Opinion
No. KA 9264.
August 16, 1988.
APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE RUDOLPH BECKER, J.
Harold D. Marchand, New Orleans, for appellant.
Harry F. Connick, Dist. Atty., Beryl McSmith, Asst. Dist. Atty., New Orleans, for appellee.
Before GARRISON, CIACCIO and WARD, JJ.
Defendant Joseph Scott was charged with possession of marijuana with the intent to distribute. La.R.S. 40:966. He was found guilty of simple possession and sentenced to serve five months in Parish Prison. The sentence was suspended and defendant was placed on one year active probation. He was also fined $500 and $100 court cost. Scott appeals his conviction and sentence relying upon one assignment of error. We affirm.
The record reveals these facts:
On June 10, 1986, a confidential informant, whose credibility was not known, contacted Officer Pedro Marina and reported that "Scott", a negro male, age thirty-five, was dealing wholesale quantities of cocaine from 4967 Brittany Court. The informer stated that Scott resided at the address and that he used a late model blue Thunderbird. Marina drove by the address and saw a blue Thunderbird. He checked the license and learned that the car was registered to Joseph Scott. He checked the City Directory and saw that Joseph Scott resided at 4967 Brittany Court in New Orleans, Louisiana.
On June 17, 1986, a citizen contacted Officer Lloyd Clark and reported that Joseph Scott was dealing quantities of cocaine from his residence at 4967 Brittany Court. The informant stated that vehicular and foot traffic was disturbing the neighborhood night and day. The informant recognized some of the visitors as addicts.
On June 17, 1986, during the evening, Marina and Clark began a surveillance of the area. They saw the Thunderbird in the driveway. A twenty-five year old negro male exited the house, looked about cautiously, and drove away. Twenty minutes later, two negro males, age thirty, drove up. The driver exited, entered the house, and exited five minutes later holding a small object. He showed the object to the passenger. He turned on the inside light of the car for the passenger to examine the object. As they left, a negro male, aged forty, drove up, entered the house, and left five minutes later, looking about cautiously. The officers then left.
The next night, June 18, 1986, the officers continued their surveillance. Two other officers, Robert McNeill and Sandra Simpson, aided them. Five minutes after they arrived, a negro male exited the house and looked about the property before re-entering. Ten minutes later, a negro male, 40, and a negro female, 38, drove up. The house's occupant exited, conversed with the man, and the two men entered the house. Five minutes later, the man exited the house, looking about furtively. He entered his truck and drove away. The officers stopped the vehicle and found the truck's occupants in possession of thirty grams of cocaine and one hundred grams of marijuana.
Back at the house, about forty minutes later, the officers observed three negro males drive up to the house. One exited the car, entered the house, and exited fifteen minutes later, walking quickly. As that car left, two white males drove up, entered the house, and left twenty minutes later.
Based on these facts, Marina sought and obtained a search warrant. (A copy of the application and warrant are attached as Exhibit "A").
According to Officer Marina, he and several police officers who assisted him, were admitted into the residence at 4967 Brittany Court after the occupants of the house were told their car had been involved in an accident. According to Marina, Scott was advised of his rights, given a copy of the search warrant, again advised of his rights and then asked if he had anything he wanted to declare. According to Marina, Scott reached into his pocket and voluntarily produced a plastic bag which contained green vegetable matter. The substance tested positive for marijuana. At trial, Scott denied this account of the incident. According to Scott he neither used nor dealt in any controlled substances and there was no marijuana in his house on the night of the search.
On the night in question, the policemen also seized a metal sifter, a plastic smoking device from the top of the bar, a notebook and eight hundred sixteen dollars cash from a jar in the house. According to Scott the money constituted funds which he kept available in order to purchase supplies for his construction work, the notebook contained transactions he engaged in in the construction field and the smoking device was a souvenir from Viet Nam.
In his sole assignment of error, defendant Scott argues that the trial court erred in refusing to grant his motion to suppress the evidence. He contends that the search was illegal in that the search warrant was not based upon probable cause. In this regard he reasons that the information provided in the affidavit in support of the application for the warrant was not in sufficient detail to allow a detached magistrate to determine whether the hearsay information provided by the informants was reliable or whether any contraband would be found on the premises at the time of the search. Additionally, he alleges that the affidavit did not establish any reliability on the part of the informants.
The state and federal constitutions protect persons against unreasonable searches and seizures. U.S.Const. 4th Amend.; La. Const. Art. 1, Section 5. A search warrant shall not issue except upon "probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant." See Art. 1, Sec. 5 of Louisiana Constitution of 1974. The affidavit does not necessarily need to contain an averment of the previous reliability of the informant as such a statement is not a prerequisite to a finding of reliability. State v. Clay, 408 So.2d 1295 (La. 1982). A citizen informer is presumptively an inherently credible source. State v. Morris, 444 So.2d 1200 (La. 1984).
The Louisiana Supreme Court has held that "probable cause" exists when:
The facts and circumstances within the affiant's knowledge, and those of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that evidence or contraband may be found at the place to be searched. State v. Duncan, 420 So.2d 1105, 1108 (La. 1982).
The facts which form the basis for probable cause to issue a search warrant must be contained "within the four corners" of the affidavit. State v. Duncan, supra. The magistrate must be given enough information to make an independent judgment that probable cause exists for the issuance of the warrant. State v. Manso, 449 So.2d 480 (La. 1984), cert. den. Manso v. Louisiana, 469 U.S. 835, 105 S.Ct. 129, 83 L.Ed.2d 70 (1984); State v. Hughes, 433 So.2d 88 (La. 1983).
In its review of a magistrate's finding of probable cause, the appellate court must determine whether the "totality of the circumstances" set forth in the affidavit is sufficient to allow the magistrate 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. . . concluding that probable cause existed." Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), citing Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960). See also State v. Manso, supra; State v. Lingle, 436 So.2d 456 (La. 1983). Moreover, the role of the reviewing court is to insure that the magistrate had a "substantial basis" for concluding that probable cause existed. State v. Lingle, supra. The magistrate's determination of probable cause, prior to issuance of a search warrant, is entitled to significant deference by the reviewing court and marginal cases should be resolved in favor of finding the magistrate's assessment to be reasonable. State v. Rodrigue, 437 So.2d 830 (La. 1983).
In this case the affidavit for the search warrant reveals that the officers received tips from two anonymous callers. One of the callers was identified by the police officer as a citizen and the other caller also appears to be a citizen and probably the defendant's neighbor. As such, these informants were presumptively credible sources of information. State v. Morris, supra.
Additionally the information provided by the informants was corroborated by the police officers through the use of independent surveillance. That is, they checked that a "Scott" lived at the residence; they saw a car matching the informant's description at the house; they checked the license and learned that the car was registered to Joseph Scott. they observed no less than six quick visits to the residence during short periods of time. Three of the visitors looked about cautiously when leaving apparently to see if they were being watched. Another walked quickly. One visitor was seen leaving with a small object which he examined with the passenger. These activities are consistent with drug trafficking and could be recognized as such by officers well trained in drug trafficking. The officers also stopped one of the visitors after his visit and discovered a sizeable amount of cocaine and marijuana in his possession.
Therefore, we find that the affidavit in support of the application for the search warrant demonstrated the apparent reliability of the informants and the information, such that under the totality of circumstances test a reasonably detached magistrate had a substantial basis from which to conclude that probable cause existed for the issuance of the search warrant. The search pursuant to this warrant was therefore legal.
Moreover, assuming for the sake of argument, that the account of the search as relayed by Officer Marina was the correct one, the search and seizure was nonetheless reasonable. Pursuant to Marina's account, the package of marijuana was voluntarily relinquished to him after he had advised Scott of his rights.
In those cases in which one voluntarily consents to a search, neither a warrant nor probable cause are required for the search to be reasonable. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
Thus, under these circumstance, since Scott was twice advised of his rights and chose to waive them by voluntarily turning over the controlled dangerous substances to Officer Marina, the contraband was legally obtained. The trial judge correctly denied the defendant's motion to suppress the evidence in this case. Defendant's sole assignment of error lacks merit.
For the reasons assigned, the defendant's conviction and sentence are affirmed.
AFFIRMED.