State v. Culotta
| Decision Date | 08 November 1976 |
| Docket Number | No. 57976,57976 |
| Parties | STATE of Louisiana, Relator, v. Craig CULOTTA et al., Respondents. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Sheila C. Myers, Asst. Dist. Atty., for plaintiff-relator.
William Noland, New Orleans, for respondent Bruce Hardy.
William J. O'Hara, III, New Orleans, for respondent Craig Culotta.
On the application of the state, we granted certiorari, La., 332 So.2d 865 (1976), to review the trial court's suppression of certain evidence as illegally seized. The principal issue concerns the standing of the defendants to contest the legality of the search and seizure insofar as based on evidence obtained as the result of an illegal arrest of third persons. See La.Const. of 1974, Art. 1, Section 5.
(1)
The defendants are charged with illegal possession of certain drugs with intent to distribute them. The place of the offense is shown to be 850 Florida Boulevard, Rear, New Orleans. The drugs were found pursuant to a search and seizure of these premises as authorized by a search warrant.
Two of the defendants filed motions to suppress the drugs as illegally seized. The essential basis of the motions was that the search warrant was invalid, because the affidavit used to procure it was inadequate to furnish grounds for authorization for the search.
The trial court sustained the defendants' contention. In holding the affidavit insufficient, the trial court concluded that: (a) much of the information contained in the affidavit was based on 'double hearsay' and thus did not meet the reliability constitutionally required for validity of a search warrant based upon such an affidavit; and (b) some of the information was obtained because of the illegal arrest of third persons, which the defendants had standing to contest, if a basis of the present search, by reason of our state constitution of 1974.
(2)
In State v. Paciera, 290 So.2d 681 (La. 1974), we summarized the principles applicable. We first noted that a search warrant may not be issued upon an affidavit indicating that the affiant has reasonable cause to Suspect that the object of the search is in the premises. The affidavit must recite Facts establishing to the satisfaction of the magistrate who issues the search warrant that probable cause exists to search the premises for the object sought.
In summarizing the constitutionally-mandated test of reliability, we stated, 290 So.2d 682--86:
In State v. Paciera we specifically rejected contentions similar to the present that 'double hearsay' information could not per se be considered sufficiently reliable to justify issuance of a search warrant. Providing that the affidavit meets the tests of both reliability of informant and information above set forth, a search warrant may be validly based upon hearsay information which demonstrates a substantial factual basis for the search.
In Paciera (as in the present case), the affidavit was executed by one police officer based substantially upon information furnished by him by other identified police officers. The information was based upon these non-affiant officers' own personal observations, as well as upon informational leads furnished to them by an unidentified informant known by Them (but not by the affiant) to be reliable, for reasons sufficiently set forth in the affidavit.
We concluded, citing United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), that an affidavit may be sufficient, 'even if based entirely upon hearsay, when the detailed and specific showing made by it afford(s) a 'substantial basis' for crediting the hearsay due to corroborating circumstances shown.' 290 So.2d 686--87.
Paciera may also be considered as authority for holding that information furnished to an affiant police officer by other Identified police officers, based upon their own first-hand observations, may be considered reliable; as may information furnished to these non-affiant identified police officers by an Un identified informant--providing, as to this latter information, the affidavit itself set forth sufficient factual specificity to credit the reliability Both of the unidentified informant and of the information furnished by him to the non-affiant officers.
As will be shown in more detail, we find that the present affidavit meets the test of constitutional reliability set forth by Paciera.
(3)
Before discussing the present affidavit, however, it may be well to note that, in both the cited decision and the present instance, the affidavit was substantially based upon substantial reliable and corroborating factual information established by first-hand observation of identified police officers, while the specific and detailed factual data secured from the unidentified informant (shown by the affidavit to be reliable) was in the nature of the initiating leads by which the police officers secured first-hand corroborating information justifying the search.
We emphasize that we are not here concerned with an affidavit where the probable cause for the search is furnished entirely by the information secured from an unidentified informant, known to be reliable not by the affiant but instead only by the hearsay report to the affiant by yet another officer, without other corroborating circumstances shown (as here) by further investigation by the police officers. As to such an affidavit, the issuing magistrate (or the reviewing court) might well wish to determine why the affidavit is not executed by the police with the first-hand report, rather than by another officer merely relaying on to the magistrate such information but without affording the magistrate an immediate opportunity to question the source of the information with regard to its reliability.
On the other hand, where as here the probable cause for the search warrant is shown by the correlation of information obtained by police investigation from numerous sources, we do not believe that the constitution mandates that each officer involved swear out a separate affidavit verifying each chain in the link of probable cause. Providing that the specific and detailed factual showing of information obtained by identified police officers meets the Paciera tests of reliability, we believe the affidavit to be sufficient if sworn to by only one or more of the police officers with personal knowledge as to some of the factual details of the showing, together with his (their) sworn statement of the report to the affiant(s) of the factual details within the personal observation or knowledge of identified non-affiant officers.
(4)
The application to search the premises at 850 Florida Boulevard for illegal drugs was executed by police officers McNeil and Barrere of the New Orleans Police Department. The affidavit shows that these officers participated in the surveillance of 850 Florida Boulevard, pursuant to information received from an identified Jefferson Parish detective, and it also shows certain information concerning an arrest made of two third persons by Orleans Parish police officers after these third persons had left the premises while under surveillance.
The affiants testified to factual information received (a) from Jefferson Parish Detective Schwabe and (b) concerning events in Orleans Parish after the affiants became involved in the surveillance of the Orleans premises searched.
(5)
The affidavit shows that the affiants received the following factual information from Jefferson Detective Schwabe:
1. A confidential informant, of recited past reliability in furnishing him reliable information, told Schwabe that he had personally been shown a large amount of drugs in a large cardboard box inside 817 Pasadena premises in Jefferson Parish (not the Orleans Parish premises searched). The informant there spoke with 'Whitey', a white male aged about 25, and another white male not known to him. They told the informant that the drugs had been procured from a drug store theft and that they intended to bring them into New Orleans on Wednesday (July 30), shortly after the conversation, to distribute them at retail.
2. The informant told them that 'Whitey' drove a blue Volkswagon with a Baton Rouge or 'A' license plate.
3. As a result of this information, Jefferson Parish officers Sigur and Whitehead initiated a surveillance of 817 Pasadena. These officers saw a blue 1969 Volkswagon, with license plate 132 A 283, parked in front of the premises. Shortly thereafter, two white males exited from the premises carrying a large cardboard box and entered the Volkswagon. These officers followed the Volkswagon into Orleans Parish. At this time, the Jefferson officers called one of the affiants, and the affiants and other Orleans narcotics officers proceeded to the scene.
(6)
At this time, we should note: The above information meets the Paciera tests as to reliability.
Schwabe, an identified police officer, is a reliable source of information, as are the identified Jefferson Parish...
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