author: CALOGERO, Justice. LEMMON,. Justice,

text:
    STATE of Louisiana v. Terry P. DUPLANTIS.
    No. 66840.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      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.
    Charles C. Garretson, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

Defendant Terry P. Duplantis was charged by bill of information with possession of a controlled dangerous substance, phencyclidine, in violation of R.S. 40:467. After a jury trial defendant was found guilty as charged and was sentenced to five years at hard labor. The only issue, raised on this appeal is whether the trial court erred in denying defendant’s motion to suppress.

On March 3,1979 defendant was arrested in a model apartment of the Bissonet Apartments in Jefferson Parish for criminal trespass. After being taken to the Jefferson Parish Sheriff’s Office and being booked on that charge, defendant was required to surrender his wallet and other personal belongings to the booking officer. The booking officer then looked through defendant’s wallet and found four aluminum foil packets containing a crystalline substance (later learned to be phencycli-dine) in one of the wallet’s compartments. Defendant was then arrested on the instant charge.

At the hearing on the motion to suppress defendant contended that the seizure and search of his wallet and the subsequent seizure of the foil packets were unlawful. In brief he argues that even if the confiscation of the personal property and the inventory search of the wallet were authorized, the booking officer exceeded the scope of his authority. He contends that while the officer might have been authorized to inventory money, credit cards, and other things of value, he could not search under the flaps of the wallet or open the foil packets found there and that the alleged inventory search was in fact a subterfuge for a warrantless search for contraband.

The confiscation of an arrestee’s property at the time he is booked on a charge is authorized under Louisiana law. In State v. Taylor, 347 So.2d 172, 179 (1977), this Court rejected the argument that a search of a notebook surrendered at the time of the booking was unlawful because done without a warrant. There the Court noted that the surrender of personal effects and inventory search at the time of booking are designed to protect the arrestee’s property, the security of his incarceration, and the personal safety of those who come in contact with him. Furthermore, Article 228 of the Code of Criminal Procedure requires that such surrender be made. That article provides that as part of the routine booking procedure a list of any property taken from the defendant shall be entered in a book together with his name, address, the offense charged against him, by whom he was arrested and the date and the time of the booking.

An inventory search of an arrestee’s property at the time he is booked is also constitutionally permissible. As recognized by the United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the inventory search procedures have developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger. In State v. Jewell, 338 So.2d 633 (1966) this Court also recognized the inventory exception to the requirement for a warrant. However in Jewell the Court emphasized that an essential requirement to a valid inventory search is that the police must not have acted in bad faith and must not have used the inventory procedure as a subterfuge for a warrantless search.

In the instant case, Deputy Doody, the booking officer, testified at the hearing on the motion to suppress that at the time defendant was booked on the criminal trespass charge, he was asked to surrender his personal belongings. Then as a matter of routine procedure, the officer checked defendant’s wallet to determine how much money, credit cards and other things of value he had with him when he arrived at the station, and to list them as required by law. The officer also testified that while he went through the wallet he looked for possible stolen credit cards and other contraband. In the process he looked under one of the flaps of the wallet and discovered the four tin foil packets at issue.

Although Deputy Doody stated that at least -part of the reason that he searched defendant’s wallet was to discover any possible stolen credit cards or contraband, the search was made in accordance with standard police procedure to list all of the property taken from the defendant at the time he is booked. In accordance with such procedure the officer was authorized to search for and to list anything of value taken from defendant at the time he was booked. The fact that the foil packets were discovered under a “flap” in one of the wallet’s compartments does not make the inventory search invalid. Because wallets are designed with many compartments expressly for the purpose of holding valuables, the officer was justified in searching each of the wallet’s compartments. Such a search did not therefore exceed the officer’s authority to search.

Defendant argues that even after the officer found the foil packets, he was not authorized under the inventory search exception to open the packets and discover the contraband. He contends that it was obvious that nothing of value could have been contained in the packets and that an inventory search of them is invalid.

As indicated above, the officer’s search of the wallet was justified. In the course of this legally authorized inventory search for valuables, he discovered the foil packets. He thereupon opened the packets to facilitate his making a comprehensive examination and list of all the contents as is required. There was therefore no need for the officer to obtain a warrant before opening the foil packets.

Because the evidence was discovered in the process of a routine inventory search we find that the trial court did not err in denying defendant’s motion to suppress.

Decree

Accordingly defendant’s conviction and sentence are affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON,. Justice,

concurring.

The scope of a booking search incident to a lawful arrest is extremely broad. A person lawfully subjected to a custodial arrest (particularly for a crime such as criminal trespass) has very little, if any, legitimate expectation of privacy as to things on his person, and it is not offensive to the dignity of the defendant’s person for the court to decline to limit the police to searching for dangerous weapons or valuable items. United States v. Robinson, 414 U.S. 218, 239, 94 S.Ct. 467, 478, 38 L.Ed.2d 427 (1973) (Powell, J., concurring).

       La.C.Cr.P. art. 228 provides as follows:
      “It is the duty of every peace officer making an arrest, or having an arrested person in his custody, promptly to conduct the person arrested to the nearest jail or police station and cause him to be booked. A person is booked by an entry, in a book kept for that purpose, showing his name and address, the offense charged against him, by whom he was arrested, a list of any property taken from him, and the date and time of booking. Every jail and police station shall keep a book for the listing of the above information as to each prisoner received. The book shall always be open for public inspection. The person booked shall be imprisoned unless he is released on bail.”


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Thomas Rhuel SPELL.
    No. 67058.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Jck Derrick Muller, Asst. Dist. Atty., for plaintiff-appellee.
    Nolan Edwards, Larry Dupuis, Edwards, Stefanski & Barousse, Crowley, for defendant-appellant.
   CALOGERO, Justice.

Thomas Rhuel Spell was charged by grand jury indictment with the crime of second degree murder, in violation of R.S. 14:30.1. After a second trial by jury, defendant was found guilty as charged and sentenced to life imprisonment without eligibility for parole for forty years. On defendant’s motion the trial judge ordered an appeal. Defendant timely filed in the trial court, pursuant to C.Cr.P. art. 851(3), a motion for new trial based on allegations of new and material evidence that, notwithstanding the exercise of reasonable diligence by defendant, was not discovered before or during the trial, which evidence, if available, allegedly would probably have changed the verdict of guilty.

Under C.Cr.P. art. 916, the jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal and thereafter the trial court has no jurisdiction over the matter except for certain listed actions not applicable here. Thus pursuant to C.Cr.P. art. 853, defendant has filed with this Court a motion to remand his case to the trial court for a hearing on his motion for a new trial. The motion for the remand has not been opposed by the state.

Therefore, in accordance with the above provisions, we remand the case to the trial court for a hearing on defendant’s motion for a new trial. State v. Shannon, 360 So.2d 193 (La.1978); State v. Perry, 351 So.2d 1201 (La.1977); and State v. Bradford, 275 So.2d 407 (La.1973).

Decree

It is ordered that the case be remanded to the trial court for a hearing on defendant’s motion for a new trial.

REMANDED.

       Defendant was originally convicted following a bench trial, but upon defendant’s motion, the trial court granted defendant a new trial.


author: MARCUS, Justice. DIXON, Chief Justice.

text:
    Robert G. SUHOR, Jr. v. Ricky J. GUSSE et al.
    No. 66518.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      John A. Occhipinti, Occhipinti, Tamberel-la & Grace, New Orleans, for plaintiff-applicant.
    Robert E. Barkley, Jr., Trial Atty., Linda S. A. Burke, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, Ben C. Toledano, Trial Atty., John J. Hainkel, Jr., Margaret A. Bretz, Porteous, Toledano, Hainkel & Johnson, New Orleans, William H. Syll, Jr., Trial Atty., Bernard, Cassisa, Babst & Saporito, New Orleans, for defendants-respondents.
   MARCUS, Justice.

Robert G. Suhor, Jr. sustained personal injuries when the truck he was driving was struck in the rear by an automobile driven by Darlene M. Bellow (now Mrs. Darlene B. Gusse), the minor daughter of Donald Bellow. Allstate Insurance Company was the liability insurer of the Bellow vehicle and State Farm Mutual Automobile Insurance Company was Suhor’s uninsured motorist insurer.

After suit was filed, issues joined, and trial by jury, a verdict was returned in which the jury found in response to written interrogatories that Darlene B. Gusse negligently caused the injuries sustained by plaintiff in the accident and fixed the amount of damages at $25,000. The trial judge rendered judgment in accordance with the verdict. Plaintiff appealed. The court of appeal affirmed. Upon plaintiff’s application, we granted certiorari to review the correctness of this decision.

Plaintiff contends the trial judge erred in admitting evidence of defendants’ inability to pay while preventing him from informing the jury of the limits of the various insurance policies and then instructing the jury it could consider the inability of Mr. Bellow and Mrs. Gusse to pay damages over and above any insurance coverage they may have had without informing the jury of the amounts of insurance available. He argues these errors improperly influenced the jury in making its award for damages. We agree.

Under Louisiana law, a defendant can introduce evidence of his impecunious condition at the time of trial. Guy v. Tonglet, 379 So.2d 744 (La.1980). The “inability to pay” rule dates back to Williams v. McManus, 38 La.Ann. 161 (1886), and Loyacano v. Jurgens, 50 La.Ann. 441, 23 So. 717 (1898), and has been consistently applied by Louisiana courts ever since. The ability of the defendant to respond in damages is a proper subject of consideration in assessing damages. Daly v. Kiel, 106 La. 170, 30 So. 254 (1901).

Recently, in Daniels v. Conn, 382 So.2d 945 (La.1980), we considered the application of the inability to pay rule where joint tortfeasors are liable in solido. We held that where there are solvent and insolvent joint tortfeasors liable in solido, evidence of the insolvent defendant’s inability to pay may not be considered by the trial court in determining damages to be awarded to the plaintiff, or in apportioning damages as between those joint tortfeasor defendants at the trial on the merits of plaintiff’s claim. Accordingly, if the insurance available to Mr. Bellow and Mrs. Gusse had been in excess of plaintiff’s claim, the trial judge would have erred in admitting evidence of inability to pay. In the instant case, however, plaintiff claimed damages amounting to $400,000. Defendants’ available insurance was $50,000. Their inability to pay more than that amount was a proper subject of consideration. Therefore, the trial judge properly permitted introduction of evidence of defendants’ inability to pay.

Plaintiff argues that the trial judge erred in admitting evidence of defendants’ inability to pay while not allowing him to inform the jury of the limits of the various insurance policies.

The record reveals the Allstate policy was not introduced; however, the parties stipulated into evidence outside the presence of the jury that it provided $50,000 of coverage. During trial, plaintiff objected to the introduction of evidence of Mr. Bellow’s inability to pay unless the amount of his insurance also be introduced. The trial judge overruled the objection and allowed the evidence without permitting plaintiff to inform the jury of the amount of the Allstate coverage. Evidence was also admitted of Mrs. Gusse’s inability to pay. Later, during the “charge conference,” plaintiff again requested that the trial judge permit the jury to hear the amount of coverage under the insurance policy issued to Mr. Bellow by Allstate in order to “re[f]ute the evidence of inability to pay that the Court allowed to be presented to the jury.” The trial judge denied the request.

Clearly, where evidence of defendant’s inability to respond to damages is allowed for consideration in assessing damages, plaintiff is entitled to introduce evidence of defendant’s insurance coverage as well as of any assets available to defendant to satisfy the judgment. See Guy v. Tonglet, supra. Hence, the trial judge erred in denying the plaintiff the opportunity to make the jury aware of the amount of the Allstate coverage.

Finally, plaintiff contends the trial judge erred in instructing the jury in accordance with State Farm Mutual’s Requested Charge No. 19, which is as follows:

If you determine that plaintiff is entitled to recover damages you must determine the amount of those damages. In determining the amount of the damages you may take into consideration the ability or inability of Mr. Bellow and Mrs. Gusse to pay the amount of the damages which you award. You may consider whether they are covered by insurance and their ability or inability to pay damages over and above any insurance which they may have. You may take these factors into consideration and you may reduce the amount of the damages which you would otherwise have awarded to fairly and reasonably compensate the plaintiff because of those considerations.

After the jury was charged and was retired to consider its verdict, plaintiff objected to this instruction.

La.Code Civ.P. art. 1792 provides that the judge shall instruct the jurors on the law applicable to the cause submitted to them. A party may file written requests that the court instruct the jury on the law set forth in the requests. La.Code Civ.P. art. 1793. In accordance with State Farm Mutual’s Requested Charge No. 19, the judge charged the jury that it could consider the inability of Mr. Bellow and Mrs. Gusse to pay damages over and above any insurance they may have had but he did not inform the jury of the amount of such insurance. The amount was in the record, having been stipulated by the parties. Moreover, as discussed above, it was relevant to the defense of inability to pay. Accordingly, the trial judge erred in instructing the jury that it could consider the inability of Mr. Bellow and Mrs. Gusse to pay damages over and above any insurance coverage they may have had without informing the jury of the amount of insurance available.

In Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), we stated that an appellate court, if it has before it a complete record of all the necessary evidence, has a constitutional duty to review the facts of a case as well as the law and to render a judgment on the merits. An appellate court, when it believes that errors committed at trial influenced the jury verdict, must undertake an independent evaluation of the facts and adjudicate the controversy before it. Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976); Gonzales v. Xerox Corporation, supra.

In the instant case, the trial judge erred in excluding from the jury evidence of insurance coverage available to the defendants while allowing evidence of their inability to pay and in charging the jury that it could consider the inability of defendants to pay damages over the insurance available and reduce the damages accordingly without informing it of the amount of insurance available, an amount in the record. We believe these errors influenced the jury verdict. Therefore, we must set it aside. However, in the instant case this court need not undertake the Gonzales independent evaluation of the facts and assess damages, as the court of appeal has not yet done so. On original hearing, the court of appeal reviewed the damage award under the “much discretion” standard of Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976). On rehearing, it affirmed because there was no majority to change the trial court’s judgment. It is not clear under what standard the damage award was reviewed on rehearing, but it is clear that the majority of the court did not undertake an independent evaluation. We therefore consider it more appropriate to remand the case to that court for it to conduct an independent evaluation of the damages due plaintiff.

DECREE

The judgment of the court of appeal is reversed and set aside insofar as it affirmed the trial court’s award of damages and the ease is remanded to the court of appeal for an independent evaluation of the damages due plaintiff; otherwise, the judgment of the court of appeal is affirmed.

LEMMON, J., concurs in the decree only and will assign reasons. [The concurring opinion will be separately published.]

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

DIXON, C. J., dissents in part and concurs in part with reasons.

CALOGERO, J., concurs in part and dissents in part for the reasons assigned by Justice Lemmon.

DIXON, Chief Justice.

I dissent in part and concur in part, being of the opinion that the ability of defendant to pay compensatory damages is not relevant.

      . Ricky J. Gusse’s exceptions of no cause or right of action in the main and third party demands against him were sustained and he was dismissed from the suit prior to trial.

      . Judgment was rendered in favor of plaintiff and against Donald Bellow, individually and as administrator of the estate of Darlene M. Bellow, and Allstate, in solido, for $25,000 together with interest and costs. It was further ordered that State Farm Fire and Casualty Company be given preference in the judgment for $12,539.06 previously paid plaintiff as worker’s compensation and that plaintiff’s claim against State Farm Mutual, State Farm Mutual’s third party demand, and State Farm Fire and Casualty Company’s intervention against State Farm Mutual be dismissed.

      . 377 So.2d 1259 (La.App. 4th Cir. 1979) (on rehearing). On rehearing before a panel of five judges, the judgment of the trial court was affirmed for lack of a majority to change it.

      . 380 So.2d 69 (La. 1980).

      . Although insurance was available to plaintiff under the uninsured motorist provisions of the State Farm Mutual policies, such insurance was not available to Mr. Bellow and Mrs. Gusse because the uninsured motorist insurer, if cast in judgment, would be entitled to indemnity from them.

      . La.Code Civ.P. art. 1793 provides in pertinent part:
      A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.
      In the instant case, while plaintiff did not object to the instruction before the jury retired, the record reflects that at the “charge conference” prior to instructing the jury, plaintiffs request to permit the jury to hear the amount of the Allstate policy in order to refute the evidence of inability to pay, which the court allowed to be presented to the jury over plaintiff’s objection, was denied. Moreover, immediately after the jury was charged and retired to consider its verdict, each party made its objections to the giving or failure to give certain instructions. This was done without objection by any party. Accordingly, under the circumstances, any complaint that plaintiff “may not assign as error” the giving of the above instruction has been waived and the assigned error is properly before us for review.


author: MARCUS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Stanley J. DARANDA.
    No. 66816.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Jeannette Theriot Knoll, Cliff E. Laborde, III, Asst. Dist. Attys., for plaintiff-appellee.
    Gravel, Robertson & Brady, Dee D. Drell, Alexandria, for defendant-appellant.
   MARCUS, Justice.

Stanley J. Daranda was charged by bill of information with negligent homicide in violation of La.R.S. 14:32. After trial by jury, defendant was found guilty and sentenced to serve five years at hard labor. On appeal, defendant relies on eight assignments of error for reversal of his conviction and sentence.

FACTS

On the night of January 19,1979, defendant was driving his automobile north on La. Highway 1 in Avoyelles Parish. At the same time, Ms. Hazel Bordelon was traveling south on the same highway in her automobile. The road was wide, straight and level, with no obscurements. The Bordelon vehicle contained two passengers, Mrs. Nes-ter Deshotel, who occupied the front passenger seat, and Mr. John Juneau, who was seated in the rear of the vehicle. As the vehicles were about to pass, going in the opposite direction, defendant’s vehicle suddenly went into a spin, crossed into the southbound lane of traffic and collided headon with the Bordelon vehicle. It was raining at the time. All occupants of the two vehicles, including defendant, were hospitalized with serious injuries. At the hospital approximately two hours after the accident, defendant consented to a blood test to determine the alcohol content of his blood. The results of that test were introduced in evidence at trial. Mrs. Deshotel died on February 6,1979, from a streptococcus infection in fluid which accumulated on her brain as a result of injuries sustained in the accident.

ASSIGNMENTS OF ERROR NOS. 1 AND 5

Defendant contends the trial judge erred in denying his motion to quash grounded on a claim that the presumption of criminal negligence set forth in La.R.S. 14:32 is unconstitutional (Assignment of Error No. 1) and in instructing the jury as to the presumption of intoxication provided for in La.R.S. 32:662 in that this presumption is likewise unconstitutional (Assignment of Error No. 5). He argues that the use of each of these presumptions allows the state to secure a conviction without proving beyond a reasonable doubt every element of the crime charged.

La.R.S. 14:32 provides:

Negligent homicide is the killing of a human being by criminal negligence.
The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
Whoever commits the crime of negligent homicide shall be imprisoned, with or without hard labor, for not more than 5 years. (Emphasis added.)
La.R.S. 32:662 provides:
A.The chemical test or tests as provided for by this Part shall be subject to the following rules and shall be administered as provided for hereafter:
1. Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcoholic beverages the amount of alcohol in the person’s blood at the time alleged as shown by chemical analysis of the person’s blood, urine, breath or other bodily substance shall give rise to the following presumptions:
a. If there was at that time 0.05 per cent or less by weight of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of alcoholic beverages.
b. If there was at that time in excess of 0.05 per cent but less than 0.10 per cent by weight of alcohol in the person’s blood, such fact shall not give rise to any presumption that the person was or was not under the influence of alcoholic beverages, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages.
c. If there was at that time 0.10 per cent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages.
B. Percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred cubic centimeters of blood.
C. The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of alcoholic beverages.

This section has no application to a civil action or proceeding. (Emphasis added.)

In State v. Hammontree, 363 So.2d 1364, 1372 (La.1978), we upheld the constitutionality of La.R.S. 14:32, stating that while .the phrase “presumptive evidence” creates no legal presumption, it means that the “violation of a statute related to the cause of the accident will justify the inference that defendant committed a criminally negligent act.” Subsequently, in County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the Supreme Court considered the use of statutory presumptions in criminal cases. As defined in Ulster, the presumption of criminal negligence would be considered a “permissive statutory presumption” as it leaves the trier of fact free to credit or reject the inference and under the facts of this case there was a “rational connection” between the basic facts that the prosecutor proved and the fact presumed, and the latter was more likely than not to flow from the former. Since the record further reflects that the state proved beyond a reasonable doubt that defendant’s criminal negligence was the cause of the victim’s death, it is clear that the presumption was not the sole basis for a finding of guilt. Hence, the prosecutor would have been entitled to use the presumption of criminal negligence in this case. See also Hammontree v. Phelps, 605 F.2d 1371 (5th Cir. 1979).

Ulster defined a mandatory presumption as one that tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to refute the presumed connection between the two. Generally, the presumption is examined on its face to determine the extent to which the basic and elemental facts coincide. In order to sustain the use of a mandatory presumption to prove an essential element of an offense, the fact proved must be sufficient to support the inference beyond a reasonable doubt.

In the instant case, the presumption of intoxication while driving provided by La.R.S. 32:662 is a mandatory presumption which could be used by the prosecutor, that is, the fact proved (a test reading of 0.19 per cent by weight of alcohol in defendant’s blood) sufficiently supports the presumption of intoxication (presumed fact) beyond a reasonable doubt. However, Ulster related to a situation where the presumed fact was an elemental fact. Here, the presumed fact of intoxication is not an elemental fact; rather, the element of the offense is criminal negligence. Thus, it is obvious that, if the presumption of intoxication could be used by the prosecutor if intoxication was an element of the offense under Ulster, a fortiori, it could be used by the prosecutor merely to prove a fact to be considered in proving criminal negligence, an element of the offense.

However, in State v. Williams, 375 So.2d 931 (La.1979), we held that it would be improper for the prosecutor to “link or piggy-back” in a negligent-homicide prosecution the presumptions provided by La.R.S. 32:662 and 14:32. By requiring the jury to conclusively presume the motorist’s intoxication arising from the blood test result and thereby supplying a statutory violation which is presumptive of criminal negligence, the state would be able to prove guilt in a negligent-homicide prosecution without, meeting the constitutionally-required “beyond a reasonable doubt” standard of proof.

In the instant case, after the reading of the information and defendant’s plea on arraignment, the trial judge read the offense charged, La.R.S. 14:32, to the jury in its entirety. Defendant objected to a reading of that portion of the statute which referred to the presumption of criminal negligence. At that point, the state and defendant agreed to omit any reference in the presence of the jury to that portion of the statute objected to by defendant. The trial judge then re-read La.R.S. 14:32 to the jury, omitting that portion of the statute dealing with the presumption. Thereafter, the portion of the statute referring to a statutory violation as presumptive evidence of criminal negligence was not mentioned in the presence of the jury. In charging the jury, the trial judge stated:

There is no presumption of criminal negligence in favor of the prosecution in this case, and as stated, the burden of proof is on the State of Louisiana, to prove every element of the offense beyond a reasonable doubt. If there was at that- time, point one zero percent (.10%) or more, by weight of alcohol, in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages. .

Clearly, there was no “linking or piggybacking” in this negligent-homicide prosecution of the presumptions provided by La. R.S. 32:662 and 14:32. The initial reference to the presumption of criminal negligence was harmless.

In sum, the trial judge did not err in denying defendant’s motion to quash and in instructing the jury as he did.

Assignments of Error Nos. 1 and 5 are without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends the state presented no evidence of criminal negligence, an essential element of the crime charged.

The evidence adduced at the trial reveals that the accident occurred on a rainy night on a stretch of the highway described as wide, straight and level, with no obscure-ments. Trooper Travis R. Wiley, who investigated the accident, testified that the evidence indicated that defendant was headed in a northbound direction on La. Highway 1 when he lost control of his vehicle and traveled into the southbound lane, striking the vehicle in that lane headon. After impact, defendant’s vehicle went into a ditch on the side of the highway and the other vehicle made a forced spin in its lane. Both vehicles were totally demolished. Trooper Wiley stated that the vehicle traveling in the southbound lane, driven by Ms. Hazel Bordelon, had not been out of control, that he found no traffic violations to have been committed by Ms. Bordelon, and that the accident occurred entirely in her lane. Trooper Wiley further testified that defendant appeared intoxicated at the time and admitted at the hospital some two hours later that he had drunk “three quarts of beer and four or five small beers.” The state also introduced the blood analysis result of the test conducted by the State Police Crime Laboratory which showed that defendant’s blood contained .19 per cent alcohol by weight, a percentage sufficient to give rise to the presumption pursuant to La.R.S. 32:662(A)(l)(c) that defendant was under the influence of alcohol.

Ms. Bordelon testified that she was driving with her headlights illuminated but did not have them set on “bright” as defendant’s vehicle approached her, crossed into her lane, began to spin and collided with her vehicle. She testified that she heard a loud noise as defendant’s car approached as if it were traveling at a high speed.

Defendant testified that he was blinded by the bright headlights of Ms. Bordelon’s oncoming vehicle and that he applied his brakes and signalled several times for her to dim her lights but she failed to do so. Defendant stated that, as he was applying his brakes, his car turned and he hit the other vehicle. Defendant estimated his speed at 30 miles per hour.

The three occupants of the Bordelon vehicle and defendant, who was alone in his vehicle, were treated at a local hospital. Mrs. Nester Deshotel, a passenger in the Bordelon vehicle, was seen at the hospital by Dr. S. R. Abramson who testified that she was comatose at the time. He stated that her condition indicated some brain injury which caused him to refer her to a neurosurgeon, Dr. Chester Babson Fresh. Dr. Fresh testified that Mrs. Deshotel was transferred to his care on the night of the accident and that she died eighteen days later as a result of a streptococcus infection in an accumulation of fluid on her brain which was a delayed reaction to the injury to the brain. Dr. Fresh opined that Mrs. Deshotel died as a direct result of the injuries she received in the automobile accident.

This court has previously held that our review of an allegation of no evidence is limited to a determination of whether there is “some evidence” to support a verdict. State v. Banks, 362 So.2d 540 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977). Whether we apply that traditional standard of review or the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt, we find substantial evidence from which a jury could have found defendant guilty of the crime charged.

Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in imposing an excessive sentence.

At the sentencing hearing, the trial judge sentenced defendant to serve five years at hard labor, the maximum penalty. When asked by defendant to state specifically the considerations taken into account in imposing the sentence, pursuant to La.Code Crim.P. art. 894.1, the trial judge stated only: “Well, I took into consideration the record of the defendant, and I took into consideration the fact that I could give a lesser sentence — might not serve the proper return to others; I took into consideration the age and the background of the defendant.” We conclude that the trial judge’s comment did not constitute sufficient compliance with La.Code Crim.P. art. 894.1(C), which requires that the trial judge state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

In State v. Sepulvado, 367 So.2d 762 (La. 1979), we stated that the statutory criteria legislatively provided by La.Code Crim.P. art. 894.1 provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentence alternatives. We further noted that the trial judge’s reasons in imposing sentence, as required by this statute, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. Absent compliance with La.Code Crim.P. art. 894.1, as in the instant case, we lack appropriate criteria by which to measure whether the sentence imposed is excessive. Accordingly, we must vacate defendant’s sentence and remand the case to the trial court with instructions to properly consider the sentencing guidelines in the statute before imposing sentence.

Having reviewed the remaining assignments of error asserted by defendant, we find that they present no reversible merit and do not require published explanation because they do not present any question of unsettled law. Therefore, these assignments of error are discussed in an unpublished but publicly-recorded appendix to this opinion.

DECREE

For the reasons assigned, defendant’s conviction is affirmed but the sentence imposed is vacated and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence defendant in accordance with law.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

The trial court’s first reading of R.S. 14:32 coupled with the later reading of R.S. 32:662 allowed the jury to consider the presumption of the former statute, dealing with criminal negligence, in conjunction with the presumption of the latter, dealing with intoxication. This situation was not cured by the second reading of R.S. 14:32, which omitted the statutory language concerning the presumption, because of the court’s failure to deliver an admonition correcting the mistake.

There was therefore a “linking or piggybacking” of presumptions, as was proscribed in State v. Williams, 375 So.2d 931 (La.1979), with the result that the jury was free to find the defendant guilty of negligent homicide simply upon a showing of DWI. The effect is to relieve the state of its constitutional burden of proving beyond a reasonable doubt the fact of defendant’s negligence, a necessary element of the crime charged. Therefore, I believe defendant’s assignments of error numbers 1 and 5 to be meritorious to the extent that they state that the conjunctive use of these two presumptions is unconstitutional. The judgment of the trial court should be reversed and a new trial granted.

      . Formerly, this court had held that in a jury trial the proper procedural vehicle for preserving a no evidence issue for appellate review was in a motion for a new trial. No such motion was filed here. However, in State v. Peoples, 383 So.2d 1006 (La.1980), we held that, whether or not a defendant raises a claim of no evidence in a motion for a new trial, upon formal assignment of error, we will review whether the defendant’s claim of no evidence has merit.

      . Defendant did not object on this ground at the time of sentencing. However, we have held that no objection is required as to excessiveness at the time of sentencing to preserve the issue for appellate review when raised by assignment of error to this court. State v. Gist,
        369 So.2d 1339 (La. 1979); State v. Cox, 369 So.2d 118 (La. 1979).

      . La.Code Crim.P. art. 894.1 provides:
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C.The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.


author: MARCUS, Justice.

text:
    Kathryn TAGLIAFERRI et al. v. WEISS BROS. STORES, INC., d/b/a Gus Mayer Stores, Inc. et al.
    No. 66870.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      Lannis A. Kircus, Terry R. Tippit, Austin, Tex., for plaintiffs-applicants.
    E. Harold Saer, Jr., Wiley G. Lastrapes, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, Sam A. LeBlanc, III, William S. Poole, Jr., D. Michael Dendy, Adams & Reese, New Orleans, for defendants-respondents.
   MARCUS, Justice.

Plaintiffs were employees of Gus Mayer Stores, Inc., an affiliate of Weiss Bros. Stores, Inc. In July 1965, Weiss and its affiliates executed a “Profit Sharing Plan and Trust Agreement for Employees of Weiss Bros. Stores, Inc. & Affiliates,” whereby individual accounts were established for each participant and the employer made contributions to those accounts based on the corporation’s profits.

In 1969, Warnaco, Inc. purchased the Gus Mayer stores. On December 30, 1972, the assets of the individual accounts of the Gus Mayer employees were merged into a trust fund known as the Employee Retirement Plan II of Warnaco, Inc., a pension plan which covered only Gus Mayer employees. The Warnaco pension plan provided the employees with retirement benefits equal to the greater of (1) a percentage of the employee’s earnings multiplied by his years of service, or (2) the employee’s account balance as transferred from the Weiss profit sharing plan, increased by a stated rate of interest. Thereafter, Warnaco made contributions to the pension plan.

On April 12, 1974, Warnaco sold the Gus Mayer stores to DAC Stores, Inc. and DAC appointed a Tennessee bank to act as trustee of the pension plan’s trust fund. The Warnaco pension plan was continued under the name of Gus Mayer Stores, Inc. Pension Plan until it was terminated effective June 30, 1975 by order of the United States District Court for the Western District of Tennessee. The termination was made pursuant to Section 4042(f) of the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1342(f) (1976)), which provides federal courts with exclusive jurisdiction over termination of pension plans. The federal court appointed the Pension Benefit Guaranty Corporation (PBGC) as successor and substitute trustee of the Gus Mayer Pension Plan and allowed the Tennessee bank to resign as trustee of the pension plan upon its submission of an accounting.

Plaintiffs filed this suit for an accounting in state court on October 9, 1975. In their petition, plaintiffs contended no accounting had been rendered to them since January 2,1972, and they demanded a full accounting of all funds vested in plaintiffs and a judgment against defendants for all losses to those vested amounts. Defendants Warnaco and Frederick W. Robinson, treasurer for the trustees of the Warnaco pension plan, filed an exception to the state court’s jurisdiction over the subject matter, contending that Section 4042(f) of ERISA vests exclusive jurisdiction of this action in the Tennessee federal district court. The trial court maintained the exception and dismissed plaintiff’s suit. The court of appeal affirmed, stating that plaintiffs had not alleged facts sufficient to show an unauthorized act or a breach of fiduciary duty by defendants which occurred prior to January 1, 1975, and because 29 U.S.C. § 1144 (1976) states that ERISA supersedes state laws as to acts or omissions which occur after January 1, 1975, plaintiffs had failed to show that the state courts had jurisdiction over this subject matter; in essence, that this action for an accounting could only be brought in the Tennessee federal court that administered the termination of the pension plan. We granted writs to review the correctness of this decision.

29 U.S.C. § 1144 (1976) provides in pertinent part:

(a) Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975.
(b)(1) This section shall not apply with respect to any cause of action which arose, or any act or omission which occurred, before January 1, 1975.

Plaintiffs contend their suit seeks an accounting of the funds handled by defendants Warnaco and Robinson prior to January 1, 1975, and because 29 U.S.C. § 1144 expressly provides that the provisions of Title IV of ERISA do not apply to acts or omissions which occurred prior to January 1, 1975, it was error to dismiss their suit on the ground of a lack of jurisdiction over the subject matter. We agree.

ERISA was enacted by Congress to protect individual pension rights by establishing minimum standards for the regulation of private retirement plans. Martin v. Bankers Trust Company, 565 F.2d 1276 (4th Cir.1977). To have one’s case heard in a federal forum, a plaintiff must show that he has a cause of action under ERISA. Martin, supra. While 29 U.S.C. § 1342(f) grants federal courts exclusive jurisdiction over termination of pension plans that come within the provisions of ERISA, nothing in the act indicates an intention on the part of Congress to grant the federal courts exclusive jurisdiction over actions arising out of the prior administration of a terminated pension plan when such action is not directly related to assets of the plan in the possession of the plan’s trustee. Gus Mayer Stores, Inc. v. Gus Mayer Stores, Inc., No. BK 75-717 (W.D.Tenn. Apr. 1, 1976).

The object of plaintiffs’ demand is to have Warnaco render an accounting. This demand is based upon alleged neglect and breach of a fiduciary duty by Warnaco while Warnaco controlled funds belonging to plaintiffs. We are not called upon, on review of this exception to dismiss for lack of jurisdiction, whether plaintiffs are entitled to such an accounting. See Sligo Iron Store Co. v. Blanks, 105 La. 663, 30 So. 115 (1901).

Plaintiffs’ demand for an accounting from Warnaco does not involve the assets of the pension plan presently in control of the PBGC, the trustee in charge of termination. Rather, the demand for an accounting concerns a transfer of funds by Warnaco occurring “on or about December 30, 1972,” and all alleged wrongful activity by Warnaco is alleged to have occurred before April 12, 1974. Thus, ERISA is not applicable in a review of those activities because 29 U.S.C. § 1144 excludes those activities occurring prior to January 1,1975 from the provisions of ERISA. We believe 29 U.S.C. § 1132(aXl)(B) and § 1132(e)(1) support our finding that the state court has concurrent jurisdiction with the federal courts to hear plaintiffs’ demand for an accounting:

(a) A civil action may be brought-
(1) by a participant or beneficiary-
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;
(e)(1) Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(lXB) of this section.

Hence, the courts below erred in holding the state courts were without jurisdiction to entertain plaintiffs’ demand for an accounting.

DECREE

The judgment of the court of appeal is reversed; the exception to the state court’s jurisdiction over the subject matter filed by Warnaco, Inc. and Frederick W. Robinson is overruled and the case is remanded to the district court for further proceedings consistent with this opinion.

      The Honorable Gerald P. Federoff participated in this decision as an Associate Justice Ad Hoc in place of Associate Justice Harry T. Lemmon, who was recused.

      . 378 So.2d 186 (La.App. 4th Cir.1979).

      . 381 So.2d 1222 (La. 1980).


text:
    Louise C. SANDERS v. DEPARTMENT OF HEALTH & HUMAN RESOURCES, East Louisiana State Hospital, two cases.
    Nos. 67130, 67177.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      R. Gray Sexton and Laura Denson Holmes, Baton Rouge, for applicant-inter-venor, Director of the Department of State Civil Service in No. 67177 and for respondent in No. 67130.
    Otha Curtis Nelson, Sr., Lake Charles, for Dept, of Health & Human Resources, applicant in No. 67130 and respondent in No. 67177.
    Mary E. Howell, Howell, Kellogg & Bayer, New Orleans, for respondent in Nos. 67130 and 67177.
   MARCUS, Justice.

Louise C. Sanders was removed from her position as Cook I (permanent status) at East Louisiana State Hospital for attempted theft of food from the hospital kitchen. Ms. Sanders was furnished a written statement giving detailed reasons for such action as well as notice of her right to appeal to the Civil Service Commission. She filed an appeal with the Commission. At the hearing before the Commission, the parties stipulated that Mr. Sanders had improperly possessed a “flat of eggs” (30 eggs) belonging to the hospital. Therefore, the question of whether there was just cause for her termination was not at issue. The only issues presented were the excessiveness of her punishment and whether the imposition of the punishment was discriminatory. After the hearing, the Commission denied the appeal, finding that the appointing authority (East Louisiana State Hospital) had not abused its discretion in removing Ms. Sanders and that there was no discriminatory application of discipline among employees at the hospital.

Ms. Sanders appealed to the court of appeal. Several months after the appeal was filed but prior to submission of the case for decision, Ms. Sanders filed a peremptory exception in the court of appeal alleging for the first time that she had been improperly removed because the appointing authority had failed to comply with Civil Service Rule 12.3(a)(3) which provides:

The appointing authority shall furnish the director a copy of such statement within fifteen calendar days of the date the employee is notified.

The court of appeal considered the exception pursuant to La.Code Civ.P. art. 2163. The court of appeal reversed the decision of the Commission because the appointing authority had failed to comply with Civil Service Rule 12.3(a)(3) which required the hospital to furnish the Director a copy of the written letter of termination within fifteen days of notification of the employee. The court noted that, although the application of the rule was “hypertechnical” and Ms. Sanders had shown no prejudice resulting from its violation, it was unable to uphold the termination in view of this court’s decision in Boucher v. Division of Employment Security of the Department of Labor, 226 La. 227, 75 So.2d 343 (1954). Accordingly, the court of appeal did not reach the merits of the appeal.

After the judgment was rendered, the court of appeal granted the motion of the Director to intervene pursuant to La. R.S. 13:3417. Thereafter, the appointing authority and the Director made separate applications to this court to review the decision of the court of appeal declaring the removal invalid. We granted both applications.

East Louisiana State Hospital contends that the issue of its compliance with Rule 12.3(a)(3) should have been raised before the Commission, alleging that, if evidence had been adduced on that point, it would have attempted to prove that the notification was in fact in the office of the Director prior to December 5, 1978, but that it was not stamped until that date. The Director contends that Boucher is either distinguishable from the facts of this case or should be overruled. On the other hand, Ms. Sanders alleges that Rule 12.3(a)(3) is mandatory, not directory, and that violation of the rule by the appointing authority renders her termination invalid. We do not agree. Moreover, our disposition of the latter issue renders the contention raised by the hospital of no moment.

In Boucher, we held the termination of three employees invalid because they had been removed without prior advance written notice to the Director as required by the rule in effect at that time.

Civil service rules have the effect of law, La.Const. art. 10, § 10(A)(4), and are construed according to the rules of interpretation relative to legislation in general. Statutes may be classified generally as either mandatory or directory. If mandatory, they prescribe, in addition to requiring the doing of the thing specified, the result that will follow if they are not done, whereas, if directory, their terms are limited to what is required to be done. Generally, statutory provisions that do not relate to the essence of the thing to be done, and as to which compliance is a matter of convenience rather than substance, are directory, while provisions which relate to the essence of the thing to be done, that is, matters of substance, are mandatory. Black’s Law Dictionary 414 (5th ed. 1979).

Rule 12.3(a)(3) is phrased in the imperative, a consideration which is significant though not controlling. See Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935). Whether procedural requirements such as those set forth in the rule are mandatory cannot be determined by a mere literal reading of the law but can only be determined by ascertaining the intent of the drafters. If a requirement is so essential to the statutory plan that the legislative intent would be frustrated by noncompliance, then it is mandatory. United States v. St. Regis Paper Company, 355 F.2d 688 (2d Cir. 1966). Statutes that, for guidance of a governmental official’s discharge of duties, propose to secure order, system and dispatch in proceedings are usually construed as directory, whether or not worded in the imperative, especially when the alternative is harshness or absurdity. Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977). The word “shall” may be given merely directory meaning in cases involving prospective action of government officials if the law’s purpose is the protection of the government by guidance of its officials rather than the granting of rights to private citizens affected. Triangle Candy Co. v. United States, 144 F.2d 195 (9th Cir. 1944). A significant consideration in determining whether a statutory requirement should be given mandatory or directory effect is a comparison of the results to which each such construction would lead. Holbrook v. United States, 284 F.2d 747 (9th Cir. 1960).

. the appointing authority or his authorized agent shall furnish the employee and the Director in advance of such action a statement in writing giving explicit and detailed reasons therefore and .... ”

The provisions of the state constitution involving the Civil Service, La.Const. art. 10, § 1, et seq., and the rules of the Commission are designed to secure adequate protection to public career employees from political discrimination. They embrace the merit system, and their intent is to preclude favoritism. The purpose of the civil service rules is to guarantee the security and welfare of public service. Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800 (1971).

The Civil Service Rules make no provision for the result that would follow in the event of failure to comply with Rule 12.-3(a)(3). However, La.Const. art. 10, § 10(A)(4) provides that each commission may impose penalties for violation of its rules by demotion in or suspension or discharge from position, with attendant loss of pay.

We do not consider that failure to comply with Rule 12.3(a)(3) would defeat the purpose of the civil service laws. The requirement that the Director be furnished with notice of the disciplinary action within fifteen days of the date the employee is notified is not essential to the employee’s appeal because the Director no longer performs a substantive function in disciplinary appeals. Rule 15.10(c) provides that certain specified personnel actions (removal, suspension, demotion, reduction in pay, reassignment or reprimand for cause) may not be rescinded or modified without the approval of the Commission. Thus, only the Commission itself, not the Director acting individually, may modify disciplinary action. At the time Boucher was decided, however, the Director did perform a substantive function with respect to disciplinary actions. Rule XII, section 2 as then written provided:

.. . The Director shall require the employee who desires to appeal to answer specifically and in writing the charges made against him by his appointing authority and may make such investigation of the facts as he may deem proper. In instances where the facts seem to warrant it, the Director, in the case of any regular employee removed, reduced in pay, laid off, demoted or suspended for a period exceeding 30 days by action of any appointing authority, may authorize the transfer of the employee concerned to a similar position under another appointing authority with the consent of such authority, and shall also accord such employee the right to have his name placed on all appropriate eligible lists. Upon written request of an employee and with the approval of the Director, such employee may be demoted without compliance with the requirements of this section.

Accordingly, under the rule as it presently exists, we are unable to see how an employee could suffer any prejudice resulting from the failure of the appointing authority to furnish the Director a copy of the notification of disciplinary action within fifteen days of the date the employee is notified. Nor has Ms. Sanders shown any prejudice in the instance case, particularly where the Director was in fact notified of her appeal only three days late (assuming the correctness of this fact), where the hearing was not held until some five months after the notice was received and where she did not file her peremptory exception based on the violation until more than eleven months after her termination.

In view of the foregoing, we conclude that Rule 12.3(a)(3) is merely directory and that the disciplinary action taken should not be invalidated. To the extent that Boucher is to the contrary, it is overruled. We express no opinion on the classification of civil service rules other than 12.3(a)(3) as either mandatory or directory; each rule must be classified separately after consideration of its importance to the civil service scheme and of the prejudice, if any, suffered by an employee as a consequence of the rule’s violation.

Notwithstanding the obvious necessity for public officials to comply strictly with all provisions of law they are responsible to administer, we conclude that in the instant case the removal of Ms. Sanders from her position is not invalidated by the violation of Rule 12.3(a)(3).

As the court of appeal reversed the decision of the Commission affirming the termination, based upon its finding as aforesaid, it did not address the merits of the appeal. We therefore consider it more appropriate to remand the case to that court for it to determine and decide those issues.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the ease is remanded to the court of appeal for further proceedings consistent with the views herein expressed.

WATSON, J., concurs noting that the penalty seems extreme under the circumstances.

      . La.Const. art. 10, § 12.

      . The record reflects the letter of termination dated November 16, 1978, was received by Ms. Sanders the following day. Pursuant to Rule 12.3(a)(3), the Director was to receive a copy of that letter by December 2, 1978, a Saturday. The copy in the record is stamped “Received Dec. 5, 1978, Department of State Civil Service,” or three days after the deadline specified in the rule.

      . 383 So.2d 1053 (La.App. 4th Cir. 1980).

      . The applications of East Louisiana State Hospital 384 So.2d 985 (La. 1980), and the Director of the Department of State Civil Service, 384 So.2d 986 (La.1980), were consolidated for argument before this court.

      .Rule XII, section 2 of the State Civil Service Commission Rules provided in pertinent part:

      . Proposed Rule 12.8(a), presently before the Commission, would increase the time within which the appointing authority may notify the Director of disciplinary action from fifteen days to thirty days from the effective date of the action. Proposed Rule 12.8(c) provides that failure to comply with the rule requiring such notice to the Director “shall not render the disciplinary action or separation ineffective.”


text:
    CITY OF MONROE v. Alereza BAGHRI et al.
    No. 67220.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Dixon, C. J., concurred specially.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Patrick Wright, Jr., City Atty., Monroe, William Armstrong, Charles Patton, Asst. City Prosecutors, for plaintiff-respondent.
    Pamela J. Bayer, Howell, Kellogg & Bayer, New Orleans, White & Pitre, Marion Overton White, Oapelousas, for defendants-relators.
   MARCUS, Justice.

Alereza Baghri and forty-seven others were arrested and variously charged by affidavits with criminal trespass in violation of Section No. 10-59 of the City of Monroe Code and with resisting arrest in violation of Section No. 10-55 of the City of Monroe Code. Defendants, after being arraigned, were released on bond and notified to appear for trial at 9:00 a. m. on March 14, 1980. When their cases were called for trial, defendants failed to respond. The trial judge ordered the bonds forfeited and issued bench warrants for their arrests. Upon defendants’ application, we granted certiorari to review the correctness of this action.

The incident giving rise to the arrests allegedly occurred on the evening of March 6, 1980, on the campus of Northeast Louisiana University where a former Iranian ambassador to the United Nations was to give a speech. Defendants, allegedly of Iranian nationality, were arrested and variously charged with criminal trespass and resisting arrest during the incident.

On the night in question, defendants were transported to the Monroe City jail and were booked. Those who identified themselves were eligible to be released on the posting of a one hundred dollar bond. On March 10, 1980, the court conducted arraignments for all defendants. The bond for each was reduced by the court to fifty dollars on March 13, 1980. Immediately thereafter, defendants were released on bond and each defendant was handed a court notice to appear for trial at 9:00 a. m. on March 14, 1980.

Defense counsel and defendants arrived at the courthouse at approximately 9:00 a. m. on the morning of trial (March 14,1980). Before entering the courthouse, defense counsel was handed an order of the trial judge limiting access to the court. That order provided:

In view of the unusual nature and overall circumstances surrounding the proceedings set for trial in Division B of
Monroe City Court on this date, Friday, March 14, 1980, the Court hereby issues the following order concerning access to the Court building and courtroom during the pendency of these proceedings. The individuals allowed access into the Court are listed as follows:
(1) Properly identified law enforcement officials specifically assigned for security duty for the pendency of these proceedings.
(2) Properly identified members of the press and media who have been assigned to cover these proceedings. The Court shall not allow any cameras or recording devices inside the courtroom. However, media artists shall be allowed to bring their sketching materials into the Court.
(3) Counsel of record for both defense and prosecution.
(4) Interpreters for both defense and prosecution. The Court specifically orders that the same interpreters used by the defense at arraignment on March 10, 1980 be used for the pendency of these proceedings and that the prosecution identify the party who is to assist them during the pendency of these proceedings.
(5) Witnesses under subpoena as they are called to testify. While awaiting call all witnesses are ordered to remain at a specified area of the Monroe Police Department and be escorted to the courtroom through the corridor connecting the Monroe Police Department and Monroe City Court.
(6) Defendants as they are standing trial. It shall be the responsibility of defense counsel to secure the defendants in an accessible place outside the.courtroom and Court building and bring them to Monroe City Court with haste when called for trial.

Counsel was allowed into the courthouse by security officers; however, defendants were barred from entering. Defense counsel requested that the trial judge allow defendants into the building and the courtroom. The trial judge denied the request. Later, the trial judge orally amended his order to allow diplomatic personnel from the Iranian government to observe the proceedings.

After preliminary matters were concluded, the first case was called at 10:23 a. m. The court recessed until 10:45 a. m. to allow time to produce the first defendant for trial. The first defendant’s number was sounded inside and outside the courthouse. There was no response. When the court reconvened, the first case was called again. When defendant failed to appear, the trial judge ordered that “defendant, John Doe # 34, be called on bond; that a bench warrant issue for his arrest with new bond being fixed at $350.00.” Thereafter, each defendant was called in turn, each did not respond, and the trial judge called each on bond and issued a bench warrant for his arrest.

The condition of the bail undertaking is that defendant will appear at all stages of the proceedings to answer the charge before the court in which he may be prosecuted. La.Code Crim.P. art. 330. Before a defendant can be required to appear, however, he or she must be notified of the date, time and place the appearance must be made. In the instant case, defendants were so notified. However, when they appeared as commanded, the trial judge refused to allow them into the court or the courthouse. We consider that by such refusal the trial judge released defendants from their obligations to appear at that time. In order to secure their appearances at a later time or date, defendants should have been notified of the later time or date. Accordingly, the trial judge erred in calling defendants on their bonds and issuing warrants for their arrests when they failed to respond later the same day.

We note that the trial judge in his order provided a place for witnesses to wait pending their court appearances. Had the trial judge similarly provided a place for defendants to wait and ordered them to remain there until called, no further notice would have been necessary and calling defendants on their bonds and issuing bench warrants for their arrests would have been proper action on their failure to appear when called.

Defendants also assign as error the exclusion of the general public from the courtroom. Since the order was issued on the day of trial (March 14,1980) based on conditions then existing, the order will have to be reevaluated by the trial court at the time of any subsequent trials. Hence, we consider it unnecessary to review the appropriateness of the closure order issued on March 14, 1980.

DECREE

The order of the trial judge calling defendants on bond and issuing bench warrants for their arrests is reversed and set aside and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.

DIXON, C. J., concurs.

      . 383 So.2d 20 (La. 1980).

      . Apparently, defendants who would not identify themselves were assigned “John Doe numbers” at the “bonding procedure.” The first case called was City of Monroe v. John Doe # 34. Hence, the call for the first defendant was “John Doe # 34.”

      . Consideration should be given to the recent case of Richmond Newspapers, Inc. v. Virginia, -U.S. -, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), in which the Supreme Court held that, absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Fredwood E. EVANS.
    No. 67031.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, P. Michael Cullen, Asst. Dist. Attys., for plaintiff-respondent.
    Carl M. Werling, Jr., Michael F. Barry, New Orleans, for defendant-relator.
   DENNIS, Justice.

Defendant, Fredwood E. Evans, pleaded guilty to possession of marijuana, La.R.S. 40:967, reserving his right to appeal, following his unsuccessful motion to suppress evidence. He received a six months’ suspended jail sentence. His application for a writ of review was granted by this Court.

Two police officers accosted defendant Evans because his clothing and physical characteristics matched those of an armed robber which had been described to them. Only one of the officers testified at the motion to suppress hearing. He stated that, as they approached Evans from the rear and informed him they were deputies, the defendant looked over his shoulder and reached toward his pocket. According to the deputy, after Evans’ movement, he held his police service revolver on the defendant while his fellow officer conducted a protective search for weapons. During the search the fellow officer discovered and seized a coin envelope containing $367.00 in currency and a quantity of marijuana. The quantity of marijuana, which is not specified in the record, was the basis of the charge against the defendant and the subject of his motion to suppress.

We find no fault with the trial judge’s determination that the officers had reasonable cause to suspect that Evans had committed an armed robbery and that they were entitled to detain him for questioning. Terry v. Ohio, 88 S.Ct. 1868, 392 U.S. 1, 20 L.Ed.2d 889 (1968); State v. Matthews, 366 So.2d 1348 (La.1978). We approve also his finding that the officers reasonably believed Evans was armed and dangerous and were therefore entitled to conduct a limited search of the defendant’s outer clothing for a weapon. Terry v. Ohio, supra. We conclude, however, that the prosecution failed to carry its burden of proof, see State v. Franklin, 353 So.2d 1315 (La.1978), to show that the warrantless search of the defendant’s garments was limited to that which was necessary for the discovery of weapons which might have been used to harm the police officers. Terry v. Ohio, supra.

The officer who actually conducted the weapon search did not testify at the motion to suppress hearing. The deputy who held the revolver on Evans during the search was the only prosecution witness. He was not certain where his partner found the evidence but “guessed” that it had been obtained from Evans’ coat pocket. He testified he did not know whether the envelope was open when it was withdrawn from Evans’ possession and did not learn of its contents until sometime after the search. The record is devoid of any suggestion that the officer conducting the search reasonably thought that the envelope was a weapon when he felt it or that he visibly identified it as evidence or contraband before he seized it. Under these circumstances, we conclude that there is no rational evidentia-ry basis for the trial court’s finding that the officer’s search was confined in scope to an intrusion reasonably designed to discover a weapon. Consequently, we are compelled to find that the prosecution failed to carry its burden of proving that the warrantless search was limited to that which was necessary for the discovery of weapons.

Accordingly, the defendant’s conviction and sentence are reversed. The case is remanded for suppression of the evidence and other proceedings consistent herewith.

REVERSED AND REMANDED.


author: BLANCHE, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Henry A. REED.
    No. 66576.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Dissenting Opinion Sept. 24, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Julie C. LeBlanc, Asst. Dist. Atty., for plaintiff-appellee.
    Milton P. Masinter, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

A jury convicted defendant of possession of a firearm by a convicted felon in violation of R.S. 14:95.1. Subsequently, defendant was sentenced to three years at hard labor. On appeal, defendant raises five assignments of error. We address in this opinion only assignment of error number one, dealing with the trial judge’s denial of defendant’s motion to suppress the introduction of the firearm in evidence, as meriting discussion. For the benefit of the parties, we attach hereto an appendix containing a discussion of the remaining assignments which we designate as “Not for Publication”.

On April 19, 1978, two New Orleans Police officers, on routine traffic patrol, noticed an expired brake tag on a car being driven by defendant. The officers stopped the vehicle and proceeded to investigate the traffic violation. Officer Rauch approached the driver’s side of the car, while the other officer, because the car contained a passenger, approached the passenger side. Both defendant and the passenger were asked to step out of the car.

As defendant was exiting the vehicle, Officer Rauch spotted on the front seat a pistol with the barrel stuck into the crack of the seat. The officer then ordered defendant and the passenger to the rear of the car and removed the pistol, a .32 caliber revolver loaded with five rounds of ammunition. When Officer Rauch asked defendant if he had ever been arrested before, defendant replied that he was on probation for sale of heroin. Following a determination that defendant was a convicted felon, the officers placed him under arrest on the charge of possession of a firearm by a convicted felon. The defendant’s passenger was allowed to drive the car away.

Defendant contends the firearm was seized in violation of his Fourth Amendment rights. Both the United States and Louisiana Constitutions prohibit unreasonable searches and seizures. U.S.Const. Amend. 4; La.Const. art. 1, § 5. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court recognized that, following a lawful investigatory stop, police officers, under certain circumstances, may constitutionally conduct limited searches without a warrant for weapons. (See also Adams v. Williams, 407 U.S. 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).) In that case, an officer conducted a “pat-down” of the person’s clothing. In holding the search reasonable, the Court stated:

“... where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he [the officer] 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.” [citations omitted] Terry, supra, 88 S.Ct. at 1884-5.

The opinion emphasizes that the sole justification for such a search was the safety of the officer and others and, consequently, the scope of the search must be limited to the discovery of weapons.

The central inquiry on governmental invasion of a citizen’s constitutionally protected right of privacy and personal security is to determine its reasonableness under all of the circumstances. Pennsylvania v. Mimms, 434 U.S. 107, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Terry v. Ohio, supra. We decide the instant case on this basis.

First, we decide that the officers were in a place where they had a right to be when they stopped defendant’s automobile. Reasonable cause for the stop was furnished by the traffic violation. Thereafter, the officers were confronted with a situation in which two individuals stood within possible reach of a dangerous weapon which was easily accessible and in open view on the front seat of the car. Although it is arguable that defendant was in custody, the officers had no reason to arrest the passenger. The exposed weapon was a source of potential danger to the officers’ safety, just as contemplated in Terry v. Ohio, supra, when a search of one’s person was permitted.

Under these circumstances, it seems reasonable for the officers to take temporary custody of the weapon for their own protection during the course of the investigation. As was stated in Terry, “it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Consequently, we hold the seizure of the weapon from defendant’s car was not in violation of defendant’s constitutional rights, and the weapon may properly be introduced in evidence against him.

In State v. Blanchard, 374 So.2d 1248 (La.1979), police officers stopped defendant’s car because of a traffic violation. Defendant existed the car, closed the car door, and approached the officers. Defendant was the only occupant. Because one officer had seen defendant hurriedly put something, which he thought might be a weapon, under- the seat, officers searched the car and found cocaine beneath the seat. In suppressing the evidence, we said that “to suggest that defendant could have dived through the window of his car and seized a weapon from under his seat, under these circumstances is unreasonable.” The case is distinguishable on its facts because, unlike the instant case, the area searched was not within defendant’s immediate control. In addition, the officers in Blanchard were not confronted with two individuals, but with one, nor with a weapon in plain view.

For these reasons, the conviction of the defendant is affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

DENNIS, J., dissents with reasons.

LEMMON, Justice,

concurring.

The seizure in this case occurred in two phases, the first for the purpose of self-protection and the second for the purpose of securing evidence of a crime. Each phase must be viewed separately in order to determine whether the seizure was reasonable (and therefore constitutional) under the circumstances.

The police officer inadvertently discovered the gun in the course of investigating a routine traffic offense, and he reasonably seized or took temporary possession of the gun in order to protect himself for the duration of the investigation. Although defendant was outside the car when the officer discovered the gun, a passenger was still in the car. See State v. Williams, 366 So.2d 1369 (La.1978). But even if both persons were out of the car before the gun was inadvertently discovered (and there was arguably less danger to the officers), it was nevertheless reasonable for the officer to take temporary possession of the gun, located only a few feet away from these persons. Many police officers have been shot as a consequence of traffic stops. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). This Court should view the taking of temporary possession of the weapon as a minimal intrusion dictated and justified by the officer’s interest in self-protection.

The second phase of the seizure occurred after the officer sighted and took possession of the gun, when inquiry revealed that defendant was a convicted felon. At that point the officer was certainly aware that the gun had possible evidentiary significance and reasonably retained it for that purpose.

DENNIS, Justice,

dissenting.

I respectfully dissent, disagreeing slightly with the majority’s interpretation of the evidence and completely with its legal conclusions.

On the evening of April 19, 1978, two New Orleans police officers on routine traffic patrol spotted the defendant and a companion driving in a car with an expired brake tag. Pursuant to routine procedures, the officers flashed their lights and pulled the defendant’s vehicle over to the shoulder of the road and stepped out to investigate the traffic violation. Officer Rauch approached the defendant on the driver’s side of the car. He asked the defendant to get out of the car and surrender his driver’s license. At the same time, Officer Fanguy went to the passenger’s side and requested the defendant’s female companion to exit the vehicle.

As the defendant moved toward the rear of the vehicle without resistance, Officer Rauch peered into the driver’s window with his flashlight and noticed a pistol lying on the front seat, partially stuck in the crack of the seat near the woman’s purse. He told the defendant and the woman to step completely to the rear of the car, then looked through the car to determine if any other weapons were there. Finding none, the officer reached into the car and seized the gun. He asked the defendant if he had ever been arrested; the defendant replied that he was on probation for the sale of heroin. Officer Rauch then went to the police car to check the gun registration, defendant’s identification and his police record. He discovered that the gun was not stolen, but that the defendant had a prior conviction for distribution of heroin.

The defendant was arrested for possession of a firearm by a convicted felon and taken into custody. His companion was allowed to drive the defendant’s car away. On November 22, 1978, the defendant was convicted and given a three-year prison term.

The Fourth Amendment and the Louisiana Constitution Art. 1, § 5, prohibit unreasonable searches and seizures. Warrantless searches and seizures are per se 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 (1971); State v. Banks, 363 So.2d 491 (La. 1978); State v. Fearn, 345 So.2d 468 (La. 1977). The state has the burden of showing that a warrantless search was justified under one of the exceptions. State v. Banks, supra; State v. Braud, 357 So.2d 545 (La. 1978). Here, the state relies upon the plain view doctrine to legitimate this search and seizure.

We have stated that police may seize items in plain view where it is impractical to obtain a search warrant, but in order for the seizure to pass constitutional muster three conditions must be satisfied: (1) there must be a prior justification for an intrusion into a protected area; (2) in the course of which evidence is inadvertently discovered; and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. State v. Banks, supra, at 493; State v. Parker, 355 So.2d 900 (La.1978). The plain view doctrine may not, however, become a vehicle by which the police engage in a “general exploratory search.” Coolidge v. New Hampshire, supra, 91 S.Ct. at 2038.

The critical element in this formulation of the plain view exception to the warrant requirement is that the officer must know at the time he seizes the object that it is “evidence or contraband.” Without this condition, a police officer would be able to seize any object in his view in order to determine if it could be incriminating; thus, intrusions into constitutionally protected areas without a search warrant would be encouraged. It must, therefore, be apparent before the seizure that the object is evidence or contraband. State v. Meichel, 290 So.2d 878 (La.1974). Only with this key condition can the “plain view” exception be narrowly delineated so as to prevent general exploratory searches repugnant to the constitution.

We have approved seizures of evidence in situations similar to this, where all the conditions of the plain view doctrine have been met. For example, in State v. Braud, supra, the police stopped the defendant for driving a vehicle with an expired brake tag. When the police approached the defendant’s car, they noticed loose marijuana in plain view on the front seat. The officers seized the marijuana and an unmarked pill bottle situated next to the marijuana. We upheld the seizure of both items because, in addition to the satisfaction of the first two conditions of the plain view exception, the items clearly appeared to be contraband. On the other hand, where it was clear that the officer could not have known the object seized was contraband when it was within his “plain view,” we have overturned the seizure. See State v. Meichel, supra.

The state has failed to show that the third condition is met in this case. When Officer Rauch discovered the pistol, he had no reasonable suspicion that it had eviden-tiary significance. The defendant was stopped only for a routine traffic violation, driving with an expired brake tag. He peaceably got out of his car and walked toward the rear while the officer flashed his light through the driver’s window and discovered the pistol lying on the front seat. After looking through the rest of the car, Officer Rauch reached in and took the pistol. At this point, the pistol was not known to the officer to be “evidence or contraband,” because merely having a pistol on the seat of one’s car does not violate any criminal statute in Louisiana. See State v. Blanchard, 374 So.2d 1248 (La.1979). Only after the seizure did the officer learn of the defendant’s status as a convicted felon for whom it was a criminal offense to possess a firearm. The search and seizure of the pistol, therefore, cannot be justified by the plain view doctrine.

The state asserts, in the alternative, that this search and seizure may be justified as necessary to protect the police officers from bodily harm while they investigated the traffic offense. Whether we view this argument in terms of a search incident to a lawful arrest (although it is doubtful the defendant was under arrest at the time of the seizure), or from the vantage point of a limited search for weapons in protection of the police officers during an investigatory stop, the state’s position is untenable.

A search incident to a lawful arrest is limited to a search of the defendant’s person and the area within his immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Blanchard, supra. Even without an arrest, officers may conduct a limited search for weapons during a lawful investigatory stop, where such a search is necessary to neutralize the threat of physical harm. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Both exceptions to the warrant requirement of our constitutions depend upon the officer’s reasonable belief that the defendant is in a position to reach for the weapon. If the weapon is not within the defendant’s immediate control and the defendant is otherwise securely within the custody of the officers, the police may not make a warrantless search and seizure.

The facts in this case indicate that the defendant and his passenger, at the time Officer Rauch seized the pistol, were in no position to threaten the officers. They were too far away from the pistol to be able to reach in and grab it. Both suspects were out of the car and walking toward the rear while within the close company of the two policemen. Officer Rauch spotted the pistol and further ordered the defendant and the passenger to get behind the car. Then he seized the weapon. At the time of the seizure, the pistol was not in the immediate control of either the defendant or his passenger so as to create a reasonable fear in Officer Rauch that the pistol posed a danger to the officers.

Since the seizure of the pistol cannot be justified under any recognized exception to the warrant requirement of our constitutions, the failure to hold that the pistol was inadmissible as evidence at the defendant’s trial was clearly reversible error.

      . Whether the officer’s interest in safety is enhanced by the driver’s and passenger’s being required to get out of the vehicle is not an issue here. See State v. Williams, above. The issue is the reasonableness of the officer’s decision not to allow an apparently workable firearm to remain available to be used to assault him while he investigates a routine traffic matter. The officer’s interest in his own safety far outweighs the citizen’s minimal interest in not having his firearm held by an officer for the brief period required to complete the traffic investigation.