State v. Duncan

478 So. 2d 992, 1985 La. App. LEXIS 10197
Louisiana Court of Appeal·Decided November 14, 1985·No. No. KA 3017·Published·Cited by 3 cases

Opinion

SCHOTT, Judge.

Defendant was charged with possession of heroin with intent to distribute in violation of LSA R.S. 40:966, convicted of attempted possession of heroin with intent to distribute, and sentenced to forty years at hard labor.

On October 12, 1979 police officers executed a search warrant at 13677 North Lemans Street in New Orleans. Upon entering the premises they found two women in the living room and defendant going from the living room toward the bedroom. They pursued him and discovered that he had five tin foil packets in his mouth. After being advised of his Fifth Amendment rights, defendant revealed fourteen more foil packets in a coat. The officer found $300 in defendant’s pocket, $3100 in the headboard of the bed, and an envelope addressed to defendant at this address. Defendant also revealed a shotgun in the closet and a handgun in the dresser drawer. The foil packets were found to contain heroin. Subsequent questioning of defendant led him to give a written confession in which he stated the heroin was his and no one else in the house knew about it. He denied being an addict.

A police sergeant who qualified as an expert in the distribution, sale, packaging and pricing of drugs in New Orleans testified that the foil packets seized from defendant, known as “spoons”, each con[994] tained about 25 individual doses, that at the time of defendant’s arrest spoons had a wholesale value of $125-$150, and that possession of nineteen spoons was not-consistent with personal use.

A review of the record for errors patent has revealed none except that the record does not contain defendant’s waiver of his right to a twenty-four hour delay between denial of his motion for new trial and sentencing. However, this error is harmless considering that defendant has neither assigned this as error nor alleged any prejudice as a result State v. Wormser, 467 So.2d 58 (La.App. 4th Cir.1985).

Argument of Error 1

By this assignment defendant contends that the trial court wrongfully denied his motion to suppress the evidence seized from the Lemans address. The affidavit presented to the magistrate who issued the warrant contains the following pertinent information: On October 12 affiants (two police officers) were told by a confidential informant who was reliable and whose information had led to previous arrests that he had been in the Lemans Street address within the previous three days and had witnessed sales of heroin and other drugs by one OB, a cab driver of a black Lincoln Morrison cab, and by a female known as Willie Mae. Also the informant observed OB getting numerous telephone calls in which he arranged to meet individuals at Chef Menteur Highway and Michoud Boulevard and would thereafter depart with a quantity of heroin in his cab and subsequently return with currency. OB bragged to the informant about how much money he was making and he and Willie Mae told him if he needed dope they always had it. Affi-ants established a surveillance of the premises and observed a black Lincoln Morrison cab bearing the name of Obediah Stephenson pull up and the driver enter the premises. Later he left the premises and drove off in his cab to a service station at Chef Menteur and Michoud where he exchanged an object with á person in a truck for something from the latter’s wallet. OB returned to Lemans Street. Other officers involved in the surveillance with affiants observed others entering the Lemans address and going to Chef and Michoud where apparent sales took place. Finally they saw a man and a woman leave the premises and drive off in a cab. After observing them stop for a conversation with occupants of a Cadillac also observed in connection with the premises, the officers stopped the cab and found $2400 in the possession of the woman identified as Willie Mae Brewer.

We have no difficulty concluding that this affidavit was sufficient to provide probable cause for the magistrate to issue the warrant. All the ingredients of a reliable trustworthy informant who provides fresh information to show the probability that contraband will be found in the place are contained in this affidavit. The magistrate’s decision to issue- the warrant was practical and based on common sense. All of the requirements of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) as well as State v. Duncan, 420 So.2d 1105 (La.1982) were met. This assignment is without merit.

Assignment of Error 2

Defendant maintains his confession was inadmissible because it was given after being promised that his daughter, who was in the house, would not be arrested. At the suppression hearing the officer's testimony that he made no promises whatsoever in exchange for the confession was contradicted by defendant and Willie Mae Brewer. The trial judge’s credibility call will not be disturbed on appeal. The officer’s testimony, believed by the trial judge, was sufficient to carry the state’s burden of proof. This assignment is meritless.

Assignments of Error 3 and 4

By these assignments defendant contends the $2,400 was illegally seized from Willie Mae Brewer and should have been suppressed. He further argues it should not have gone to the jury in any event [995] because it was irrelevant to the case against him and was inflammatory.

C.Cr.P. Art. 213 authorizes a war-rantless arrest when the officer has reason to believe the arrestee has committed an offense. An arrest must be based on probable cause which exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a man of average caution to believe that the person to be arrested has committed or is committing an offense. State v. Jackson, 450 So.2d 621 (La.1984).

In the instant case the confidential informant identified Willie Mae as selling drugs from Lemans Street with OB. Subsequent surveillance confirmed the accusations made by the informant as to the practice of selling the drugs at Chef Highway and Michoud Blvd. Just prior to Brewer’s cab being stopped the police observed its occupants holding a brief conversation with the occupants of a Cadillac which had been observed coming to and going from the Lemans address. Once the police stopped the cab they were authorized to search the immediate area surrounding Brewer as a precaution under considerations of exigency.

We have concluded that this case is much like State v. Johnson, 467 So.2d 47 (La. App. 4th Cir.1984) wherein this court found there was probable cause for an arrest and a subsequent search and seizure of drugs. The same result follows here.

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State v. Duncan, 478 So. 2d 992, 1985 La. App. LEXIS 10197 (La. Ct. App. 1985).

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