STATE of Louisiana v. Gwana GREEN, et al.
No. 2002-KK-1022
Supreme Court of Louisiana
December 4, 2002
831 So. 2d 962
KNOLL, Justice.
STATE of Louisiana v. Gwana GREEN, et al.
No. 2002-KK-1022.
Supreme Court of Louisiana.
December 4, 2002.
Robert C. Jenkins, New Orleans, Jason R. Williams, Counsel for Respondent.
KNOLL, Justice.
In this criminal case, we are asked to consider whether the affidavit in support of a search warrant established the requisite probable cause. Finding that a practical, common sense reading of the affidavit established sufficient probable cause
FACTS AND PROCEDURAL HISTORY
At approximately 4:00 p.m. on May 2, 2001, Detective Matthew Riles of the New Orleans Police Department Child Abuse Section was informed that J. S., a four year old child,1 had been brought to the Medical Center of Louisiana with severe second- and third-degree burns2 to more than 50% of his body. When Riles arrived at the hospital, he was told doctors were preparing to airlift the victim to Shriner‘s Burn Center in Galveston, Texas for emergency treatment.
The initial report the detective received at the scene indicated the victim had drawn his own bath water at approximately 11:00 the night before, tested the water on his own, and then slipped in scalding hot water while trying to exit the bathtub. Because of the severity of the burns, the detective did not take a statement from the child. Later, however, Detective Riles and Officer Lorenzo of the Public Integrity Division spoke with the defendants, Gwana Green and Noel Sanders.
After Green was advised of and waived her Miranda rights, she told the police that J.S. arrived home some time after 10:00 p.m. the night before he was brought to the hospital. She and her fiancé, Sanders, lived at an apartment at 8800 I 10 Service Road, Building Six, Apartment 19. When J.S. arrived, Green instructed him to draw his bath water while she ironed his clothes. The child complied with her instructions, although he complained about getting into the tub. She told the police that she was tired at the time and told J.S. to get into the tub. She then said she heard him get into the water and splash around “like he was washing” for approximately a minute. Green then heard her son complain that the water was too hot. She entered the bathroom to get him, but he fell back in the water when her grip slipped as she tried to pull him out of the bathtub. She successfully removed him from the bathtub on her second attempt and admonished him for getting into water that was too hot.
Green told the police J.S. looked a little “pink” when he got out of the bathtub. However, she contended she was not particularly concerned because both the child and Sanders frequently appeared that color after bathing, ostensibly because of their light skin tone. She further observed that the boy‘s toes appeared “wrinkled,” but again claimed she did not find this odd. She remembered “patting” the boy‘s legs and body and stated he did not complain of any pain. Green stated she then spoke to unspecified pharmacists at Walgreens and doctors at Meadowcrest Hospital who recommended treatment for the child. Accordingly, she spent the rest of the evening applying antiseptic ointments and cool towels. The following
Officer Sanders also waived his Miranda rights and gave a statement. He claimed that while at work on May 1, he received a telephone call from Green, his fiancée, at about 10:50 p.m. She told him J.S. had drawn his own bath water and was in the tub for approximately a minute when he began to complain that the water was too hot.
When Sanders arrived home, he also noted the pink tone of his son‘s skin, but was not alarmed. He also stated his son‘s toes appeared wrinkled as if he had “been in water too long.” Because the child appeared sunburned, Sanders asked the boy if anything hurt, and he replied in the negative.
It was not until the next day that Sanders noticed that his son‘s skin was peeling. He then made several telephone calls and at some point, decided to take his son to the hospital. However, rather than calling work, Sanders instead drove from their apartment across town to the Second District headquarters to ask his supervisor personally for an emergency furlough to tend to the child. On his way back, he stopped at the New Orleans Police Department Child Abuse Section and spoke with Commander Jeneiro Sanders to “let everyone know what was going on.”
Evidently finding the statements of Green and Sanders did not satisfactorily explain the extent of the victim‘s injuries, on May 2, 2001, the detectives applied for a search warrant. The warrant application specified the defendants’ address as the premises to be searched and stated that the purpose of the search warrant was the seizure of the following property: (1) photos of the crime scene; (2) the collection of any evidence of the crime; (3) the collection of “skin tissue” from the victim; (4) the testing of the water temperature of the residences; and (5) the collection of the victim‘s clothing. In support of the warrant application, Detective Aaron Blackwell3 submitted an affidavit that offered the following facts:
Upon completion of the initial investigation Detective M. Riles and A. Blackwell learned the following. The victim was transported to Charity Hospital at about 3:08 p.m. on 05-02-2001. Upon arrival at the hospital the victim was noted to be suffering from major second and third degree burns covering over 55% of his body.
Additionally, the detective learned that the victim, his father (suspect) and his father‘s girl friend (suspect) all reside at 8800 I-10 Service Road, Apt. # 19. Additionally, the victim stated that the incident occurred at his residence last night (05-01-01).
It should be noted, the suspect‘s [sic] were advised of their rights as to investigation and agreed to make a statement. Based on the statement given by both suspect‘s [sic] the incident occurred at the above listed residence.
Based upon the affidavit presented, Magistrate Anthony Russo signed a search warrant at 11:30 p.m. on May 2, 2001.
Upon execution of the warrant, the detectives recovered gauzes, ointments, pieces of dead skin, and sheets stained with what appeared as blood. The officers
Subsequently, on September 27, 2001, the State filed a bill of information, charging Sanders and Green. As to Green it is alleged that on May 1, 2001, she “placed J.S., date of birth November 3, 1996, in water that caused him to suffer second degree burns over sixty-six percent (66%) of his body; Gwana Green also failed to seek medical treatment for J.S. for the injuries received for approximately sixteen (16) hours.” As to Sanders, it is alleged that he “failed to seek and obtain medical attention for sixteen (16) hours after J.S., date of birth November 3, 1996, suffered second degree burns over sixty-six percent (66%) of his body.”4
After entering pleas of not guilty, the defendants filed motions to suppress the evidence gathered pursuant to the search warrant.5 In granting the defendants’ motions to suppress the evidence, the trial court stated, “I have to be convinced from the affidavit contained in connection with this that there is sufficient evidence to establish that a crime has occurred and that evidence of that crime will be located at the place in which the officer seeks to serve this warrant.” In further statement, the trial court referred to the affidavit‘s references to the “incident” and found that
The Court of Appeal, Fourth Circuit, denied the State‘s application for supervisory writs, stating, “Based on the State‘s application we find that the trial court did not abuse its discretion by finding no probable cause for the issuance of the warrant and suppressing the evidence.” State v. Green, 02K0215 (La.App. 4 Cir. 3/12/02). We granted the State‘s application for supervisory writs to review the correctness of the lower courts’ rulings. State v. Green, 02KK1022 (La.6/7/02), 817 So.2d 1140.
LAW AND DISCUSSION
It is a basic tenet of this state‘s constitution that every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.
Probable cause sufficient to issue a search warrant “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). A magistrate must be given enough information to make an independent judgment that probable cause exists to issue a warrant. See, e.g., State v. Manso, 449 So.2d 480, 482 (La.1984), cert. denied sub nom., Manso v. Louisiana, 469 U.S. 835 (1984). The United States Supreme Court held that “[s]ufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” United States v. Leon, 468 U.S. 897, 915 (1984) (citations omitted). Moreover, this Court previously held: “[t]he process [of determining probable cause] simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system.” State v. Rodrigue, 437 So.2d 830, 833 (La.1983) (citing Jaben v. United States, 381 U.S. 214 (1965)).
An issuing magistrate must make a practical, common sense decision whether, given all of the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. State v. Byrd, 568 So.2d 554, 559 (La.1990). This affidavit must contain, within its four corners, the facts establishing the existence of probable cause for the warrant. State v. Duncan, 420 So.2d 1105 (La.1982); State v. Wells, 253 La. 925, 221 So.2d 50 (1969). In Wells, the source of the “four corners” doctrine” in this state, this Court noted that Article 162 required that the facts establishing probable cause be recited in the affidavit because the judge, not the affiant, is the one who must be satisfied as to the existence of probable cause.
From the outset, we note the trial court hinged its judgment on the fact that the affidavit failed to even establish that a crime had occurred. Although certainty of knowledge of the commission of a particular crime is frequently an important factor in the determination of probable cause, probable cause may exist when the commission of a crime has not been definitely established, but is reasonably probable under the totality of the known circumstances. State v. Simms, 571 So.2d 145, 149 (La.1990). The police therefore need not specify exactly what crime has been committed as long as they have probable cause to believe that a crime has been committed. See WAYNE R. LAFAVE, SEARCH AND SEIZURE, § 3.1(b), p. 7 (1996) (stating that two conclusions necessary to the issuance of the search warrant must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched).
The determination of probable cause, although requiring something more than bare suspicion, does not require evidence sufficient to support a conviction. Probable cause, as the name implies, deals with probabilities. Brinegar v. United States, 338 U.S. 160 (1949); Simms, 571 So.2d at 148. The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting
In the present case, the language of the affidavit informed the issuing magistrate that: (1) the detectives had conducted an initial investigation; (2) the victim7 stated at the hospital that an incident8 had occurred at his residence the night before; (3) the victim was transported to Charity Hospital at approximately 3:08 p.m.; (4) the victim suffered from major second and third-degree burns covering over 55% of his body; (5) the victim, his father, and his father‘s girl friend all reside at 8800 I-10 Service Road in Apartment 19; (6) the father of the victim and his girl friend were identified as suspects9; (7) the suspects were Mirandized as to the investigation and then made a statement to the police about the incident that occurred at their residence.
Although it cannot be gainsaid that more facts would have been helpful to more fully inform the issuing magistrate, nonetheless we find the magistrate could have concluded that a crime had been committed just from the references to a victim, an incident, the use of the word suspects, and that the suspects were Mirandized.10 In addition, the affidavit informed the magistrate that a familial relationship existed, at least between the father and the victim, and that all of the parties lived at the same residence. Moreover, when viewed in light of the horrific injuries described in the affidavit (“major second and third degree burns covering over 55% of his body“), the magistrate would have also learned that a minimum of fifteen hours had elapsed between the time of the incident (“last night (05-01-01)“) and the arrival of the victim at Charity Hospital (“3:08 p.m. on 05-02-2001“) for medical treatment. Viewing the totality of the circumstances and a common sense reading of the affidavit, we find the issuing magistrate‘s assessment of the supporting affidavit to be reasonable, and that it had a substantial basis for concluding that probable caused existed for the issuance of the search warrant. Accordingly, we find the lower courts erred in failing to attribute deference to the issuing magistrate‘s determination
REVERSED AND REMANDED TO THE TRIAL COURT.
KIMBALL, J., dissents and assigns reasons.
STATE of Louisiana v. Gwana GREEN, et al.
No. 2002-KK-1022
Supreme Court of Louisiana
December 4, 2002
KIMBALL, Justice, dissenting.
KIMBALL, Justice, dissenting.
I dissent from the majority‘s determination that the issuing magistrate had a substantial basis for concluding that probable cause existed for the issuance of the search warrant. The facts presented by this case are undeniably horrible, but the majority seriously strains the import of each word contained in the affidavit to reach a desirable result. In my view, the lower courts properly looked beyond the heinous nature of the child‘s injuries and correctly determined that the affidavit did not present probable cause for the issuance of the warrant and, consequently, that the evidence must be suppressed.
Notes
There is some discrepancy as to which particular criminal statute Green and Sanders are charged with having violated. The arrest warrants show the defendants were arrested “to answer a charge of 14:93.2, second degree cruelty of a juvenile.” The obverse side of the bill of information, partially tracking the language of the arrest warrant, references
A. (1) Second degree cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect by anyone over the age of seventeen to any child under the age of seventeen which causes serious bodily injury or neurological impairment to that child.
(2) For purposes of this Section, “serious bodily injury” means bodily injury involving protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or substantial risk of death.
B. The providing of treatment by a parent or tutor in accordance with the tenets of a well-recognized religious method of healing, in lieu of medical treatment, shall not for that reason alone be considered to be intentional or criminally negligent mistreatment or neglect and shall be an affirmative defense to a prosecution under this Section.
C. Whoever commits the crime of second degree cruelty to juveniles shall be imprisoned at hard labor for not more than forty years.