State v. Lazarus

633 So. 2d 225, 1993 WL 504596
CourtLouisiana Court of Appeal
DecidedNovember 24, 1993
Docket92 KW 1774
StatusPublished
Cited by2 cases

This text of 633 So. 2d 225 (State v. Lazarus) 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. Lazarus, 633 So. 2d 225, 1993 WL 504596 (La. Ct. App. 1993).

Opinion

633 So.2d 225 (1993)

STATE of Louisiana
v.
Julian LAZARUS and Mary Ann Lazarus.

No. 92 KW 1774.

Court of Appeal of Louisiana, First Circuit.

November 24, 1993.

*226 Reginald T. Badeaux, III, Covington, for State.

*227 Gary W. Bizal, New Orleans, for Mary and Julian Lazarus.

Before WATKINS, SHORTESS and FOGG, JJ.

SHORTESS, Judge.

This court granted certiorari to consider relators' misdemeanor convictions for cruelty to animals. Mary Ann and Julian Lazarus (relators) operated a cattery at their Magnolia Forest Subdivision residence in St. Tammany Parish, Louisiana, where they raised purebred Persian and Himalayan cats. After the execution of a search warrant based on affidavits claiming the existence of inhumane conditions at the cattery, ten cats (out of approximately 100) were removed from the premises. Relators were charged in a single bill of information with ten counts of violating Louisiana Revised Statute 14:102.1 (cruelty to animals). The trial court convicted them as charged and imposed a sentence of six months in the parish jail on each count. The sentences were suspended, and several conditions of probation were imposed.[1] Relators claim the trial court erred by denying their motion to suppress evidence obtained by an invalid search warrant. They urge three errors concerning the search warrant:

(1) the warrant was not based on probable cause;
(2) evidence was seized by a private individual rather than a peace officer; and
(3) intentional misrepresentations by the affiant rendered the warrant invalid.

Lynn Moore, director of the St. Tammany Humane Society (Society), testified her office received a call from a citizen who was concerned about the cats in relators' house. She spoke to five people who gave affidavits about what they had seen in the house in the recent past. Based on the information contained in those affidavits, she applied for a search warrant for the residence/cattery. The search warrant listed Moore as affiant, as well as a person named Jeff Dorson. However, Moore testified she actually had not observed any illegal activities at that location prior to the execution of the warrant, and, to her knowledge, Dorson also had not observed illegal activities at the cattery.

The affidavit states in part as follows:

It is believed that there are approximately 200 cats housed in severely inhumane conditions, many of them alleged to suffer from diseases inc. but not limited to ulcerated eyes, feline leukemia, herpes, ringworm, salmonella, as well as falsification of health certificates and illegal shipping of animals.
which is (are) believed to be secreted or concealed, and such probable cause is based upon the following:
sworn statements from 2 notarized former employees (sic) (see attached) who have been there in the near recent past, which verify the inhumane conditions and alleged falsified sales of animals.

The affidavit supporting the search warrant was signed on February 8, 1991. Moore testified the information was provided by two former employees of the cattery, Caren O'Brien and Dianne Wiley; she stated neither of the women was a veterinarian. She further stated she did not attempt to verify the information before obtaining the warrant and had no way of knowing at the time she obtained the statements if they were true. The Society became involved in the investigation because it had received two complaints about the cats and because another organization requested the Society's involvement after it received "a number" of complaints. On behalf of the Society, she asked for "restitution" of $10,350.00 for boarding and nursing expenses, $2,226.00 for veterinary care, and $269.12 for videotapes and photographs of the cats.

Janice Breaux testified she is an animal caretaker with bachelor and master degrees in animal science. She is a board member of and does volunteer work for the Society, and she is an animal cruelty officer, commissioned by and sworn in by the St. Tammany Parish Police Jury. She was part of the team that executed the search warrant, and *228 she was in charge of videotaping the cats and their conditions. She claimed that, as a commissioned animal cruelty officer, she has the same status as a deputy except she does not arrest people or carry a gun.

Dianne Wiley testified she worked for relators for approximately six weeks between August and October 1989. When relators objected to the relevancy of her testimony (since the offenses occurred almost 18 months later), the State claimed her testimony was relevant to show the mistreatment of the cats was of long-standing duration. The court permitted her to testify. She claimed that relators kept approximately 200 cats and that the smell was overwhelming. She indicated the premises were infested with roaches and the cats were not properly medicated.

Wiley claimed she came forward with information for the warrant after receiving a telephone call from O'Brien. She agreed to meet O'Brien, Moore, and Breaux at the police station, where she prepared the affidavit attached to the search warrant. Although he was listed as an affiant, Jeff Dorson was not actually at the police station at the time Wiley prepared her affidavit.

O'Brien testified she worked for relators for about five years, until a few days before the affidavits were prepared. During the fall of 1990 she was out for several months with pneumonia. She returned to work around the end of January or the beginning of February 1991. She claimed the conditions at relators' house at the time she left their employment were "deplorable." Relators stated she had been fired and characterized her testimony as that of a disgruntled former employee.

After the State's presentation of evidence, defense counsel argued the motion to suppress. At that time, the State contended that although "there might be some technical glitches in the application for the warrant," the good faith exception applied. The State conceded Wiley's affidavit was "kind of stale" but claimed the court should have known from O'Brien's testimony that she had only recently left relators' employment at the time the affidavit was prepared; therefore, that information could support the warrant. The court ruled the warrant (issued by a different judge) was based on "reasonable cause" and denied the motion to suppress. The court noted that frequently affidavits in support of search warrants reflect the information is provided by an unnamed informant; herein, since the informants were named, the issuing magistrate could have relied on the information contained in at least O'Brien's affidavit.

LACK OF PROBABLE CAUSE

In their first and third arguments, relators contend the warrant was defective because it was not based on probable cause and it contained material misrepresentations by the affiant, Lynn Moore. In finding the issuing magistrate had "reasonable cause" to support the warrant, the trial court cited Louisiana Revised Statute 14:102.3, which sets forth special requirements for obtaining search warrants in animal cruelty cases. It provides as follows:

If the complaint is made, by affidavit, to any magistrate authorized to issue search warrants in criminal cases, that the complainant has reason to believe that an animal has been or is being cruelly treated in violation of R.S. 14:102.1, in any building or place, such magistrate, if satisfied that there is reasonable cause for such belief,

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Related

State v. Amato
698 So. 2d 972 (Louisiana Court of Appeal, 1997)
State v. Hebert
697 So. 2d 1040 (Louisiana Court of Appeal, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
633 So. 2d 225, 1993 WL 504596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lazarus-lactapp-1993.