State v. Morstein

404 So. 2d 916
CourtSupreme Court of Louisiana
DecidedSeptember 28, 1981
Docket81-KA-0202
StatusPublished
Cited by7 cases

This text of 404 So. 2d 916 (State v. Morstein) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Morstein, 404 So. 2d 916 (La. 1981).

Opinion

404 So.2d 916 (1981)

STATE of Louisiana
v.
Jeffrey MORSTEIN.

No. 81-KA-0202.

Supreme Court of Louisiana.

September 28, 1981.

*917 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Judith Lombardino, Madeleine Slaughter, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.

Charles C. Garretson, Bernard A. Horton, New Orleans, for defendant-appellant.

MARCUS, Justice.[*]

Jeffrey R. Morstein was charged in the same information with separate counts of possession with intent to distribute lysergic acid diethylamide and possession with intent to distribute psilocybin in violation of La. R.S. 40:966. In another information, he was charged with possession of marijuana in violation of La. R.S. 40:967. Defendant filed a motion to suppress in each proceeding. After a hearing, the trial judge denied the motions. Thereafter, defendant withdrew his former pleas of not guilty and entered pleas of guilty as charged expressly reserving his right to appeal the court's denial of his motions to suppress.[1] Sentences were imposed by the court on defendant.[2] On appeal, defendant relies on one assignment of error for reversal of his convictions and sentences.

*918 Defendant contends the trial judge erred in denying his motion to suppress physical evidence on the ground that it was seized pursuant to an invalid search warrant. He argues that the affidavit supporting the issuance of the search warrant contained false and inaccurate statements without which the affidavit did not recite facts sufficient to establish probable cause. He further argues the affidavit contained an intentional misrepresentation, thereby requiring that the warrant itself be quashed.

The warrant was issued to search the premises located at 8015 Brevard, Apt. D, New Orleans, Louisiana, for the purpose of seizing certain listed illegal drugs. It was issued upon facts recited in the affidavit by Officers Richard Marino and M. David. The officers asserted in the affidavit that due to information received from two confidential informants and surveillance conducted by them, it was their belief that defendant was selling illegal drugs from his residence. The affidavit was signed and the search warrant was issued and executed on August 1, 1979.

The affidavit generally recited the following facts to establish probable cause for issuance of the search warrant:

(1) On July 24, 1979, Officers M. David and Richard Marino spoke with a reliable confidential informant whose information in the past has led to the arrest and conviction of narcotics violators. The informant advised the officers that a white male known as Jeff was selling cocaine and amphetamines in large quantities from his residence at 8015 Brevard, Apt. D. He stated that Jeff owns the Jeff Construction Company and drives a new red Dodge pickup truck. He further advised that the cocaine is sold in block form and that it is kept in potted plants in the apartment. The informant also stated that on July 23, 1979, he observed the sale of drugs inside the residence.
(2) Upon receiving this information, the officers proceeded to 8015 Brevard St. and observed a red Dodge pickup truck parked in the drive. While checking the location, the officers observed a white male with reddish hair and a beard entering the parked truck.
(3) The officers again contacted the informant who stated that the description was that of Jeff. He further advised the officers that Apt. D was upstairs and that the potted plants were visible from a window facing Brevard St.
(4) On July 25, 1979, between the hours of 8:00 and 9:30 p. m., the officers conducted a surveillance of 8015 Brevard St. From their vantage point, the officers could not observe the front door of the residence but could observe the walkway leading to the door. At 8:45 p. m., the officers observed a white female with blond hair walk up the walkway and disappear in the direction of the front door of Apt. D. About ten minutes later, she reappeared and quickly walked away, looking around as if for someone. At 9:10 p. m., a white male walked up the walkway and disappeared in the direction of the front door of Apt. D. About five minutes later, he reappeared carrying a small package and exited the area very quickly.
(5) On July 30, 1979, the officers again spoke to the informant who stated that on July 29, 1979, he had again observed drugs at 8015 Brevard, Apt. D. He further advised that Jeff was holding the drugs for Kurt Schencker, the manager of the complex. He also stated that he had observed drugs at the residence of Kurt Schencker at 7921 Means St.
(6) On July 30, 1979, another informant related to the officers "almost the same account of the narcotic traffic at the location at 8015 Brevard Apt. # D and also at 7921 Means St." The informant advised the officers of his participation in drug activity at both locations. The informant also "made a written statement and is willing to come forward when ever needed to testify about [his] knowledge and participation in the narcotic activity with Jeff at 8015 Breverd (sic) Apt. # D and also with Kurt at 7921 Means St."
(7) On July 30, 1979, between 9:30 and 11:00 p. m., the officers conducted a surveillance of 7921 Means St. At 9:55 p.
*919 m., they observed a Pontiac Formula pull up in front of the residence. A white female exited the vehicle and entered the residence. She was the same female they observed at 8015 Brevard St. About ten minutes later, she exited the residence, reentered her car and left the area. At about 10:20 p. m., a small red car pulled up to the residence. A white male exited the car and entered the residence. About five minutes later, he exited the residence, reentered the car and left the area. About 10:40 p. m., a brown Olds pulled up to the residence and a white male exited the car. He entered the residence, stayed about ten minutes and then left the area in his car.

Based on the information received from the confidential informants and their observations, the affiants stated that it was their belief that "large scale narcotic traffic" was being conducted at 8015 Brevard, Apt. D, and requested that a search warrant be issued.

At the hearing on the motion to suppress, defendant testified on his own behalf. While admitting his residence at the location named in the warrant, ownership of a red Dodge pickup truck similar to the one described in the affidavit, ownership with his father of Jeffrey Construction Company and having been to the residence of the manager of his apartment complex, defendant denied being present at his apartment on July 23, 25, 29, 1979 (dates when the informant observed the drugs in his residence and a police surveillance was conducted). The defendant also offered the testimony of three witnesses who corroborated his testimony relative to his absence from his apartment on the dates in question.

Officer Richard Marino was also called as a witness for the defense. He testified that two informants had provided him with information. He stated that he believed his informants and that he had secured the search warrant based on the information related to him by them. At this point, defense counsel questioned the witness relative to the statement in the affidavit that a second informant had stated that he was willing to come forward whenever needed to testify.

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404 So. 2d 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morstein-la-1981.