State v. Hogan

839 So. 2d 296, 2003 WL 183355
CourtLouisiana Court of Appeal
DecidedJanuary 28, 2003
Docket02-KA-924
StatusPublished
Cited by6 cases

This text of 839 So. 2d 296 (State v. Hogan) 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. Hogan, 839 So. 2d 296, 2003 WL 183355 (La. Ct. App. 2003).

Opinion

839 So.2d 296 (2003)

STATE of Louisiana
v.
Larry D. HOGAN.

No. 02-KA-924.

Court of Appeal of Louisiana, Fifth Circuit.

January 28, 2003.

Philip E. O'Neill, Gretna, LA, for Appellant.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alan D. Alario, II, Assistant District Attorneys, Gretna, LA, for Appellee.

Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.

JAMES L. CANNELLA, Judge.

The Defendant, Larry D. Hogan, appeals from his drug convictions based on his guilty pleas to possession with the intent *297 to distribute oxycodone and possession of 28-199 grams of cocaine with intent to distribute. We affirm the convictions and sentences and remand.

In July of 2000, the Defendant was charged with the oxycodone offense, a violation of La. R.S. 40:967(A), and the cocaine offense, a violation of La. R.S. 40:967(F). He was arraigned and pled not guilty. On July 11, 2000, the Defendant filed a Motion for Production of Search Warrant. On July 26, 2002, he filed various motions including a motion to suppress the evidence, confession and identification. On October 12, 2000, a hearing was held. The trial judge stated that the hearing was on a motion to suppress the search warrant. The matter was submitted on briefs by the Defendant and the face of the search warrant. Nothing was offered into evidence. The trial judge denied the motion. On February 25, 2002, the charge of possession of cocaine was amended to possession of cocaine with intent to distribute. On that day, the Defendant withdrew his prior not guilty pleas and pled guilty to both charges, reserving his right to appeal the denial of his motion to suppress the evidence pursuant to State v. Crosby, 338 So.2d 584 (La.1976). On March 19, 2002, the trial judge sentenced the Defendant to serve five years on each count, with the sentences to run currently. The trial judge also recommended that the Defendant be allowed to participate in the Impact Program.

The facts related to the arrest are from the Jefferson Parish Sheriffs Office Arrest Report and Probable Cause Affidavit, which states:

On Friday, 06-30-2000, narcotic investigators were granted a lawful order of search for the residence of 802 Fifth St., Westwego. Pursuant to the search, the investigators seized approximately 125 grams of cocaine, paraphernalia associated with the distribution of cocaine, nine (9) tablets of oxycontin, and $1,912.00 of U.S. currency. Subsequently, the investigators arrested Hogan, the resident of 802 Fifth St.

On appeal, the Defendant asserts that the trial judge erred in failing to suppress the search warrant. He contends that the search warrant was defective because (1) the time between the tip of the confidential informant (CI) and the filing of the affidavit in support of the search and seizure warrant was too long, (2) there was no statement qualifying the CI as either credible or reliable, (3) there was no source or basis of knowledge stated by the CI that indicated how he gained the information stated, and (4) no part of the CI's tip was corroborated. The Defendant alleges that the affidavit failed to establish probable cause for the search of the residence and must be quashed.

The application for search warrant states in pertinent part:

In early June 2000, Agent Steven Rayes, assigned to the Narcotics Section of the Jefferson Parish Sheriff's Office, was contacted by a confidential informant regarding the retail sale of cocaine from the residence of 802 Fifth Street, Westwego. The confidential informant, hereafter referred to in the plural forms they and them, stated they were in a position to effect a controlled purchase of cocaine from the resident, described as a white male, approximately 40-45 years of age, with salt and pepper hair named "Larry".

In order to test the veracity of information provided by the CI, Agent Rayes elected to conduct a controlled purchase of cocaine from the residence described above. Within the last forty-eight (48) hours, Agent Rayes met with the CI. Agent Rayes took all the necessary precautions *298 to ensure the CI was free of all contraband.

Agent Rayes, along with assisting investigators, followed the CI to the aforementioned residence. Agent Rayes observed the CI enter the residence and remain inside for a short period of time. Shortly thereafter, Agent Rayes observed the CI emerge from the residence. The assisting investigators maintained constant surveillance on the CI and followed them to a pre arranged [sic] meeting location.
Once at the pre-arranged meeting location, the CI relinquished custody of a suspected quantity of cocaine. Agent Rayes conducted a presumptive field test on a small portion of the suspected cocaine. This test yielded a positive response for the presence of cocaine. Once again, Agent Rayes took all the necessary precautions to ensure the CI was free of all contraband. Agent Rayes secured the purchased quantity of cocaine in the Narcotics Evidence Locker.

Defendant argues that the affidavit failed to establish probable cause for the search of the residence. He claims that there was no statement qualifying the CI as either credible or reliable in order to satisfy the first prong of the Aguilar-Spinelli test (veracity).[1] Defendant contends that there was no source or basis of knowledge stated by the CI that indicated how he gained the information in order to satisfy the second prong of the Aguilar-Spinelli test (basis of knowledge). Additionally, he contends that the 20-day interval between the CI's tip in early June of 2000, and the filing of the affidavit in support of the search warrant on June 30, 2000, was too long, and, therefore, that by June 30, 2000, probable cause supporting the warrant no longer existed.

Defendant alleges the following omissions from the affidavit:

1. The affidavit omitted stating how the CI learned the information that "they were in a position to effect a controlled purchase of cocaine from the resident described as a white male, approximately 40-45 years of age, with salt and pepper hair, named `Larry.'" (See 1st paragraph of affidavit). There was no statement in the affidavit explaining whether the CI observed this personally, whether he participated in the sale, whether he was personally in the residence or whether he knew or observed the resident or saw cocaine.
2. In the remaining portion of the affidavit, the CI did not mention "Larry" again, nor did he state that he purchased cocaine or that he saw cocaine in the residence at the time of the visit to the residence.
3. In the 3rd and 4th paragraphs of the affidavit, the CI gives no tips and states no information.
4. In the 4th paragraph, the affidavit does not indicate whether the CI said anything when he arrived at the pre-arranged meeting, saw the resident, purchased cocaine, whether anyone was in the residence, whether he saw cocaine in the residence, or whether Larry or anyone else told him that cocaine was in the residence or would be in the residence. The affidavit does not indicate whether the CI mentioned the amount of cocaine or the price of the cocaine.
5. The affidavit does not reflect whether the CI's vehicle was searched before he went into the residence.
*299 6. The affidavit provides no corroboration of the CI's tip.

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Cite This Page — Counsel Stack

Bluebook (online)
839 So. 2d 296, 2003 WL 183355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hogan-lactapp-2003.