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6/1/01

SUPREME COURT OF LOUISIANA No. 00-K-1246 STATE OF LOUISIANA versus NORMAN EDWARDS ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF BATON ROUGE JOHNSON, J.* Norman Edwards was convicted in the 19th Judicial District Court, Parish of East Baton Rouge, of driving while intoxicated (DWI), third offense, and he appealed. The Court of Appeal, First Circuit, held that the statutory provision permitting seizure and sale of a vehicle when the defendant was convicted of DWI, third offense, was constitutional. After considered review of the record, applicable law and

jurisprudence, we affirm the decisions of the lower courts and find that Revised Statute 14:98(D)(2)(a), which provides for forfeiture of the vehicle upon conviction of a third DWI offense does not violate Article I, Section 4 of the Louisiana Constitution.

FACTS AND PROCEDURAL HISTORY
On April 12, 1998, in East Baton Rouge Parish, a Louisiana state trooper was dispatched to an accident scene involving three vehicles. Norman Edwards (Edwards), who was sitting in his vehicle when the trooper assigned to investigate arrived, told the trooper that he was not paying attention and did not see that the other cars had stopped. Edwards stated he hit the rear of the vehicle preceding him, which pushed it into the rear of another vehicle.
Judge Anne Lennan Simon, of the Sixteenth Judicial District Court, for the Parishes of Iberia, St. Martin and St. Mary, assigned as Justice ad hoc, sitting for Associate Justice Jeffery Victory, recused.
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During his conversation with Edwards, the trooper smelled alcohol and conducted a field sobriety test that showed additional signs of intoxication. Edwards was transported to a police station, where he subsequently registered .114 on the intoxilyzer machine. On two previous occasions Edwards was convicted of driving while intoxicated. On January 14, 1998, he was convicted in Baton Rouge City Court of the first offense, and on April 13, 1998, he was convicted of a second offense in the City Court of Denham Springs. On May 13, 1998, Edwards was charged with operating a vehicle while intoxicated, third offense, a violation of La. R.S. 14:98. On November 20, 1998, the defendant filed a Motion to Rule the Vehicle Forfeiture Provision Unconstitutional. On February 1, 1999, he pled guilty to the charge. He reserved his right to challenge the constitutionality of the forfeiture provision of La. R.S. 14:98 (D) following the entry of his guilty plea. After accepting the petitioner's guilty plea, the trial court heard arguments regarding the forfeiture issue and subsequently ruled that the statute was constitutional. The trial court sentenced Edwards to serve two years with the Department of Corrections, but suspended the entire sentence and placed numerous conditions on the defendant, including house arrest.2 Additionally, the court imposed a $2,000 fine and ordered that Edward's vehicle be forfeited. Subsequently, the defendant moved for an appeal of the trial court's decision upholding the constitutionality of the

La. R.S. 14:98(D)(1) provides: "On a conviction of a third offense, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years, and shall be fined two thousand dollars. At least six months of the sentence of imprisonment imposed shall be without benefit of probation, parole, or suspension of sentence. If a portion of the sentence is imposed with benefit of probation, parole, or suspension of sentence, the court shall require the offender to participate in a court-approved substance abuse program and participate in a court-approved driver improvement program."

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forfeiture provision of 14:98 (D). The First Circuit Court of Appeal determined that the statute was constitutional when examined under the due process clauses of both the United States and Louisiana constitutions. See State v. Edwards, 99-0885 (La.App. 1st Cir. 2/18/00), 752 So.2d 395, reh'g. den. (La.App. 1st Cir. 3/30/00) (Parro, J., dissenting).

ASSIGNMENT OF ERROR
In his sole assignment of error, Edwards contends the trial court and court of appeal erred in upholding the constitutionality of Louisiana Revised Statute 14:98(D)(2)(a), which provides upon conviction of a DWI, third offense, "the court shall order that the vehicle being driven by the offender at the time of the offense shall be seized and impounded, and sold at auction in the same manner and under the same conditions as executions of writ of seizures and sale as provided in Book V, Title II, Chapter 4 of the Code of Civil Procedure."

LAW AND DISCUSSION
The case before us presents the first opportunity for this Court to review R.S. 14:98(D) (2) (a), which calls for forfeiture of vehicles "driven by the offender" during a third-offense drunk driving incident. In our review of this statute we must resolve its apparent conflict with the amended version of Louisiana Constitution article I section 4, which prohibits the state from taking personal effects unless those effects have a connection with contraband drugs. In his brief to this court, Edwards argues that the seizure and sale of his automobile violates his right to property and the provisions of Louisiana Constitution Article I, Section 4. The State argues in its brief that ordering Edwards' automobile to be seized, impounded and subsequently sold was part of the penalty for his conviction of DWI, third offense. This penalty was in addition to imprisonment, fines,

and other conditions set forth by the statute. Accordingly, the State argues that Edwards knowingly and intelligently pled guilty to the crime and the forfeiture of his automobile was part of the penalty for the crime. The fourth amendment to the U.S. Constitution requires that searches and seizures must be reasonable3. The purpose of this protection against unreasonable searches and seizures is to safeguard the privacy and security of individual citizens against arbitrary invasions by government authorities. Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (citing Marshall v. Barlow's, Inc., 436 U.S. 307, 312 (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). In general, courts assess the reasonableness of a fourth amendment seizure by balancing the interest served by the intrusion against the privacy rights of the individual subjected to the seizure. Brown v. Texas, 443 U.S. 47, 51 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 555 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). With the exception of a few well-delineated situations, officers must obtain a warrant from a neutral and detached magistrate prior to conducting either an arrest or a search.4 The warrant requirement limits police discretion in determining which persons to search or seize. When a warrant is not necessary, the fourth amendment requires that searches and seizures be justified by some quantum of individualized suspicion. See United States v. Cortez, 449 U.S. 411, 417 (1981) (investigatory stop must be justified by objective manifestation that the person stopped is, or is about to
The fourth amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. IV.
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Katz v. United States, 389 U.S. 347, 357 (1967). Probable cause exists when "the facts and circumstances within . . . [the officers'] knowledge and of which they had . . . trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).

be, engaged in criminal activity); Carroll v. United States, 267 U.S. 132, 153-54 (1925) (officer must have probable cause for warrantless vehicle search). However, the fourth amendment only protects reasonable expectations of privacy. See Katz v.United States, 389 U.S. 347, 351-53 (1967) (Harlan, J., concurring). The public nature of vehicles and the state regulation and inspection of motor vehicles reduce a motorist's reasonable expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 154 n.2 (1978) (Powell, J., concurring). In support of this automobile exception, the Supreme Court stated, "the diminished expectation of privacy which surrounds the automobile" arises from the facts (1) that a car is used for transportation and not as a residence or a repository of personal effects, (2) that a car's occupants and contents travel in plain view, and (3) that automobiles are necessarily highly regulated by government. United States v. Chadwick, 433 U.S. 1 (1977). Moreover, Louisiana Constitution Article I, Section 5 also guarantees against unreasonable seizures and invasions of privacy. Accordingly, a seizure of property for forfeiture purposes is prohibited as unreasonable unless authorized by a warrant issued upon probable cause, except in those exceptional circumstances in which we have recognized that warrantless searches and seizures are permissible. See e.g. State v. LaRue, 368 So.2d 1048 (La.1979) (searches pursuant to a standard inventory search); State v. Gordon, 332 So.2d 262 (La.1976) (searches incident to a lawful arrest); State v. Wyatt, 327 So.2d 401 (La.1976) (consensual searches); State v. Jones, 315 So.2d 270 (La.1975) (searches undertaken under exigent circumstances). Absent one of the foregoing exceptions, a warrant is required because it places the crucial task of making delicate judgments and inferences from facts and circumstances in the hands of a detached and neutral magistrate instead of police officers, who are

engaged in the zealous pursuit of ferreting out crime. Johnson v. U.S., 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1946). The warrant safeguard is equally applicable to the seizure of an automobile for the purpose of forfeiture, since the warrantless seizure of an automobile as contraband is subject to the same potential for abuse as the seizure of articles for evidentiary purposes without prior judicial approval. U.S. v. McCormick, 502 F.2d 281 (9 Cir.1974); LaFave, Search and Seizure, A Treatise on the Fourth Amendment, 1996,

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