Bastida v. Henderson

• Decision Date: 14 January 1974
• Docket Number: No. 73-2399 Summary Calendar.,73-2399 Summary Calendar.
• Citation: 487 F.2d 860
• Parties: Leonard Jerome BASTIDA, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, La. State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.2d 860 (1973)

Leonard Jerome BASTIDA, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, La. State Penitentiary, Respondent-Appellant.

No. 73-2399 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

November 6, 1973.

Rehearing and Rehearing Denied January 14, 1974.

Shirley G. Wimberly, Jr., Asst. Dist. Atty., La. Dept. of Justice, Crim. Div., G. Thomas Porteous, Jr., Asst. Atty. Gen., William J. Guste, Jr., Atty. Gen., S. J. Dileo, Jr., Sp. Counsel, Baton Rouge, La., for respondent-appellant.

George M. Strickler, Jr., New Orleans, La. (Court-appointed), for petitioner-appellee.

Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 14, 1974.

COLEMAN, Circuit Judge:

In this habeas corpus case the District Court granted Leonard Jerome Bastida habeas corpus relief, commanding the State of Louisiana either to retry him within 120 days or release him from custody. We reverse and remand with directions that the petition be dismissed.

Bastida had been convicted of armed robbery. The Supreme Court of Louisiana affirmed his conviction, State v. Bastida, 271 So.2d 854 (La., 1973).

Bastida attacked the validity of a search of his apartment. He claimed that although the affidavit stated sufficient grounds to obtain a warrant for his arrest, it did not allege enough to give rise to probable cause for a search of his premises. Additionally, it was urged that even if probable cause had once existed the police waited too long to obtain the search warrant since nine days had elapsed between the receipt of the underlying information and the execution of the affidavit.

The affidavit for the search warrant was sworn to on April 17, 1972, and read as follows:

"On Friday, April 7, 1972, at about 9:00 PM, a white male named Eurie Marie, residing 600 Bellville, was the victim of an armed robbery which occurred at 4905 Canal St., on the above date and time. Mr. Marie stated that he had received a phone call from a white female whom he knows as Tina Bacon. Mr. Marie stated that he knows this subject for about 10 years. Tina Bacon requested that Mr. Marie meet her at the Beachcorner Lounge, located in the 4900 block of Canal St., at 9:00 PM, stating that she wished to speak to him. Mr. Marie stated that he left his residence to meet this female. At about 9:30 PM, Mr. Marie stopped his car in the 4900 block of Canal St., and at this time, Mr. Marie saw Tina Bacon sitting in the 4900 block of Canal St. with two Spanish type males. Mr. Marie got out of his car and at this time, he heard Tina Bacon tell the two white males `That\'s him\'. At this time, the two white males approached Mr. Marie and both subjects pulled knives and automatic pistols. Both subjects began to stab and cut Mr. Marie about the arms and body. One of the subjects removed Mr. Marie\'s wallet containing $250.00 and both subjects fled on St. Anthony St. in a downtown direction. Mr. Marie then called the police. On Saturday, April 8, 1972, at about 8:00 PM, Det. Strada received a phone call from a confidential informer who has given him reliable information in the past, who stated to Det. Strada that a Spanish male namely, Leonard Bastida, about 28 yrs. old, and another subject named Terry Morgan, WM, 24, had just told him about an armed robbery they committed Friday night, and that they cut the guy pretty bad and they thought he may have died. These two subjects stated to the informer that they had gotten about $200.00 from the subject. The informer also noticed that both of the subjects were carrying automatic pistols on them at this time. On Monday, April 10, 1972, Det. Strada went to the B of I and pulled a photograph of Leonard Bastida and along with five other photographs showed them to the victim of the Robbery, Mr. Marie. After looking through the photographs, Mr. Marie picked the photograph of Leonard Bastida and stated that this looks very much like one of the subjects who robbed him and stabbed him, but he is not positive from the photograph. On April 16, 1972, a photograph was obtained from the B of I of Terry Morgan and was shown to Mr. Marie along with other photographs. Mr. Marie picked the photograph of Terry Morgan and again stated that he thinks this is one of the subjects, but he is not sure. The informer stated to Det. Strada that Leonard Bastida is a narcotic addict and on the night the informer spoke with Bastida and Morgan, both of the subjects had heroin in their possession and stated that they were going to Bastida\'s residence to shoot up. Bastida is also known by Det. Strada to be a narcotic addict as Det. Strada has known Bastida for about 12 years. For the above stated reasons, Det. Strada requests that this search warrant be signed giving permission to search the residence of Leonard Bastida for the above named property. On Tuesday, April 11, 1972, Mr. Marie came to the Detective Bureau and gave Det. Strada a photograph of a white female whom he stated is Tina Bacon. Mr. Marie stated he got the photograph from a school yearbook and he positively identified the photograph as Tina Bacon. Det. Strada\'s informer stated that he knows Tina Bacon to be associated with Leonard Bastida and Terry Morgan.

"It should be noted that the above mentioned informer has given Det. Strada reliable information in the past that has resulted in the arrest and conviction of numerous felons about the city for crimes similar to this one, and also in the recovery of stolen property taken in these crimes."

Upon this affidavit, a Judge of the Criminal District Court for Orleans Parish, Louisiana, on April 17, issued a search warrant for Bastida's apartment and the warrant was executed that same day. The search turned up no pistol but it did discover unfired bullets and a home-made black leather holster such as could be used with an automatic pistol. These were the items which Bastida unsuccessfully sought in the state courts to suppress.

The habeas corpus Judge found that as of April 8 there was probable cause for the search as to pistols, heroin, and narcotics paraphernalia.¹ With this we agree.²

The Court further held, however, that:

"The nine-day delay in application for the warrant removes any probable cause for the belief that the pistols, heroin, and narcotics paraphernalia would still be within the apartment on April 17th. The informer merely stated a basis for belief that the items sought would be in the apartment on April 8th. He made no statement that the items would remain there for as many as nine days."

We are of the opinion that in so holding the District Court substituted its judgment for that of the issuing magistrate.

In issuing a search warrant the magistrate must exercise his own judgment as to whether the facts alleged in the affidavit constitute probable cause for issuance of the warrant, he must act on the entire picture disclosed to him, he is entitled to use his common sense, and the courts have gone so far as to say that when this is done his determination is conclusive in the absence of arbitrariness, Coury v. United States, 6 Cir., 1970, 426 F.2d 1354; United States v. Pascente, 7 Cir., 1967, 387 F.2d 923, cert. denied 390 U.S. 1005,...