State v. Lingle

436 So. 2d 456
Supreme Court of Louisiana·Decided June 27, 1983·No. 82-KK-2864·Published·Cited by 30 cases

Opinion

436 So.2d 456 (1983)

STATE of Louisiana
v.
Scott LINGLE.

No. 82-KK-2864.

Supreme Court of Louisiana.

June 27, 1983.
Rehearing Denied September 1, 1983.

*457 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., E. Sue Bernie, Kendall Green, Leon A. Cannizzaro, John Craft, Asst. Dist. Attys., for relator.

Robert Glass, New Orleans, for respondents.

LEMMON, Justice.[*]

We granted the state's application for certiorari (previously denied by a divided court of appeal) in order to review the trial court's suppression of evidence seized in the search of defendant's residence pursuant to a warrant. 425 So.2d 769. We now reverse the pretrial ruling and overrule defendant's motion to suppress.

Mrs. Janet McLeod, a 62-year old live-in housekeeper who was a friend of defendant's grandmother, Mrs. Philomene Cusachs, was found stabbed to death in her residence on March 13, 1982 at 6:10 p.m. During the investigation that evening, Officer Farrar determined that Mike Rautis, who lived across the street from the victim, had seen a white car drop off a young man in front of the victim's home earlier that afternoon and had observed the man knock at the side and rear doors before he lost sight of the young man in the rear yard.

Further investigation led officers to seek information from defendant, who lived with his grandmother. When the officers went to defendant's home on March 15, Mrs. Cusachs expressed a preference that any questioning be conducted in the presence of an attorney. The officers honored her request and left. Outside the residence, the officers encountered a group of young men and questioned them about defendant. One of the young men, Steven Calogero, informed the officers that defendant had admitted being at the victim's home near the time of the murder. Officer Farrar went to the house of one of the young men to question them further, while Officer Bonura returned to headquarters. Farrar telephoned the information obtained in the interview to Bonura, who promptly utilized this information, along with previously obtained information, to prepare an affidavit in support of an application for a warrant to search defendant's residence for evidence of the recent crime.

In his affidavit, Officer Bonura stated that defendant told Calogero he "was at the scene of the murder on the day of the murder and at the time of the murder" and "was at the house knocking on the front and rear doors when McLeod was killed".[1]*458 He further stated that Mrs. Cusachs had a telephone conversation with the victim "at about 5:15 P.M.", that the victim had to hang up because someone was knocking at the door, and that a neighbor across the street "at that same time" saw a young man fitting defendant's description knock at the rear carport door and the side door before returning to the rear of the house, where he went out of sight. Additionally, the affidavit stated that defendant, in his statement to Calogero, admitted entering the house, finding and turning over the body, hearing an invalid lady ring a bell for assistance, knocking over a ceramic cat, running out of the door, and being scratched on the arm while jumping fences.

The magistrate immediately issued a warrant to search defendant's residence for the purpose of seizing any blood stained clothing, any property taken from the victim's residence, and any prescription bottles with the names of the victim or the other two ladies who occupied the residence. The police executed the warrant the same evening and seized a shirt, pants, socks, tennis shoes and a cooking utensil with pills. Defendant moved to suppress the seized items.

At the hearing on the motion to suppress, defense counsel focused on developing inconsistencies between the facts gathered by the officers in the investigation and the facts stated in Officer Bonura's affidavit. Officer Farrar admitted his notes reflected that Calogero had told him that defendant said "he was probably at the house at the front or rear door when the crime was going on" and not that defendant had explicitly stated he "was at the scene of the murder on the day of the murder and at the time of the murder", as reported in the affidavit. (Emphasis supplied) Another "inconsistency" involved Officer Farrar's notes of the neighbors' interviews, which reflected that Rautis had seen the young man at the victim's door between "5:00 and 5:30 p.m., maybe later". In composing the affidavit from Officer Farrar's telephone information and from Officer Farrar's notes taken at the interviews with the neighbors, Officer Bonura alleged that a neighbor (who was incorrectly identified by the name of a different neighbor) saw the young man in the victim's yard "at that same time" as the telephone conversation between the victim and the defendant's *459 grandmother, which allegedly occurred "at about 5:15". Defense counsel, in order to refute the time of the telephone conversation stated in the affidavit, presented Mrs. Cusachs, who testified that she told the police she had placed the telephone call to the victim at "just maybe a few minutes after five," but that the call was not "closer to 5:15 than 5:00." Finally, Officer Farrar admitted that his notes indicated defendant had told Calogero that he left his grandmother's home (two or three miles from the victim's home) while his grandmother was still talking on the telephone to the victim, but that this information was omitted from the affidavit.

After the hearing on the motion to suppress, the trial judge concluded that the affidavit contained several misrepresentations of fact. However, the judge assumed (without specifically deciding) that the misrepresentations were made unintentionally and in good faith, and he "retested" the remainder of the affidavit (with the misrepresentations excised). See State v. Rey, 351 So.2d 489 (La.1977). Although the judge noted that the "police were totally justified in their suspicion of the defendant in connection with this crime", he concluded that the "suspicion should have only motivated the officers to seek additional facts to include within a search warrant". He further concluded that the retested affidavit (and probably the original affidavit) failed to establish probable cause for the search of Lingle's residence, and he accordingly suppressed the evidence.

In this court, the prosecutor argues that the affidavit, before and after reconstruction by addition of the omissions and deletion of the inaccurate conclusory statements, established probable cause for the search. See State v. Lehnen, 403 So.2d 683 (La.1981).

Since the trial judge did not explicitly find that the police acted with an intent to deceive the magistrate, the judge correctly "retested" the affidavit, after the inclusion of the "omitted" fact that defendant was at home when Mrs. Cusachs was speaking to the victim on the telephone and after the revisions to adjust the conclusory "misstatements". State v. Ogden, 391 So.2d 434 (La. 1980). However, we disagree with the trial judge's legal conclusion that the reconstructed affidavit failed to establish a reasonable basis for the magistrate to authorize the invasion of defendant's privacy interest in his home for the purpose of discovering bloody clothing and other items (for example, prescription bottles) which would associate defendant with the recent crime and might establish a motive for the seemingly senseless murder.[2]

The officers were acting in the haste of a criminal investi

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State v. Lingle, 436 So. 2d 456 (La. 1983).

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