State v. Harlan

556 So. 2d 256, 1990 WL 5371
CourtLouisiana Court of Appeal
DecidedJanuary 24, 1990
Docket21155-KA
StatusPublished
Cited by4 cases

This text of 556 So. 2d 256 (State v. Harlan) 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. Harlan, 556 So. 2d 256, 1990 WL 5371 (La. Ct. App. 1990).

Opinion

556 So.2d 256 (1990)

STATE of Louisiana, Appellee,
v.
William T. HARLAN, Appellant.

No. 21155-KA.

Court of Appeal of Louisiana, Second Circuit.

January 24, 1990.

*257 Steven R. Thomas, Mansfield, for appellant.

William J. Guste, Jr., Atty. Gen., Don M. Burkett, Dist. Atty., Robert E. Burgess, Asst. Dist. Atty., Mansfield, for appellee.

Before FRED W. JONES, Jr., SEXTON and NORRIS, JJ.

NORRIS, Judge.

The appellant, William T. Harlan, was charged by separate bills of information with possession of marijuana (second offense), LSA-R.S. 40:966 C, and possession of drug paraphernalia, LSA-R.S. 40:1031. His motion to suppress evidence, alleging an illegal search and seizure, was denied. Pursuant to a plea bargain, he pled guilty to the first charge, reserving his right to appeal the ruling on the motion to suppress, pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The state dropped the paraphernalia charge. The district court then sentenced him to three years at hard labor. Harlan now appeals, contending by four assignments that the district court erred in denying the motion to suppress and in imposing an excessive sentence. For the reasons expressed, we affirm.

Facts

On June 1, 1988 Investigator Cobbs of the DeSoto Parish Sheriff's Office executed an affidavit for a search warrant, averring:

This agency received information from a confidential reliable informant * * * ["CRI"], that Harlan had in the residence approximately one pound of marijuana. This information was received by Investigator Cobbs and CRI stated that marijuana had been seen within the last 96 hours. This CRI has been known by affiant for several years and CRI has furnished information in the past that has been proven to be true and correct. CRI is familiar with marijuana and seen same on several occasions. (2 arrests made)
Another CRI stated that they have seen William T. Harlan distributing something in a small plastic bag. This was to have taken place at the game room which is located in the downtown Mansfield. * * *
Some concerned citizens have reported * * * a strong odor of what appears to be marijuana smoke coming from the residence of William Harlan.

The warrant issued on June 1 at 1:40 p.m. The record does not show when it was executed, but the materials seized were delivered to the Crime Lab in Shreveport on June 7 at 4:27 p.m. Seized were an ashtray, a metal clip, spoons and a jar, all found by the district judge to be drug paraphernalia. Also seized was a small quantity of vegetable matter and seeds, analyzed as 8.7 grams of marijuana.

Harlan's counsel filed a motion to suppress alleging that "no consent to search was ever obtained, and/or no search warrant, and * * * such evidence was illegally obtained[.]" He submitted the motion on brief, without attempting to present any *258 evidence. The district court denied the motion, noting that "no specific defects are complained of" in the affidavit or warrant. The court found the affidavit sufficient to support probable cause.

Before sentencing, the district court ordered a presentence investigation report ("PSI") which both the court and defense counsel examined. Harlan also submitted a letter for the court's consideration. In imposing the three-year hard labor sentence, the court handed down written reasons only.

Discussion: Motion to suppress

By this assignment Harlan contends the district court erred in denying his motion to suppress. He urges the affidavit was not sufficient to establish probable cause. As in the district court, the defense cites no particular defects or inaccuracies, but argues that CRIs are generally not reliable.

No warrant shall issue without probable cause supported by oath or affirmation. USCA-Const. Amend. 4; LSA-Const. Art. 1 § 5 (1974). 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 that establish the cause for issuance of the warrant. LSA-C.Cr.P. art. 162.

Probable cause exists when 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. Poree, 406 So.2d 546 (La.1981). The facts essential to establishing probable cause must be contained in the affidavit. Art. 162; State v. Wood, 457 So.2d 206 (La.App. 2d Cir. 1984), and citations therein. The issuing judge's determination of probable cause is entitled to great deference on review. State v. Klar, 400 So.2d 610 (La.1981); State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied 521 So.2d 1143 (La.1988). The reviewing court's function is primarily to assure that the issuing judge had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Brooks, 452 So.2d 149 (La. 1984).

The credibility of the CRI or the correctness of his information is not subject to attack on a motion to suppress. State v. Morstein, 404 So.2d 916 (La.1981). The affidavit is presumed valid. State v. Brannon, 414 So.2d 335 (La.1982); State v. Bailey, 452 So.2d 756 (La.App. 2d Cir. 1984), writ denied 456 So.2d 161 (La.1984). If the defendant seeks to attack the CRI's information, he must traverse the credibility of the affiant himself on a showing of a "genuine issue" supported by "convincing allegations," which if proven would establish the falsity of the affidavit. State v. Morstein, supra. In other words, the burden of proving the warrant defective rests with the defense. State v. Whorton, 440 So.2d 858 (La.App. 2d Cir.1983).

At the instant motion to suppress, the defense called no witness and offered no evidence at all. Instead, the defense in brief profiles CRIs as a class of "individuals * * * in severe distress as a result of ongoing criminal prosecutions against them, drug addicts in need of money, or otherwise people of limited resources in need of funds. To suggest that these individuals are reliable is farcical[.]" No evidence, however, traversed Investigator Cobbs's assertion that this particular CRI was familiar with marijuana, had seen it on several occasions and had provided information leading to two prior arrests. The defense's efforts here are considerably weaker than the inadequate showing in State v. Bailey, supra. The attempt to impeach the affiant with generalities, however trenchant, does not present reversible error.

An inspection of the affidavit in support of the warrant led us to consider another issue, not advanced by the defense, whether the CRI's information might have been stale when the warrant issued. The concept of probable cause includes a reasonable belief that the contraband or evidence will not have been disposed of but will remain at the place to be searched at *259 the time of the proposed search. See State v. Lewis, 385 So.2d 226 (La. 1980); State v. Thompson, 354 So.2d 513 (La.1978). Factors that might bear on the staleness of the information would include the length of time and amount of CDS involved; a small quantity, or a large amount held for resale, could be expected to disappear quickly.

The record contains no evidence to resolve this issue. The reliable

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Bluebook (online)
556 So. 2d 256, 1990 WL 5371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harlan-lactapp-1990.