State v. Wichers

392 So. 2d 419
Supreme Court of Louisiana·Decided December 15, 1980·No. 66855·Published·Cited by 34 cases

Opinion

392 So.2d 419 (1980)

STATE of Louisiana
v.
Richard WICHERS.

No. 66855.

Supreme Court of Louisiana.

December 15, 1980.
Rehearing Denied January 26, 1981.

*420 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., John H. Craft, Asst. Dist. Atty., for plaintiff-appellee.

Ronald L. Monroe, New Orleans, for defendant-appellant.

MARCUS, Justice.

Richard Wichers was charged by one information with possession of marijuana in violation of La.R.S. 40:967 and by another information in separate counts with possession of diazepam in violation of La.R.S. 40:969 and of methaqualone in violation of La.R.S. 40:967. Defendant entered pleas of *421 not guilty to the charges. After a hearing, the trial judge denied defendant's motion to suppress. Thereafter, defendant withdrew his former pleas of not guilty and entered pleas of guilty as charged, reserving his right to appeal the court's denial of his motion to suppress. The court placed defendant on probation for one year in connection with his marijuana conviction and on probation for three years on each of the other convictions to run concurrently with each other and the probation for the marijuana conviction. On appeal, defendant relies on one assignment of error for reversal of his convictions and sentences.

Defendant contends the trial judge erred in denying his motion to suppress physical evidence. He argues first that the search warrant was improperly issued and second, even if the warrant was valid, the search of his person was illegal; hence, the drugs seized as a result of the search must be suppressed.

The search warrant was issued to search the premises located at 9301 Airline Highway, London Lodge Motel, room 712, for the purpose of seizing "[a]ll contraband controlled dangerous substances, more particularly Marijuana and all documents and instrumentalities related to its distribution." The warrant was issued based upon facts recited in the affidavit by Officers Ronald Jenkins, Harry O'Neal and Kenneth Baudouin. The facts recited in the affidavit to establish probable cause were based on information received from a reliable confidential informant and independent observations by the officers. The affidavit was signed and the search warrant was issued and executed on October 19, 1979.

Shortly before 7:45 p. m. on that date, the officers arrived at the London Lodge Motel to execute the search warrant. When no one responded to their knocks on the door of room 712, the officers obtained a pass key to gain entry. Approximately fifteen minutes later, while the officers were in the process of completing the search of the room, defendant Wichers, Ben Levy and a woman arrived at the motel and opened the door with a key. One of the officers stated that they were police officers and that they had a search warrant. Defendant and his companions closed the door and began running. One of the officers caught defendant, pushed him to the ground, and conducted a search of his person, resulting in the recovery of the drugs upon which these prosecutions are based.

The affidavit generally recited the following facts to establish probable cause for issuance of the search warrant:

(1) On October 19, 1979, Narcotics Officer Ronald Jenkins spoke with a reliable confidential informant whose information in the past had been instrumental in the arrest and conviction of narcotics violators. The informant advised the officer that two white males named Ben Levy and "Richie Wishes" were "secreting" and selling wholesale quantities of marijuana at room 712 of the London Lodge Motel. He stated that the selling price was $400 per pound and that at the last visit to the motel "between 50-100 pounds was seen." He further advised that on October 14, 1979, "200 pounds was seen, so the marijuana was being sold at a good rate."

(2) A check with the management of the London Lodge Motel reflected that a Ben Levy was registered in room 712.

(3) At about 2:30 that afternoon, affiants established a surveillance of room 712 of the London Lodge Motel. At 2:40 p. m., the officers observed a car pull up to the front of the motel. Its driver, a white male, exited the vehicle and knocked on the door of room 712. He was let into the room and about five minutes later exited the room carrying a brown paper bag with newspaper on the top which was placed in the trunk of the car. The driver once again entered room 712 and left carrying a paper bag similar to the first one. The bag was also placed in the trunk of the car. The driver then reentered his car and departed.

(4) At 3:10 p. m., officers observed a pickup truck pull up to the front of the motel. The driver exited the vehicle, took what appeared to be currency out of his wallet, walked up to room 712 and knocked on the door. As the door was opened, the *422 driver handed the suspected currency to one of the room's occupants and then entered the room. Seven minutes later, he left the room carrying a partially-compressed green plastic garbage bag under his arm. He then placed the bag behind the front seat of the truck and departed.

Based on the information received from the confidential informant and the observations of the officers, the affiants stated that it was their belief that "contraband controlled dangerous substances were being secreted and sold from room 712 of the London Lodge Motel located at 9301 Airline Highway" and requested that a search warrant be issued.

Constitutional provisions insure a person from unreasonable search and seizure of his house, papers and effects. No such search or seizure shall be made except upon warrant issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. U.S. Const. amend. IV; La.Const. art. 1 § 5. Conformably, our Code of Criminal Procedure in art. 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

We have 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 (La.1978); State v. Smith, 350 So.2d 1178 (La.1977); State v. Williams, 338 So.2d 1365 (La.1976); State v. Sierra, 338 So.2d 609 (La.1976); State v. Hightower, 272 So.2d 363 (La.1973). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Richards, supra; State v. Smith, supra; State Williams, supra; State v. Sierra, supra; State v. Holmes, 254 La. 501, 225 So.2d 1 (1969).

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court set forth, in a "twopronged test," the criteria which a magistrat

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