State v. Kreitz

560 So. 2d 510, 1990 La. App. LEXIS 892, 1990 WL 47735
CourtLouisiana Court of Appeal
DecidedApril 10, 1990
DocketNo. KA 89 0658
StatusPublished
Cited by2 cases

This text of 560 So. 2d 510 (State v. Kreitz) 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. Kreitz, 560 So. 2d 510, 1990 La. App. LEXIS 892, 1990 WL 47735 (La. Ct. App. 1990).

Opinion

CRAIN, Judge.

Cesar Kreitz was charged by bill of information with distribution of cocaine, a violation of La.R.S. 40:967. The state amended the bill to charge possession with intent to distribute cocaine; and defendant pled guilty to the amended charge, reserving his right to appeal the denial of a motion to suppress physical evidence. The trial court imposed a sentence of seven years at hard labor. This sentence was suspended; and defendant was placed on active, supervised probation for two years, with the special conditions that he pay $10.00 per month to the Department of Public Safety and Corrections to defray the cost of supervision; that he seek substance abuse evaluation and treatment, if necessary; and that he submit to periodic urinalysis. Defendant has appealed, urging in his only assignment of error that the court erred by denying his motion to suppress.

Defendant was arrested by Officer Tullie Vincent of the Baton Rouge City Police after a search of his residence resulted in the discovery of one hundred thirty-six [512]*512grams of cocaine, narcotics paraphernalia, and one weapon. A warrant to search defendant's apartment was obtained upon information provided by Rodolfo Jose Ocon-Morales, an informant named in the affidavit supporting the application for the search warrant. Mr. Ocon-Morales had been arrested earlier in the day for the possession of ten ounces of cocaine. When he was asked to reveal the source of the cocaine, he related that he had obtained it from defendant.

Mr. Ocon-Morales agreed to call defendant and attempt to arrange another sale of cocaine. The telephone call was monitored and taped by the Baton Rouge City Police. Since the conversation was conducted in Spanish and Officer Vincent was unable to understand that language, Detective Felix Rodriguez, a Spanish-speaking police officer, also listened to the telephone call. According to Officer Vincent’s testimony at the hearing on the motion to suppress, both Detective Rodriguez and Rodolfo Ocon-Morales told him that defendant repeatedly denied that he had more cocaine.

Although the affidavit by Officer Vincent supporting the search warrant referred to the information provided by Rodolfo Ocon-Morales, Officer Vincent did not disclose his attempt to obtain a tape-recording of a narcotics transaction between defendant and Ocon-Morales; and, more importantly, he did not inform the magistrate that defendant repeatedly denied that he had cocaine to transfer to Ocon-Mo-rales. Defendant submits that this omission was a deliberate fraud on the courts and, therefore, the warrant should be suppressed. In the alternative, he submits that the affidavit, with the addition of defendant’s denial that he had cocaine in his apartment, was insufficient to justify the issuance of a warrant and the warrant should be suppressed accordingly.

A search warrant may issue only upon probable cause established to the satisfaction of a judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. La. Const. Art. I, Sec. 5; La.C.Cr.P. art. 162. Probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that the evidence or contraband may be found at the place to be searched. State v. Smith, 546 So.2d 538, 541 (La.App. 1st Cir.), writ denied, 552 So.2d 393 (La.1989). The facts establishing probable cause for a search warrant must be contained within the four corners of the affidavit. La.C.Cr.P. art. 162; State v. Poree, 406 So.2d 546, 547 (La.1981). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. State v. Feeback, 411 So.2d 10, 12 (La.1982).

An affidavit supporting a search warrant is presumed to be valid. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State v. Brannon, 414 So.2d 335, 337 (La.1982). When a defendant proves that an affidavit contains false statements, it should be determined whether the misrepresentations are intentional or unintentional. State v. Brannon, 414 So.2d at 337. Defendant must prove by a preponderance of the evidence that the affidavit contains intentional misrepresentations. State v. Ogden, 391 So.2d 434, 439 n. 7 (La.1980); State v. Wollfarth, 376 So.2d 107, 109 (La.1979).

At the hearing on the motion to suppress, Officer Vincent related that he had not asked Ocon-Morales to call defendant in order to verify the information, but requested him to do so in order to attempt to arrange a narcotics transaction. He further testified that he did not include the information in the affidavit because, after he was told that defendant stated that he did not have cocaine, he asked Ocon-Mo-rales whether or not that statement was true; and Ocon-Morales told him defendant was lying. Officer Vincent explicitly denied that he deliberately and maliciously withheld pertinent information.

Affidavits, by their nature, are brief, and some factual details must be [513]*513omitted. State v. Roubique, 421 So.2d 859, 863 (La.1982). Unless the omission is willful and calculated to conceal information that would indicate that there is not probable cause or would indicate that the source of other factual information in the affidavit is tainted, the omission will not change an otherwise good warrant into a bad one. State v. Roubique, 421 So.2d at 863. In matters relating to the possibility that a warrant contains intentional misrepresentations, the question of the credibility of the witnesses is within the sound discretion of the trier of fact. See State v. Klar, 400 So.2d 610, 613 (La.1981). His factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence. State v. Klar, 400 So.2d at 613. The harsh result of quashing a search warrant, when the affidavit supports a finding of probable cause, should obtain only when the trial judge expressly finds an intentional misrepresentation to the issuing magistrate. State v. Ogden, 391 So.2d at 438-439.

Herein, defendant presented no evidence to establish that Officer Vincent deliberately concealed information from the magistrate which would have affected the issuance of the warrant. Rather, the officer testified that he believed his informant, who told him that defendant was lying. Other information provided by Ocon-Mo-rales, including defendant’s unlisted telephone number and address, had proven to be accurate. Accordingly, we find no error in the trial court’s determination that the affidavit did not contain intentional misrepresentations.

When the affiant omits material facts without an intent to deceive, the reviewing court must add the omitted facts to those originally included in the affidavit and retest the sufficiency of the showing of probable cause. State v. Lehnen, 403 So.2d 683, 686 (La.1981). Herein, defendant claims that, even if the omission of these facts was not an intentional misrepresentation, the warrant still was invalid because once defendant’s statements denying possession of cocaine are added to the affidavit, the state does not have the probable cause to support the issuance of a warrant.

A judge evaluating the magistrate’s determination of probable cause must use a “non technical, commonsense” standard.

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565 So. 2d 940 (Supreme Court of Louisiana, 1990)

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Bluebook (online)
560 So. 2d 510, 1990 La. App. LEXIS 892, 1990 WL 47735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kreitz-lactapp-1990.