State v. Baker

389 So. 2d 1289
Supreme Court of Louisiana·Decided November 24, 1980·No. 66698·Published·Cited by 14 cases

Opinion

389 So.2d 1289 (1980)

STATE of Louisiana
v.
Willie J. BAKER.

No. 66698.

Supreme Court of Louisiana.

October 6, 1980.
Dissenting Opinion November 24, 1980.

*1290 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Richard Pitre, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.

William R. Ary, New Orleans, for defendant-appellant.

*1291 MARCUS, Justice.

Willie J. Baker was indicted by the grand jury for possession with intent to distribute heroin in violation of La.R.S. 40:966. Defendant entered a plea of not guilty at the arraignment. After a hearing, the trial judge denied defendant's motion to suppress physical evidence. Thereafter, defendant moved to withdraw his former plea of not guilty and to enter a plea of guilty as charged, expressly reserving his right to appeal the court's denial of his pre-plea motion to suppress.[1] The trial judge accepted the plea of guilty and sentenced defendant to life imprisonment at hard labor. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence.

Defendant contends the trial judge erred in denying his motion to suppress physical evidence seized from his residence pursuant to a search warrant. He argues that the affidavit supporting issuance of the search warrant failed to set forth facts demonstrating probable cause to believe that illegal drugs were in his residence.

The search warrant in question was issued to search the premises located at 914 Leboeuf Street, New Orleans, Louisiana, for the purpose of seizing "controlled dangerous substances, particularly opium and its derivatives, administering paraphernalia and supporting documents." It was issued based upon facts recited in an affidavit by Officers Donald Laderer and James Lewis. The affidavit was executed and the warrant issued on March 30, 1979, following a four-day investigation by police officers combined with information obtained from a confidential informant. The officers asserted in the affidavit that due to the information received from the confidential informant and the surveillance conducted by the officers, it was their belief that defendant was distributing illegal drugs to "Blanky," a self-admitted narcotics user, who in turn would sell the contraband to individual drug users in the uptown section of New Orleans, and that the drugs, and more particularly heroin, were being concealed at 914 Leboeuf Street. The property seized pursuant to execution of the warrant at defendant's residence at 914 Leboeuf Street consisted of 207 tinfoil packets of white powder, 1700 talwin tablets, 1700 pyribenziamine tablets, 8 orange tablets, $4527 in cash, a blue steel revolver and an automatic pistol. The affidavit generally recited the following facts to establish probable cause for issuance of the warrant:

(1) On March 26, 1979, a reliable confidential informant whose information has led to the arrest and subsequent convictions of persons engaged in narcotics trafficking within New Orleans contacted affiants and advised them that on that date he had purchased heroin from a negro male known as Blanky. The informant advised affiants that Blanky drives to various areas of uptown New Orleans to secure necessary funds from purchasers and then proceeds across the river to a location at which he purchases heroin from a negro male known as "Toe Joe." Blanky then proceeds back across the river to uptown locations to deliver the heroin to the buyers.

(2) On March 26, 1979, officers followed Blanky as he left his residence (place where informant had purchased heroin) and drove to the west bank. Blanky was immediately recognized as a self-admitted narcotics user. Blanky stopped his car at a convenience food store to use the phone and then proceeded to the Moonlight Lounge where he met with defendant. Blanky then returned to uptown New Orleans and stopped his car at Third and S. Claiborne where a group of men, one of whom was a self-admitted heroin user, gathered around the driver's window and then quickly disbursed.

(3) On March 27, 1979, officers observed Blanky park at the intersection of Willow Street and Washington Avenue where a group of men gathered around the driver's window.

(4) On March 28, 1979, officers observed Blanky again meet with defendant at the Moonlight Lounge. The officers then followed defendant to 914 Leboeuf Street. A computer check revealed that Willie Baker *1292 a/k/a "Toe Joe" had given this location as his address.

(5) On March 29, 1979, officers followed defendant from his residence at 914 Leboeuf Street and observed him meet with Blanky at a street in Gretna where Blanky entered defendant's car for a short period of time before they went separate ways. The officers followed Blanky as he drove across the river to Third and S. Claiborne where once again a group of men gathered around the driver's window and then disbursed.

(6) A computer check revealed that defendant had five felony arrests with three convictions, two misdemeanor arrests and eight city arrests. Defendant was last handled by the Narcotics Division on November 3, 1979, at which time he was charged with possession with intent to distribute 174 dosage units of heroin.

Constitutional provisions insure a person from unreasonable search and seizure of his house, papers and effects. No such search or seizure shall be made except upon warrant issued 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; La.Const. art. 1, § 5. Conformably, our Code of Criminal Procedure in article 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

We have held that probable cause exists when the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. State v. Richards, 357 So.2d 1128 (La.1978); State v. Smith, 350 So.2d 1178 (La.1977); State v. Williams, 338 So.2d 1365 (La.1976); State v. Sierra, 338 So.2d 609 (La.1976); State v. Hightower, 272 So.2d 363 (La.1973). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Richards, supra; State v. Smith, supra; State v. Williams, supra; State v. Sierra, supra; State v. Holmes, 254 La. 501, 225 So.2d 1 (1969).

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court set forth, in a "two-pronged test," the criteria which a magistrate must follow in determining if an affidavit based upon hearsay has established probable cause for the issuance of a search warrant: (1) the affiant must articulate the basis for his belief that the

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