State v. Hawkins

490 So. 2d 594
Louisiana Court of Appeal·Decided June 11, 1986·No. 17734-KA·Published·Cited by 10 cases

Opinion

490 So.2d 594 (1986)

STATE of Louisiana, Appellee,
v.
Thomas L. HAWKINS, Appellant.

No. 17734-KA.

Court of Appeal of Louisiana, Second Circuit.

June 11, 1986.

*595 Tucker, Jeter & Jackson by James C. McMichael, Jr., Shreveport, for appellant.

William J. Guste, Jr., Barbara Rutledge, Baton Rouge, Paul J. Carmouche, Jr., Catherine M. Estopinal, Shreveport, for appellee.

Before MARVIN, JASPER E. JONES and LINDSAY, JJ.

LINDSAY, Judge.

Defendant, Thomas L. Hawkins, was charged by bill of information with possession of marijuana with intent to distribute in violation of LSA-R.S. 40:966(A)(1). The defendant filed a motion to suppress physical evidence, to wit, the marijuana seized from his residence. After an evidentiary hearing, the court denied the defendant's motion. The defendant subsequently withdrew his former plea of not guilty and entered a plea of guilty to this offense, reserving his right to appeal the denial of his motion to suppress. See State v. Crosby, 338 So.2d 584 (La.1976). The defendant was then sentenced by the trial court to serve two years at hard labor.

Defendant urges two assignments of error on appeal. We find that the defendant's arguments are meritless and affirm his conviction and sentence.

FACTS

On April 20, 1984, Shreveport Police Narcotics agents executed a search warrant at the residence of the defendant and his wife. Although the defendant and his wife were not present, the agents were allowed entry into the apartment by an assistant manager. A search was conducted, whereupon approximately 12.96 pounds of marijuana, packaged in large plastic bags, were seized.[1]

A copy of the search warrant and a note asking that the defendant and his wife contact the Shreveport Police Narcotics Division concerning this investigation were left at the apartment after the search was completed.

Subsequently on April 24, 1984, the defendant and his wife turned themselves in to Caddo Parish Sheriffs' Deputies. They were both charged with possession of marijuana with intent to distribute. As a part of the defendant's guilty plea, the charges against the defendant's wife were nolle prossed with the intent that the charges would be reinstituted should the defendant prevail in this appeal.

In his motion to suppress the marijuana seized from his apartment, the defendant contended that the sole basis for the affidavit supporting the issuance of the search warrant was evidence illegally obtained from a third person. Statements and information acquired from the arrest and execution of a search warrant at the home of Audry Dale Shelton in the early morning hours of April 20, 1984, were set forth in great detail by Agent Mark Holly in his affidavit in support of the search warrant for the Hawkins residence. The defendant contended that this affidavit lacked sufficient probable cause to support the issuance of the search warrant because the information was illegally acquired from Shelton. The defendant argued that following Shelton's arrest and a search of his home, Shelton was coerced and induced to *596 cooperate with the Shreveport Police Narcotics Agents, thereby making statements implicating the defendant, in exchange for the agents' agreements not to arrest and prosecute Shelton's wife and put his children in the care of the state.

At the hearing on the motion to suppress, it was revealed that Shreveport Narcotics agents Holley and Miller, armed with a valid search warrant, arrived at the Shelton residence to execute this warrant between 1:20 and 2:00 a.m. on April 20, 1984. After seating Shelton and his wife at the kitchen table, both were advised of their Miranda rights.

Shelton testified at the hearing, that when the agents first began to question him, he refused to answer and requested counsel. He stated the agents did not stop questioning him at that point, but instead indicated to him that his wife could be arrested and his children could be sent away to be cared for by the state if he did not cooperate. Shelton testified that he understood "cooperation" to mean that he was being asked to disclose the supplier of the marijuana found in his house. After his initial refusal to answer questions, and at the urging of his wife, Shelton agreed to waive his rights. He then made a recorded statement implicating Hawkins as his supplier and he also made a tape recorded telephone call to Hawkins to set up a deal to purchase more marijuana. Shelton testified that his statements were voluntary, but were made only after he was told what would happen to his wife and children if he didn't cooperate.

Agents Miller and Holley testified that the defendant was not under the influence of any fear, duress, or intimidation at any time during the interview. They also indicated that no menaces, threats, inducements, or promises, were made to get him to make these statements or the telephone call. The agents stated that Shelton was questioned concerning his wife's involvement with the marijuana, after she indicated to the agents that she was not involved in any manner and that she was urging her husband to cooperate as well.

Hawkins contends that Shelton was improperly coerced into making the recorded statements and telephone call by the undue influence and duress placed upon him by the narcotics agents. Hawkins argues that as a condition placed upon Shelton's cooperation, the agents indicated that they would not arrest Shelton's wife, although they had probable cause to do so. Thus, the defendant maintains that Shelton's statements were unconstitutionally obtained, and are not properly supportive of the probable cause necessary for the issuance of a valid search warrant for his apartment. He cites State v. Culotta, 343 So.2d 977 (La.1976), in support of his position. Thus, he argues that the marijuana seized from his apartment should have been suppressed.

We disagree with the defendant's analysis of this issue, however, and find that the trial court properly denied the defendant's motion.

Although not briefed or assigned as error to this court, the issue arose in oral arguments concerning a possible violation of Shelton's rights under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). However, the question of whether Shelton invoked his right to counsel during questioning and whether this request was honored by the narcotics agents, cannot be raised by the defendant to support the suppression of evidence against him, as he does not have standing to assert such constitutional violations of Shelton's rights.

In State v. Walker, 430 So.2d 1327 (La. App. 3d Cir.1983), the Third Circuit Court of Appeal discussed this issue of standing and noted that the statement of a third party, Arceneaux, was inadmissible against Arceneaux, as it was obtained in violation of his rights under the Fifth and Fourteenth Amendments to have counsel present during a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Edwards v. Arizona, supra. The Third Circuit Court of Appeal noted that this right was also guaranteed by Article 1 § 13 of the *597 1974 Louisiana Constitution. With respect to the defendant, Walker, the court, however, stated:

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