State v. Oliver

174 So. 2d 509, 247 La. 729
Supreme Court of Louisiana·Decided March 29, 1965·No. 47483·Published·Cited by 26 cases

Opinion

174 So.2d 509 (1965)
247 La. 729

STATE of Louisiana
v.
Hildree OLIVER.

No. 47483.

Supreme Court of Louisiana.

March 29, 1965.
Rehearing Denied May 3, 1965.

*510 Bernard E. Burk, New Orleans, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

McCALEB, Justice.

Appellant and Juanita Davis were jointly charged with unlawful possession of heroin and five dilaudid tablets. Both pleaded not guilty but Juanita Davis subsequently changed her plea to guilty as charged and was sentenced to a term of eight years at hard labor. Appellant was then tried, convicted and sentenced to serve fifteen years at hard labor in the State Penitentiary. He has appealed relying upon twelve of the thirteen bills[1] of exceptions taken during the proceedings for a reversal of his conviction.

Bills Nos. 1, 7 and 9 are interrelated and pertain to the alleged unlawful issuance of a warrant for search of appellant's person and personal effects and his subsequent arrest.

Bill No. 1 was taken to the overruling of a motion to quash the warrant and to suppress the evidence obtained from the search on the ground that it was issued without probable cause in violation of Section 7, Article I of the Louisiana Constitution, and the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States. Bill No. 7 was reserved *511 when the court overruled an objection (based on the alleged illegal search and seizure) to the evidence of a chemist, who testified for the State, that the tablets found in the personal effects of appellant and a white substance taken from the person of Juanita Davis by the police officers on the afternoon of December 5, 1963 were dilaudid and heroin. And Bill No. 9 was reserved when the State, over a similar objection, was permitted to offer in evidence a narcotic kit, a cellophane wrapper with five dilaudid tablets, pieces of tin foil containing heroin, an eye dropper and rubber bulb, several hypodermic needles and other paraphernalia.

The record shows that, on December 5, 1963, Officer Warner of the New Orleans Police Department Narcotic Squad received a telephone call from an informer in Chicago, Illinois, who had previously supplied the New Orleans Police with information leading to convictions in several prior cases, advising him that Juanita Davis, a colored woman approximately 26 years old, about five feet three inches tall, of dark complexion, and wearing a red sweater and green pants, and a colored man known as "Sug" (appellant), about 24 years old, five feet seven inches tall, wearing a black coat and sun glasses, left Chicago, at approximately 8 o'clock in the evening of December 4, 1963, on a train bound for New Orleans. The informer stated to Officer Warner that he was positive the couple had about six spoons of heroin in their possession which they were bringing to New Orleans and had seen Juanita Davis hide it on her person in Chicago.

The officers of the Police Department checked the train schedules and presented this information to Judge Bernard J. Bagert of the Criminal District Court, who then issued warrants for the search of these two persons and their personal effects.

The affidavits presented to the judge are identical and read:

"PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned Judge of the Criminal District Court, Parish of Orleans, State of Louisiana, Patn. William Warner of the New Orleans Department of Police, who, upon being by me duly sworn, depose(s) and say(s):
"THAT A SEARCH WARRANT SHOULD ISSUE FOR THE SEARCH OF `Sug' a Colored male about 24 yrs. 5'7" tall, wearing a blk coat and sun glasses (person and personal effects) FOR THE PURPOSE OF SEIZING THE FOLLOWING DESCRIBED PROPERTY.

"Opium derivitives (sic) Heroin

"FOR THE FOLLOWING REASONS:

"Officer William Warner received a telephone call from a reliable informer, who has given information in the past which has resulted in making narcotic arrests. This reliable informer stated that he was talking from Chicago, Ill. He stated that Juanita Davis CF 26 yrs (approx.) about five foot three inches tall dark complextion (sic) wearing a red sweater and green pants and a colored male which the informer knows as `Sug' described as about 24 yrs of age a colored male 5'7" wearing a black coat and sun glasses left Chicago, Ill. at around 8:00 pm on 12-4-63 on a train headed for New Orleans, Louisiana which should arrive in the afternoon on 12-5-63.
"The informer stated that they had about six spoons of Heroin in their possession and that they were bringing this to New Orleans, La, the informer stated that the last time that he had seen the Heroin was in Chicago, Ill when she had placed it on her person in the area of vagina (Juanita Davis). The informer further stated that he is positive that they have the Heroin with them on the train en route to New Orleans, La.
*512 "This telephone call was received by Patn. Warner at 10:30 AM on Thursday December 5, 1963 in the Narcotic Division Office.
"A check of the train schedule was made by Officer B. Finkelstein and E. J. Barrere at 11:30 Am (sic) on 12-5-63, and it was learned that the train left Chicago, Ill at about 7:30 PM on 12-4-63 and will arrive at about 4:45 PM on 12-5-63 at the Union Passenger Terminal in New Orleans, La."

According to the testimony of Bernard Finklestein, employed by the New Orleans Police Department, he and Narcotics Agent Campbell, U. S. Treasury Department, boarded the train at Hammond and sat directly behind appellant and Juanita Davis. When the train pulled into the Union Passenger Terminal, the officers noting that these two persons fitted the description given in the search warrants, went to them and asked their names. When the colored male answered "Sug" and the colored female answered Juanita Davis, the officers served them with the search warrants and informed them they were under arrest.

The returns on the warrants show that Juanita Davis reached in her brassiere and pulled out a package containing a white powder and that a piece of cellophane containing five small white tablets was taken from the luggage carried by appellant. The white powder was subsequently found to be heroin and the tablets were dilaudid, a derivative of morphine.

Defense counsel contends that the questioned affidavit contains no statement of the informer tending to show that he had personal knowledge that appellant possessed heroin, or that appellant knew that Juanita Davis had heroin in her possession. Counsel suggests that the content of the affidavit is simply the unfounded conclusion of the informer that appellant and Juanita Davis were partners in crime and, hence, the warrant issued without probable cause under Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

Ever since the decisions in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (applying the guarantees of the Fourth Amendment to the United States Constitution to trials in the State Courts) and Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (holding that, while th

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State v. Oliver, 174 So. 2d 509, 247 La. 729 (La. 1965).

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