STATE of Louisiana v. Hector MANSO and Susan Warden.
No. 82-KA-2244.
Supreme Court of Louisiana.
April 2, 1984.
Rehearing Denied May 3, 1984.
449 So.2d 480
MARCUS, Justice.
Williаm J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Margaret Coon, J. Kevin McNary, Thomas L. Watson, Peter Garcia, Asst. Dist. Attys., for plaintiff-appellee. Michael M. Ogden, Walter L. Sentenn, Jr., Metairie, for defendants-appellants.
Hector Manso and Susan Warden were charged in the same information with one count of possession with intent to distribute cocaine in violation of
Defendants contend the trial judge erred in denying their motion to suppress evidence seized from a motel room pursuant to a search warrant. They argue that the affidavit supporting issuance of the search warrant failed to set forth facts demonstrating probable cause to believe that illegal drugs were in the motel room.
The search warrant in question was issued to search two adjoining motel rooms rented in the name of Hector Manso, rooms 212 and 214 of the Holiday Inn on Interstate 10 and Gause Blvd. in Slidell. Its purpose was to seize cocaine, marijuana, methaqualone and associated paraphernalia and documents. It was issued based upon facts recited in an affidavit by Officers Freddy Drennan, Stan Hughes and Lynn Bertaut. The affidavit states in full:
That on Saturday September 5, 1981, Hector E. Manso w/m 4500 I10 Service Road Metairie, La. a subject known to have trafficked in narcotics, was found to have rented rooms 212 and 214 of the Holiday Inn in Slidell, La. and was in fact staying in both rooms that are adjoining. Subject was observed to be accompanied by one white male and one white female. The investigation began because of Hector Manso‘s known past narcotic activities. Investigating officers contacted the Jefferson Parish Sheriff‘s Office and spoke with Agent Dexter Accardo releative [sic] to his investigations releating [sic] to the narcotic arrest of Hector Manso on 12-10-80 and 6-17-81 for possession with the intent to distribute cocaine, marijuana and methaquaalone [sic]. Agent Accаrdo advised the investigating officers of Manso‘s method of operation while under investigation in Jefferson Parish. These met the exact method of operation now being observed by the investigating officers. These activities include the use of two adjoining motel rooms to traffic narcotics, numerous incoming and outgoing telephone calls, and awaits a narcotics delivery to be made to his person and to then distribute the narcotics from the rented motel room. This knowledge was gained from undercover operations as well as from overt survelliances [sic] conducted by the Jefferson Parish Sheriff‘s Office and releated [sic] to the investigating officers. Affiants on this warrant have maintained a continuous survellance [sic] of Hector Manso and have observed the same activities as described to the affiant‘s [sic] by agent Dexter Accardo.
On the basis of the facts described herein affiant‘s [sic] request a search warrant to be issued for the above described premises.
Constitutional provisions insure a person from an unreasonable search and seizure of his house, papers and effects. No such search or seizure shall be made except upon a wаrrant issued upon probable cause, supported by an oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a crediblе 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 to justify a man of reasonable caution to believe that an offense has been committed. The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. State v. Hughes, 433 So.2d 88 (La.1983); State v. Mena, 399 So.2d 149 (La.1981).
Prior to the United States Supreme Court‘s decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), courts mechanically followed the “two-pronged” test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), to determine whether an affidavit containing hearsay has established probable cause. Under this test, the affiant was required to articulate facts relating to the informant‘s “basis of knowledge” and his “veracity” or “reliability.” In Gates, supra, the United States Supreme Court abandoned an inflexible applicаtion of this test in favor of a “totality of the circumstances analysis.” However, although the informant‘s “veracity” or “reliability” and his “basis of knowledge” are no longer controlling, they are still relevant factors in the totality of the circumstances examination. The Court summarized its holding as follows:
[W]e conclude that it is wiser to abandon the “two-pronged test” .... In its place we reaffirm the totality of the cirсumstances analysis that traditionally has informed probable cause determinations.... The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband ... will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... conclu[ding] that probable cause existed.”
In addition, the Court reaffirmed its policy on review of search warrant affidavits. It stated that in light of the fact that affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation[, t]echnical requirements of elaborate specificity ... have no proper place.” Also, “a magistrate‘s determination of probable cause should be paid great deference by reviewing courts.”
In the instant case, the affidavit states that the Slidell police officer affiants have maintained a continuous surveillance of Manso. On Saturday, September 5, 1981, Manso rented two adjoining motel rooms in Slidell. Because of the affiants’ familiаrity with Manso‘s narcotics activity, they contacted a named Jefferson Parish agent about the agent‘s experience with Manso. The agent told the affiants about Manso‘s arrest three and nine months earlier for narcotics trafficking. They were also informed that Jefferson Parish undercover operations and overt surveillance leading to these arrests established Manso‘s method of оperation as follows:
the use of two adjoining motel rooms to traffic narcotics, numerous incoming and outgoing telephone calls, and awaits a narcotics delivery to be made to his person and to then distribute the narcotics from the rented motel room.
The Slidell affiants then informed the magistrate that they were now observing these “same activities” and this “exact method of opеration” by Manso. In essence, the magistrate was informed that Manso‘s peculiar modus operandi, which had indicated narcotics
DECREE
For the reasons assigned, defendants’ convictions and sentences are affirmed.
DIXON, C.J., concurs.
CALOGERO, J., dissents and assigns reasons.
DENNIS, J., dissents with reasons.
STATE of Louisiana v. Hector MANSO and Susan Warden.
No. 82-KA-2244.
Supreme Court of Louisiana.
April 2, 1984.
Rehearing Denied May 3, 1984.
449 So.2d 480
CALOGERO, Justice, dissenting.
I respectfully dissent.
No search or seizure shall be made except upon a warrant issued upon probable cause, supported by an oath of affirmation, and particularly describing the place to be searched and the persоns or things to be seized.
The affidavit in this case is bаsed in large part upon hearsay information. In determining whether such an affidavit establishes probable cause for issuance of a warrant this Court has applied the “two prong test” established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Paciera, 290 So.2d 681 (La.1974). Under this test the magistrate must be informed of the basis of the informant‘s knowledge and must be supplied with information which shows either the inherent credibility of the informant or the reliability of the information on this particular occasion. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
However, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court recently substituted for the Aguilar “two prong test” a “... totality of the circumstances analysis that traditionally has informed probable cause determinations.” Gates, supra at 2332. Notwithstanding this, the Gates majority acknowledged that “an informant‘s ‘veracity‘, ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” Id. at 2327. Thus, the Court explained:
The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. at 2332.
The case for issuance of the warrant is an ostensibly logical inference that narcotics violations are likely ongoing at the Slidell Holiday Inn since on prior occasions narcotic violations were found to have existed in Jefferson Parish on the heels of activities similar to thosе at the Slidell Holiday Inn. Given specific recitation of observed facts, by the informer Accardo relative to the two prior incidents, and by the affiants investigating defendant‘s activities at the Slidell Holiday Inn, the magistrate might well have been in a position to draw the logical inference which would support issuance of the warrant. Nonetheless, because of the affidavit‘s deficiencies, i.e., lack of specificity, and the conclusory nature of affiants’ statements and the statements ascribed to the informant Accardo, I do not agree that it can support a magistrate‘s independent judgment that probable cause exists.
An affidavit must recite facts, not simply conclusions, and the facts which establish probable cause must appear within the four corners of the affidavit.
In the affidavit “Agent Accardo advised the investigating officers of Manso‘s method of operation while under investigation in Jefferson Parish.” Note that what‘s asserted here is that Accardo told affiants how Manso operated, not the specifics of what was observed concerning Manso‘s activities and/or by whom he was observed. Further, the affidavit says that “these met the еxact method of operation now being observed by the investigating officers.” Note that the specific activity observed by affiants (in Slidell) is not recited here. The affidavit thereupon goes on to recite the respective methods of operation. (“These activities include the use of two adjoining motel rooms to traffic narcotics, numerous incoming and outgoing telephone calls, and awaits narcotics delivery to be made to his person and to then distribute the narcotics from the rented motel room.” [sic]) Yet there is no assertion, as relates to either the prior arrests or the ongoing situation, that specific criminal activities of this nature were seen by any identified person or persons, be it Accardo relative to the prior arrests or affiants during the ongоing investigation. “This knowledge was gained from undercover operations as well as from overt surveillances conducted by the Jefferson Parish sheriff‘s office and related to the investigating officers.” Note that the affiants are not reciting what Accardo told them he observed in Jefferson Parish nor what they, the affiants, had personally observed in Slidell. Their recitation could just as well, or perhaps even more logically
What the affiants recite here about their knowledge is sufficient to arouse their own legitimate suspicions. However, “unsupported suspicions are not sufficient to constitute probable cause for issuance of a search warrant.” State v. Boksham, 370 So.2d 491, 497 (La.1979).
In Illinois v. Gates, 103 S.Ct. at 2327-2328, the United States Supreme Court did not entirely dispense with the usefulness of the Aguilar “two рrong test.” The present affidavit clearly falls far short under the Aguilar “two prong test” standard. Conceding that the informant, Officer Accardo, was credible, there is still a major problem with the information supplied by him. In particular, the affidavit does not tell us of Accardo‘s basis of knowledge, nor is his information given in sufficient detail. The recitation supports, at least as well as a possible direct observation on Accardo‘s part, hearsay furnished him and/or gathered by him from other sources. To the extent that the Aguilar “two prong test” is still “useful” under the United States Supreme Court‘s current Gates standard, its utility is to negate rather than support probable cause.
Furthermore, in applying the Gates totality of circumstances analysis this case falls far short of establishing probable cause. In Gates the unverified anonymous tipster gave very specific information аbout the activities of Gates and his wife. They were partially predictive in nature (Gates and his wife separately would be going down to Florida, etc.) and the details of the prediction were corroborated by an exhaustive surveillance by the officers, from Chicago to Florida, and back to Chicago.1 In the case under consideration the circumstances for the magistrate‘s considеration consist exclusively of the recitations contained in the affidavit and discussed hereinabove. It did not include specific observations of criminal conduct, nor specifically recited confirmatory surveillances.
The essential problem in this case is that the affiant police officers did not supply sufficient particular information, other than conclusory assertions, to support a magistrate‘s independent judgment that probable cause existed for issuance of the warrant.
For the foregoing reasons I respectfully dissent.
STATE of Louisiana v. Hector MANSO and Susan Warden.
No. 82-KA-2244.
Supreme Court of Louisiana.
April 2, 1984.
Rehearing Denied May 3, 1984.
449 So.2d 480
DENNIS, Judge, dissenting.
I respectfully dissent.
The U.S. Supreme Court has not yet said that suspicious duplications per se constitute probable cause to search. Even under the totality of circumstances approach, the affidavit does not establish probable cause. It merely shows similar suspicious actions by the defendаnt on two different occasions. The affidavit does not link the defendant‘s conduct with criminality, except by suspicion, at either time or place.