State v. McIlvaine

McCALEB, Justice

(dissenting).

In view of the admitted fact that the search of appellants’ dwelling (and the seizure resulting therefrom) was made solely under the authority of an illegal search warrant, it appears to me that the State is in no position to advance the alternative claim that the search and seizure is nonetheless valid because it could have been made as an incident to a lawful arrest.

However, conceding that this inconsistency of position may be alternatively taken in answer to a charge of invasion of constitutional rights, I fail to discern any act or circumstance in the chain of events, narrated in our original ruling (245 La. 649, 160 So.2d 566) and reiterated in the instant opinion, culminating in the arrest of the appellants, except for the tip given by the informer (found to be insufficient by the U. S. Supreme Court as a basis for the issuance of the search warrants), which brings the arrests within the acceptable *764standard employed by the Federal courts (see Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726) for determining the reasonableness of the officers’ action. See Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Cf. Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. True, the officers knew that the defendants were addicts and had been previously convicted of possession of narcotics. But knowledge that a person is a drug addict and has been convicted of possession of narcotic drugs, while a matter to be considered in determining the legality of the arrest, does not, in the absence of other reliable factual information (as distinguished from the informer’s conclusion), supply reasonable grounds for making an arrest— unless we are to say that known drug addicts are not entitled to the same constitutional guarantees as other persons. Yet, that is what the majority opinion suggests —i. e. — that narcotic arrests should be governed by a less rigorous standard of reasonableness than that obtaining in other cases. The Constitution, however, extends its protection against unreasonable searches and seizures to all and I find no basis in law for the formulation of special rules or relaxed standards for determining reasonableness in testing the validity of arrests for particular crimes.

I respectfully dissent.