State v. Dotson

• Citation: 256 So.2d 594,260 La. 471
• Decision Date: 29 March 1971
• Docket Number: No. 50828,50828
• Parties: STATE of Louisiana v. Dan E. DOTSON.
• Court: Supreme Court of Louisiana

Page 594

256 So.2d 594

260 La. 471

STATE of Louisiana v. Dan E. DOTSON.

No. 50828.

Supreme Court of Louisiana.

March 29, 1971.

On Rehearing Dec. 13, 1971.

Further Rehearing Denied Jan. 17, 1972.

Henry Newton Brown, Jr., Bossier City, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., John B. Benton, Jr., Dist. Atty., Rogers M. Prestridge, Asst. Dist. Atty., for plaintiff-appellee.

Jack P. F. Gremillion, Atty. Gen. (Harry H. Howard, Asst. Atty. Gen., Louise Korns, Asst. Dist. Atty., Parish of Orleans, John A. Richardson, Dist. Atty., 1st JDC, Hal R. Henderson, Dist. Atty., 2nd JDC, Ragan D. Madden, Dist. Atty., 3rd JDC, Robert W. Kostelka, Dist. Atty., 4th JDC, E. Rudolph McIntyre, Dist. Atty., 5th JDC, Thompson L. Clarke, Dist. Atty., 6th JDC, W. C. Falkenheiner, Dist. Atty., 7th JDC, Sam L. Wells, Dist. Atty., 8th JDC, Edwin O. Ware, Dist. Atty., 9th JDC, Ronald C. Martin, Dist. Atty., 10th JDC, J. Reuel Boone, Dist. Atty., 11th JDC, Charles A. Riddle, Jr., Dist. Atty., 12th JDC, L. O. Fusilier, Dist. Atty., 13th JDC, Frank T. Salter, Jr., Dist. Atty., 14th JDC, Bertrand DeBlanc, Dist. Atty., 15th JDC, Knowles M. Tucker, Dist. Atty., 16th JDC, Wilmore J. Broussard, Jr., Dist. Atty., 17th JDC, Samuel C. Cashio, Dist. Atty., 18th JDC, Sargent Pitcher, Jr., Dist. Atty., 19th JDC, Richard H. Kilbourne, Dist. Atty., 20th JDC, Leonard E. Yokum, Dist. Atty., 21st JDC, Woodrow W. Irwin, Dist. Atty., 22nd JDC, Aubert D. Talbot, Dist. Atty., 23rd JDC, Frank H. Langridge, Dist. Atty., 24th JDC, Leander H. Perez, Jr., Dist. Atty., 25th JDC, John B. Benton, Jr., Dist. Atty., 26th JDC, J. Y. Fontenot, Dist. Atty., 27th JDC, Holmes Mouser, Dist. Atty., 28th JDC, Melvin P. Barre, Dist. Atty., 29th JDC, William C. Pegues, III, Dist. Atty., 30th JDC, Bernard N. Marcantel, Dist. Atty., 31st JDC, Alfred R. Ryder, Dist. Atty., 33rd JDC, Jim Garrison, Dist. Atty., Orleans Parish, of counsel), join in the issue of disclosure of informer's identity in Bill of Exception No. 2.

DIXON, Justice.

On November 22, 1969 defendant Dan E. Dotson was a passenger in a green automobile traveling from Shreveport to Bossier City. Lt. Bolton of the Bossier City Police Department received a telephone call from a confidential informer advising that the occupants of a green automobile, traveling to Bossier City by a specified route, possessed narcotics.

Lt. Bolton proceeded to the Shreveport-Barksdale Bridge and radioed for additional police vehicles. When the suspect car crossed the bridge, Lt. Bolton, aided by the other police vehicles, stopped the car and ordered its occupants out. No search was conducted then. However, the occupants, including defendant, were arrested for possession of narcotics.

Lt. Bolton took defendant, along with the driver of the suspect vehicle, into police headquarters. Another officer drove the suspect vehicle in. The driver of the green vehicle consented to a search of his car, which revealed no narcotics therein. However, the driver was charged with having a defective muffler.

Lt. Bolton attempted to question defendant, but Dotson refused to waive his right to remain silent. Lt. Bolton then filled out an affidavit and, based on this affidavit, a search warrant was issued by the judge of the city court of the city of Bossier City. Lt. Bolton then searched the person of defendant and took from defendant's clothing a matchbox allegedly containing marijuana. Defendant was charged with possession of narcotics.

Defendant filed a motion to suppress, which was overruled. At his trial, defendant asserted his innocence and claimed that he had been 'framed.' The jury found the defendant guilty of possession of narcotics, as charged. This appeal was taken.

Defendant alleges five errors of law, corresponding to his five bills of exceptions: (1) failure to suppress evidence taken from the person of defendant; (2) failure to disclose the name of the confidential informant; (3) introduction of evidence which had not been identified properly nor shown to be in substantially the same condition as at the time of the alleged criminal transaction; (4) questioning defendant concerning prior misconduct and introduction of testimony referring to a prior arrest; and (5) outside association of a juryman with the primary state witness whose credibility was at issue. These specifications will be treated in order.

Bill of Exception No. 1 was reserved when the trial court overruled defendant's motion to suppress evidence taken from his person. The police stopped the car, arrested defendant, later obtained a search warrant, and then proceeded to search the person of defendant, all on the basis of a telephone call from an undisclosed informant. The essential question presented by the motion to suppress was whether the police had probable cause either to obtain the search warrant or to conduct the search without a warrant. Anent the validity of the procedure used, the United States Supreme Court has spoken. Said the Court in Aguilar v. Texas:

'Here the 'mere conclusion' that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only 'contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even contain an 'affirmative allegation' that the affiant's unidentified source 'spoke with personal knowledge.' For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner's possession. The magistrate here certainly could not 'judge for himself the persuasiveness of the facts relied on * * * to show probable cause.' He necessarily accepted 'without question' the informant's 'suspicion,' 'belief' or 'mere conclusion.'

'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was 'credible' or his information 'reliable.' Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires, but instead, by a police officer 'engaged in the often competitive enterprise of ferreting out crime,' Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 * * *; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, * * *, or, as in this case, by an unidentified informant.

'We conclude, therefore, that the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in petitioner's trial.

'The judgment of the Texas Court of Criminal Appeals is reversed and the case remanded for proceedings not inconsistent with this opinion.' Aguilar v. Texas, 378 U.S. 108, 113--116, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (footnotes omitted).

In a Louisiana case, State v. Wells, Justice Hamiter of the Supreme Court of Louisiana wrote:

'Under the rulings of the United States Supreme Court in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, such an affidavit, based on mere affirmance of belief or suspicion, is patently defective and, therefore, the warrant issued pursuant thereto is illegal and invalid.

'But even aside from these rulings the same result would be reached under the express language of Article 162 of our own Code of Criminal Procedure which pertinently provides:

"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." State v. Wells, 253 La. 925, 221 So.2d 50, 52 (1969) (emphasis in original).

In the instant case, the affidavit of Lt. Bolton demonstrated why the informant was considered reliable but did not recite any of the underlying facts upon which the informant based his suspicion. The judge issued the search warrant in the case without knowing whether the informer's telephoned statement was based upon rumor, hearsay or personal observation. Clearly, the warrant was invalid. The prosecution, however, argues that there was probable cause to support the search without a warrant. Normally, a higher degree of probable cause is necessary to support a warrantless search than to support a search with a warrant. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). However, in the case at bar, even though Lt. Bolton may have omitted from his affidavit a recitation of the underlying facts upon which the informant based his suspicion, Lt. Bolton himself knew those underlying facts. Accordingly, the Arrest was lawful.

'As a general rule, a search is unreasonable if it is not conducted under the authority of a search warrant. However, the rule is subject to the important exception that a search may be reasonably made as an incident of a lawful arrest.

'In the present case, the police officers concede that they had no search warrant authorizing them to search the defendant's home. Hence, to justify the forcible intrusion into his residence, it must be established that the search was incident to a lawful arrest. Presented to us for resolution are two questions: Was the arrest lawful? If so, was the search of defendant's residence incidental to it?' State v. James, 246 La. 1033, 169 So.2d 89 (1964).

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