State v. Kirk 801 So. 2d 1063

In Re Kirk, Kennedy D.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 398-116; to the Court of Appeal, Fourth Circuit, No. 2000-KA-0190.

Prior report: La.App., 773 So.2d 259.

Denied.

CALOGERO, C.J., would grant and assigns reasons.

KIMBALL, J., would grant the writ.

JOHNSON, J., would grant the writ.

CALOGERO, Chief Justice,

dissenting and assigning reasons.

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 war-rantless intrusion into private premises. State v. Welch, 449 So.2d 468, 470 (La. 1984). Pursuant to La.Code Grim. 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.