State v. Barrett

350 So. 2d 664
CourtSupreme Court of Louisiana
DecidedSeptember 19, 1977
Docket59437
StatusPublished
Cited by9 cases

This text of 350 So. 2d 664 (State v. Barrett) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barrett, 350 So. 2d 664 (La. 1977).

Opinion

350 So.2d 664 (1977)

STATE of Louisiana
v.
Kenneth BARRETT.

No. 59437.

Supreme Court of Louisiana.

September 19, 1977.
Rehearing Denied October 21, 1977.

*665 James E. Shields, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., Roy Blondeau, Jr., Research Atty., for plaintiff-appellee.

DENNIS, Justice.

Defendant, Kenneth Barrett was convicted of armed robbery, La.R.S. 14:64, and sentenced to serve five years at hard labor. On appeal he relies on three assignments of error. For the reasons hereinafter given we find the assignments unmeritorious and affirm defendant's conviction and sentence.

*666 ASSIGNMENT OF ERROR NO. 1

A Jefferson Parish sheriff's deputy applied to a district judge for a warrant to search defendant's apartment for drugs and articles involved in armed robberies. In support of his application the officer submitted an affidavit which, in relevant part, recited that:

"On or about the 7th day of December, 1975 the undersigned officer received information from a confidential informer, advising the undersigned that at the above mentioned apartment, there were two subs. staying at that apartment, at [sic] that there was a quanity [sic] of narcotics in the apartment located in the night stand of the bedroom of one Kenneth Barrett w/m, 31 yrs who is the sub. that the apartment is is [sic] in the name of. The CI, advised that she was in the apartment at 530pm this date and observed the above mentioned narcotics. The sub. kenneth has the marijuana bagged in plastic bags the ci advised that he is selling the bags for $10.00 a bag.
"The CI also advised that the subs Barrett and another w/m who resides at the same apartment by the name of David w/m 5'5, thin build with black hair, and a black mustache were involved in numerous armed robberies in the Jefferson Parish, New Orleans area and gave the undersigned a list of armed robberies mentioned in this application and that one was going to be pulled on either the 7th or the 8th of December, 1975. On the 7th of Dec. 1975 there was an armed robbery at Chris's steak house, located at 3633 Vets Hwy. Met., La at 7:23 pm in which the description fitted the sub. david. The CI advised that the subs were driving a 1966 Ford white over Maroon in color, with Florida plates and that the car was equipped with apolice scanner. Officer was in the area and located the veh. in question about two blocks from the armed robbery and found Barrett and a w/f named Joni Ramsey, 24 yrs. The sub. David could not be found. Officers talked to the sub. Joni after advising the subs of her rights and she gave officers a written statement involving the set up of the armed robbery and how the sub was dropped off.
"For this reason the undersigned officer wishes that a search warrant be issued for the residence, and that the warrant be good for days and nights and for holidays and weekends."

The search warrant was issued.

In executing the warrant the officer entered the premises and seized the following items: a .38 caliber Taras hand gun and five rounds of ammunition, a pair of black panatela pants, a brown and white shirt, a tan wind breaker jacket, a black cap, a Realistic "Pro-77-A" scanner receiver, and a brown shoulder holster.

Defendant moved to suppress these items. The district court denied his motion, and defendant contends the ruling was erroneous because (1) the affidavit did not set forth facts and circumstances from which a magistrate could conclude that the confidential informant was credible or his information reliable, and (2) the affidavit contained statements known to be false by the affiant.

Louisiana Code of Criminal Procedure Article 162, in part, provides:

"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. * * *."

If hearsay information is an essential element in establishing probable cause, the magistrate must be informed of underlying circumstances which show that the informant was in a position to observe the facts reported, and underlying circumstances which show that the informant was credible or his information reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Brawley, 347 So.2d 238 (La.1977); State v. Paciera, 290 So.2d 681 (La.1974); State v. Linkletter, 286 So.2d 321 (La.1973); State v. Wells, 253 La. 925, 221 So.2d 50 (1969).

*667 In the instant case the affidavit reflected that the informant had been in the defendant's apartment on the same day the warrant was requested. The informant therefore was in a position to observe the facts reported, i. e., that defendant and his companion were living in the apartment and that a quantity of marijuana was located there.

The affidavit also contained underlying circumstances which tended to show that the informant was credible or his information reliable. The officer attested that the informant advised him that the defendant and an individual named David, who had been living at defendant's apartment, planned to commit an armed robbery in the New Orleans area on the seventh or eighth of December. The informant also gave the officer a fairly detailed physical description of the defendant's companion and the automobile they intended to use. The officer's affidavit further stated that such a robbery did occur on December 7th at Chris' Steak House in Metairie, that the gunman fitted the informant's description of the defendant's companion, and that the defendant was stopped in a car matching the description furnished by the informant two blocks from the scene of the crime shortly after it occurred. Moreover, a passenger in the car gave a statement implicating the defendant and herself in the robbery of Chris' Steak House. Because this detailed information relating to the steak house robbery supplied to the officer in advance by the informant proved to be accurate in every respect, it constituted sufficient grounds for the issuing magistrate reasonably to conclude that the informant was credible or his information reliable.

Defendant's alternate attack on the search warrant affidavit alleges that the officer falsely stated therein that he had spoken to his confidential informant on or about December 7, 1975, and untruthfully attested that the informant claimed to have seen marijuana in the defendant's apartment. Although it is not appropriate to challenge the accuracy of an informant's information by motion to suppress, a defendant may, upon proper allegations demonstrating a genuine issue of the affidavit's falsity, test the veracity of the affiant and his statements included in the affidavit. State v. Tallie, 337 So.2d 504 (La.1976); State v. Cox, 330 So.2d 284 (La.1976); State v. Giordano, 284 So.2d 880 (La.1973); State v. Melson, 284 So.2d 873 (La.1973).

At the hearing on the motion to suppress, the witnesses were sequestered.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Bosley
691 So. 2d 347 (Louisiana Court of Appeal, 1997)
State v. Warren
712 So. 2d 500 (Louisiana Court of Appeal, 1996)
State v. French
538 So. 2d 1117 (Louisiana Court of Appeal, 1989)
State v. Sharlow
493 So. 2d 213 (Louisiana Court of Appeal, 1986)
State v. Jackson
490 So. 2d 536 (Louisiana Court of Appeal, 1986)
State v. Rainey
470 So. 2d 422 (Louisiana Court of Appeal, 1985)
State v. Cotten
438 So. 2d 1156 (Louisiana Court of Appeal, 1983)
State v. Mosley
412 So. 2d 527 (Supreme Court of Louisiana, 1982)
State v. Namias
357 So. 2d 494 (Supreme Court of Louisiana, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
350 So. 2d 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barrett-la-1977.