State v. GiordanoState v. Giordano
Writs were granted in this case to сonsider whether, on a motion to suppress, a defendant may inquire into the veracity of the affiant in the affidavit upon which a search warrant was issued.
At the outset, the State submits that the writ was improvidently granted for the reasons that: there was no adverse ruling by the trial judge upon which the defendants could seek review; the motion to suppress did not contain any allegations sufficient to justify an attack upon the veracity of the affiant.
The defendants reserved a bill of exceptions upon the following circumstances:
When the motion to suppress was called for trial, one of the witnesses subpoenaed by the defendants was absent. Gerald Bayer, described as “Agent” Bayer, was apparently the affiant in the affidavit upon which the search warrant was obtained. (The affidavit and the search warrant are not in the record before us). Upon noting Bayer‘s absence, the defendants rеquested “that the Court grant the motion to suppress” because of the absent witness. The State objеcted and contended that it was ready to go to trial on the motion with the witnesses who were present, and contended, nevertheless, under State v. Anselmo, 260 La. 306, 256 So.2d 98 (1971), the defendants had no right to traverse the sworn statement of Gerald Bayer in the affidavit. After discussion, the trial judge
Included in the record before us is the motion to suppress filed on behalf of the defendants. In addition to the introduction and the prayer, the motion to suppress alleged оnly that “the evidence to be used against the defendants was not seized incidental to a valid arrest and/or search.”
The ruling of the trial judge was correct, but not for the grounds he stated. We have this day in State v. Melson, La., 284 So.2d 873, interpreted State v. Anselmo, supra, аs prohibiting only a traverse of the affiant‘s informer‘s allegations. In Melson we recognized, upon a proper showing, the right of the defendant to traverse the allegations of the affiant. In the Melsоn case an amended motion to suppress set out the particular portion of the affidavit which the defendant claimed to be mistaken, and referred to the reason (a stipulation madе by the State on another motion) for the belief that the affidavit was in error.
This should be the minimum requirement bеfore the court should be required to hear testimony concerning the truthfulness of the contents of thе affidavit upon which the search warrant is issued. The defendant must demonstrate a genuine issue to enable the court to regulate the proof, and to allow the State an opportunity to prоduce the evidence relevant to the issue.
An allegation that the evidence “was not seized incidental to a valid arrest and/or search” will not justify the exercise of the judicial procеss merely to explore whether the affiant was truthful.
Nowhere in the argument on the motion to suppress did the lawyer for the defendants indicate the reason for doubting the truthfulness of the affidavit.1
For these reasons, the writ previously issued herein is recalled, having been improvidently granted, and the case is remanded for further proceedings.
SANDERS, C. J., concurs in the result.
SUMMERS, J., concurs in result and assigns reasons.
SUMMERS, Justice (concurring).
I agree that the writ was improvidently issued, but I do not agree with the dictа in the majority opinion which seeks to modify the effect of our holding in State v. Anselmo, 260 La. 306, 256 So.2d 98 (1972). I have assigned reasons for this рosition in a dissenting opinion handed down today in State v. Melson, La., 284 So.2d 873. See also State v. Petillo, 61 N.J. 165, 293 A.2d 649 (1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1393, 35 L.Ed.2d 611.