State v. Bayonne

996 So. 2d 1253, 2008 WL 4791650
CourtLouisiana Court of Appeal
DecidedNovember 5, 2008
Docket2008-149
StatusPublished

This text of 996 So. 2d 1253 (State v. Bayonne) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bayonne, 996 So. 2d 1253, 2008 WL 4791650 (La. Ct. App. 2008).

Opinion

996 So.2d 1253 (2008)

STATE of Louisiana
v.
Kenneth D. BAYONNE.

No. 2008-149.

Court of Appeal of Louisiana, Third Circuit.

November 5, 2008.

*1254 Van Hardin Kyzar, District Attorney, Natchitoches, LA, for Appellee, State of Louisiana.

James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant, Kenneth D. Bayonne.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS and MARC T. AMY, Judges.

AMY, Judge.

Factual and Procedural Background

The defendant, Kenneth D. Bayonne, was charged by bill of information with two counts of possession of a schedule I narcotic (marijuana) with intent to distribute, in violation of La.R.S. 40:966, and one count of possession of a schedule II narcotic (codeine) with intent to distribute, in violation of La.R.S. 40:967. Pursuant to a plea agreement, the defendant pled guilty to one count of possession of marijuana with intent to distribute and one count of *1255 possession of codeine with intent to distribute. He reserved the right to appeal the trial court's denial of his motion to suppress evidence.

For each conviction, the defendant was sentenced to nine years at hard labor, to run concurrently. The defendant orally moved for reconsideration of his sentences and subsequently filed a written motion. After a hearing, the trial court denied the motion. The defendant now appeals, challenging the trial court's denial of his motion to suppress.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

Standard of Review

"In reviewing a ruling on a motion to suppress, an appellate court considers the totality of the evidence presented at the suppression hearing. Furthermore, unless the trial court's ruling is not supported by the evidence or it is clearly an abuse of discretion, it is not to be overturned by the appellate court." State v. Leday, 05-1641, pp. 7-8 (La.App. 3 Cir. 5/3/06), 930 So.2d 286, 291 (citations omitted).

Motion to Suppress

In his sole assignment of error, the defendant contends that "[t]he trial court erred in denying [his] motion to suppress all evidence seized in the custody of the defendant in violation of his Constitutional right to be free from unreasonable search and seizure." He argues that the search warrant was invalid because the affiant did not inform the issuing magistrate that the informant was the defendant's girlfriend and that she "came forward as the result of an altercation and issued a vengeful statement intended to inculpate the defendant."

Louisiana Code of Criminal Procedure Article 162 provides in 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." In State v. Casey, 99-23, pp. 3-4 (La.1/26/00), 775 So.2d 1022, 1027-28, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000), the supreme court explained:

A person is constitutionally protected against unreasonable search and seizure of his house, papers and effects. Thus, a search and seizure of such shall only be made upon a warrant issued on probable cause, supported by oath or affirmation, and particularly describing the place to be searched and thing(s) to be seized. The general rule is that probable cause sufficient to issue a search warrant "exists when the facts and circumstances within the affiant's knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched." The issuing magistrate must make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, a fair probability exists that the evidence of a crime will be found in a particular place. Additionally, a search warrant must establish a probable continuing nexus between the place sought to be searched and the property sought to be seized. Further, an affidavit must contain, within its four corners, the facts establishing the existence of probable cause for issuing the warrant.

(Citations omitted).

"[T]he credibility of the affiant's informant or the correctness of the information furnished by the informant may not *1256 be attacked on a motion to suppress[.]" State v. Evins, 626 So.2d 480, 492 (La.App. 3 Cir.1993). However, the affiant's credibility may be traversed upon a proper showing that a genuine issue exists concerning the affiant's veracity, which is supported by convincing factual allegations, that, if true, would establish the falsity of the affidavit. Id.

In Casey, 775 So.2d at 1029 (citations omitted), the supreme court explained:

For an affiant to make a material and intentional misrepresentation to a magistrate constitutes a fraud upon the court and will result in the invalidation of the warrant and suppression of the items seized. However, if the misrepresentations or omissions are inadvertent or negligent, the correct procedure is for the warrant to be retested for probable cause after supplying that which was omitted or striking that which was misrepresented.

The defendant claims that the search warrant should be invalidated for an intentional misrepresentation; therefore, he "must prove by a preponderance of the evidence that the affidavit contains intentional misrepresentations." State v. Trotter, 37,325, p. 10 (La.App. 2 Cir. 8/22/03), 852 So.2d 1247, 1253, writ denied, 03-2764 (La.2/13/04), 867 So.2d 689 (citations omitted).

At the suppression hearing, Sergeant Roger Henson of the Natchitoches Drug Task Force explained his involvement in the case. He testified that on December 14, 2005, Lieutenant Walker told Corporal Taitano that Jennifer Roque (Roque) was giving him some information about drug activity in the area. Sergeant Henson and Corporal Taitano met with Lieutenant Walker and Roque. According to Sergeant Henson, all three of the men questioned Roque. He testified that Roque revealed that:

[S]he had been an acquaintance of Mr. Bayonne for several years. That uh, during that time she acknowledged the drug transactions that he had participated in, in which he kept a large quantity of uh, suspected narcotics in the storage units there at the Keyser Avenue Storage Unit. And uh, as well as uh, keeping large sums of money at this mother's house in a shoe box.

Sergeant Henson stated that after Roque gave a written statement, he went to obtain a search warrant to search two storage units, one which Roque stated was rented under her name, and the other which was rented under the defendant's name. He also sought a search warrant to search the house of the defendant's mother. Sergeant Henson signed the following affidavit to get the search warrants:

On December 14, 2005[,] agents of the Natchitoches Drug Task Force received information from Sgt. Walker, Criminal Division Supervisor.

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Cite This Page — Counsel Stack

Bluebook (online)
996 So. 2d 1253, 2008 WL 4791650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bayonne-lactapp-2008.