Defendant, Frederick Franklin, Jr., was convicted by a jury of possession of heroin with intent to distribute, a violation of La. R.S. 40:966A(1). He was sentenced to life imprisonment at hard labor. La.R.S. 40:966B(1). On appeal, he relies upon two assignments of error.
ASSIGNMENT OF ERROR NO. 1
In July and August of 1976 two New Orleans police officers received information from a reliable confidential informant, whose information in the past led to arrests and convictions, that defendant was engaged in the wholesale distribution of heroin from several addresses, one of which was the Lawrence Creek Apartments, Court 6, Apartment 112. The informant said that defendant drove a '73 or '74 black Thunderbird. From July 1976 through September 9, 1976, the officers conducted periodic surveillance of Franklin with negative results except they observed defendant driving a 1972 black Thunderbird.
On September 10, 1976, at 3:30 p. m., the officers received information from a second informant, whose information in the past had led to arrests and convictions, that the defendant was presently in possession of a large quantity of heroin and was distributing
The officers proceeded to Apartment 112 and began surveillance of the apartment and the 1972 black Thunderbird. At 7:15 p. m., defendant left the apartment in his automobile and the officers, assisted by other police personnel, followed and watched the defendant. At one point when defendant stopped for a traffic light, a male pedestrian stepped up to the vehicle from the neutral ground, and Franklin handed him a brown paper bag. At another site within the city, the defendant got out of his vehicle and handed a brown paper bag to another man while entering a business establishment. The officers followed Franklin back to Apartment 112, arriving at approximately 8:30 p. m., and continued surveillance of the apartment and the Thunderbird automobile. At 9:35 p. m. a man and a woman arrived in separate automobiles and entered Apartment 112. About five minutes later defendant left the apartment, walked to his Thunderbird, and opened the passenger side door. After bending down briefly in the glove compartment area, he stood up and started to close the door. According to the officers nearest the Thunderbird, one of whom was observing defendant with field glasses, Franklin looked in their direction, a shocked expression came over his face, and he slammed the car door as he turned and ran. At this time he was carrying an unidentified object in his hand. Other officers who were stationed near the front of the apartment identified themselves as police and advised Franklin to stop and that he was under arrest. He did not stop, and the officers gave chase. By the time the first policeman reached the apartment door, it had been closed, but the officer used force to gain entry. At this moment the officer saw Franklin coming out of a closet in the living room area with his hand in the pocket of a jacket. Upon seizure of the defendant and search of the pocket, the police found a plastic bag containing heroin and a large sum of money. Other officers proceeded to search the rest of the townhouse apartment, including a kitchenette fifteen to twenty feet from the closet, where they found cut-up tinfoil, a blender and materials commonly used for the dilution of heroin.
Defendant moved to suppress all of the evidence resulting from the arrest, search and seizures. The trial judge denied the motion to suppress and filed a per curiam stating that the defendant failed to meet his burden of proving grounds for suppression by a preponderance of the evidence.
Defense counsel astutely points out that the trial judge applied an incorrect standard in allocating the burden of proof in this case involving a warrantless search. Paragraph C of La.Code of Criminal Procedure article 703 provides:
The Official Revision Comments to article 703 explain that "Paragraph C states the general rule as to burden of proof, and continues the specific exception of R.S. 15:451." That statute provides that before a confession can be introduced into evidence, the State must affirmatively show that it was made free and voluntary. The comment to article 703 then provides, "No attempt has been made to deal with other possible exceptions to the general rule of burden of proof." (emphasis added).
We are of the opinion that article 703 must be construed in light of pronouncements by the United States Supreme Court that in the case of a warrantless search, the burden of proof rests on the State to show that an exception to the requirement of a search warrant is applicable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1945).
While the United States Supreme Court apparently has never been squarely confronted with the issue of which party has the burden of proof in suppression hearings,
See also, United States v. Lee, 541 F.2d 1145 (5th Cir. 1976); United States v. Moody, 311 F.Supp. 756 (S.Car.1970); United States v. Carignan, 286 F.Supp. 284 (Mass.1967); United States v. O'Brien, 265 F.Supp. 953 (Mass.1967).
In accordance with these views, we hold that once the defendant makes the initial showing at a motion to suppress hearing that a warrantless search occurred, the burden of proof shifts to the State to affirmatively
Police entry into a residence in "hot pursuit" is one of the exceptions to the warrant rule. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). However, in order for this exemption to apply, the officers must have had probable cause to arrest a culprit before pursuing him. Therefore, the initial inquiry is whether the officers had probable cause to arrest Franklin before entering Apartment 112.
In State v. Thomas, 349 So.2d 270, 272 (La.1977), we set forth the applicable principles:
"`As to the probability required for an arrest, it may generally be stated that it must be more probable than not that the person has committed an offense, although this is less certain as to the probability that a particular person is the offender than to the probability that a crime has been committed by someone. In the latter situation, which assumes central importance when there is no doubt who the offender is if a crime has been committed, courts ordinarily require that criminal conduct be more probable than non-criminal activity. This approach is reflected in those decisions which say that there must be "more evidence for [the existence of criminal conduct] than against" or that the suspect's actions must be "inconsistent with any innocent pursuit," and also in the many cases where grounds for arrest have been found lacking because the conduct of the suspect was equivocal, that is, where the possibility of criminal conduct was no greater than the possibility of innocent behavior.'" (Footnotes omitted.)
Applying these principles to the evidence in this case, we conclude that probable cause to arrest the defendant existed at the time he ran from his automobile with the object in his hand upon seeing the officers watching him with binoculars. The fact that a person runs or flees does not in and of itself establish probable cause. See, State v. Herbert, 351 So.2d 434 (La.1977), No. 58,726. Flight does not always indicate guilt; it may result from fear and possibly other causes. Even where flight does reasonably appear designed to avoid apprehension, reasonable cause will not arise unless the flight, combined with other information upon which the officers are entitled to rely, would indicate to a reasonable mind that the combination of circumstances is inconsistent with any innocent pursuit. In the instant case, when the officers arrived at Apartment 112 for their final stakeout, they were in possession of the following information: Two informants had reported that the defendant was engaged in wholesale heroin distribution within the city of New Orleans. One of the informants had seen the defendant sell a $175 bundle of heroin to a third person at an undisclosed location. The defendant left one of the apartments which an informant had said he was using in heroin trafficking and entered an automobile very similar to the one described by the informant's information. Defendant then drove to two locations within the city, and at each one transferred a brown paper bag to another man in a manner consistent with heroin distribution, except that no money was seen to have
Thus, we find that the officers had probable cause to arrest the defendant and consequently were entitled to pursue him into the apartment to effect the arrest. Santana, supra; Warden, supra; State v. Roach, 338 So.2d 621 (La.1976); State v. Wyatt, 327 So.2d 401 (La.1976).
In arresting the defendant the police were entitled to search the arrestee's person and the area within his immediate control to prevent the defendant from gaining possession of a weapon or destroying evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). When the police were making the arrest the defendant had his hand in the pocket of a coat in the closet. Thus, at that time, the plastic bag containing heroin and the large sum of money were within the immediate reach of the defendant. Under the narrow search allowed by Chimel, supra, these items were lawfully seized and properly admitted into evidence.
The defendant contends that some of the most damning evidence introduced at trial resulted from a search of the apartment's kitchen which exceeded the constitutional limits imposed by Chimel, supra. The State does not contend that it was necessary to search the kitchen in order to secure weapons or criminal evidence possibly within the reach of the defendant or other suspects. The man and the woman who had entered the apartment shortly before the arrest were seated in the living room when the first officer entered and had peaceably submitted to physical custody before the extended search of the apartment began. The State contends, however, that the items which were seized from the kitchen were in "plain view" of the officers making the arrests. Therefore, it is argued, the seizure was constitutionally permissible. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1964), the Supreme Court set forth the criteria necessary for the plain view doctrine to be operative.
See also, State v. Fearn, 345 So.2d 468 (La.1977).
We cannot determine from the present record whether these criteria were met in the instant case. The evidence is clear that the officers did search the entire apartment so that it may not be contended by the State that they were content to a reasonable search incident to a lawful arrest as defined by Chimel, supra:
The evidence is conflicting and confusing as to whether the kitchen was, in fact, a separate room, or merely a kitchenette, divided from a combined dining and living room area by a breakfast bar, such as is located in a typical modern efficiency apartment. The fact that the kitchen was 15 to 20 feet away from the living room closet and the fact that the items seized in the kitchen were on the "counter" suggests the latter possibility. However, on the record before us we find it is also possible that the kitchen was a separate room into which the officers had no reason to extend their search and which was not in their plain view. If the evidence is in equipoise, since the burden of proof is on the State, then the motion to suppress should have been granted as to the items in the kitchen.
However, we hesitate to declare such a state of equilibrium. Because we did not see or hear the witnesses testify, we are not in a position to assign equal or unequal weight to their testimony. The trial judge was in a better position to assess the credibility and reliability of the testimony, but his ruling is flawed by his erroneous assumption that the burden of proof was upon the defendant. Instead, he should have required the State to affirmatively show that the search of the kitchen was within the bounds provided by Chimel and Coolidge in order to justify the seizure of the blender and other items located therein. If he had applied this standard of proof to his assessment of the witnesses' testimony it is possible that he would have found that the seizure of the articles in the kitchen resulted from an unlawful search. We find, therefore, that this assignment may have merit.
ASSIGNMENT OF ERROR NO. 2
Trial counsel stipulated that one of the State's police officer witnesses "is an expert in the field of narcotics trafficking and can give his expert opinion thereof." However, an objection to the relevancy of the evidence sought was interposed when the State's attorney asked the witness to "tell the court and jury about heroin coming into the country." The objection was overruled, and the prosecutor amended his question by asking the witness to "tell us how narcotic traffic operates." In response, the officer testified:
The officer proceeded to testify that the heroin obtained from New York and California, which ranges from 15% to 70% pure, is usually diluted to approximately 3% before being sold on the street. He described the dilution process as follows:
Defendant acknowledges that it is relevant to a charge of possession with intent to distribute heroin to demonstrate that "the form and quantity of heroin usually associated with wholesale and street level distribution of that substance" was present in this case. State v. Maris, 337 So.2d 1177, 1183 (La.1976); see, State v. House, 325 So.2d 222 (La.1975). However, the defendant contends that the international and national distribution scheme— tied nowhere in the trial evidence to the appellant Franklin— was not only irrelevant to the charge but overwhelmingly prejudicial.
La.R.S. 15:435 provides that evidence must be relevant to a material issue. Relevant evidence is defined in La.R.S. 15:441 as follows:
Even though evidence may be deemed relevant because it has probative value, counterbalancing factors may exist which lead a court to exclude this otherwise relevant evidence if the probative value is outweighed. Among the factors to be considered are: the danger that the evidence may unduly arouse the jury's emotions of prejudice, hostility or sympathy; the probability that the evidence may create a collateral issue which will unduly distract the jury from the main issue; delay in the trial; the danger of unfair surprise. McCormick on Evidence, § 185 at 435; Comment, Louisiana Evidence: Relevant and Material Aspects, 21 Loy.L.Rev. 476 (1975).
The defendant points out that in State v. Luneau, 323 So.2d 770 (La.1975), this Court dealt with a similar problem and found that a reference to the foreign source of marijuana was inadmissible evidence. However, the conviction in that case was upheld because the testimony was unresponsive and volunteered. Further, because the jury returned a verdict of simple possession, the error complained of did not result in sufficient prejudice to warrant reversal. In the present case, unlike in the Luneau case, it was necessary to refer to
Since we find no trial error except for the possible error on the motion to suppress, it is not necessary at this time to reverse the conviction and order a new trial, because the possibility of error might be eliminated upon another trial of the motion to suppress. State v. Simmons, 328 So.2d 149 (La.1976); see, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). We reserve to the trial judge the power to grant a new trial should he determine that the articles seized from the kitchen are inadmissible. If, on the other hand, the trial judge determines, after a hearing on the motion to suppress, that the evidence is admissible, the right to appeal from such ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence will be affirmed.
The case is remanded to the district court for further proceedings in accordance with this opinion.
SUMMERS, J., dissents.