State v. Hysell

364 So. 2d 1300
CourtSupreme Court of Louisiana
DecidedNovember 20, 1978
Docket62152
StatusPublished
Cited by22 cases

This text of 364 So. 2d 1300 (State v. Hysell) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hysell, 364 So. 2d 1300 (La. 1978).

Opinion

364 So.2d 1300 (1978)

STATE of Louisiana
v.
David J. HYSELL.

No. 62152.

Supreme Court of Louisiana.

November 20, 1978.
Rehearing Denied December 14, 1978.

*1301 Harry R. Nelson, Nelson & Achee, Ltd., Shreveport, for defendant-appellant.

*1302 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for plaintiff-appellee.

CALOGERO, Justice.

Defendant was convicted of possession of marijuana with intent to distribute, a violation of La.R.S. 40:966. He was sentenced to serve four years at hard labor; the sentence was suspended on the condition that he serve one year in the parish prison, enter a drug rehabilitation program, and be placed on supervised probation for four years. On this appeal of his conviction and sentence, defendant relies on thirty-five assignments of error grouped and presented in seventeen arguments. We have reviewed the assignments included in Arguments III, IV, V, VI(A), VI(B), VI(C), VI(D), VI(F), VI(I) and VI(K) and conclude that they lack merit.[1] We find it necessary to discuss only the remaining arguments.

ARGUMENTS I AND II

ASSIGNMENT OF ERROR NO. 1A

In these related arguments defendant contends that the trial judge erred in denying his motion to suppress in which he argued that the affidavit supporting the warrant failed to establish probable cause[2] and that the warrant itself failed to designate with sufficient particularity the place to be searched.

The testimony at the hearing at the motion to suppress revealed the following facts. Officers Bolen and Guy of the Shreveport Police Department learned from a confidential informant that a white male called "Joe" was selling marijuana from an upstairs apartment above Alice's Beauty Salon on the east side of 2814½ Wheless Avenue in Shreveport. The officers went with the informant to that address and had him point out the apartment.

With the information given by the confidential informant and while two other officers kept the upstairs east apartment under surveillance, Officers Bolen and Guy attempted to obtain a search warrant. Before applying for the warrant Officer Bolen checked the Shreveport City Directory and learned that a Joseph Michael Filipowski lived at 2814½ Wheless Avenue. He then ran Filipowski's name through a Narcotics Intelligence File check and learned that Filipowski had previously been arrested on drug charges. Using this information to *1303 supplement the information given by the informant, Officers Bolen and Guy swore out the affidavit.[3]

Upstairs at that municipal street address, there were in fact two apartments. One on the east side of the building was rented to Iva Williams. The other on the west side was registered to Joseph Michael Filipowski. Defendant, who was sometimes called "Joe", lived in the east apartment with Iva Williams.

In brief defendant contends that because of erroneous information in the affidavit, it established probable cause to search the apartment of Joseph Filipowski on the west side but not the apartment on the east side in which defendant was arrested.

This Court in State v. Rey, 351 So.2d 489 (La.1977) adopted the approach taken by the Fifth Circuit in United States v. Thomas, 489 F.2d 664 (5th Cir. 1973) to determine whether probable cause exists when there are inaccurate statements in the affidavit supporting the warrant. In Rey, we concluded that:

". . . when faced with an affidavit containing inaccurate statements the preferred approach is to excise the inaccurate statements and then examine the residue to determine if it supports a finding of probable cause. If, however, the misrepresentations were intentionally made, a different result is required. Because these distorted statements constitute a fraud upon the courts and represent impermissible overreaching by the government, a warrant based on an affidavit containing intentional misrepresentations must be quashed.
. . . The primary purpose of the exclusionary rule is the deterrence of such deliberate governmental wrongdoing, and this policy is best served by quashing the warrant." (Emphasis provided)

Defendant does not contend nor does the record reflect that Officer Bolen intentionally included inaccuracies in the affidavit. On the basis of the informant's tip that a person called "Joe" living in the east apartment at 2814½ Wheless Avenue was selling marijuana, he checked the Shreveport City Directory to determine who lived at that address. Finding that the occupant listed for that address was named Joseph Filipowski, he ran the name through the police files *1304 and found a narcotics related arrest. It was this information which seemed to the officer to corroborate the informant's story and which was thus included in the affidavit. It was not designed as a deliberate act to deceive the issuing magistrate that probable cause did exist.

Because the inaccuracies were not the result of intentional misrepresentation, we must under State v. Rey, supra strike the inaccurate information and examine the residue to determine if it supports a finding of probable cause. When we do we find that Officer Bolen had information from an informant who had given information in the past which had led to at least one arrest and conviction for possession of marijuana that the informant had within the past twenty-four hours observed a white male called "Joe," who lived upstairs at 2814½ Wheless Avenue on the east side with no less than ten bricks of marijuana which "Joe" was selling for $125.00 a pound.

Under the two-prong test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and the guidelines established in State v. Paciera, 290 So.2d 681 (La.1974), we determine that even without the inaccurate information, the affidavit establishes probable cause.

In Aguilar v. Texas, supra, the United States Supreme Court set forth the criteria which a magistrate must follow in determining whether an affidavit based upon hearsay establishes probable cause for the issuance of a warrant: First, the affiant must articulate the basis for his belief that the information is trustworthy, and second, the affidavit must indicate the underlying circumstances from which the informant concluded that narcotics were where he contended that they would be. In State v. Paciera, supra, this Court deduced the following rule to measure the sufficiency of a supporting affidavit which is based on informant-supplied data:

"The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an un identified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report.

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364 So. 2d 1300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hysell-la-1978.