State v. Holmes
Opinion
This case is before us on a writ of certiorari granted on the application of the defendant, Leonard Holmes, in order that we might review his conviction and sentence 1 by a bill of information 2 charging him with the operation of a blind tiger in violation of R.S. 26:711-26:712, 3 limiting, however, our consideration to the district judge’s ruling in refusing to suppress the *503 evidence seized under a search warrant issued by the city judge on December 6, 1968 4
According to the record on December 6, 1968 in executing the search warrant re *505 ported in footnote 4, a Deputy Sheriff proceeded to search defendant’s room in the rooming house he operated and found and seized therein certain alcoholic beverages 5 which form the basis of this prosecution and which the trial judge subsequently refused to suppress as evidence.
Counsel for defendant contends that the trial judge erred in denying his motion to suppress inasmuch as the affidavit which was the basis for the issuance of the search warrant is patently defective and insufficient in that it rest solely on the indeterminable hearsay with no supporting facts of the source of the informant’s belief and consequently the ensuing warrant was issued without probable cause in violation of the 4th Amendment of' the United States Constitution and Article 1, Section 7 of the Louisiana Constitution guaranteeing a person be secure against unreasonable searches and seizures, citing as authority the decision of the United States Supreme Court in the case of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.
Under the express provisions of our Code of Criminal Procedure it is provided: “A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person reciting facts establishing the cause for issuance of the warrant.” Article 162. In the recent decision of this-court in the case of State v. Wells, 253 La. 925, 221 So.2d 50, we held that this article “leaves no doubt but that a search warrant can legally issue in this state only when an affidavit has been submitted to the judge and such affidavit recites facts which satisfy him, the judge, not the affiant, that probable cause exists for its issuance,” pointing out, “if we were to permit suchaffiant to bolster an affidavit and warrant by later testifying (when they are challenged) as to other information which he had at the time (but not received in the affidavit) the judge would then become merely a rubber stamp for the investigating officer; and we would defeat the very purpose sought to be achieved by requiring the use of search warrants which is that ‘probable cause must be determined by a “neutral and detached magistrate,” and not by “the officer engaged in the often competitive enterprise of ferreting out crime.”' Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948), * * *.’ ” (Emphasis added.)
Ingenious counsel for the State concedes, as he must, the correctness of the law as above enunciated, 6 but, relying upon the case of Colonnade Catering Corp. v. United *507 .States, 410 F.2d 197, handed down by the Second Circuit Court of Appeal for the United States, urges Louisiana has the right in exercise of its police power, like the United States, to grant in certain limited areas authority to its agents to conduct searches without search warrants.
The Colonnade case is inapposite from a factual as well as a legal standpoint. A digest of the case reported in 5 Crim.Law 2058 shows, “A revenue agent, while attending a party at the caterer’s establishment, observed what he thought were resealed bottles of liquor. He returned, a week later, during business hours, with more agents and a policeman. When the caterer refused to unlock his storeroom, the agents broke in and seized the liquor bottles refilled in violation of the federal law.” The court, in resolving the validity of the action of the officers pointed out that “the warrantless searches involved here, * *, are authorized by statutes, 26 U.S.C. § 5146(b) and 7606(a),” and noting that the United States Supreme Court has recognized “in certain carefully defined cases” warrantless searches are permitted, concluded the revenue agent’s action was within the “limited exception contemplated by the Supreme Court.”
While the legislature of this state has authorized under L.R.S. 26:713 that “[a]ny place suspected of being a blind tiger shall be searched by an officer designated in a search warrant,” in that limited sphere, it is further provided in the article that “[t]he warrant may be issued by any court having power of a committing magistrate upon the filing, of an affidavit reciting the fact that affiant believes a certain designated place to be a blind tiger, together with such additional evidence as the court may require in order to make out a prima facie case.” We are constrained, however, to hold the affidavit upon which the warrant was issued by the City Judge in the instant case does not disclose any additional evidence affiant may have had, if any, to support his belief that the accused was operating a blind tiger so as to make out a prima facie case. We think this would be a necessary requirement from the judge before deciding if such facts justify the search of the premises so as to conform with the United States Supreme Court decision in the case of Aguilar v. Texas, supra. See also, State v. Wells, supra.
We, therefore, conclude the trial judge erroneously denied defendant’s motion to suppress the evidence and committed reversible error in permitting the same to be introduced into evidence.
For the reasons assigned the conviction and sentence are reversed and set aside, and the case is remanded for a new trial in accordance with the law and views expressed herein.
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