State v. Miller

495 So. 2d 422
Louisiana Court of Appeal·Decided October 8, 1986·No. CR86-305·Published·Cited by 11 cases

Opinion

495 So.2d 422 (1986)

STATE of Louisiana, Plaintiff-Appellee,
v.
Hansel MILLER, Jr., Defendant-Appellant.

No. CR86-305.

Court of Appeal of Louisiana, Third Circuit.

October 8, 1986.

*423 Bennett Lapoint, Lake Arthur, for defendant-appellant.

D. Keith Wall, Asst. Dist. Atty., Jennings, for plaintiff-appellee.

Before FORET, STOKER and KING, JJ.

KING, Judge.

The issues presented by this appeal are whether or not the trial court erred in denying the defendant's Motion to Suppress evidence and whether or not the trial court complied with sentencing guidelines and imposed an excessive sentence on the defendant.

Hansel Miller, Jr. (hereinafter referred to as defendant) was charged by bill of information with possession of marijuana with intent to distribute, a violation of LSA-R.S. 40:966(A). Defendant initially entered a plea of not guilty and filed a Motion to Suppress all evidence seized from his residence as well as all statements made by him as a result of the alleged illegal search and seizure. After a hearing, the trial court denied defendant's Motion to Suppress. Thereafter, defendant withdrew his not guilty plea and entered a plea of nolo contendere, reserving his right to appeal the trial court's denial of his Motion to Suppress. The trial court accepted defendant's guilty plea and ordered a presentence investigation to be conducted. After reviewing the presentence report, and after holding a sentencing hearing, the trial court sentenced defendant to serve two (2) years at hard labor with the Louisiana Department of Corrections.

Defendant appeals his conviction and sentence and alleges the following assignments of error:

(1) The trial court erred in denying his Motion to Suppress the evidence seized at his residence;
(2) The sentence imposed by the trial court was excessive and erroneous;
(3) His conviction was erroneous and contradicted by the evidence presented by the State;
(4) The trial court violated his constitutional rights against unreasonable *424 searches and seizures in that the imposition of a two-year sentence of imprisonment was based on defendant's decision to exercise his right against unreasonable searches and seizures;
(5) The trial judge failed to give consideration to probationary treatment and set forth the factual basis for his failure to impose a probationary sentence, and more specifically in concluding that the defendant had a "poor attitude;"
(6) The trial judge failed to comply with Louisiana Code of Criminal Procedure Article 894.1 in that he did not state the considerations and the factual basis for his sentence; and
(7) The trial judge failed to give due weight and consideration to the findings and recommendations contained in the presentence investigation report.

After a careful review of the record, we affirm defendant's conviction and sentence.

FACTS

On July 29, 1985, at approximately 1:00 P.M., Manuel Orosco, an informant, approached members of the Jennings City Police Department, and told them that he had seen approximately seventeen to eighteen bags of marijuana inside of defendant's residence at about 9:30 A.M. that same day. Orosco also told the officers that defendant offered to sell some of the marijuana to him. On the basis of this information, an affidavit was executed and a search warrant was obtained to search defendant's residence. The search warrant, as well as the affidavit upon which the search warrant was based, listed defendant's residence as 1702 North Church Street, Jennings, Louisiana. However, defendant's actual address, where the search and seizure was conducted, was 1706 North Church Street, Jennings, Louisiana. As a result of the search of defendant's residence, a sizeable quantity of marijuana was discovered and seized. Defendant was subsequently charged with possession of marijuana with intent to distribute.

MOTION TO SUPPRESS

In his first assignment of error, defendant alleges that the trial court erred in denying his Motion to Suppress the evidence seized at his residence and subsequent statements made by him. Defendant first contends that his Motion to Suppress should have been granted because the search warrant, which authorized the search of a residence located at 1702 North Church Street, Jennings, Louisiana did not correctly authorize the search of his residence, which was located at 1706 North Church Street, Jennings, Louisiana.

Detective Keith Perrin, a police officer for the Jennings City Police Department who executed the affidavit upon which the issuance of the search warrant was based, testified that he was familiar with the location of defendant's residence because he had actually been inside of defendant's residence looking for a fugitive approximately eight months prior to the search. Also, Detective Michael Ebow, a detective with the Jennings City Police Department who also knew where defendant resided prior to the search, testified that when Orosco informed the officers of the marijuana inside of defendant's residence, he and Detective Perrin told Orosco that they knew where defendant lived. Detective Ebow further testified that he drove by defendant's residence in an inconspicuous manner to find out defendant's address for the purpose of obtaining information for making an affidavit to obtain a search warrant. Detective Ebow testified that defendant's house numbers were "painted white with the house," and were very hard to see, but that he thought he saw "1702" and wrote that number down on a pad. Both Detective Perrin and Detective Ebow testified that they did not discover that defendant's actual address was 1706 North Church Street until after the search of defendant's residence was completed and that they actually believed that defendant's address was 1702 North Church Street while executing the search warrant. Both officers further testified that there is in fact no such address as 1702 North Church Street, Jennings, Louisiana.

*425 In State v. Korman, 379 So.2d 1061 (La. 1980), aff'd after remand, 397 So.2d 1346 (La.1981), the Louisiana Supreme Court reversed a trial court's granting of the defendant's Motion to Suppress marijuana that was seized during the execution of a warrant. The warrant described the place to be searched as 6656 Harry Drive, Apartment Number 119. However, during the execution of the warrant, the executing officer realized that the defendant's apartment was located in a building designated by the municipal number 6636 Harry Drive rather than 6656 Harry Drive as stated in the warrant. The defendant's apartment was the only apartment numbered 119 in the apartment complex. In Korman, the court stated that:

"A search warrant must particularly describe the place to be searched. U.S. Const. Amend. 4; La. Const. art. 1, § 5 (1974); La.Code Crim.P. art. 162. The description contained in the search warrant is adequate if it is sufficiently detailed so as to allow the officers to locate the property with reasonable certainty and with reasonable probability that they will not search the wrong premises. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925); State v. Segers, 355 So.2d 238 (La.1978); State v. Cobbs

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