STATE v. KINNEMANN

DIXON, Justice.

Defendants were convicted of possession of marijuana and fined $250.00 plus costs, given a four months suspended jail sentence and placed on one year probation. Assigned as error is the court's ruling on the motion to suppress. (See Rule 1, § 11, Louisiana Supreme Court Rules).

At fifteen minutes before 6:00 p.m. on January 6, 1975 three New Orleans policemen parked their vehicle about one-half block from 1620 Dante Street and began to watch the house. One of the police witnesses had been told by a "confidential and reliable informant" on that day that one "Favalora was selling pounds of marijuana and also cocaine from his residence located at 1620 Dante Street," and that the informer had been the contraband in the house.

At about 6:00 p.m. an automobile parked across the street from the house and defendant Sahuque left the other two occupants of the car and entered the building. Fifteen minutes later he reappeared on the front porch with two paper bags in hand—one a purple "K & B" bag. The bags are not in evidence and not further described in the testimony. Nor is there further description of 1920 Dante; whether it is a single or multiple family residence does not appear.

When the automobile, occupied by the two defendants and driven by a female companion, left 1620 Dante Street, the police followed it, stopping it in the 2700 block of South Carrollton by using their flashing blue light and siren. When they stopped, the police left their vehicle and had the occupants of the other car alight and walk to its rear. One of the policemen looked into the stopped car with a flashlight and announced that he found some marijuana. (That officer testified that he saw an open paper sack on the backseat with green vegetable material exposed). The occupants of the car were immediately told that they were under arrest, and the officer then entered the car and retrieved the contraband.

The testimony at the motion to suppress is substantially conflicting. The facts here related are taken from the police testimony. In addition to the mere presence of defendants at 1920 Dante Street, the State argues that Sahuque arrived empty-handed, left with two paper sacks, looked up and down before crossing the street, and that his demeanor on leaving differed from that on entering the house.

Information possessed by the police, as related at the trial, would have adequately supported a search warrant for 1620 Dante Street. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 85 S.Ct. 584, 21 L.Ed.2d 637 (1969). Our question is whether all the information within the knowledge of the police justified the arrest of the visitor to 1620 Dante Street, or whether the arrest was made on suspicion.

In February of 1975 we decided State v. Jones, La., 308 So.2d 790, a case in which the facts were similar, except that the setting was rural instead of urban. The police had information that a house about ten miles from Natchitoches contained large quantities of marijuana, and were observing the house and activities around it by driving past. They had seen different cars come and go, and on one pass saw the car in which Jones was riding parked at the house. A few minutes later they saw the car leaving and followed it. The car was later stopped and the occupants were arrested. A search of Jones at the police station disclosed marijuana gleanings which were the basis of the prosecution. We held that the police did not possess sufficient knowledge to justify stopping the Jones vehicle, and the contraband detected as a result of that stop should have been suppressed.

In November, 1974 we had decided State v. Saia, La., 302 So.2d 869. There, officers saw Saia leave a residence known to them to be a drug outlet. They sprang from their car and attempted to seize her, during which effort she exposed a packet like those which contain narcotics. The State argued that C.Cr.P. 215.11 authorized them to stop Saia and question her. We held that, properly interpreted, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Sibron and Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) did not prohibit the police from approaching a person to investigate suspicious circumstances, and permitted "a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889.

We further held in Saia that Terry, Sibron, Peters and Adams did not permit, in the absence of probable cause, the warrantless search of another except for the protection of the investigating officer. The "stop and frisk" law of the State of New York, as well as C.Cr.P. 215.1 of the State of Louisiana, with the necessary exception of the right of the police to protect themselves, "must be judged under the Reasonable Search and Seizure Clause of the Fourth Amendment." Sibron and Peters v. New York, 392 U.S. 40, 62, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917.

Again, in July of 1975 we held that a search of the person could not be justified by C.Cr.P. 215.1 without at least a reasonable connection between criminal conduct (law violation) and such suspicious activity as startled looks and changing course to avoid police. State v. Truss, La., 317 So.2d 177.

The Louisiana Constitution counterpart of the Fourth Amendment of the United States Constitution is Article 1, § 5 of the Louisiana Constitution of 1974:

Should there be any doubt that the right of the police to forcefully stop and search others is circumscribed by the Fourth Amendment of the United States Constitution, there can be none that the Louisiana Constitution of 1974, by the inclusion of the words "invasions of privacy" meant to extend the "probable cause" requirement to protect that right, as well as the right to be secure against unreasonable searches and seizures. It can hardly be argued that the right of privacy protected by Article 1, § 5 of the Louisiana Constitution of 1974 does not include at least that right discussed by Justice Brandeis in his dissent to a case which permitted the use of wire tap evidence:

Therefore, it should make no difference in Louisiana whether the actions of the police constituted an "arrest," with the discovery of the contraband an incident thereto, or whether the police action was something less than an arrest, during which the contraband was seen "in plain view." In either case the police action must have been reasonable, that is, supported by probable cause.

Nevertheless, it would be difficult to describe the action of the police in this case as anything but an arrest. They meant to apprehend Sahuque and his companions. They delayed the apprehension until defendants had left the neighborhood of the house under observation. They hoped to find contraband to reinforce an application for a search warrant for 1620 Dante Street.

The police stopped defendants with blue lights and siren. Three officers removed the occupants—one on the driver's side and two on the passengers'. One officer testified that, in his opinion, he had probable cause to arrest Sahuque when he left the premises at Dante Street. While one officer searched into the car, the others were in the process of obtaining identification from defendants.

The police did not approach the vehicle to talk to Sahuque about his presence at Favalora's, nor were they looking into the car for weapons. The defendants were "actually restrained" before the contraband was found. The Code of Criminal Procedure, Article 201, defines arrest:

The defendants were arrested. Unless the arrest was for probable cause, it was not a lawful arrest.

The State does not argue that there is probable cause to search every person entering and leaving a building where a "reliable confidential informant" says marijuana is being sold. The only information the police had, in addition to the simple presence of defendants, was that Sahuque entered 1620 Dante Street empty-handed, left with two paper bags, looked up and down the street and had lost his "carefree demeanor" when he left.

These "facts" cannot be said to furnish probable cause for an arrest or search. They do not connect defendants with criminal activity. They are at least as consistent with innocent activity as with guilt. All kinds of people go in and out of all buildings. Paper sacks are not peculiar to narcotics traffic; rather, they are almost exclusively related to innocent uses. One would more reasonably expect an attempt to conceal the container of marijuana. People should be encouraged to look up and down the street. Sahuque's "changed demeanor" is not even described as "furtive" by the police—only changed.

Justice Rutledge's explanation of probable cause, in Brinegar v. United States, 338 U.S. 160, 175-177, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, is often quoted:

Brinegar was convicted of illegal interstate transportation of liquor from Missouri to Oklahoma. Agents who knew Brinegar and his reputation as a liquor hauler, had seen him loading liquor in Missouri, knew and recognized his car, which appeared to be heavily loaded, spotted Brinegar about five miles from the border in Oklahoma, and stopped him discovering the illegal liquor. Today we would have no trouble finding probable cause for the stop cf. State v. McQueen, La., 278 So.2d 114 (1973). In 1949, the majority found probable cause with some apparent difficulty; Justice Burton concurred; Justices Murphy, Jackson and Frankfurter dissented.

If the police in the case before us had known Sahuque and his companions like the Alcohol Tax Agents knew Brinegar, there would be probable cause for stopping Sahuque. Reasonable officers would have been suspicious of Sahuque: they did not, however, possess facts and circumstances justifying a belief in Sahuque's guilt. The actions of this person, a stranger to the police, were more consistent with innocence than with guilt. Unless the after-the-stop discovery of the contraband clouds our judgment, we must find that the reasonable probabilities when Sahuque emerged from 1620 Dante Street weighed more heavily on the side of innocence than of guilt.

For these reasons, the convictions and sentences are reversed and the case is remanded for further proceedings not inconsistent with this opinion.

SANDERS, C. J., and MARCUS, J., dissent.