State v. Dotson

256 So. 2d 594, 260 La. 471, 1971 La. LEXIS 3909
CourtSupreme Court of Louisiana
DecidedDecember 13, 1971
Docket50828
StatusPublished
Cited by175 cases

This text of 256 So. 2d 594 (State v. Dotson) 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. Dotson, 256 So. 2d 594, 260 La. 471, 1971 La. LEXIS 3909 (La. 1971).

Opinions

DIXON, Justice.

On November 22, 1969 defendant Dan E. Dotson was a passenger in a green automobile traveling from Shreveport to Bossier City. Lt. Bolton of the Bossier City Police Department received a telephone call from a confidential informer advising that the occupants of a green automobile, traveling to Bossier City by a specified route, possessed narcotics.

Lt. Bolton proceeded to the ShreveportBarksdale Bridge and radioed for additional police vehicles. When the suspect car crossed the bridge, Lt. Bolton, aided by the other police vehicles, stopped the car and ordered its occupants out. No search was conducted then. However, the occupants, including defendant, were arrested for possession of narcotics.

Lt. Bolton took defendant, along with the driver of the suspect vehicle, into police headquarters. Another officer drove the suspect vehicle in. The driver of the green vehicle consented to a search of his car, which revealed no narcotics therein. However, the driver was charged with having a defective muffler.

[479]*479Lt. Bolton attempted to question' de- * fendant, but Dotson refused to waive his right to remain silent. Lt. Bolton then filled out an affidavit and, based' on this affidavit, a search warrant was issued by the judge of the city court of the city of Bossier City. Lt. Bolton then searched the person of defendant and took from .defendant’s clothing a matchbox allegedly ..containing marijuana. Defendant was charged with possession of narcotics.

Defendant filed a motion to suppress, which was overruled. At his trial, defendant asserted his innocence and claim'éd that he had been “framed.” The jury found the defendant guilty of possession of narcotics, as charged. This appeal was taken.

Defendant alleges five errors of law, corresponding to his five bills of exceptions: (1) failure to suppress evidence taken from the person of defendant; (2) failure to disclose the name of the con.fidential informant; (3) introduction of evidence which had not been identified properly nor shown to be in substantially 'the same condition as at the time of the 'alleged criminal transaction; (4) questioning defendant concerning prior misconduct and introduction of testimony referring to a' prior arrest'; and (5) outside association 'of a juryman with the primary state witness whose credibility' was at issúe.' These specifications will be* treated'in order.

Bill of Exception No. 1 was reserved when the trial court overruled defendant’s motion to suppress evidence taken from his person. The police stopped the car, arrested defendant, later obtained a search warrant, and then proceeded to search the person of defendant, all on the basis of a telephone call from an undisclosed informant. The essential question presented by the motion to suppress was whether the police had probable cause either to obtain the search warrant or to conduct the search without a warrant. Anent the validity of the procedure used, the United States Supreme Court has spoken. Said the Court in Aguilar v. Texas:

“Here the ‘mere conclusion’ that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only ‘contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,’ it does not even contain an ‘affirmative allegation’ that the affiant’s unidentified source ‘spoke with personal knowledge.’ For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner’s possession. The magistrate here certainly could not ‘judge for himself the persuasiveness of the facts relied on * * * to show probable cause.’ He necessarily accepted ‘without question’ the inform[481]*481ant’s ‘suspicion,’ ‘belief’ or ‘mere conclusion.’
“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was ‘credible’ or his information ‘reliable.’ Otherwise, ‘the inferences from the facts which lead to the complaint’ will be drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead, by a police officer ‘engaged in the often competitive enterprise of ferreting out crime,’ Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 * * *; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, * * *, or, as in this case, by an unidentified informant.
“We conclude, therefore, that the search warrant should not have been issued because the affidavit did not provide -a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in petitioner’s trial.
“The judgment of the Texas Court of Criminal Appeals is reversed and the case remanded for proceedings not inconsistent with this opinion.” Aguilar v. Texas, 378 U.S. 108, 113-116, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (footnotes omitted).

In a Louisiana case, State v. Wells, Justice Hamiter of the Supreme Court of Louisiana wrote:

“Under the rulings of the United States Supreme Court in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, such an affidavit, based on mere affirmance of belief or suspicion, is patently defective and, therefore, the warrant issued pursuant thereto is illegal and invalid.
“But even aside from these rulings the same result would be reached under the express language of Article 162 of our own Code of Criminal Procedure which pertinently 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.”’ State v. Wells, 253 La. 925, 221 So.2d 50, 52 (1969) (emphasis in original).

[483]*483In the instant case, the affidavit of Lt. Bolton demonstrated why the informant was considered reliable but did not recite any of the underlying facts upon which the informant based his suspicion. The judge issued the search warrant in this case without knowing whether the informer’s telephoned statement was based itpon rumor, hearsay or personal observation. Clearly, the warrant was invalid. The prosecution, however, argues that there was probable cause to support the search without a warrant.

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Bluebook (online)
256 So. 2d 594, 260 La. 471, 1971 La. LEXIS 3909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dotson-la-1971.