State v. Porter

344 So. 2d 1031
CourtSupreme Court of Louisiana
DecidedApril 11, 1977
Docket58860
StatusPublished
Cited by9 cases

This text of 344 So. 2d 1031 (State v. Porter) 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. Porter, 344 So. 2d 1031 (La. 1977).

Opinion

344 So.2d 1031 (1977)

STATE of Louisiana
v.
Raymond PORTER et al.

No. 58860.

Supreme Court of Louisiana.

April 11, 1977.

*1032 Barry Viosca, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.

CALOGERO, Justice.

Defendant Raymond Porter along with his sister Dorothy Porter, and his brother Lawrence Porter, were charged with possessing heroin on December 20, 1974. The three were tried together; Raymond Porter was found guilty as charged and both Dorothy and Lawrence Porter were found guilty of attempted possession of heroin. Dorothy Porter withdrew her motion for appeal and Lawrence Porter's motion for new trial was granted.[1] Therefore, only Raymond Porter, who was sentenced to serve ten years at hard labor, is before as now on this appeal.

ASSIGNMENT OF ERROR NO. 1.

Defendant complains that the trial judge mistakenly refused to grant his motion to suppress the evidence seized from his home which was taken during a search made pursuant to a warrant. Defendant alleges first that the affidavit does not include facts on which a magistrate could find that there was probable cause for the search and, secondly, he argues that the issuing magistrate had no authority to issue the warrant.

In the affidavit supporting the search warrant for the search of 3150 North Rocheblave, Officer Frank Ben swore that on December 5, 1974 he had received a telephone call from a reliable confidential informant whose information had led to the arrest and conviction of numerous drug distributors in the past. The informant told him that Lawrence Porter (appellant's brother and codefendant at trial) was selling heroin at that time, had sold him some heroin shortly before, and had entered the house at 3150 North Rocheblave Street during the transaction. The officer immediately set up a surveillance near the Rocheblave Street address and observed Lawrence Porter enter the address, then reappear and hand something to each of five persons standing in a group near the house. Lawrence was seen entering and exiting the house several other times, talking to various people, and being driven around in a car. Three days later, Officer Ben received a second telephone call from a reliable confidential informant whose information had led in the past to drug arrests. He stated that Lawrence and Raymond Porter were selling large amounts of heroin which was being stored at a white double house on North Rocheblave Street near the corner of Louisa Street. Another surveillance was instituted and the officers observed a person Officer Ben had previously arrested for selling heroin enter the residence and exit carrying a paper bag.

Defendant argues that this affidavit does not reveal sufficient facts on which a magistrate could reasonably make a finding that there was probable cause to believe that Raymond Porter was involved in criminal activity because the details in the affidavit dealt primarily with the activity of Lawrence Porter, not Lawrence's brother, the appellant Raymond Porter. We do not agree.

An affidavit supporting a search warrant need not establish probable cause as to each person who lives in a house.

*1033 Instead, the affidavit must inform the issuing magistrate of those facts upon which he can reasonably decide that evidence of a crime is presently on the premises to be searched. State v. Paciera, 290 So.2d 681 (La.1974). This affidavit does contain facts on which a magistrate could reasonably conclude that the house at 3150 North Rocheblave Street contained narcotics.

Defendant also contends that the magistrate who signed the warrant was not legally authorized to do so. Actually, it was Commissioner Gerard Hansen of the Criminal District Court for the Parish of Orleans who signed the warrant.

Defendant's argument is that Article 161 of the Code of Criminal Procedure provides only that a "judge may issue a warrant authorizing the search for and seizure of any thing within the territorial jurisdiction of the court which: (3) may constitute evidence tending to prove the commission of an offense." (emphasis added)

Louisiana Revised Statute 13:1347 created three offices of commissioner of the criminal district court for the parish of Orleans. That section provides that the persons appointed to these offices shall be known as commissioners and "shall not be judges, but shall have the same qualifications, powers, duties, jurisdiction, and functions, all as is now or hereafter provided for the judge in the magistrate section of said criminal district court." Louisiana Revised Statute 13:1346 creating the magistrate section of the criminal district court for the parish of Orleans (and the additional judge in the criminal district court who shall be known as said magistrate) specifically grants the judge in the magistrate section the authority to "sign and issue search and arrest warrants upon probable cause being shown in accordance with law." R.S. 13:1346(D). Since one of the powers and functions specifically granted to the judge of the magistrate section is the authority to issue search warrants, a commissioner of that section, by virtue of the provisions in R.S. 13:1347 referred to hereinabove, likewise has that authority.

Because the warrant to search the North Rocheblave Street residence was issued by a person authorized to do so, and because that warrant was based upon probable cause, the assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 and 8.

Defendant complains that the court erred in allowing Criminologist Sison to testify as to state exhibits one through eight and in admitting these exhibits into evidence on the basis that these items were not mentioned in the state's opening statement and were not relevant to the case. These exhibits included a single burnt cap containing a small amount of residue tested negative for heroin as well as certain narcotics paraphernalia including coin envelopes containing numerous pieces of foil, bags containing hypodermic syringes, needles and needle guards, and a box of glassine envelopes. As we understand defendant's complaint, he does not object to the introduction of the two burnt caps which did contain heroin residue (exhibit number one apparently included these two caps and the one which tested negative for heroin), but he does believe that the court erred in admitting the narcotics paraphernalia and the third cap which contained no heroin.

In its opening statement, the state announced that:

"The State is going to call Officer Howard Johnson to the stand, and he is going to testify that he found three caps, three burnt caps, containing a residue. He is going to testify that he found these caps outside the residence of 3150 North Rocheblave on top of a little shed in the back of that address. You're also going to hear various testimony from these police officers as to other evidence found in connection with this case, both inside and outside of the residence."

Although the defendant admits that the state is not required in its opening statement to detail every bit of its evidence, he contends that the above-quoted reference to "other evidence" does not meet the standards for adequacy set forth in the jurisprudence *1034 or the state statutes. He argues that, because this other evidence was very damaging and prejudicial to his case, it should have been set out in detail in the opening statement.

This argument is without merit.

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344 So. 2d 1031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-porter-la-1977.