Opinion
No. 2000-K-3395
November 9, 2001.
IN RE: Kirk, Kennedy D.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, Nos. 398-116; to the Court of Appeal, Fourth Circuit, No. 2000-KA-0190
Denied.
CDT
JPV
JTK
RLL
CALOGERO, C.J., would grant and assigns reasons.
KIMBALL, J., would grant the writ.
JOHNSON, J., would grant the writ.
I dissent from the majority's denial of this writ because I believe the lower courts erroneously denied the defendant's motion to suppress. The Fourth Amendment to the United States constitution has drawn a firm line at the entrance to the home, and thus, the police need both probable cause to either arrest or search and exigent circumstances to justify a nonconsensual warrantless intrusion into private premises. State v. Welch , 449 So.2d 468, 470 (La. 1984). Pursuant to La. Code Crim.Proc. art. 703, the state has the burden of proof on the admissibility of evidence seized without a warrant. Here, the defendant was arrested inside an apartment, without a warrant, and the state has not demonstrated that exigent circumstances were present. Consequently, defendant's arrest was unconstitutional, and his motion to suppress should have been granted.