State v. Weinberg

364 So. 2d 964
Supreme Court of Louisiana·Decided November 13, 1978·No. 62434·Published·Cited by 56 cases

Opinion

364 So.2d 964 (1978)

STATE of Louisiana
v.
Henry K. WEINBERG, Jr.

No. 62434.

Supreme Court of Louisiana.

November 13, 1978.

*965 William L. Crull, III, Dymond, Crull & Castaing, New Orleans, for defendant-respondent.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Richard J. Petre, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-relator.

DIXON, Justice.

Defendant Henry K. Weinberg, Jr. was charged by two bills of information with four counts of possession of a controlled dangerous substance (methaqualone, amphetamines, phentermine and pethidine) in *966 violation of R.S. 40:967, and with two counts of possession with the intent to distribute a controlled dangerous substance (oxycodone) in violation of R.S. 40:967, and possession of a firearm after conviction of a felony in violation of R.S. 14:95.1. These cases (Nos. 263,148 and 263,151) were allotted to the same section for trial, and defendant filed motions to suppress the evidence and inculpatory statements. The trial court sustained defendant's motions without assigning reasons. On application of the state, this court granted supervisory writs to review the ruling.

The state adduced the following facts. On January 4, 1978 a confidential informer contacted Agent William Renton, a narcotics officer in the Jefferson Parish sheriff's office. The informant told Renton that within the last few days he had been to a New Orleans residence at 926 General Pershing Street to meet Randolph Welch and defendant Henry Weinberg. At the residence the informant heard both Welch and Weinberg brag that they had committed several armed robberies in Orleans and Jefferson Parishes; Welch said that he was the "stickup" man and Weinberg said that he was the "wheelman." Also, the informer told Agent Renton he was shown a large quantity of percodan, demerol, dexidrene and other controlled dangerous substances and a chrome plated revolver that Welch claimed he had used to commit the robberies. Agent Renton told Sergeant Joseph Branham of the Narcotics Division of the New Orleans Police Department of the communication and vouched for the informant's reliability. Sergeant Branham knew several armed robberies had been committed in Orleans and Jefferson Parishes during November and December of 1977. In nearly every case one man, armed with a nickle plated revolver, entered the establishment, frequently drugs were taken, and a car was usually seen speeding away.

Shortly after the communication, Sergeant Branham, New Orleans Detective Haab and Jefferson Parish Agents Drumm and Soto, watched Welch and Weinberg leaving the residence at 926 General Pershing Street. The officers arrested Welch and informed Weinberg that he was a suspect under investigation for armed robbery and possession of narcotics. Weinberg accompanied the officers to police headquarters where he was interrogated. Detective Haab testified that Weinberg was not "under arrest" at that time, but if Weinberg had attempted to leave, Haab would have probably placed Weinberg under arrest for armed robbery.

Weinberg was advised several times of his constitutional rights and told the officers he understood these constitutional safeguards. When told that a search warrant would be obtained to search the premises at 926 General Pershing Street, Weinberg expressed concern for his father, who had a bad heart. The defendant told the officers that if they did nothing to affect his father's heart condition, he would show them where the narcotics were in the house. Prior to this statement Weinberg had not made any inculpatory statements. Subsequently, with a search warrant signed by Commissioner Nils Douglas, and with Weinberg assisting, the officers conducted a search of the residence at 926 General Pershing Street. Weinberg told the officers where to find his drugs and identified the drugs found as his drugs. The officers seized percodan, dexidrene, quaalude, dexamyl, demerol and ionamin, along with a chrome plated revolver.

By one assignment of error the state argues that the trial court erred in granting the two motions to suppress the evidence and inculpatory statements. At the hearing on the motions, the trial court treated the two motions separately; therefore, this court will address the issues separately.

Defendant contends that the application for a search warrant did not state probable cause for the search at 926 General Pershing Street. Defense argues that Weinberg's and Welch's declaration against penal interest which was related by the informant to the police did not establish the reliability of that information, and that the information was uncorroborated hearsay. Defense further contends that the affidavit *967 only stated that informant's information has led to arrests in the past and not to convictions. Defense finally argues that the application for a search warrant stated that within the last "few days" the informant was at the residence, and thus the affidavit did not establish a probable continuing nexus between the place sought to be searched and the property sought to be seized. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Consequently, the defendant contends that the affidavit did not satisfy the requirements of reliability of the informant and the information as required by State v. Paciera, 290 So.2d 681, 685-686 (La.1974).

From the United States Supreme Court cases relating to the probable cause necessary for issuance of a search warrant, the court in State v. Paciera, supra, stated:

". . . The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an un identified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the creditability of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information. See State v. Linkletter, 286 So.2d 321 (La.S. Ct.1973)."

Magistrates and courts must test and interpret affidavits in a common sense and realistic fashion. A grudging or negative attitude by reviewing courts will tend to discourage police officers from submitting their evidence to a judicial officer before acting. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Magistrates should not be confined to niggardly limitations or by restrictions on their common sense. Their determinations of probable cause should be paid great deference by reviewing courts, and the resolution of doubtful or marginal cases should be largely determined by the preference accorded to warrants. State v. Anderson, 357 So.2d 547 (La.1978), and cases cited therein.

The affidavit in the present case[1] established the informant's credibility. The affiants *968 attested that the conf

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