State v. TateState v. Tate
Defendant was charged with possession of pentazocine, hydromorphone and oxycodone, with intent to distribute, in violation of
At issue are two affidavits which led to separate warrants, the first two for searches of Apartments 5 and 10 (sometimes designated as an unnumbered second floor rear apartment) 2105 Thalia Street, New Orleans, and the second for a search of Apartment 6 at the same address. Although defendant attacks all the warrants as violative of the constitutional right against illegal search the main thrust of his argument is in regard to the warrant for the search of Apartment 6.
The affidavit filed with the application for a search warrant for Apartments 5 and 10 was made by Narcotics Officers Wethern and Harris and contained the following pertinent facts: They received information on April 20, 1982, from a confidential informant who had provided information in the past which led to arrests of individuals in New Orleans that defendant was conducting a drug business at 2105 Thalia Street, employing two individuals, “Ben” who sells wholesale quantities out of Apartment 5 and “Country Boy” who sells retail quantities out of Apartment 10. Three days previously the informant had gone to this area to purchase some drugs and he met defendant who directed him to Apartment 5. There the informant found Ben who stated that he had only wholesale quantities which the informant observed in the apartment. However, Ben took him to Apartment 10 where they found “Country Boy” from whom the informant purchased one dilaudid
Search warrants were issued by Magistrate Judge Hansen on April 23 and a search of the apartments was conducted at 4:30 PM. Nothing was found in Apartment 5, but drugs, a weapon, ammunition, and $975 in currency were found in Apartment 10. Defendant was arrested at 1329 Saratoga, a residence next door to the apartment building.
At 7:25 PM on April 23, the officers went before Magistrate Kiefer to obtain a search warrant for Apartment 6. Their affidavit contained the following: Earlier that day they had obtained from Judge Hansen a search warrant for Apartment 10 and at 4:30 PM executed the warrant at which time they arrested defendant and another charging them with possession of dilaudid, talwin and marijuana, with intent to distribute in violation of
A search warrant was issued by Magistrate Kiefer and a search of Apartment 6 was conducted, yielding a quantity of narcotics and $674 in currency.
Defendant argues in general that the warrants do not meet the requirements of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); and State v. Paciera, 290 So.2d 681 (La.1974). He argues specifically that the search warrant for Apartment 6 was defective because the affidavit supporting it and filed with Magistrate Kiefer omitted certain facts which were made known to Judge Hansen: that Apartment 5 had been searched and nothing found, that “Ben” had never surfaced, and that defendant was not arrested at 2105 Thalia but at his home on Saratoga Street around the corner. Furthermore, Sgt. Evans’ informant did not say he had ever been in Apartment 6 or made any purchase there. His conclusions were based on rumors.
The “two-pronged test” of Aguilar and Spinelli has been abandoned and replaced by the totality of the circumstances analysis in order to determine probable cause. Illinois v. Gates, ___ U.S. ___, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983):
“.... 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. And the duty of a reviewing court is simply to ensure that the magistrate had
a `substantial basis for .... conclud[ing]’ that probable cause existed.” 103 S.Ct. at 2332.
Both affidavits meet this test. The veracity of the informants was supported by the knowledge that they had supplied reliable information in the past. In both affidavits the information supplied by the informants was corroborated by the officers’ observations of activities and behavior on the part of defendant which provided a fair probability that evidence of crimes would be found in all three apartments. As to the affidavit regarding Apartment 6 any deficiency resulting from the informant‘s statement was supplied by the officers’ investigation. They saw defendant engaged in suspicious activity, they learned that he was the lessee of both Apartments 10 and 6, and they had already seized large quantities of drugs from Apartment 10 when they applied for the warrant in connection with Apartment 6. The totality of the circumstances set forth in the affidavit was sufficient to establish probable cause in the mind of Magistrate Kiefer as he made a practical, common sense decision.
As to the omitted facts, we are satisfied that the omission was not intentional or calculated to mislead or conceal information from the magistrate. When the affidavit is considered as though the omitted facts were included we conclude that there would have been probable cause for the issuance of the warrant in the light of the added facts. State v. Lehnen, 403 So.2d 683 (La.1981).
Although we have concluded that defendant‘s assignment of error is without merit, in our review of this record for errors patent we have determined that the sentence imposed on the defendant was too lenient under the statutory limitations. The minimum sentence provided by
Accordingly, defendant‘s conviction and sentence are affirmed.
AFFIRMED.