State v. Hamilton

572 So. 2d 269, 1990 WL 180108
Louisiana Court of Appeal·Decided November 14, 1990·No. KA 90 0083·Published·Cited by 10 cases

Opinion

572 So.2d 269 (1990)

STATE of Louisiana
v.
Robert HAMILTON.

No. KA 90 0083.

Court of Appeal of Louisiana, First Circuit.

November 14, 1990.

*271 William R. Campbell, Jr., New Orleans, John J. Williams Jr., Asst. Dist. Atty., Covington, for appellee.

James H. Looney, Office of Indigent Defender, Covington, for appellant.

Before SAVOIE, CRAIN and FOIL, JJ.

CRAIN, Judge.

Robert Hamilton was charged by indictment with three counts of drug racketeering, in violation of LSA-R.S. 15:1353 A, B and D. He pled not guilty. Defendant filed several pre-trial motions, including a motion to suppress evidence seized pursuant to three search warrants. The motion to suppress was denied. Subsequently, after a jury trial, defendant was found guilty as charged. He was sentenced to a term of imprisonment of fifty years at hard labor and to pay a fine of $500,000 on each count. The sentences are to run concurrently. He now appeals, urging three assignments of error, as follows:

1. The trial court improperly denied the motion to suppress evidence.

2. The trial court erred in admitting into evidence certain firearms and testimony related thereto, which evidence was beyond the scope of the State's opening statement.

3. The trial court imposed excessive sentences.

FACTS:

Robert L. Hamilton and eleven other persons were charged with drug racketeering in St. Tammany Parish between January, 1986, and March 11, 1988. The indictment charged Hamilton with three counts, to wit: (1) Count I—Knowingly receiving proceeds derived, directly or indirectly, from a pattern of drug activity and using and investing such proceeds in the acquisition of title in real estate and in the establishment and operation of businesses, including the Corner Cafe and All Star Logging Company in Covington, Louisiana, a violation of LSA-R.S. 15:1353 A; (2) Count II—Knowingly acquiring or maintaining immovable property and enterprises through a pattern of drug racketeering activity, a violation of LSA-R.S. 15:1353 B; (3) Count IV—Conspiring to violate the drug racketeering statute, a violation of LSA-R.S. 15:1353 D.

In 1986, defendant leased a building in Covington, Louisiana, and opened the Corner Cafe. The cafe, an operating restaurant, also served as a base from which cocaine was sold. Defendant, Harold Roberts (AKA Ace), and, later, Hezikiah Barge (AKA Shank), shared the proceeds from the cocaine sales. According to Roberts, he and defendant planned to make $500,000 each and then leave the area. These drug transactions were conducted by junkies enlisted by Hamilton, Roberts or Barge as sellers. The sellers would approach occupants of vehicles or pedestrians around the Corner Cafe and offer to sell them cocaine. These men would then obtain money from the buyer; go to the cafe; get cocaine from Roberts, Barge or another person; and bring it back to the buyer. Sometimes, when defendant was at the cafe, he would give the men the cocaine. Other persons were hired on a salary basis to sell cocaine. These persons were actually given the cocaine. Once it was sold, they brought the money back to the cafe.

In 1988, after having made about $500,000, defendant started a logging business, All Star Logging Company, with money he received from cocaine sales. A building was leased for the business and equipment purchased with the drug money.

Although All Star Logging Company made money from cutting timber and from logging operations, that income did not equal the amount made through the cocaine sales. The company spent $287,000 more than it made between May 1987 and March 1988. The company also spent $185,000 before it had the first sale of timber or first income from contract hauling.

The money from the drug sales was kept in a safe at the restaurant. Barge, Roberts *272 and defendant had access to the safe. Whenever they removed cash, the date, amount taken and name of the person removing the sum would be recorded on a cash register receipt. Hamilton and Roberts also had bank accounts for the Corner Cafe and All Star Logging Company and a safety deposit box at a nearby bank. Also, jewelry was sometimes traded for cocaine. The jewelry either was taken to a jeweler to be melted down or kept at defendant's residence or in the safe.

Following a narcotics investigation and undercover surveillance, search warrants were obtained for the residence of Harold Roberts and the business locations of Corner Cafe and All Star Logging Company. The search of Roberts' house revealed some bags of cocaine in the attic. A scale for weighing cocaine and other drug paraphernalia also were found.

When the Corner Cafe was searched, over $27,000 in cash, in denominations of $5, $10, $20 and $100, was seized. Also, automobile titles (twelve of which were vehicles owned by either defendant or All Star Logging Company) and other business documents were seized.

ASSIGNMENT OF ERROR NUMBER ONE:

In assignment of error number one, defendant contends the trial court erred in denying his motion to suppress. He argues that the three search warrants issued were based upon affidavits which failed to show probable cause. The three search warrants authorized the search of Harold Roberts' residence,[1] the Corner Cafe, and the business location for All Star Logging Company.

A search warrant may issue only upon probable cause established to the satisfaction of a judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. La. Const. Art. I § 5; La.C.Cr.P. art. 162. Probable cause 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. State v. Tilley, 525 So.2d 716, 718 (La.App. 1st Cir.1988); State v. Waterloo, 447 So.2d 561, 564 (La.App. 1st Cir. 1984).

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court abandoned the Aguilar-Spinelli "two-pronged test"[2] in favor of a "totality of the circumstances" approach in reviewing search warrant affidavits. Under the new approach:

[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.
103 S.Ct. at 2332. (Citations omitted.)

The task of the reviewing court in evaluating a search warrant affidavit is simply to insure that the judge had a substantial basis for concluding that probable cause existed. A magistrate's determination of probable cause should be accorded *273 great deference by a reviewing court. State v. Rodriguez, 476 So.2d 503, 507 (La. App. 1st Cir.1985).

The affidavit supporting the search warrant for the home of Harold Roberts states that a confidential informant, who had previously given reliable information resulting in two arrests, revealed that Haro

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