State v. ScottState v. Scott
William J. Whitney, New Orleans, for defendant.
BARRY, Judge.
The defendant‘s only assignment of error contends the court erred in denying his motion to suppress the evidence because the affidavits fail to set forth a factual basis to establish probable cause for the search warrants.
THE AFFIDAVITS
The warrants were to search rooms 312 and 314 of the Superdome Motor Inn for controlled dangerous substances, particularly cocaine, and all attendant evidence associated with its packaging, use and distribution. A separate affidavit was used for each room although both are almost identical.
On April 3, 1986 Detectives Tedesco and Bayard attempted to establish a surveillance, but the location of the rooms made it impossible. Later Tedesco called the motel and a man answered and identified himself as “Jessie“.
The next day the detectives asked Sgt. Cooke of the Narcotics Division if he knew of narcotic activity at the motel. Cooke advised that an unknown black male in his forties or fifties was dealing cocaine from a room on the third floor.
On April 7 the confidential informant called and told Detective Tedesco that Scott was selling cocaine at the motel every day. He said Scott accepted cash or jewelry, especially the latter from prostitutes who stole it from their dates. The informant named one of Scott‘s customers as Robert Guillory, who also resided at the motel. The computer gave Guillory‘s address as the motel and the detectives learned that he was arrested at the motel on December 14, 1985 for possession of cocaine and diazepam. The affidavit for room 312 specified that on April 11, 1986 Detective Bayard called room 314 and a male voice answered.
THE LAW
A warrant may be issued only upon probable cause established to the satisfaction of the judge or magistrate by an affidavit from a credible person reciting facts establishing the cause for the warrant‘s issuance and particularly describing the place to be searched and the things to be seized.
The judge issuing a warrant is to decide whether there is a fair probability that contraband will be found in a particular place. The duty of the reviewing court is to insure that the issuing judge had a substantial basis to conclude that probable cause existed. After-the-fact scrutiny of the sufficiency of an affidavit should not be a de novo review. Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
The United States Supreme Court abandoned the inflexible application of the Aguilar-Spinelli two-pronged test1 in favor of the “totality of the circumstances” in Illinois v. Gates, 462 U.S. at 238-29, 103 S.Ct. at 2332. The court said:
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 ... 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. (citation omitted) 103 S.Ct. at 2332.
These affidavits clearly establish the confidential informant‘s veracity and specific knowledge. The informant had provided information which led to numerous arrests. Here he personally observed Scott‘s narcotics transactions and told Detective Tedesco that activity was going on daily as of April 7, 1986. He named a buyer, Robert Guillory, who had previous drug arrests, including one at the same motel for possession of cocaine and diazepam. The informant‘s credibility was strengthened by the declaration against penal interest that he had purchased cocaine from the defendant. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); State v. Ogden, 391 So.2d 434 (La.1980).
Although a conventional surveillance was impossible, the detectives did verify that “Jessie” answered the motel phone when Detective Tedesco called. Lack of further corroboration by surveillance does not invalidate these warrants when other details support a reasonable inference of reliability. See State v. Johnson, 404 So.2d 239 (La.1981), cert denied 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982).
Even if reasonable minds differ on whether a warrant should have issued on these applications, the evidence would not be ipso facto excluded. If an officer obtains a warrant and abides by its terms, suppression is appropriate in four instances: (1) where the judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for reckless disregard of the truth; (2) where the issuing judge wholly abandoned his detached and neutral judicial role; (3) where an affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; (4) where the warrant is so facially deficient the executing officers cannot reasonably presume it to be valid. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). None are present. See generally State v. Knowles, 472 So.2d 54 (La.App. 4th Cir.1985), writ denied 477 So.2d 706 (La.1985).
Marginal cases should be resolved in favor of a finding that the issuing judge‘s decision was reasonable. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
Under the totality of these circumstances there was a substantial basis (not marginal) to establish probable cause.
ERRORS PATENT
The minute entry and docketmaster show the State filed an oral multiple bill as to the count of possession with intent to distribute cocaine. No multiple bill was filed on the other two counts; yet the sentences (double the statutory maximum) indicate that the multiple offender statute,
Because the defendant was not properly charged as a multiple offender, his adjudication and sentence as an habitual offender is invalid and the ten year concurrent sentences must be vacated. Since no original sentence was imposed we must remand for resentencing.
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING.