State v. Bailey

• Decision Date: 06 June 1984
• Docket Number: No. 16030-KA,16030-KA
• Citation: 452 So.2d 756
• Parties: STATE of Louisiana, Appellee, v. Darren BAILEY and Pete Bailey, Jr., Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 756

452 So.2d 756

STATE of Louisiana, Appellee, v. Darren BAILEY and Pete Bailey, Jr., Appellants.

No. 16030-KA.

Court of Appeal of Louisiana Second Circuit.

June 6, 1984.

Smith & Hingle, P.C. by J. Randolph Smith, Monroe, for appellants.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty. by Robert C. Johnson, Asst. Dist. Atty., Monroe, for appellee.

Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.

FRED W. JONES, Jr., Judge.

The defendants, Darren Bailey and Pete Bailey, Jr., were charged with possession of cocaine with intent to distribute (R.S. 40:967). After trial by jury they were found guilty of the lesser offense of possession of cocaine (R.S. 40:967 C). Each was sentenced to be imprisoned for four years at hard labor. Each prison sentence was suspended and each defendant placed on supervised probation for five years, with the special condition that each defendant serve 90 days in the Ouachita Parish jail.

The defendants have appealed, relying jointly upon six assignments of error.

Assignments of Error Nos. 1, 2 & 4

The defendants contend in assignment of error No. 1, that the trial court erred in failing to grant the defendants' motions to suppress. In assignment of error No. 4, defendants contend that the trial court erred in admitting into evidence exhibits S-1 (search warrant and oath), and S-3--S-6 (contraband and paraphernalia found inside the residence at the time of the search and seizure.) In brief, the defendants incorporate by reference their arguments on assignments of error Nos. 1 and 2, as all of the objected to items pertain to the obtaining and execution of the search warrant.

In support of these assignments defendants argue that all controlled dangerous substances and drug paraphernalia seized from their residence pursuant to a search warrant executed in the early morning hours of May 2, 1982 should have been suppressed because the affidavit supporting that warrant contained information known by the affiant, Detective Brian Boney, to be false. Defendants contend that known false information was that an informant had been inside the residence located at 212 Gilbert Street, West Monroe, Louisiana, within the 16 hour period preceding the signing of the affidavit and had observed in excess of eight plastic bags of marijuana. Defendants asserted that this false and inaccurate information should have been deleted and the sufficiency of the affidavit tested after that deletion. In support of their argument that the cited information was false, defendants presented the testimony of various witnesses who stated that it was impossible for a confidential informant to have been inside the described residence during the time set forth in the affidavit.

In State v. Morstein, 404 So.2d 916, 920 (La.1981), it was reiterated that the credibility of an affiant's informant or the correctness of the information furnished by the informant may not be attacked on a motion to suppress. An affidavit supporting a search warrant is presumed to be valid. State v. Brannon, 414 So.2d 335, 337 (La.1982). However, the credibility of the affiant himself may be traversed on a proper showing of "a genuine issue on the affiant's veracity supported by convincing allegations of which, if proven, would establish the falsity of the affidavit." State v. Morstein, supra. Where the State has obtained a warrant and the defense contends that the warrant is defective, the burden of proving the same is on the defense. State v. Whorton, 440 So.2d 858, 860 (La.App. 2d Cir.1983). However, after the defendant had produced his evidence and if he carries his burden of proof of establishing by a preponderance of the evidence that the affidavit contains false statements, then the burden of proof will shift to the State to prove that the allegations in the affidavit are true, or that the informant misrepresented the situation but the affiant reasonably believed him and thus had probable cause. State v. Paster, 373 So.2d 170, 174 (La.1979).

A review of the record reveals that the defendants did not make a proper showing of a genuine issue on the affiant's veracity supported by convincing allegations which would establish the falsity of the affidavit. The defense's evidence consisted of testimony of family members who resided at the home searched and a female friend of the defendant Pete Bailey. These witnesses all testified as to the activity at the searched home during the time period mentioned in the affidavit, in an attempt to prove false the statement in that affidavit that a confidential informant had been present during the time stated.

As the trial court noted in its written rulings on the motions to suppress, all such testimony was purely self-serving. The defense's only other "evidence" was the allegation that the officers, or someone else, had "planted" the drugs. However, the testimony of the officers specifically negates this allegation. Detective Royce Toney testified that he was present at the time Detective Boney searched the pants pocket of defendant Darren Bailey and found a bag of marijuana and a one-gram bag of cocaine. Additionally, as the trial court pointed out in its reasons for ruling on the motion to suppress, even if the defense evidence were taken at face value, it leaves gaps of time when another person could have been present in the residence within the period covered by the affidavit. For example, during the cross-examination of Mrs. Genevieve Bailey, the defendants' mother, she admitted that from the time she went to bed at 3:00 A.M. on the night before the search until she got up around 7:00 A.M., she would have had no way of knowing if anyone had entered the house during that period of time. Thus, it is clear that the trial court did not err in ruling that the defendants failed to meet their burden of proving the general allegations in their motions to suppress in relation to any alleged falsity of information and false swearing of the affiant.

In assignment of error No. 2, the defendants contend that the trial court erred in failing to grant defendants' motion to compel disclosure of the identity of the confidential informant. As previously noted under assignment of error No. 1, in defendants' assignment of error No. 4 they incorporate by reference their arguments under assignment of error Nos. 1 and 2.

In brief, the defendants argue that their allegation that the contraband was "planted" in their residence by the same law enforcement personnel that executed the warrant distinguishes the instant case from the factual basis of State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

The court in State v. Zamora, 430 So.2d 274, 279 (La.App. 5th Cir.1983), summarized the applicable law on the present issue:

"In State v. Dotson, 256 So.2d 594, 606 (La.1971) (citations omitted), the Louisiana Supreme Court said:

" 'The informer privilege is the privilege of withholding the identity of an informant who supplies information to law enforcement officials concerning crime. The privilege is founded upon public policy and seeks to advance the public interest in effective law enforcement. * * *

" 'Because of its social importance, courts zealously guard the privilege. They order disclosure of the name of a confidential informant only under exceptional circumstances for the prevention of an injustice. The burden is upon the defendant to show exceptional circumstances justifying disclosure. * * * On the question of whether the circumstances warrant disclosure, much discretion is vested in the trial court. * * *'

"While evidence that the informer set up or participated in defendant's crime will justify a disclosure of his identity, merely supplying information used by the police to obtain a search warrant is not in itself an exceptional circumstance justifying disclosure. State v. McDonald, 390 So.2d 1276 (La.1980).

"It is only when the informer is the sole witness to the crime with which the accused is charged that his identity must be revealed. When the informer is nothing more than an informer and does not participate in the criminal transaction which forms the basis of the prosecution, no disclosure of his identity is required. See United States v. Clark, 482 F.2d 103 (5th Cir.1973), and cases cited therein. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Williams, 347 So.2d 184 (La.1977)."

In that case, the court held that, since the informant was not present when the warrant was executed, the trial judge acted properly in refusing to order disclosure of the informer's identity.

Defense counsel's interpretation of the Dotson case is not well-founded. Although the court did state that the mere suggestion that an informer framed the defendant does not require a disclosure of the informer's name, the court made no statement that the result would be different if allegations were that law enforcement officers framed the defendant. State v. Dotson, supra, 256 So.2d at p. 608.

A review of the evidence in the instant case shows that the informer did nothing more than supply information used by the police to obtain a search warrant. This is not in itself an exceptional circumstance justifying disclosure of an informant's identity. State v. McDonald, 390 So.2d 1276 (La.1980). There is no evidence that the confidential informant participated in the criminal transaction, nor does the defense contend such a fact. In brief, the defense alludes to the fact that someone other than the police officers might have framed the defendants. However, the court in Dotson, supra, clearly held that such allegations are not sufficient to warrant the disclosure of the name of a confidential informant. The defense's allegations that defendants were framed by law enforcement officers do not even logically require the disclosure of the identity of the informant, as it is the law enforcement officers that must be cross-examined to ascertain the...