State v. Jefferson

661 So. 2d 518, 1995 La. App. LEXIS 2361, 1995 WL 510106

Opinion

WRIT GRANTED AND MADE PEREMPTORY. Following a seizure of marijuana found in defendant’s possession during a pat down search conducted “for officers’ safety,” the state presented a “48-hour affidavit” to the trial court for a determination under LSA-C.Cr.P. Art. 230.2 of whether there was probable cause to continue defendant in custody. The court declined to find probable cause, apparently ruling that the underlying seizure was not based on probable cause to search.

The trial court erred. The only issue properly before it was whether the “48-hour affidavit” presented probable cause to continue defendant in custody. The issue of the existence of probable cause to search is properly raised by a motion to suppress. The trial court’s ruling is reversed and probable cause is determined. The matter is remanded to the trial court for further proceedings.