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06/27/84 Freddie A. Coutee, Et Al v. American Druggist

June 27, 1984

FREDDIE A. COUTEE, ET AL PLAINTIFFS - APPELLANTS

v.

AMERICAN DRUGGIST INSURANCE COMPANY OF CINCINNATI, ET AL, DEFENDANTS - APPELLEES PUBLIC DOMAIN CITE: COUTEE

v.

AMERICAN DRUGGIST INS. CO. , 83-781 (LA. APP. 3 CIR. 6/27/84); 453 SO. 2D 314



Before DOMENGEAUX, FORET, and STOKER, Judges

COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT

Appeal from the Ninth Judicial District Court, Parish of Rapides, State of Louisiana; Hon. Richard E. Lee, District Judge, Presiding. 1984.LA.675

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DOMENGEAUX

Appellants Freddie A. Coutee and Rita Coutee, individually and on behalf of their minor children, and their homeowner's insurer, American Bankers Insurance Company (by subrogation), filed a petition for damages against defendants Rapides Parish Sheriff Marshall T. Cappel, former deputy Bruce Vanderhoeven, and their liability insurers, American Druggist Insurance Company of Cincinnati and Lincoln Insurance Company. Plaintiffs-appellants alleged that on July 20, 1981, Rapides Parish Sheriff's Deputies used excessive force in executing a search warrant which caused damage to the inside of their trailer home due to the discharge of a tear gas cannister. Plaintiffs also sought damages for physical pain and suffering and mental anguish. The law enforcement officers, also in possession of an arrest warrant, were attempting to arrest fugitive Ronnie Wilkinson (brother of Rita Coutee plaintiff-appellant), on outstanding charges of aggravated kidnapping and simple assault.

The trial judge determined that the law enforcement officers, based upon all the facts and circumstances known to them at the time, acted upon a reasonable belief that the fugitive was inside the trailer. The trial judge concluded that the use of a tear gas cannister to gain access to the trailer was reasonable and further, that it was the best means possible to execute the search warrant [given the exigencies of the situation].The trial judge also found that based upon the totality of the circumstances, the force used was not excessive or unreasonable. Plaintiffs' suit was dismissed.

The plaintiffs-appellants have devolutively appealed, alleging error on the part of the trial court as follows:

1. In failing to find that the defendants, possessing the search warrant admitted into evidence, engaged in an unreasonable search and excessive use of force and violence against the plaintiffs' home;

2. In improperly using evidence taken in subsequent proceedings to decide matters in the case at bar and that such use without notice to the parties violated basic due process;

3. In failing to permit several witnesses to testify;

4.In failing to award damages to the plaintiffs.

FACTS

The trial judge summarized the incidents of July 20, 1981, as follows:

"On July 20, 1981, State Trooper Bruce Vanderhoeven was a Rapides Parish Deputy Sheriff. Sometime in the afternoon of that day, he received a radio call from Deputy Eric Roy Scroggs, shift supervisor. Scroggs informed Vanderhoeven that he had earlier that day received an anonymous telephone call from a woman calling herself 'a friend of the Sheriff's Department.' This woman informed him that she knew they had been looking for Wilkinson and that he was in the Coutees' trailer on Wilson Road in the Kolin community. Scroggs gave Vanderhoeven directions to a house on Wilson Road (the residence of Wilkinson's and Rita Coutee's mother), behind which the trailer was situated. Assistant District Attorney Tom Yeager was with Vanderhoeven when Scroggs called. Together they drove out to the Coutee trailer and they were soon joined by Deputy Mike Stevens and Reserve Officer Dana Rachal.

The deputies reached Wilson Road about 5:00 or 5:30 P.M. They checked out the Reeves home and the trailer.No one answered their knocks at the first residence, so they went to the trailer. There was no response there, either to their knocking and announcements that they were law enforcement officers looking for Ronnie Wilkinson. They heard no sound inside but the air conditioning unit was on. A black Mazda pickup determined to be the property of Wilkinson, was parked behind the trailer. The driver's window was rolled down and the keys were in the ignition. Vanderhoeven and Yeager then drove to the home of Carl and Katherine Ducote on Wilson Road, while Rachal and Stevens stayed at the trailer. Although she was relunctant to talk, Mrs. Ducote told Venderhoeven that she had seen Wilkinson in the area sometime earlier in the day.

The two men then returned to the Coutee trailer and knocked at the door, but received no response.The deputies and Yeager then positioned their two [police vehicle] units near the joinder of Wilson Road and Brandon Road and waited there, out of view of the trailer approximately 15 to 20 minutes, hoping that Wilkinson would think they had gone and attempt to drive away. About this time they stopped two vehicles exiting Wilson Road; one driven by K. Mark Williams and one driven by Kenneth Wilson, step-brother to Rita Coutee and Ronnie Wilkinson, with his girlfriend Darlene Hudgeons as a passenger.

Upon their return to the trailer, the deputies noticed that the keys had been taken out of the ignition in the Mazda and the window had been rolled up and the vehicle locked. However, the trailer air conditioner was still operating. The decision was made that Vanderhoeven and Yeager would return to Alexandria and obtain a search warrant to enter the trailer. Before leaving, they cut the electricity off in the trailer and called Deputy Lachney, assistant shift supervisor, telling him to bring a tear gas canister and the means to fire it over to the Coutee home. Deputy Marvin Paulk, acting shift supervisor that day, arrived at about that time. Paulk drove around while the two went for the search warrant and Stevens and Rachal watched the trailer for any signs of life inside.

Vanderhoeven and Yeager went to the Courthouse to prepare the search warrant. While Yeager was typing it up, Deputy Lachney called to relay a request by Phillip Oestricher, an investigator for the District Attorney's Office, for Vanderhoeven to call him. Contacted by telephone, Oestricher related that he had just received a telephone call from Bobby Michiels, a Reserve Officer in the Pineville Police Department. Michiels had told Oestricher that someone he knew and believed to be trustworthy had told him he had seen Wilkinson inside the Coutee trailer at the window that day with a gun in his hand. This information was not included in the affidavit for the search warrant. From the Courthouse, Vanderhoeven and Yeager went to the home of Judge Alfred Mansour, who signed the warrant. They then returned to the trailer.

At that point, it was close to dusk. Present at the trailer were Deputies Vanderhoeven, Stevens, Paulk and Lachney plus Reserve Officer Rachal and Assistant District Attorney, Tom Yeager. Once again, the deputies knocked on the trailer door, identifying themselves as police officers and telling Wilkinson to come out. There was no response from the trailer. The deputies then made a collective decision to use the teargas brought to the scene by Lachney. Both supervisors present, Paulk and Lachney approved the decision, in accordance with Department policy.Vanderhoeven fired the tear gas canister through the side window of the trailer, and the deputies waited with guns drawn. However, no one came out of the trailer and the deputies did not find Wilkinson when they entered the trailer and searched the rooms.

As a result of the tear gas dispersal in their trailer, plaintiffs allege that the Coutee family was unable to return to their home for 26 days; that all foodstuffs, except for canned goods, were contaminated and had to be thrown out; that they had to hire a janitorial service to clean the carpet, curtains and furniture; and that one child suffered a rash and another spit blood and had a nosebleed. Plaintiffs pray for an award of damages in the total amount of Thirty-Seven Thousand, Four Hundred Seventy-Five Dollars and 82/100 ($37,475.82)."

REASONABLE FORCE PURSUANT TO A SEARCH WARRANT

The plaintiffs failed to raise the legality of the search warrant as an issue contained in the pleadings. The trial court sustained an objection by the defendants when the plaintiffs attempted to introduce evidence concerning the validity of the search warrant.

It is within the discretion of the trial judge to admit or disallow evidence subject to an objection based upon the scope of the issues and pleadings. Mouledous v. Poirier, 221 So.2d 291 (La.App. 4th Cir. 1969). It is also discretionary for the trial judge to determine whether evidence is encompassed by the general issues raised in the pleadings. Huhn v. Marshall Exploration, Inc., 337 So.2d 561 (La.App. 2nd Cir. 1976), writ denied, 339 So.2d 854 (La. 1976).

In the instant case the trial judge found that plaintiffs' failure to specify allegations relative to the search warrant, combined with the failure to amend the petition, necessitated the exclusion of evidence regarding the validity of the search warrant. Roy v. Commercial Union Assurance Company, 385 So.2d 1273 (La.App. 3rd Cir. 1980); Marceaux v. Reese, 365 So.2d 504 (La.App. 3rd Cir. 1978); Wanda Petroleum Company v. Mac Drilling, Inc., 353 So.2d 474 (La.App. 3rd Cir. 1977), writ denied, 355 So.2d 258 (La. 1978). The trial court did not abuse its discretion when it excluded the evidence concerning the search warrant for the trailer home.

The issue on appeal focuses on the reasonableness of the entry and search. The trial court recognized the divergent interests of the parties and the need for balancing the individual's rights against the duty of the law enforcement officers.

The trial court found that the deputies, acting pursuant to reasonably trustworthy information, did not use excessive or unreasonable force in executing the search warrant.The trial court ...


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