State v. Dillon

419 So. 2d 46, 1982 La. App. LEXIS 7898
CourtLouisiana Court of Appeal
DecidedAugust 11, 1982
DocketNo. K 0008
StatusPublished
Cited by4 cases

This text of 419 So. 2d 46 (State v. Dillon) 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. Dillon, 419 So. 2d 46, 1982 La. App. LEXIS 7898 (La. Ct. App. 1982).

Opinions

CIACCIO, Judge.

Keith and Kevin Dillon have been charged by bill of information with five counts of receiving stolen property taken in several burglaries, in violation of La. R.S. 14:69. Kevin Dillon has also been charged with one count of simple burglary of the home of one Mark Duffy on March 13,1982, in violation of La. R.S. 14:62.2. Defendants pleaded not guilty and defendant Kevin Dillon moved to suppress evidence consisting of hundreds of items of property (allegedly the fruits of the burglaries) taken from the Dillons’ home by the New Orleans Police pursuant to a search warrant issued on March 18,1982. Defendant claimed that the affidavit1 submitted in support of the application for the search warrant did not establish probable cause for its issuance, thus violating his rights under the 4th and 14th Amendments to the U.S. Constitution; Art. 1., Sec. 5., Louisiana Constitution of 1974; and La. C. Cr. P., Art. 162. On July 6, 1982, the trial court granted this motion to suppress and the State has applied to this Court for review of that ruling.

The trial judge, in her reasons for judgment, found the affidavit inadequate to establish probable cause to search the Dillon residence, under the two-pronged test of State v. Paciera, 290 So.2d 681 (La. 1974). That case held that if an affidavit serving as the basis for issuance of a search war[48]*48rant is based entirely on hearsay, it must set forth sufficient underlying circumstances and details to allow the issuing magistrate to find both the informant and the information given reliable. The trial court found neither prong of the test satisfied, since the informant was not alleged to be reliable or to have given accurate information in the past, and since the informant was not alleged to have had any direct knowledge that the stolen goods would be at the Dillon residence.

The informant did allege that Keith and Kevin Dillon and another individual named Jerry Duhon were the perpetrators of some of the burglaries in the area; that they told him they had broken into a house and had taken certain named items; and that the house he pointed out to police (which was to be the subject of the search) was the residence of all three alleged perpetrators.

However, since the informant did not say he observed any of the stolen items at the residence, nor that the defendants told him they had any such items there, nor any other such direct allegation which could lead to this residence as the place where the stolen goods were to be found, the trial court concluded there was no factual basis for a search of the residence. The trial court found the independent corroboration by police, either alone or in combination with the information from the informant, also to be insufficient to establish probable cause for the search since it too included no direct finding that the stolen goods would be at the residence. We do not agree.

Factors which support the credibility of an unidentified informant may include either prior accurate reports or specific independent corroboration of the accuracy of the instant report. State v. Paciera, supra. Here, the police were able to corroborate virtually all the significant pieces of information given by the informant, by independent evidence. Police found that a fingerprint lifted from the point of entry of the recently burglarized residence was that of Kevin Dillon; all of the specific items of property named by the informant were identical to items on the list of stolen property which was taken in the Duffy burglary; New Orleans Public Service records revealed that the house pointed out to police was listed as the residence of a Jerry Dillon. Furthermore, the factual detail of the information given by the informant (notably, the detailed description of stolen items from the Duffy home, some of which were highly uncommon) itself serves to support the informant’s credibility and to negate the possibility that he fabricated his story. Draper v. U.S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

The Court in Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1959), discussing Draper, supra, observed: “A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” 393 U.S. at 417, 89 S.Ct. at 589.

Affidavits should be read in a commonsense and realistic manner, and, as the Louisiana Supreme Court observed in Paci-era, supra, quoting Spinelli, supra:

“ ‘... in judging probable cause magistrates are not to be confined to niggardly limitations or by restrictions on the use of their common sense’, and ‘their determination of probable cause should be paid great deference by reviewing courts.’ 393 U.S. 419, 89 S.Ct. 590. Further, where the law enforcement officers have respected the constitutional mandate to serve a warrant before searching, ‘Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’” (Citations omitted) 290 So. 2d at 687.

In discussing judicial review of warrants, the Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1963), stated:

The Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed [49]*49and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by non-lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

In her reasons for judgment the trial court noted that the affidavit establishes probable cause to arrest the defendants. But it was her view that the affidavit’s lack of stated facts specifically connecting the stolen goods with defendant’s residence made the affidavit fatally defective as support for the search warrant.

There is a substantial body of Louisiana jurisprudence, however, as well as case law from Federal and other state courts, holding that there is no need for stated facts explicitly connecting the stolen goods with defendant’s residence to establish the probability that the stolen goods may be found at the residence of the defendants. The required nexus may be established by such considerations as the nature of the crime, the nature of the items sought to be found, the time lapse between the commission of the crime and the date the search warrant is applied for, and other such factors.

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Related

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419 So. 2d 46, 1982 La. App. LEXIS 7898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dillon-lactapp-1982.