State v. Welsh

371 So. 2d 1314
CourtSupreme Court of Louisiana
DecidedJune 26, 1979
Docket62907
StatusPublished
Cited by15 cases

This text of 371 So. 2d 1314 (State v. Welsh) 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. Welsh, 371 So. 2d 1314 (La. 1979).

Opinion

371 So.2d 1314 (1979)

STATE of Louisiana
v.
Maurice WELSH and Sandra Smith.

No. 62907.

Supreme Court of Louisiana.

March 5, 1979.
Rehearing Denied April 9, 1979.[*]
Dissenting Opinion June 26, 1979.

William Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Sheila C. Myers, Asst. Dist. Atty., for plaintiff-relator.

George C. Ehmig, Mark N. Caracci, Gretna, for defendants-respondents.

BLANCHE, Justice.[**]

Respondents-defendants, Maurice Welsh, Jr., and Sandra Smith were arrested and charged with six counts of possession of controlled dangerous substances in violation of LSA-R.S. 40:966. (Defendants were charged with possession of LSD, ethchlorrynol, methylphenidate, amphetamines, diethylproprion and diazepam.) Counsel for defendants filed a motion to suppress evidence seized from defendants' apartment on the grounds that no probable cause existed *1315 for the issuance of the warrant. The district court sustained the motion without assigning written reasons. Upon application by the State, this Court granted a writ of certiorari to consider the ruling of the trial court. 362 So.2d 1388 (La.1978).

At 1:00 A.M. on February 17, 1978, Rebecca Lodice visited an apartment shared by Maurice Welsh, an officer with the New Orleans Police Department, and Sandra Smith, both defendants herein. While at the apartment, she smoked a marijuana cigarette given to her by Smith. Ms. Lodice observed that the marijuana came from a container on the coffee table in the apartment. Other drugs were also offered Ms. Lodice, one of which was identified to her as "acid."

Ms. Lodice reported this incident to another officer in the district where Welsh was assigned. She was advised that she should report the occurrence to the members of the Internal Affairs Division of the New Orleans Police Department, which she did on February 21, 1978.

Upon receiving the information provided from Ms. Lodice, Agents John Johnson and John Dupre sought and obtained a search warrant based upon their affidavit which reads as follows:

"Miss. Rebecca Lodice, W/F, 20 years, appeared in the office of the Internal Affairs Division of the New Orleans Police Department, located at 715 So. Broad Avenue, Room 519 on Tuesday, February 21, 1978 and reported the following:
"1. That she was invited to . . . 511 Esplanade Avenue Apartment `E' on Friday, February 17, 1978 by Maurice Welsh and Sandy Smith.
"2. She arrived at that location at approximately 1:00 A.M. on the date of Friday, February 17, 1978 and was admitted into the apartment by Maurice Welsh and Sandy Smith.
"3. Between the hours of 1:00 A.M. and 4:00 A.M. on this date, Friday, February 17, 1978, she was offered and she accepted a marijuana cigarette given to her by Sandy Smith in the presence of Maurice Welsh. She consumed approximately one half of this cigarette in the presence of Maurice Welsh and Sandy Smith. It is noted that Rebecca Lodice is familiar with marijuana, therefore is sure this was a marijuana cigarette she smoked.
"4. Rebecca Lodice observed that this marijuana did not come off the person's [sic] of Sandy Smith and Maurice Welsh but came out of a container located on a coffee table within the apartment.
"5. Soon there after [sic] Sandy Smith went into the kitchen of the stated apartment and returned with several red capsules and several white capsules which she identified to Miss. Lodice as being narcotic drugs and asked her (Miss. Lodice) if she wanted one. Miss. Lodice refused to take any of these drugs.
"6. Miss. Lodice also stated that while she was seated on the couch in the apartment, Maurice Welsh, displayed to her a piece of tape having five, small, pink dots affixed to it and Maurice Welsh told her (Miss. Lodice) the dots were, `Acid'. The undersigned agent and Miss. Lodice are familiar with drug terms and know that the term `Acid' is used to denote L.S.D.
"7. Miss. Lodice stated the apartment in question belongs to Sandy Smith, however, Maurice Welsh lives at the apartment with her.
"8. On Tuesday, February 21, 1978 Miss. Lodice accompined [sic] the undersigned agent to ... 511 Esplanade Avenue and pointed out to the agent Apartment `E', stating this was the apartment she was present in on Friday, February 17, 1978 when this illegal activity involving narcotics took place. The undersigned agent observed the address of... 511 Esplanade Avenue Apartment `E' to be within the confines of Orleans Parish. Miss Lodice pointed out a 1974 Dodge Dart, two door, color gold, with a trailer hitch, bearing 1977 Louisiana license # 309B546 which she positively identified as belonging to Maurice Welsh. A later check of the license with the State revealed it was registered to Maurice Welsh. This vehicle was observed parked in the parking lot of the apartment complex located at. . . 511 Esplanade Avenue.
"9. Miss. Lodice is available and ready to testify in Criminal District Court against these two subjects, Maurice Welsh and Sandy Smith.

"10. For the reasons stated above, the undersigned agents believes [sic] that there is probable cause to believe that illegal narctoic [sic] activity is taking place at ... 511 Esplanade Avenue Apartment `E', and respectfully request that this search warrant be granted."

The defense challenged the warrant on three basic grounds:

*1316 (1) There was nothing contained in the affidavit attesting to the credibility of the informant or the reliability of the information furnished by her.
(2) The information supplied by the informant was "stale" since five days had elapsed between the time the informant made her alleged observations and the time the search warrant was executed.
(3) The warrant was materially altered prior to its execution without judicial authority.

Since the trial judge has not favored us with written reasons which would reflect the basis for his sustaining the motion to suppress, we will examine all three grounds advanced by the defense which they claim required the district court to find the warrant invalid.

CREDIBILITY OF THE INFORMER

A search warrant may only be issued on the basis of probable cause. This Court has repeatedly held that "probable cause exists when the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed." State v. Richards, 357 So.2d 1128, 1130 (La.1978); State v. Smith, 350 So.2d 1178 (La.1977).

If an essential element in establishing probable cause required by Article 162 of the Louisiana Code of Criminal Procedure is hearsay information, then the magistrate must follow the "two-pronged" test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), in determining whether or not probable cause existed. The two requirements of the Aguilar test are: (1) the affiant must state the basis for his belief that the information is trustworthy, and (2) the affidavit must also state the underlying circumstances which show that the informant was in a position to observe facts as reported.

Thus, under Aguilar,

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Bluebook (online)
371 So. 2d 1314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-welsh-la-1979.