State v. HunterState v. Hunter
Dеfendant, Lon Hunter, was charged by bill of information with possession of marijuana with intent to distribute, in violation of
1. The trial court erred in denying defendant’s motion to suppress physical еvidence.
2. The trial court erred in denying defendant’s challenge to the proposed allotment of his case to a special narcotics court.
Assignment of error number two was not briefed on appeal and, therefore, is considered abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4.
Because there was no trial and no testimony was adduced at the motion to supprеss hearing, there is very little factual information about the instant offense. The following facts are derived from the search warrant affidavit and the return on the search warrant.
At approximately 9:46 p.m. on March 30, 1992, Baton Rouge City Police Detectives Wally Cowart and James Salsbury obtained a search warrant to search the residence at 255 Richland Drive in Baton Rouge, Louisiana, for marijuana and other drug paraphernalia.
In the search warrant affidavit, Detectives Cowart and Salsbury indicated that within the past twenty-four hours, they had utilized a confidential informant (C.I.) in a controlled buy of marijuana from a subject named
ASSIGNMENT' OF ERROR NO. ONE
In this assignment of error, defendant contends that the trial court erred in denying the motion to suppress physical evidence seized from his residence. Specifically, he argues that the affidavit in support of the search warrant lacked a sufficient showing of probable cause and that the good faith exception of U.S. v. Leon,
A search warrant may issue only upon probable cause established to the satisfaction of a judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. LSA-Const. Art. 1, § 5; LSA-C.Cr.P. art. 162. Probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy infоrmation, 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. Revere,
Since the instant search and seizure of evidence was conducted pursuant to a search warrant, defendant had the burden to prove the grounds of his motion to suppress. LSA-C.Cr.P. art. 703D; State v. Harris,
At the hearing on the motion to suppress, the defense did not introduce any evidence and only offered legal arguments and jurisprudence in support of his position. The state introduced the affidavit in support of the searсh warrant, the search warrant, and the return on the search warrant. The affidavit provided as follows:
Affiant informs the court that within the past twenty-four hours affiants conducted a controlled buy from a rеsidence located at 855 Steele Blvd., Baton Rouge, La. During the transaction of the controlled buy the seller advised the C.I. that he would have to leave and go get the marijuana bringing it back to thе C.I. which would take about five minutes. The C.I. was wired for sound and detectives were monitoring parts of the conversation. The seller, identified as “Ronnie” by the C.I., left the residence as detectives followed him to the residence described above [255 Richland Drive], The seller stayed at the residence for about five minutes returning to the C.I. location on Steele Blvd. The C.I. exited with approx. ⅝ lb[.] of suspected marijuana and met affiants. The seller advised the C.I. that the source of his marijuana had received forty lbs[.] of marijuana with (sic) the past forty-eight hours. Detectives observed the seller entеr and exit the residence on Richland Drive.
In his brief to this court, defendant alleges the search warrant was not based upon sufficient probable cause because the affidavit was based оn too many assumptions. Specifically, defendant notes that the affidavit did not state whether Ronnie stopped anywhere else on his way to the residence at 255 Richland Drive or whether he made any stops on his return to 855 Steele Boulevard. Defendant also notes that the affiants failed to indicate whether Ronnie had contact with
As the trial court observed at the motion to suppress hearing, the affiants could have done a better job in their affidavit by definitely stating that Ronnie traveled directly to 255 Richland Drive and returned directly to 855 Steele Boulevard without any intervening-stops and without meeting any other persons along the route. However, the trial court read the affidavit to mean just what it said. If Ronnie had made stops along the way or had contacted other persons, the officers would have included such information in the affidavit. Although defense counsel asserted at the motion to suppress hearing that 255 Richland Drive is a duplex, there is no indication in the record that this address was incorrect or that there was any confusion or uncertainty about the address to which Ronnie traveled when he left 855 Steele Boulevard. While the officers did not conduct an independent surveillance of 255 Richland Drive, they did observe Ronnie proceed to, enter, and depart from this residence when he left 855 Steele Boulevard for the stated purpose of obtaining the marijuana for the controlled buy. Finally, although no one observed marijuana inside the residence at 255 Richland Drive, Ronnie did state to the confidential informant upon returning to 855 Steele Boulevard that his source had received forty pounds of marijuana within the past forty-eight hours.
Affidavits must be read in a common sense and realistic manner, and the magistrate’s judgment should be based on a reading of the entire affidavit. State v. Clay,
Our decision herein is supported by the recent case of State v. Beach,
Accordingly, this assignment of error is without merit.
CONCLUSION
For the above reasons, defendant’s conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.