State v. Hoffpauir

731 So. 2d 1026, 1999 WL 240743
CourtLouisiana Court of Appeal
DecidedApril 7, 1999
Docket99-K-0128
StatusPublished
Cited by5 cases

This text of 731 So. 2d 1026 (State v. Hoffpauir) 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. Hoffpauir, 731 So. 2d 1026, 1999 WL 240743 (La. Ct. App. 1999).

Opinion

731 So.2d 1026 (1999)

STATE of Louisiana
v.
Michael HOFFPAUIR.

No. 99-K-0128.

Court of Appeal of Louisiana, Fourth Circuit.

April 7, 1999.

Harry F. Connick, District Attorney, Jane Beebe, Assistant District Attorney, Orleans Parish, New Orleans, Counsel for Plaintiff-Relator.

Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MIRIAM G. WALTZER and Judge DENNIS R. BAGNERIS, Sr.

ARMSTRONG, Judge.

We grant the State's application for supervisory writs to consider the correctness of the trial court's ruling granting the defendant's motion to suppress the evidence.

STATEMENT OF THE CASE

On April 22, 1998, the defendant was charged with one count of possession of methamphetamine in violation of La. R.S. 40:967. At his arraignment on May 7th he *1027 pled not guilty. Motions were heard on July 31, 1998, and at the conclusion of this hearing the court found probable cause to hold the defendant and denied his motion to suppress the statement. The court took the motion to suppress the evidence under advisement. On December 18, 1998, the court granted the motion to suppress the evidence. The State now comes before this court seeking relief from this ruling.[1]

FACTS

The evidence in this case was seized pursuant to two search warrants, and the following facts are taken from the applications for these warrants. The application for the first warrant issued in this case stated that on November 11, 1997, a police officer and his drug detector dog were routinely inspecting packages which had arrived at the U.P.S. office in eastern New Orleans. The affidavit indicated the dog team to which the dog belonged was certified in the detection of marijuana, cocaine, and heroin. The affidavit stated the dog "alerted" on a certain parcel, which to the officer indicated the presence of contraband. The package was addressed to George Anderson at 809 St. Ferdinand Street in New Orleans. Given these circumstances, a magistrate issued a warrant to search the package at the U.P.S. facility.

The officer opened the package and found inside a large brown paper bag, inside of which was a Crystal Light powdered drink can. Inside that was a zip-lock bag which contained coffee beans and a smaller zip-lock bag containing several pieces of white crystal rock-like substances. A sample of the crystal substances revealed a positive reaction for methamphetamine (crystal meth). The package was then resealed.

Based upon these factors, the officers obtained a warrant to search 809 St. Ferdinand Street. The motion hearing transcript indicates the officers made a controlled delivery of the package to 809 St. Ferdinand Street to George Anderson, the resident of that address. Anderson told the officers that the package was not meant for him and that he had agreed to accept the package for the defendant Michael Hoffpauir. Anderson gave the officers Hoffpauir's address and described the two vehicles Hoffpauir drove. Anderson agreed to call Hoffpauir and inform him the package had arrived. In response to Anderson's call, Hoffpauir went to Anderson's house and then exited, carrying the package. The officers stopped him, advised him he was under investigation for possession of methamphetamine, and advised him of his rights. The officer testified Hoffpauir indicated Anderson did not know the contents of the package, even though Anderson had agreed to receive the package for Hoffpauir.

DISCUSSION

The State indicates the trial court suppressed the evidence seized in this case because it found the officer had made misrepresentations in the affidavit for the warrant to search the residence. The State cites to a date discrepancy in the warrant for the residence. However, a close reading of the December 18, 1998 transcript indicates that the court had no problem with the warrant to search the residence. Instead, the trial court suppressed the evidence because the affidavit to search the package indicated the drug dog was certified in the detection of marijuana, cocaine, and heroin, and here the dog "alerted" on a substance which was found to be methamphetamine. The court found that because the affidavit did not state that the dog was certified in the detection of methamphetamine, there was a "misrepresentation" in the warrant which rendered it invalid.

In State v. Page, 95-2401, p. 12 (La.App. 4 Cir. 8/21/96), 680 So.2d 700, 709-710[2]*1028 this court noted the standard for determining probable cause to support the issuance of a search warrant:

Louisiana Code of Criminal Procedure Article 162 provides that a search warrant may be issued "only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for the issuance of the warrant." In State v. Duncan, 420 So.2d 1105, 1108 (La.1982) our Supreme Court held that probable cause exists when:
the facts and circumstances within the affiant's knowledge, and those of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that evidence or contraband may be found at the place to be searched. (citations omitted) See also, State v. Roebuck, 530 So.2d 1242 (La.App. 4th Cir.1988), writ den. 531 So.2d 764 (La.1988).
The facts which form the basis for probable cause to issue a search warrant must be contained "within the four corners" of the affidavit. Duncan, supra at 1108. A magistrate must be given enough information to make an independent judgment that probable cause exists for the issuance of the warrant. State v. Manso, 449 So.2d 480, 482 (La. 1984), cert. denied, Manso v. Louisiana, 469 U.S. 835, 105 S.Ct. 129, 83 L.Ed.2d 70 (1984). The reviewing Court must determine whether the "totality of circumstances" set forth in the affidavit is sufficient to allow the magistrate to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him that there is a reasonable probability that contraband will be found. The duty of the reviewing court is simply to ensure that the magistrate had a "substantial basis" for concluding that probable cause existed. Manso, supra at 482.

See also State v. Bradford, 98-1428 (La. App. 4 Cir. 12/9/98), 729 So.2d 1049.

In the instant case, the affidavit as it was written sets forth sufficient probable cause for the issuance of the warrant to search the package. The officer and his dog were routinely inspecting the packages at the U.P.S. facility when the dog "alerted" on this particular package, indicating the presence of controlled dangerous substances. The use of a canine to detect contraband is not a "seizure" for Fourth Amendment purposes. See State v. Addison, 94-2431 (La.App. 4 Cir. 11/30/95), 665 So.2d 1224; State v. Bruser, 95-0907 (La.App. 4 Cir. 9/15/95), 661 So.2d 152. Once the dog "alerted" on the package, there was probable cause to believe it contained contraband.

The court suppressed the evidence, however, because it found there was a misrepresentation in the search warrant for the package because the affidavit did not state if the dog was certified in the detection of methamphetamine. In State v. Page, 95-2401 pp. 13-14, 680 So.2d at 710, this court discussed intentional misrepresentations in a warrant:

In State v. Rey,

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