation. The penalty for armed robbery at the time of the offense in question was imprisonment at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence. La.R.S. 14:64. Accordingly, the trial court was required to bypass the first step of the sentencing procedure contemplated by La.C.Cr.P. art. 894.1, i. e., a determination of whether to suspend a defendant’s sentence or place him on probation.

The trial court’s reasons for sentence and the evidence of record are devoid of any substantial factual basis for many of the grounds given as justification for a sentence of seventy years without parole. Although the victim of the armed robbery was killed during the offense, there is no indication that defendant Rowan Williams contemplated or personally contributed to this consequence. The evidence indicates that he did not participate except as a lookout stationed outside the house and withdrew or attempted to withdraw even from this role during the offense. Although failing to establish a defense, there is indication that defendant, a youth of below average intellect, acted under the domination of his militant father. We find no basis in the record for the trial court’s conclusion that the circumstances producing defendant’s crime are likely to recur and that his criminal disposition is such that it cannot be corrected by a shorter prison sentence.

A lesser sentence than seventy years at hard labor without parole would not deprecate the seriousness of the defendant's crime. His older codefendants who participated more actively in the crime received substantially lesser sentences, ranging from twenty-five to fifty years. The trial court did not find that these sentences deprecated the seriousness of the crime. Incongruously, the only reason given for defendant’s longer sentence of seventy years was his youth, apparently on the theory that he should be given a sentence of greater length to keep him in prison for life. Since there was no evidence indicating that defendant is beyond all hope of rehabilitation or that he is an extremely dangerous offender, a sentence of near maximum length was not justifiable on these grounds. Although armed robbery is a very serious crime which should not be deprecated by too light a sentence, particularly when a human life is taken during the offense, the legislature has established a range of punishment from five to ninety-nine years without parole. In view of the mitigating circumstances and lack of articulable criteria to justify the sentencing disparity between defendant and offenders sentenced in the same court and in different courts, we conclude that a sentence of seventy years was not necessary to avoid deprecation of the seriousness of the offense.

In 1975 the same judge who sentenced defendant in this case acted as a juvenile judge in declaring him to be a delinquent child after finding that he participated in a burglary of a service station. He appealed and the court of appeal annulled and vacated the adjudication, finding that the evidence was not constitutionally sufficient proof beyond a reasonable doubt of Williams’ participation in a burglary planned and perpetrated by another juvenile. State in Interest of Williams, 325 So.2d 854 (La.App. 2d Cir. 1976).

The record in this case makes evident that the sentencing judge gave specific consideration and weight to the defendant’s juvenile adjudication although it has been annulled and vacated. In fact, the sentencing judge indicated at the sentencing proceeding that she considered the court of appeal’s decision to have been erroneous. Yet it is clear that the juvenile adjudication had been annulled and vacated as wholly unconstitutional under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). We deal here, therefore, not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part on a constitutionally invalid previous conviction. Accordingly, erosion of the Winship principle can be prevented here only by setting aside the sentence and remanding this case to the trial court for resentencing without consideration of the annulled and vacated juvenile adjudication. Cf., United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).

Furthermore, it is clear that a sentence of seventy years’ imprisonment at hard labor without parole is constitutionally excessive based on the evidence in this case. A punishment is “excessive” and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; and (2) is grossly out of proportion to the severity of the crime. A punishment may fail this test on either ground. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Defendant’s punishment in the present case fails on both grounds. The incarceration of an eighteen year old offender for a period of seventy years without any substantial evidence that he is an extremely dangerous or irremediably habitual criminal, while granting his older more culpable codefendants measurably shorter sentences, clearly makes no contribution to acceptable goals of punishment. Although an armed robbery involving the death of a victim is an extremely serious crime, the punishment here is grossly out of proportion to the severity of defendant’s personal criminal conduct. Insofar as the record discloses he participated only as a lookout, he withdrew or attempted to withdraw even from this role, he did not warn his code-fendants of the victim’s return, and he did not enter the victim’s house or take part in the killing. Considering the defendant’s age, his lack of previous adult or juvenile convictions, his apparent reluctance to participate in the crime, and the particular pressures brought to bear on him by his father, who has now been sentenced to prison for fifty years, we conclude that a sentence of more than fifteen years at hard labor without parole, probation or suspension of sentence in this case would be constitutionally excessive.

For the reasons assigned, the defendant’s conviction is affirmed, but his sentence is reversed, and the case is remanded for the imposition of a new sentence consistent with this opinion.

AFFIRMED; REMANDED FOR RE-SENTENCING.

CALOGERO, J.,

dissents from affirmance of conviction believing there is reversible error in Assignment of Error # 1, but considering the majority’s affirmance of the conviction, concurs in the remand for resen-tencing.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

BLANCHE, J., concurs in part and dissents in part for reasons assigned.

WATSON, J., concurs in the result.

LEMMON, J., concurs and assigns reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of defendant’s conviction and agree that a sentence of seventy years without benefit of parole, probation or suspension of sentence is excessive in this case. Hence, I would vacate the sentence. However, I would not suggest the sentence to be imposed as did the majority in concluding that “a sentence of more than fifteen years at hard labor without parole, probation or suspension of sentence in this case would be constitutionally excessive.” Rather, I would remand the case to the trial court for resentencing, after which defendant would have the right to appeal if he considered that the new sentence was excessive. Accordingly, I respectfully concur in part and dissent in part.

BLANCHE, Justice

(concurring in part, dissenting in part).

I concur in the opinion insofar as it affirms the defendant’s conviction and finds the sentence excessive. I dissent from that portion of the opinion which instructs the trial judge that any sentence in excess of fifteen years will be excessive. This writer believes the proper procedure is to simply remand the case for resentencing leaving the trial judge to assess an appropriate sentence taking into account the views expressed in the majority opinion. The judge’s discretion ought not be influenced by our opinion as to what sentence would be excessive. This Court will have another chance to review the appropriateness of the sentence after the trial judge, in his discretion, resentences the defendant after compliance with sentencing guidelines.

LEMMON, Justice,

concurring.

I concur in the result.

Because some of the facts stated by the trial judge were inappropriate for consideration in sentencing, the apparently severe sentence must be vacated. At the resen-tencing hearing it will be the function of the trial court to impose the sentence, based on proper considerations and any additional evidence, and it will be the function of the appellate court to review the new sentence and the considerations upon which it is based.

ON APPLICATION FOR REHEARING

PER CURIAM.

Denied. Our original opinion held that defendant’s sentence was excessive because “the record evidence and sentencing reasons do not constitutionally support a sentence in excess of fifteen years.” State v. Williams, 397 So.2d 1287, at page 1292 (La.1981). The trial court is not necessarily restricted to the same range of sentence on remand. It may consider additional evidence introduced by the parties in a contradictory hearing and impose a sentence justified by the record as amended.

LEMMON, J., concurs.

      . But see dissenting opinion of Tate, J., 376 So.2d at 105, joined by this author and Calogero, J.

      . “BY MR. CANNON:
      Q. Mr. Gregory, have you formed any opinion about any person who is arrested in connection with Earl Lessley’s death?
      A. Well I guess I would have to be honest, if I believe what I’ve read, you know, if what I read is true, in the newspaper.
      Q. Of course we want you to be honest and you were about to say whether you had formed an opinion.

      Q. Do you have any opinion as to Rowan Williams in connection with this Earl Lessley matter?
      MR. CALDWELL: Your Honor, we would object on the same grounds.
      THE COURT: He can ask him whether or not he has an opinion, and the Court will overrule that objection.
      MR. CALDWELL: Excuse me. I withdraw my objection.
      A. Yeah, I think I have an opinion, based on what I’ve read and what I’ve heard, yeah.”

      . The perpetrator of the killing pleaded guilty to the charge of second degree murder and was sentenced to life imprisonment without eligibility for parole for forty years.

      . American Bar Association Standards for Criminal Justice Relating to Sentencing Alternatives and Procedures, Standard 2.1(d) provides:
      It should be recognized that in many instances in this country the prison sentences which are now authorized, and sometimes required, are significantly higher than are needed in the vast majority of cases in order adequately to protect the interests of the public. Sentences of twenty-five years or longer should be reserved for particularly serious offenses or, under the circumstances set forth in sections 2.5(b) and 3.1(c) (special term), for certain particularly dangerous offenders. For most offenses, on the other hand, the maximum authorized prison term ought not to exceed ten years except in unusual cases and normally should not exceed five years.


author: DENNIS, Justice. MARCUS, Justice BLANCHE, Justice

text:
    PHARIS & PHARIS v. Mary Elizabeth V. RAYNER.
    No. 67540.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearing Denied May 18, 1981.

      James A. Pharis, Jr., F. Jean Pharis of Pharis & Pharis, Alexandria, for plaintiff-applicant.
    Vincent Hazleton, Alexandria, for defendant-respondent.
   DENNIS, Justice.

This case involves a dispute over an attorney’s fee. The plaintiff law firm seeks to recover under a contingent fee contract for services rendered in protecting defendant’s interest in the community formerly existing between her deceased husband and herself. The trial and appellate courts rejected the law firm’s demands entirely finding that the contingent fee contract was void for lack of consent due to error of fact. After reviewing the record and the excellent unpublished opinions of our trial and appellate brothers we conclude that it is unnecessary to decide whether the contingent fee contract was valid in this case. Regardless of the validity of the employment contract, it is clear that the attorney rendered valuable services for which he should be compensated but that the fee provided by the contract would have been excessive and unreasonable under the circumstances. See Code of Professional Responsibility DR 2-106(A) and (B); Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979). Accordingly, we reverse the judgment of the court of appeal and remand the case to it with instructions to award plaintiff a reasonable fee in light of the evidence of record and the factors set forth in the Code of Professional Responsibility. See DR 2-106(B).

REVERSED AND REMANDED.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents and handed down reasons.

MARCUS, Justice

(dissenting).

Having dissented in Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979), I disagree with the approach taken by the majority in this ease. I agree with the courts below that the contingent fee contract was void for lack of consent due to an error of fact. However, I consider that the plaintiff law firm is entitled to recover for its services on the basis of quantum meruit. Hence, I would reverse the judgment of the court of appeal dismissing plaintiff’s demands and remand the case, to the trial court to fix the amount based on the record or, if necessary, to allow additional evidence relative to this issue. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The trial and appellate courts determined that because of the absence of valid consent given by the defendant, there was no contract in existence upon which the plaintiff could sue. This writer finds no error in this determination.

Plaintiff’s original petition was sufficient to allege a claim on the basis of quantum meruit. On this issue, the trial court correctly found that there was no evidence upon which to determine if plaintiff was entitled to be paid any amount on that basis, reasoning that plaintiff was apparently insisting upon the contract amount or nothing. Further, the appellate court noted that no argument on this issue was raised on appeal. It would be an exercise in futility to remand the case to the appellate court in the absence of evidence upon which to base a quantum meruit award. If the case should be remanded to the trial court, there would be no justification in giving plaintiff two bites at the apple.

The decision of the lower court should be affirmed.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Jerry B. PITTMAN.
    No. 80-K-2400.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearing Denied May 18, 1981.

      Frank Gremillion, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Ca-shio, Dist. Atty., Jack T. Marionneaux & Houston C. Gascon, III, Plaquemine, for plaintiff-respondent.
   DENNIS, Justice.

We granted defendant’s pre-trial application for writs to determine whether his arrest and seizure of evidence incident thereto were invalid under the recent holding of the Supreme Court in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In that case, the high court held:

“It is a ‘basic principle of Fourth Amendment Law’ that searches and seizures inside of a home without a warrant are presumptively unreasonable .... In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”

Since granting writs in the present case, however, we have decided in State v. Friddle, 396 So.2d 1242 (La.1981), that the Payton, rule will not be applied retroactively. Because the arrest and seizure of evidence occurred on April 11,' 1980, four days before Payton was decided on April 15, 1980, this case is not governed by the Pay-ton rule. Accordingly, this case must be decided upon the law as it existed before Payton.

Warrantless searches and seizures are unreasonable, absent compliance with one of the specifically defined exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1974); State v. Banks, 363 So.2d 491 (La.1978). Once a defendant makes the initial showing at a motion to suppress hearing that a warrantless search occurred, the burden of proof shifts to the State to affirmatively show that the search is justified under one of narrow exceptions to the rule requiring a search warrant. State v. Banks, supra; State v. Franklin, 353 So.2d 1315 (La.1978). One of these exceptions is a search and seizure incident to a valid arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Our review of the record in this case, which contains only the testimony taken at the motion to suppress hearing, indicates that the trial court denied defendant’s motion on the erroneous finding that the arresting officers acted under a valid arrest warrant. The record clearly reflects, however, that the warrant was not issued until some time after the arrest and evidence seizures had taken place. Because the Pay-ton rule does not apply to this case, the arrest still may have been valid if based on probable cause, and if the authorities had probable cause to believe that the defendant was within the residence at the time they entered. See State v. Ragsdale, 381 So.2d 492 (La.1980); State v. Thomas, 349 So.2d 270 (La.1977). The prosecution failed to present any evidence of probable cause to arrest due to the trial judge’s erroneous ruling which indicated that the arrest warrant was valid. Under these circumstances, we think fairness and due process demand that the trial court ruling be set aside and that the case be remanded to the trial court for a new motion to suppress hearing in light of our recent decision in State v. Friddle, supra, and this opinion.

REVERSED AND REMANDED.

JOHN C. BOUTALL J. Ad Hoc, concurs in the result.

JAMES C. GULOTTA, J. Ad Hoc, dissents.

       Judges James C. Gulotta, John C. Boutall and Patrick M. Schott of the Court of Appeal, Fourth Circuit, participated in this decision as Associates Justices pro tempore, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Pascal F. Calogero, Jr., James L. Dennis, and Jack Crozier Watson.


author:
WATSON, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Richard C. VALENTINE.
    No. 80-K-2096.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearing Denied May 18, 1981.
    Michael J. Johnson, Cottonport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., for plaintiff-respondent.
   WATSON, Justice.

Defendant was convicted of driving while intoxicated, second offense. LSA-R.S. 14:98. A writ was granted to review his contention that there was no evidence of the first offense.

Defendant, Richard C. Valentine, was first charged with driving while intoxicated, third offense. His counsel filed a motion for a preliminary examination, which was granted. At the hearing, the State introduced without objection minutes of the Twelfth Judicial District Court, which show a guilty plea on August 24, 1978, and a conviction of D.W.I. on September 19, 1978, and minutes of the Bunkie City Court, which show a conviction of second offense D.W.I. on January 29, 1980. The district court minutes reflect that defendant, Richard C. Valentine, was present in court, waived his right to an attorney, and pleaded guilty after being advised of all his rights and privileges. Since the minutes of the Bunkie .City Court failed to affirmatively state that defendant was present with counsel or intelligently waived his right to counsel at the time of the second conviction, the present charge was reduced to driving while intoxicated, second offense. After a bench trial in district court, defendant was convicted and sentenced to a fine of $400, or ninety days in the Avoyelles Parish Jail, and an additional one hundred and twenty-five days in the Avoyelles Parish Jail. Counsel objected to the conviction on the ground that there was no valid evidence of the first offense, the only evidence at trial, being a statement by the judge: “Well, I think that the first conviction took place in this court.” (Tr. 81)

The trial judge could take judicial notice of the record at the preliminary hearing, an earlier proceeding before him in the same case. LSA-R.S. 15:422(7); State v. Augillard, 371 So.2d 798 (La.1979). There was adequate evidence of the first offense, and defendant was properly convicted of driving while intoxicated, second offense.

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

AFFIRMED.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Even if the trial judge’s remark was valid judicial notice of the fact that defendant Valentine previously had been convicted of DWI, it does not completely supply the void in the prosecution’s case. La.R.S. 14:98(C) and (F) required the state to prove beyond a reasonable doubt that the defendant’s previous conviction occurred no more than five years prior to the commission of the charged offense. Since the trial judge’s remark does not establish when the previous offense occurred, there was no proof of this essential element of the second offense DWI.

After both the state and defendant rested their cases, the trial judge, during oral arguments, said, “Well, I think that the first conviction took place in this court.” There is nothing to indicate that the trial judge referred to the record of the preliminary hearing in making this remark. Moreover, the record of the preliminary hearing was never introduced into evidence at the trial of this case. Consequently, the trial judge’s statement must have been based on his own knowledge, perhaps derived second-hand, that the defendant Valentine had previously been convicted of. DWI in his court.

Heretofore, we have approved the limited use of judicial notice to shore up the state’s proof of a previous conviction by allowing the trial judge in an enhanced sentencing proceeding to take notice of the defendant’s identity to establish that he is the same person who appeared before the court earlier in a different portion of that same case. State v. Jones, 332 So.2d 461 (La.1976); State v. O’Day, 191 La. 380, 185 So. 290 (1938). We have not sanctioned judicial notice of matter in prior different proceedings. See State v. Augillard, 371 So.2d 798, 799 (La.1979); La.R.S. 15:422(7). Also the above cases employed the “some evidence” standard of review which we no longer use.

By approving the trial court’s judicial notice of a conviction obtained in a prior different proceeding without even referring to a court record of that conviction, the majority has fashioned a rule which leaves defendants totally at the mercy of the trial judge’s memory. If the judge announces that he recalls, a previous conviction of the defendant in his court, the burden is apparently on the defendant to prove a negative, i. e., that the defendant had not been convicted previously in the trial judge’s court. Furthermore, under the majority decision, the defendant is not even afforded any procedural safeguard to assist him in carrying this onerous burden. The trial judge may take judicial notice of such a prior conviction without any request by the prosecution, without giving advance notice to the defendant, without referring to the records of his court, and without affording the parties an opportunity to present evidence of facts contrary to the judge’s recollection.

I respectfully submit that the majority has unintentionally adopted a dangerous judicial notice rule which may permit many defendants to be convicted and imprisoned on the basis of a faulty but legally unassailable judicial memory. As such, the rule of this case sweeps far beyond that of modern notions of judicial notice and contains none of the procedural safeguards usually afforded. See F.R.E. 201(c); 9 Wigmore, Evidence, §§ 2568-83 (1940).

       Judges James C. Gulotta, John C. Boutall, and Patrick M. Schott of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

       There is nothing in the record to show that the trial judge had also presided over the proceeding from which the previous conviction resulted. Unlike the situation in State v. Augillard, 371 So.2d 798 (La.1979), the minutes evidencing the prior conviction are not before this court.


author: WATSON, Justice.

text:
    In the Matter of An Offense Under Investigation, in re: MORRIS THRIFT PHARMACY. (State of Louisiana v. Aaron B. Morris.)
    No. 80-K-2609.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearings Denied May 18, 1981.
    Frank J. Gremillion, Cyrus J. Greco, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, John L. A. Lenfant, IV, David C. Forrester, Asst. Attys. Gen., Elizabeth V. Ward, Asst. Dist. Atty., for plaintiff-respondent.
   WATSON, Justice.

Aaron B. Morris, the owner-operator of Morris Thrift Pharmacy, contends that a subpoena of his pharmaceutical records by the Attorney General of Louisiana should be quashed. A motion to quash the subpoena was denied by the trial court. It is argued that the attorney general has exceeded his constitutional authority and that the documents will make Morris a witness against himself in violation of the Fifth Amendment to the United States Constitution. A writ of review was granted to consider these two issues.

FACTS

In its motion for issuance of the subpoena, the attorney general’s office alleged the following: On October 15, 1979, Electronics Data Systems (E.D.S.) conducted a routine pricing audit of Morris Thrift Pharmacy for the Department of Health and Human Resources. During the audit, an E.D.S. auditor overheard a pharmacy clerk tell a new employee that cash and credit customers were to be charged less than the dollar amount shown on their prescriptions. The auditor surmised that these customers were being given discounts which were not granted the State on welfare prescriptions.

The subpoena duces tecum ordered Morris Thrift Pharmacy through its owner-operator to produce the following records:

“1. Any and all records indicating credit or cash sales of prescription medication to customers during the period January 1, 1978, to present, including but not limited to ‘insurance’ ledger cards, and ‘charge’ ledger cards;
2. Any and all patient profile cards for all customers receiving medication from January 1, 1978, to present;
3. Any and all Computer, Inc., ‘Title XIX Claims Information Sheets’ for the period January 1, 1978, to present;
4. Any and all cash register receipts documenting sales of prescriptions (sic) medication for the period January 1, 1978, to present.”

ATTORNEY GENERAL’S AUTHORITY

LSA-Const.1974, Art. IV, § 8 provides, in pertinent part:

“As necessary for the assertion or protection of any right or interest of the state, the attorney general shall have authority (1) to institute, prosecute, or intervene in any civil action or proceeding; (2) upon the written request of a district attorney, to advise and assist in the prosecution of any criminal case; and (3) for cause, when authorized by the court which would have original jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in any criminal action or proceeding, or (b) to supersede any attorney representing the state in any civil or criminal action.
“The attorney general shall exercise other powers and perform other duties authorized by this constitution or by law.”

Morris maintains that this is a criminal prosecution which the attorney general has initiated without judicial authorization in violation of this section.

The restrictions of Article IV, Section 8 must be viewed in light of the corresponding provisions of the 1921 Constitution. The 1921 Constitution gave the attorney general broad powers, including the power to institute criminal prosecutions. The 1974 Constitution limited this authority to those instances where there was “cause” and judicial authorization.

Article IV, Section 8, speaks of limitations on the attorney general’s power to initiate, intervene and assist in criminal prosecutions. These sections limit the attorney general’s power to prosecute but not his ability to investigate.

The last paragraph of Article IV, Section 8, states: “The attorney general shall exercise other powers and perform other duties authorized by this constitution or by law.” The subpoena power of the attorney general is authorized “by law” in LSA-C.Cr.P. art. 66, which provides, in pertinent part, as follows:

“Upon written motion of the attorney general or district attorney setting forth reasonable grounds therefor, the court may order the clerk to issue subpoenas directed to the persons named in the motion, ordering them to appear at a time and place designated in the order for questioning by the attorney general or district attorney respectively, concerning any offense under investigation by him. The court may also order the issuance of a subpoena duces tecum.”

Article IV, Section 8 does not limit the investigatory powers of the attorney general. They may be carried out as authorized by law. The activities of the attorney general in this case are properly classified as investigatory and are authorized by LSA-C. Cr.P. art. 66.

FIFTH AMENDMENT CLAIM

Morris contends that production of the documents in items (1) and (2) of the subpoena will violate his right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution. A similar claim was made in the Matter of Rozas Gibson Pharmacy of Eunice, Inc., 382 So.2d 929 (La., 1980), which held that the corporate owner of a pharmacy had no reasonable expectation of privacy in records of services provided to medicaid patients. Morris also has no reasonable expectation of privacy in the records which he has been ordered to produce.

Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911) held that a corporation could not refuse production of its books on a self-incrimination basis because it had a duty to submit its records and books to the public authority upon proper demand. This “required records” exception to the privilege against self-incrimination was expanded to include non-corporate entities in Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1947). Shapiro held that this exception also applies to personal records which are required by statute.

Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) refined the “required records” exception. There are three requirements: (1) the government’s inquiry must be essentially regulatory; (2) the information must be obtained from the kind of records that the regulated party customarily keeps; and (3) the records must have assumed “public aspects.” Grosso, supra, 390 U.S. 67, 68, 88 S.Ct. 713, 714. The records which Morris has been ordered to produce meet the Gros-so requirements. The attorney general’s investigation is concerned with regulating the state’s medicaid program. The information in these records is customarily kept by Morris. Because of federal regulations and agreements signed by Morris, these records have acquired “public aspects.”

Morris chose to enter the regulated business of dispensing prescription drugs. He voluntarily chose to participate in the Louisiana Medical Assistance Program and signed a medicaid provider agreement which required him to maintain certain records. Morris signed a “Pharmaceutical Services Provider Agreement Form”, which provides in part:

“I hereby agree to keep such records as are necessary to disclose fully the extent of services provided to individuals under the State’s Title XIX plan and to furnish information regarding any payments claimed for providing such services as the State agency or its authorized representatives may request for three years from date of service.”

The claim forms which Morris was required to fill out and sign in order to obtain payment contained statements which reiterated the language of this agreement.

Even though the records sought by the state pertain to all customers, they are covered by these agreements. ' The regulations of the medicaid program provide that a pharmacist is to be paid the lower of (1) ingredient cost plus a dispensing fee; or (2) the provider’s customary charge to the general public. These regulations placed Morris on notice that he was required to maintain records regarding charges to the general public. He agreed “to furnish information” about the payments claimed for services that he provided. He has no reasonable expectation of privacy in the records he was ordered to produce; he knew that he could be required to furnish them to the Department of Health and Human Resources. The subpoena duces tecum does not violate Morris’ constitutional privilege against self-incrimination.

For the foregoing reasons, the ruling of the trial court denying applicant’s motion to quash the subpoena duces tecum is affirmed.

AFFIRMED.

       Judges James C. Gulotta, John C. Boutall, and Patrick M. Schott of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon, and Associate Justices Calogero, Dennis and Watson.

      . In brief, applicant indicates that he has withdrawn his objection to producing the documents sought in item (3) of the subpoena, since they are directly related to the filling of medicaid prescriptions. He also maintains that the records sought in item (4) of the subpoena, cash register receipts, were never in existence and cannot be supplied. Morris’ application, therefore, is directed toward the records sought in items (1) and (2) of the subpoena duces tecum.

      . LSA-Const.1921, Art. VII § 56 stated, in pertinent part, as follows:
      “Section 56. The Attorney General and the assistants shall be learned in the law and shall have actually resided and practiced law, as duly licensed attorneys, in the State for at least five years preceding their election and appointment. They, or one of them, shall attend to, and have charge of all legal matters in which the State has an interest, or to which the State is a party, with power and authority to institute and prosecute or to intervene in any and all suits or other proceedings, civil or criminal, as they may deem necessary for the assertion or protection of the rights and interests of the State. They shall exercise supervision over the several district attorneys throughout the State, and perform all other duties imposed by law.”

      . See Records of Louisiana Constitutional Convention of 1973; Convention Transcripts, pp. 3379-81, 3395, 3436-40.

      . See State v. Neyrey, 341 So.2d 319 (La., 1976) and Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev. 765, at 837.

      . Article IV, Section 8, subdivision (3) authorizes the attorney general to institute a criminal action or supersede an attorney representing the state in a civil or criminal action, “for cause, when authorized by the court....” Without power of investigation it would be impossible for the attorney general to amass the evidence to make such a showing of “cause”. See Hargrave, supra, at 837.

      . The records ordered produced in item (1) are those which indicate cash or credit sales to customers, including insurance ledger cards and charge ledger cards. Those sought in item (2) are all patient profile cards, including records of sales to non-welfare patients.

      . U.S.C.A.Const. Amend. V provides, in pertinent part, as follows:
      “No person ... shall be compelled in any criminal case to be a witness against himself. ...”
      See Boyd v. U. S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); and Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). In Beilis the United States 'Supreme Court declared that the privilege against self-incrimination “applies to the business records of the sole proprietor or sole practitioner as well as to personal documents containing more intimate information about the individual’s private life.” 417 U.S. at 87-88.

      . Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) stated:
      “[T]he Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.” 425 U.S. 408, 96 S.Ct. 1579.
      The state maintains that the production of records ordered here is not a compelled, incriminating, testimonial communication, and the Fifth Amendment privilege does not apply. It is unnecessary to reach this issue because Morris has no Fifth Amendment privacy interest in these records.

      . The “required records” exception is not limited to records required by statute, but includes records required by administrative regulations. In Re Grand Jury Proceedings, 601 F.2d 162 (5 Cir. 1979).

      . See LSA-R.S. 37:1171, et seq. for state statutes regulating the practice of pharmacy.

      . Medicaid provider agreements are required by 42 C.F.R. 431.107 (1979) which provides in pertinent part:
      “(b) Agreements. A State plan must provide for an agreement between the Medicaid agency and each provider furnishing services under the plan in which the provider agrees to: “(1) Keep any records necessary to disclose the extent of services the provider furnishes to recipients;
      “(2) On requests, furnish to the Medicaid agency, the Secretary, or the State Medicaid fraud control unit (if such a unit has been approved by the Secretary under § 455.300 of this chapter), any information maintained under paragraph (b)(1) of this section and any information regarding payments claimed by the provider for furnishing services under the plan; and
      “(3) Comply with the disclosure requirements specified in Part 455, Subpart B of this chapter.”

      .Additionally, on April 30, 1980, Morris signed an agreement which allowed him to submit medicaid claims on magnetic tape. This agreement provides, in pertinent part, as follows:
      “8.
      “The Provider agrees to submit to the State Agency, Fiscal Intermediary or any other authorized agent, upon request, sufficient documentation to substantiate the scope and nature of services provided for those claims submitted and for which reimbursement is claimed.
      ******
      “11.
      “Further, for a period of three (3) years, should during the course of a Federal or State audit or investigation documentation of the existence, nature and scope of the services pertaining to a medical assistance claim be requested, the Provider shall provide the documentation as requested or produce such for examination and copying.”

      . See 42 C.F.R. 447.331(a) (1979):
      “The agency may not pay more for prescribed drugs than the lower of ingredient cost plus a dispensing fee or the provider’s usual and customary charge to the general public.”
      See also, 42 C.F.R. 447.333, 447.334.


author: PATRICK M. SCHOTT, Justice Ad Hoc.

text:
    STATE of Louisiana v. Warren S. McGARY.
    No. 80 KA 2205.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearing Denied May 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, Dist. Atty., Sam Dileo and Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    William Brooks, Amite, for defendant-appellant.
   PATRICK M. SCHOTT, Justice Ad Hoc.

Defendant has appealed from the denial of his motion to suppress evidence on the ground that it was obtained in violation of his constitutional, right against unreasonable search and seizure. The issue is whether an initial discovery of marijuana in defendant’s automobile was properly within the “plain view” exception to the general rule excluding evidence obtained in a war-rantless search.

Defendant was initially charged with intent to distribute marijuana, methaqualone and hashish in violation of LSA-R.S. 40:967. After his motion to suppress was denied he entered a plea of guilty to the offense of possession with intent to distribute marijuana and was sentenced to three years at hard labor. This plea was made with full reservation of his right to appeal from the denial of the motion to suppress.

On April 15, 1980, at about 9 o’clock PM Officer Pierson of the Ponchatoula Police Department received a complaint from the manager of a Day Care Center that two automobiles were parked in front of her establishment, other automobiles had been coming and going, she had been robbed on previous occasions, and she requested an investigation of this suspicious activity. When Pierson arrived at the scene, a Chevrolet and a Ford automobile was parked side by side on private property about 12 feet from the front door of the Day Care Center. He ordered the driver of the Chevrolet, Leroy McFadden, to get out and he proceeded to question him at the back of the car. When he asked McFadden who were the others in the two cars McFadden did not answer, so Pierson went to the front of the Chevrolet and shone his flashlight inside the car so as to see McFadden’s companion. As he did this he noticed what appeared to be a large quantity of marijuana and qualude pills. Pierson ordered McFadden’s passenger, the driver of the Ford, who is the defendant in this case, along with his passenger, out of the automobiles and to stand at the back of the cars where Pierson placed them under arrest and radioed for assistance.

When a second police car arrived, the suspects were handcuffed and placed in the two police cars. Shortly afterwards, narcotics agent Fischer of the state police arrived on the scene and it is his conduct on which much of defendant’s argument is based. Fischer testified that Pierson had told him that marijuana and pills were in plain view in both automobiles when he shone his light to see the occupants. However, at trial Pierson testified that he saw marijuana and pills only in the Chevrolet but not in defendant’s Ford. Based on this information, according to Fischer, he looked through the window of each car, saw what he thought was marijuana, reached through to get some of the substance, and he performed field tests on it which verified to his satisfaction that it was marijuana. Fischer also testified that both McFadden and McGary consented to his conducting a search of the automobiles, but he decided to obtain a search warrant anyway.

When the automobiles were searched pursuant to the search warrant large amounts of marijuana, hashish and qualudes were obtained.

These facts, were essentially undisputed by defendant although he did testify that while the four suspects were under arrest before any other policemen arrived on the scene, Pierson conducted a search of both automobiles, and somehow moved a bag of marijuana from McFadden’s car to defendant’s, while at the same time watching the suspects and holding a flashlight and gun in his hands. There was no error in the trial court’s rejection of this testimony.

The first inquiry concerns Officer Pierson’s activities, since his initial discovery of the marijuana and pills in the Chevrolet triggered the sequence of events which led to the issuance of a warrant and the obtaining of evidence from both automobiles. First, the report he had from the manager of the Day Care Center was more than sufficient to justify his stopping McFadden and McGary for questioning. C.Cr.P. Art. 215.1 A. The same justification existed for him to shine the light inside the automobiles in order to learn the identity of McFadden’s passenger as well as McGary and his passenger. The criteria for the application of the plain view doctrine were present. There was prior justification for Pierson’s intrusion into the protected area inside McFadden’s car. The evidence was discovered inadvertently. And it was immediately apparent to Pierson that this was marijuana and pills. State v. Pomes, 376 So.2d 133 (La.1979).

However, defendant argues that no basis existed for tying his automobile to McFadden’s just because the large quantity of contraband had been seen- in McFadden’s car. We disagree. These automobiles were parked so close together that one could not squeeze between them. They had been in that position for at least the length of time for the manager of the Day Care Center to discover them and for Pierson to arrive on the scene. They were both parked on private property. The only reasonable conclusion anyone could draw was that there was some joint activity being pursued by the occupants of both automobiles. Any suggestion to the contrary is patently absurd. We conclude that the plain view doctrine exempted the marijuana and pills seen in McFadden’s car from the usual protection against unreasonable search and seizure and that the connection between the two automobiles and their occupants was more than sufficient to justify the issuance of a search warrant as to both automobiles.

However, defendant argues that the intervening behavior of Fischer somehow broke this chain of legitimacy between Pierson’s discovery and the issuance of the warrant. Under the circumstances it seems unnecessary to consider whether Fischer’s conduct was proper or not. By the time he got there the four suspects had already been placed under arrest and the search and seizure in which the evidence was obtained was not made until a warrant was properly issued. Defendant’s conviction in no way depended on Fischer’s discovery of marijuana in his car and whether Fischer made a mistake or not in thinking that Pierson had also seen marijuana and pills in defendant’s car, such a mistake would not render Pier-son’s legitimate discovery nugatory.

Accordingly, the judgment denying defendant’s motion to suppress and the subsequent judgment convicting and sentencing him to three years at hard labor are affirmed.

AFFIRMED.

DIXON, C. J., and DENNIS, J., concur.

       Judge James C. Gulotta, John C. Boutall and Patrick M. Schott of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack Crozier Watson.