State v. Hudgins

519 So. 2d 400, 1988 WL 3570
CourtLouisiana Court of Appeal
DecidedJanuary 20, 1988
Docket19322-KA
StatusPublished
Cited by236 cases

This text of 519 So. 2d 400 (State v. Hudgins) 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. Hudgins, 519 So. 2d 400, 1988 WL 3570 (La. Ct. App. 1988).

Opinion

519 So.2d 400 (1988)

STATE of Louisiana, Appellee,
v.
Jimmy HUDGINS and Rose Hudgins, Appellants.

No. 19322-KA.

Court of Appeal of Louisiana, Second Circuit.

January 20, 1988.
Stay Order Vacated; Writ Denied March 18, 1988.

*402 Geary Aycock, West Monroe, for appellants.

William J. Guste, Jr., Atty. Gen., James A. Norris, Jr., Dist. Atty., George Ross, Asst. Dist. Atty., Monroe, for appellee.

Before MARVIN, NORRIS and LINDSAY, JJ.

NORRIS, Judge.

Defendants, Jimmy Hudgins and Rose Hudgins, were originally charged with possession *403 of marijuana with intent to distribute, LSA-R.S. 40:966. After their motion to suppress certain physical evidence was denied both defendants entered a Crosby plea to attempted possession of marijuana with intent to distribute, reserving their right to contest the denial of their motion. L.S.A.-R.S. 40:966; 40:979; State v. Crosby, 338 So.2d 584 (La.1976). Jimmy Hudgins was sentenced to serve four years at hard labor and fined $2000 plus costs, default time one year. Rose Hudgins was sentenced to four years at hard labor and fined $500 plus costs; the hard labor sentence was suspended and she was placed on five years supervised probation. Both defendants appeal the denial of their motion to suppress and Jimmy Hudgins appeals his sentence as excessive.

On October 8, 1985 Officer Joe Stewart of the Crime Stoppers unit of the Monroe Police Department received a call from an informant who said that within the last 24 hours he had seen approximately two pounds of marijuana in the possession of the "Hutchinsons" at their residence in Eros, Louisiana. The informant stated that the marijuana was being offered for sale. The informant described the residence in some detail and also described various vehicles parked on the side of the residence. In response to questioning the informant said that he had supplied information to the Crime Stoppers Unit in the past and gave Stewart the number he had been assigned and details of the prior contacts, which Stewart verified. Detective Joe Stewart then contacted Deputy Billy Meyers of the Metro-Narcotics Unit, and both officers proceeded to the residence described by the informant. After corroborating the location and description given to them by the informant, the officers, armed with this information, swore an affidavit in support of a search warrant. The probable cause is based on the following:

Within the last twenty-four (24) hours your affiant has been contacted by a reliable confidential informant (RCI) who stated to your affiant that in this same 24-hour period, the RCI had the opportunity to be at the described residence located at Jack Crowell Rd., West Monroe, La., the residence of Jimmy and Rose Hutchinson.
The RCI advised that while at the residence, the RCI observed approximately two pounds of marijuana. The marijuana was in the possession of Jimmy and Rose Hutchinson and was being offered for sale. The information supplied by this RCI has proven to be true and correct due to past information received from this RCI has resulted in five (5) felony arrests, the outcome of the arrests are still pending.
This RCI has proven knowledge of Controlled Dangerous Substances in the following manner. The RCI contacted your affiant, advising your affiant of the location of a quantity of marijuana being cultivated. Your affiant went to the location provided by the RCI and located a quantity of marijuana being cultivated. The information provided by the RCI resulted in the arrest of two person on possession and cultivation charges.

The affidavit was then presented to Judge Bleich of the Third Judicial District Court who was acting "pro tempore" in the Fourth Judicial District Court. A search warrant was issued and executed. The search produced from 20 to 30 pounds of marijuana and packaging material. Both defendants were subsequently arrested and charged.

MOTION TO SUPPRESS

Defendants claim that the trial judge improperly denied their motion to suppress evidence confiscated during the search.

They first assert that Detectives Stewart and Meyers intentionally misled the judicial official who issued the warrant by not specifically[1] informing him in the affidavit that their informant had supplied *404 information via the Crime Stoppers Program, and therefore was an "anonymous" informant, known to Officer Stewart only by a number.

Intentional misrepresentation to a magistrate by a police officer, in an affidavit in support of the issuance of a search warrant, constitutes a fraud on the courts and represents impermissible overreaching by the government; thus, a warrant based on an affidavit containing intentional misrepresentation must be quashed. State v. Rey, 351 So.2d 489 (La.1977). A defendant bears the burden of going forward on an allegation that an application for a search warrant contains intentional misrepresentation such as would render it invalid. State v. Smith, 397 So.2d 1326 (La.1981).

In refusing to suppress the evidence the trial court obviously found that the officers did not intentionally mislead the magistrate. The trial court's ruling on this matter is entitled to great weight on appeal. We agree that the evidence does not support a claim of intentional misrepresentation.[2] Testimony at the hearing on the motion to suppress indicates, at best, only inadvertence on the part of the officers in preparing the affidavit.[3]

The defendants next contend that the magistrate should have been advised in the affidavit that the informant, referred to as a reliable confidential informant in the affidavit, was in fact a Crime Stoppers informant; and that had the magistrate known that fact the affidavit would not have established probable cause and the warrant would not have been issued. No warrant shall issue without probable cause supported by oath or affirmation. U.S.C. A.-Const. Amend. 4; La. Const. Art. 1, § 5 (1974). 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. La. C.Cr.P. Art. 162. Essential facts for establishing probable cause to issue a search warrant must be contained in the affidavit. State v. Wood, 457 So.2d 206 (La.App. 2d Cir.1984); State v. Westfall, 446 So.2d 1292 (La.App. 2d Cir.1984), writ denied 450 So.2d 957 (1984). A magistrate's determination of probable cause to issue a search warrant should be paid great deference by reviewing courts. State v. Klar, 400 So.2d 610 (La.1981).

While the evidence does not prove intentional misrepresentation, the officers did omit the fact that the informant was a Crime Stoppers informant. When the affiant has made a negligent, but unintentional, omission of relevant facts which might have affected the issuing magistrate's decision on probable cause the Supreme Court has taken the approach of requiring the reviewing court to add the additional information and retest the sufficiency of the remaining facts to establish probable cause. State v. Lehnen, 403 So.2d 683 (La.1981).

The first question we must consider is whether the Crime Stoppers information was relevant and should have been included *405 in the affidavit in support of the search warrant. The magistrate must base his determination of probable cause in part on the nature of the informant.

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Bluebook (online)
519 So. 2d 400, 1988 WL 3570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hudgins-lactapp-1988.