State v. Cobbs

350 So. 2d 168
CourtSupreme Court of Louisiana
DecidedSeptember 19, 1977
Docket59364
StatusPublished
Cited by81 cases

This text of 350 So. 2d 168 (State v. Cobbs) 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. Cobbs, 350 So. 2d 168 (La. 1977).

Opinion

350 So.2d 168 (1977)

STATE of Louisiana
v.
Rufus COBBS.

No. 59364.

Supreme Court of Louisiana.

September 19, 1977.

*170 Tilden Greenbaum, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Robert L. Simmons, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

The defendant Rufus Cobbs was charged with the crime of simple burglary, a violation of R.S. 14:62. Defendant waived trial by jury and the trial judge found him guilty as charged. The State then charged him as a multiple offender pursuant to R.S. 15:529.1 and he was adjudged to be a fourth offender. The trial judge sentenced him to twenty years imprisonment. Defendant assigns nine errors for reversal of his conviction and sentence.

Assignments of Error Nos. 5 and 7 were neither briefed nor argued and are deemed to be abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

The facts surrounding the commission of the crime follow. On June 28, 1976 a commercial laundry on Toulouse Street in New Orleans was burglarized. Stolen in the course of the burglary were a check writing machine and approximately two hundred fifty business checks. On the morning of June 30, 1976 an individual attempted to cash one of the stolen checks at a food store in New Orleans. The clerk at the store notified the police and they arrested the individual, charging him with forgery and possession of a stolen check. This person told the police that he had received the check from the defendant, Rufus Cobbs. He also informed the police that the check writing machine and numerous blank checks taken in the burglary were contained in a dresser drawer in the upper rear apartment facing North Galvez Street at 2112 St. Louis Street in New Orleans. That apartment was defendant's residence.

The officers obtained a search warrant which they executed at the defendant's apartment, seizing the stolen check writing machine and some of the stolen checks. Rufus Cobbs was also arrested at that time.

Assignments of Error Nos. 1 and 6

Prior to trial the defendant filed a motion to suppress the physical evidence seized during the search of his apartment. After a hearing the motion to suppress was denied. At trial the defendant again objected *171 to the introduction of the check writing machine and the checks. The objections were overruled and the evidence was admitted. The defendant assigns as error the denial of the motion to suppress and the introduction of the evidence at trial. The thrust of defendant's argument is that the property was illegally seized because the premises to be searched were not described with sufficient particularity in the warrant.

Both the United States and Louisiana Constitutions provide that no warrant shall issue unless based on probable cause, supported by oath or affirmation "and particularly describing the place to be searched. . ." United States Constitution Amendment IV; Louisiana Constitution Article 1 § 5. See also, C.Cr.P. 162.

The object of the description in a search warrant is to prevent the search of the wrong premises. If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises, the description is sufficient. United States v. Prout, 526 F.2d 380 (5th Cir. 1976); United States v. Darensbourg, 520 F.2d 985 (5th Cir. 1975); United States v. Melancon, 462 F.2d 82 (5th Cir. 1972). See also Wharton's Criminal Procedure, § 166 at 343-346 (12th Ed. 1974).

The description of the premises to be searched found in both the application for the warrant and the warrant itself was as follows: "2112 St. Louis Street Upper Rear Apartment facing N. Galvez Street." The application for the warrant also stated that 2112 St. Louis Street was a two story wood frame building with single room apartments and that the apartment to be searched did not have a number on it.

Following the arrest of the individual who attempted to cash one of the stolen checks, the officers drove by the apartment building and that individual pointed out the defendant's apartment and, in addition, drew a diagram indicating the location of the apartment. After dropping that person at Central Lockup, one of the arresting officers, Duane Johnson, returned to the apartment building to attempt to ascertain the correct municipal number of the building and the correct number of the apartment occupied by Rufus Cobbs. At the hearing on the motion to suppress, Officer Johnson testified that he proceeded to the top of the steps in the apartment building but couldn't see any number on the defendant's apartment door. He indicated that he came within approximately fifty feet of the apartment but did not want to approach any closer because he did not yet have a warrant and was afraid that the stolen property might disappear before he returned with the warrant. After this trip to the apartment building, the officers sought and obtained a search warrant. The defendant contends that the manner in which the warrant was executed demonstrates that the description of the premises to be searched was inadequate in that there was a reasonable probability that another premises might be searched.

The defendant testified as follows: when the officers came to 2112 St. Louis Street to execute the warrant, they first approached two men sitting outside of another apartment on the second floor, asked them for identification and then showed them a picture of the defendant. After leaving these men they requested the defendant to come to the door of his apartment and asked who he was. He gave them an alias. The police left and went to a number of other apartments on the second floor and searched at least two of them. Only after investigating these other apartments did the officers return to the defendant's apartment, arrest him and seize the stolen property. The defendant alleges that there are five apartments that could fit the description in the search warrant.

The defense also called Mr. W. E. Watts as a witness on the motion to suppress. He resided in an apartment at 2112 St. Louis Street and testified that the police entered several apartments on the second floor at the time that the warrant was executed. However, it is not clear from this witness' testimony whether he saw the officers enter the other apartments before or after *172 they executed the warrant and arrested the defendant in his apartment.

Officer Johnson testified that when he and his partner went to execute the warrant they went directly to the defendant's apartment. His testimony was as follows: at approximately 1:10 p. m. on June 30 the warrant was executed at the apartment of Rufus Cobbs at 2112 St. Louis Street. The doorway was open to the apartment, which was visible through the screen door. As they approached the apartment Officer Johnson observed Rufus Cobbs (whom he recognized from a photograph in his possession) lying on a bed near the doorway. He called to Rufus Cobbs, who opened the door and was arrested. The apartment was then searched.

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Bluebook (online)
350 So. 2d 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cobbs-la-1977.