State v. Rodriguez

476 So. 2d 503
Louisiana Court of Appeal·Decided October 8, 1985·No. 85KA0106·Published·Cited by 7 cases

Opinion

476 So.2d 503 (1985)

STATE of Louisiana
v.
Arley RODRIGUEZ.

No. 85KA0106.

Court of Appeal of Louisiana, First Circuit.

October 8, 1985.

*505 Margaret A. Coon, Asst. Dist. Atty., Covington, for State.

David J. Knight, Covington, for defendant.

Before GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ.

WATKINS, Judge.

Defendant, Arley Rodriguez, was charged by bill of information with pornography involving a juvenile, a violation of LSA-R.S. 14:81.1,[1] in connection with an *506 incident that occurred in April of 1983. Defendant was tried by a jury and convicted as charged. He was subsequently sentenced to serve three years with the Department of Corrections without benefit of probation, parole or suspension of sentence.

In this appeal, defendant alleges five assignments of error:

1. The trial court erred in denying the motion to suppress the evidence.
2. The trial court erred in refusing to permit the jury to review the affidavit used in support of the search warrant, after the jury had begun deliberations.
3. The trial court erred in not appointing an interpreter for defendant.
4. The trial court erred in denying the motion for a post verdict judgment of acquittal and the motion for new trial.
5. Because of error patent on the face of the record, the conviction should be reversed.

Sometime in April, 1983, the victim's mother learned that her future father-in-law was gravely ill in Laurel, Mississippi. She called on her neighbor, defendant herein, to look after her four small children while she drove to Laurel. Defendant had frequently served as her baby-sitter. The victim's mother had even allowed defendant to stay in her trailer for approximately a month in early 1983 while defendant searched for a job. At approximately 2:00 p.m., she left her trailer in Slidell and did not return until 11:00 p.m. The victim was eight years old at the time of the crime and was the oldest child. That evening, after the three smaller children had gone to bed, defendant proceeded to take three nude photographs of the victim. Defendant told her not to tell anyone about the incident.

On July 11, Sergeant Charles Mule of the Slidell Police Department learned from a confidential informant that defendant had in his possession three nude photographs of a white female juvenile. On July 12, Sergeant Mule and Sergeant Emily Holden contacted the victim's mother and the victim. The victim gave a taped statement verifying the information Sergeant Mule had previously obtained. The victim stated she had told no one about the incident. A search warrant was obtained and the photographs were found in defendant's trailer, as was a "Polaroid One-Step" camera.

ASSIGNMENT OF ERROR NUMBER ONE:

By this assignment of error, defendant alleges that the trial court erred in denying the motion to suppress the evidence. It is defendant's contention that the affidavit supporting the search warrant was defective and that all evidence seized pursuant to the search warrant should have been suppressed.

Article 1, § 5 of the Louisiana Constitution of 1974 requires that a search warrant may issue only upon an affidavit establishing probable cause to the satisfaction of an impartial magistrate. LSA-C. Cr.P. art. 162. Probable cause exists when the facts and circumstances within the affiant's knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Johnson, 408 So.2d 1280 (La.1982); State v. Tranum, 384 So.2d 367 (La.1980); State v. Morgan, 376 So.2d 99 (La.1979).

The defense argues that the affidavit which supports the search warrant is defective because it does not specifically state the date the confidential informant viewed the photographs.

The affidavit states that Detective Mule received a telephone call on July 11, 1983, *507 from a confidential informant who in the past had given him information leading to numerous arrests and also to the recoveries of stolen properties. At a meeting with the informant, Detective Mule was told that Arley Rodriguez had shown the informant three nude photographs of a white female, age nine or ten. Rodriguez told the informant that he was the baby-sitter for this girl while the mother was at work. The informant stated that defendant offered to show him more pictures, but he became disgusted and left defendant's trailer. The informant pointed out the location of defendant's trailer and the victim's trailer.

On July 12, 1983, Detective Mule and Sergeant Emily Holden contacted the victim, who confirmed that defendant had taken three nude photographs of her at her trailer with a camera that develops the pictures. Defendant gave her a small amount of money. The victim also stated that defendant had tried to kiss her several times. The victim further stated that defendant kept the photos in his trailer concealed behind some other pictures.

The "tip" was based on personal observation of the photographs by the informant at defendant's trailer. The affidavit alleges that the confidential informant had provided reliable information in the past. Thus, one of the requisites for the issuance of a warrant under LSA C.Cr.P. art. 162 is met in that the warrant application provides factors which support the credibility of the informant. Additionally, the officers independently corroborated the accuracy of the informant's report by contacting the victim and obtaining a taped statement which verified the facts of the crime. Specific independent corroboration of the accuracy of a report by an unidentified informant supports the credibility and reliability of the unidentified informant. State v. Davis, 461 So.2d 1256 (La.App. 1st Cir.1984), writ denied, 466 So.2d 1299 (La. 1985).

The affidavit itself makes no mention of the date the informant viewed the photographs. Defendant's argument is based solely on a remark made by the prosecutor at the hearing on the motion to suppress that the informant viewed the pictures on July 11th. On the basis of that remark defendant presented a witness, Cynthia Graham, who testified that she was in defendant's trailer from 5:00 p.m. until midnight on that date. Defendant testified he worked from 7:00 a.m. to 5:00 p.m. and saw only Ms. Graham. Defendant contends that this testimony together with his claim that he did not own a camera in April of 1983, destroys the credibility of the informant and establishes that the search warrant was issued without probable cause. We disagree.

The task of the reviewing court in evaluating a search warrant affidavit is simply to insure that the judge had a substantial basis for concluding that probable cause existed. State v. Lingle, 436 So.2d 456 (La.1983). A magistrate's determination of probable cause should be accorded great deference by a reviewing court. State v. Ogden, 391 So.2d 434 (La.1980). We find that the affidavit contained sufficient information obtained from the informant and victim which indicated that defendant still possessed the pictures at the time the warrant was issued.

Considering all of the relevant circumstances, we conclude that the issuing magistrate had a reasonable basis for finding the informant's information reliable and for determining that there was probable cause to issue the search warrant.

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State v. Rodriguez, 476 So. 2d 503 (La. Ct. App. 1985).

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