STATE v. BLAND

HAMLIN, Justice:

Defendants were convicted of Armed Robbery, LSA-R.S. 14:64; Ernest Bland was sentenced to serve forty years at hard labor in the Louisiana State Penitentiary, and Herbert Frazier, Jr. was sentenced to serve twenty-five years. They appeal to this Court from their convictions and sentences, presenting for our consideration three Bills of Exceptions reserved during the proceedings.

BILL OF EXCEPTIONS NO. 1

Bill of Exceptions No. 1 was reserved to the trial court's overruling defendants' Motion to Suppress the Identification and their Motion to Suppress the Evidence.

The following Per Curiam of the trial judge to this Bill of Exceptions describes in detail the facts connected with the instant robbery, the identification of defendants, and the seizure of the evidence.

In their Motion to Suppress the Identification, defendants contended that they were viewed under circumstances which suggested that they were the perpetrators of the crime for which they were charged, and that the viewing violated the principles announced by the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). They further contended that the averred suggestion so tainted the identification as to cause any identification of the defendants to be in violation of their rights as protected by the due process clause of the Fourteenth Amendment to the United States Constitution.

The Motion to Suppress the Evidence averred:

In this Court, counsel for the defendants urge in substance the same contentions and arguments raised in the motions, supra. It is contended that the minimal standards of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and United States v. Wade, supra, were far exceeded.

It is the State's position in this case that the in-the-field identifications of Bland and Frazier were valid; that the warrantless arrests were legal; and that the guns, money, clothing, etc., were either seized in a constitutional search incident to the arrests, or were retrieved by the police after being abandoned by the accused as they fled the scene of the crime.

We have read the testimony of record and approve the findings of the trial judge as to the totality of the circumstances existing at the time of the in-the-field identifications. "* * * the resolution of a due process challenge to pretrial identification procedures involves an evaluation of each confrontation in the light of the `totality of the circumstances' surrounding the confrontation. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L. Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L. Ed.2d 1247 (1968). * * *" Bratten v. State of Delaware, D.C., 307 F.Supp. 643, 647 (1969). See, State v. Junius and authorities therein cited, 257 La. 331, 242 So.2d 533 (1970). "There is no prohibition against a viewing of a suspect alone in what is called a `one-man showup' when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy. The rationale underlying this is in some respects not unlike that which the law relies on to make an exception to the hearsay rule, allowing spontaneous utterances a standing which they would not be given if uttered at a later point in time. An early identification is not error. Of course, proof of infirmities and subjective factors, such as hysteria of a witness, can be explored on cross-examination and in argument. Prudent police work would confine these on-the-spot identifications to situations in which possible doubts as to identification needed to be resolved promptly; absent such need the conventional line-up viewing is the appropriate procedure." Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104, 1106 (1968).

The character of the persons observing the instant robbery and its perpetrators was such that prompt identification of the suspects was required. The observers—the victim and his helper and the member of the New Orleans Police Department—were persons who were in frequent contact with many people; their work required such contact; it was therefore necessary that they view the suspects immediately after the robbery in order to avoid blurred or faded images.

We do not find United States v. Wade, supra, apposite to this prosecution; in great part, Wade was concerned with line-up identification; the rules with respect to line-up identification and in-field identification are not entirely comparable. State v. Richey, 258 La. 1094, 249 So.2d 143 (1971). The facts of Stovall v. Denno, supra, are not similar to the instant facts; the explanation of Wade in Denno is not controlling herein.

A review of the totality of the circumstances attending the instant in-field identification constrains us to find that the identification was completely without suggestion and devoid of doubt or fear of mistake. It was likewise not conducive to irreparable mistaken identification. All standards of Simmons v. United States, supra, were met. The trial judge correctly overruled the Motion to Suppress the Identification for the cogent reasons stated by him in his per curiam, supra.

The facts, supra, show that the arresting officers had reasonable and probable cause to arrest defendants without a warrant of arrest. LSA-C.Cr.P. Art. 213(3); State v. Dell, 258 La. 1024, 249 So.2d 118; State v. Millsap, 258 La. 883, 248 So.2d 324.

"* * * When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area `within his immediate control'— construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). "Abandoned property does not fall within the protection of the Fourth Amendment, and police have the right to retrieve it. * *" State v. Winesberry, 256 La. 523, 237 So.2d 364.

Having found, supra, that the police officers made a valid and legal arrest, we now find (1) that the evidence used against the defendants was seized and obtained incidental to a valid arrest and/or search; and (2) that the evidence used against the defendants was not seized or obtained as a result of unlawful search without a valid warrant and without probable cause. We also find that the officers properly retrieved the controversial evidence—a pistol—allegedly abandoned by one of the defendants. We conclude that the trial judge acted correctly in overruling the Motion to Suppress the Evidence.

Bill of Exceptions No. 1 is without merit.

BILL OF EXCEPTIONS NO. 2

Bill of Exceptions No. 2 was reserved when the trial judge overruled defense counsel's objection to the introduction in evidence of S-1 through S-8. (The trial judge sustained an objection to the introduction of S-9, a cap and sunglasses.)

In substance, counsel argue that defendants were prejudiced by the introduction of the allegedly inadmissible evidence. State v. Foret, 196 La. 675, 200 So. 1. They contend that since proper identification, connexity, patent materiality, and initial links in the chain of custody had not been established by competent evidence, but rather by speculative, conflicting, and inconsistent testimony, the State's evidence was inadmissible.

We find no merit in counsel's contentions. The evidence introduced was relevant, and its connexity was a matter for the jury to decide. State v. McQueen, 257 La. 684, 243 So.2d 798; State v. Wright, 254 La. 521, 225 So.2d 201.

The following per curiam of the trial judge, with which we agree, explains his reasons for permitting the introduction of the controversial evidence:

Bill of Exceptions No. 2 is without merit.

BILL OF EXCEPTIONS NO. 3

Bill of Exceptions No. 3 was reserved when the trial court overruled defendants' Motion for a New Trial.

The Motion for a New Trial averred that the verdict was contrary to the law and the evidence, and that "a" Bill of Exceptions reserved during the proceedings showed prejudicial error towards the defendants.

The two Bills of Exceptions discussed and determined, supra, cover all averments made in the Motion for a New Trial. There is no need for repetition. A review of this entire record shows that no prejudicial error was committed by the trial judge.1 There was no violation of the defendants' constitutional rights during the proceedings.

Bill of Exceptions No. 3 is without merit.

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