State v. Boneventure
| Decision Date | 04 September 1979 |
| Docket Number | No. 64131,64131 |
| Citation | 374 So.2d 1238 |
| Parties | STATE of Louisiana v. Charles E. BONEVENTURE and Sharon K. Buchanan. |
| Court | Louisiana Supreme Court |
Lewis O. Unglesby, Baton Rouge, for defendant-relator Sandra buchanan.
Jack M. Dampf, D'Amico & Curet, Baton Rouge, for defendant-relator Charles E. Boneventure.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., David M. Miller, Kay Kirkpatrick, Asst. Dist. Attys. for plaintiff-respondent.
On December 4, 1977 an East Baton Rouge Parish deputy sheriff applied for a warrant to search the defendants' residence for marijuana. In support of his application, the officer submitted the following affidavit, which, in pertinent part, recited:
The search warrant was issued.
In executing the warrant law officers entered the premises and seized two shotguns, two .22 caliber rifles, approximately one pound of marijuana, five vials of liquid phenobarbital, numerous syringes, and approximately one gram of heroin.
Defendants moved to suppress these items. The district court denied their motion, and defendants applied to this Court for writs of review and certiorari. We granted the writs to determine if the warrant had been issued without probable cause. La.Const.1974, art. I, § 5.
A search warrant may issue only 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. La.C.Cr.P. art. 162. Probable cause exists when the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Boksham, 370 So.2d 491 (La.1979); State v. Koncir, 367 So.2d 365 (La.1979); State v. Turnipseed, 362 So.2d 486 (La.1978); State v. Richards, 357 So.2d 1128 (La.1978). Thus, included within the general concept of probable cause is the necessary element of a reasonable belief that the contraband or evidence will not be disposed of but will remain at the place to be searched at the time of the proposed search. State v. Thompson, 354 So.2d 513 (La.1978); State v. Brawley, 347 So.2d 238 (La.1977).
In the instant case the affidavit fails to establish probable cause to believe that the evidence or contraband observed by the informant at the defendants' residence was not disposed of but remained at the place to be searched. A...
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... ... Accord State v. Juhl, 234 Neb. 33, 449 N.W.2d 202 (1989) ... Some courts have determined that probable cause dissipates rather rapidly when small, or unspecified, amounts of narcotics or controlled substances are involved. See, State v. Boneventure, 374 So.2d 1238 (La.1979) (when the search warrant affidavit stated that 2 days before issuance of the warrant, "a quantity" of marijuana was offered for consumption in defendants' residence, there was no basis for a reasonable belief that the marijuana was still in the defendants' residence at the ... ...
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