State v. Flood

• Decision Date: 11 October 1974
• Docket Number: No. 54498,54498
• Citation: 301 So.2d 637
• Parties: STATE of Louisiana v. Ellen McDaniel FLOOD.
• Court: Louisiana Supreme Court

Page 637

301 So.2d 637

STATE of Louisiana v. Ellen McDaniel FLOOD.

No. 54498.

Supreme Court of Louisiana.

Oct. 11, 1974.

Rehearing Denied Nov. 6, 1974.

Nathan S. Fisher, Williams & Fisher, Baton Rouge, for defendant-appellant.

William J. Guste, Jr. Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

Ellen McDaniel Flood was indicted for the murder of her husband, Richard Flood. R.S. 14:30. She was convicted after a trial by jury and sentenced to life imprisonment. Defendant appeals to this Court.

Richard Flood was admitted to Terrebonne General Hospital on June 1, 1972 at about 1:40 p.m. complaining of severe abdominal pains accompanied by intense vomiting. On the next day, June 2, at about 2:30 p.m., Richard Flood died. He was administered to by Drs. Herman and Leslie Walker. An autopsy was performed, and the cause of death was listed as acute pulmonary edema. Prior to the autopsy, Dr. Leslie Walker requested that sample tissue of certain body organs be retained for subsequent analysis. The excised body organ samples, a toenail and hair clippings, and five tubes of blood taken from the deceased, were ultimately analyzed at the Louisiana State Police Crime Laboratory. All were found to contain a very high lethal concentration of arsenic. Thereafter, Ellen McDaniel Flood was arrested on August 14, 1972 and charged with the murder of her late husband. A search warrant issued (August 14, 1972) for a search of the trailer in which she resided with her deceased husband until his death. Six medicine bottles were seized. ¹ Analysis revealed a small concentration of arsenic in the contents of these bottles.

An indictment was returned by the Terrebonne Parish Grand Jury on August 25, 1972, charging Ellen McDaniel Flood with the murder of her husband by arsenic poisoning.

Bill of Exceptions No. 3 (Specification of Error No. 1) ² raises the correctness of the ruling of the trial judge denying defense motion to suppress the items seized in the search of defendant's home on the ground 'that said search and seizure was made in contravention to the guidelines set out for procuring a valid search warrant.'

Constitutional provisions insure a person from unreasonable search and seizure of his house, papers and effects. No such search or seizure shall be made except upon warrant issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Article I, Section 7, Louisiana Constitution; Amendment IV, United States Constitution. Conformably, our Code of Criminal Procedure in Article 162 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.

'A search warrant shall include a reasonable description of the things to be seized. When a warrant authorizes the search of a place, it shall designate the place to be searched. When a warrant authorizes the search of a person, it shall name or describe the person to be searched.'

It is well settled that the affidavit must recite facts establishing to the satisfaction of the judge, not the affiant, that probable cause exists for the issuance of the search warrant. State v. Paciera, 290 So.2d 681 (La.1974); State v. Holmes, 254 La. 501, 225 So.2d 1 (1969); State v. Wells, 253 La. 925, 221 So.2d 50 (1969).

The factual information which is the foundation for the determination of probable cause must be contained in the affidavit. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Article 162 C.Cr.P. Mere suspicion or belief is not sufficient. Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933); Aguilar v. Texas: State v. Wells.

With these pronouncements in mind, the recitals of the affidavit which served as the basis of the application for the search warrant later issued and executed by Detective David Yelverton of the Police Department of the City of Houma must be considered. This affidavit recites in pertinent part:

'That a search warrant should issue for a cream colored, trimmed brown house trailer located in Maplewood Trailer Park, at Route 2, Box 400, Maplewood Drive, Coteau Road, Houma, Louisiana, being occupied by one, Mrs. Ellen McDaniel Flood, in the Parish of Terrebonne, Louisiana, for the purpose of seizing any and all chemical substances possibly containing arsenic.

'The reasons and facts for the request of this search warrant are: That on June 2, 1972, in the City of Houma, Louisiana, one, Richard Alvin Flood, Husband of the said Mrs. Ellen McDaniel Flood, died at Terrebonne General Hospital of acute pulmonary Edenma, (sic) as determined by Dr. Leslie Walker, attending physician at time of death. That on August 4, 1972, the results of a laboratory examination made by Doris C. Muller, Criminologist for the Louisiana Department of Public Safety, State Police Crime Laboratory, Baton Rouge, Louisiana, indicated a high concentration of arsenic in the body organs and blood of the late Richard Alvin Flood. That on August 14, 1972, after an extensive investigation by the Houma Police Department and the Terribonne Parish Sheriff's Office, an affidavit was filed by affiant charging the said Mrs. Ellen McDaniel Flood with the murder of her late husband, Richard Alvin Flood.

'That affiant has reasonable grounds and probable cause to believe that there is not being concealed in the above described house trailer, all or part of chemical substances containing arsenic, which said property constitutes evidence of the commission of the crime of murder as set forth in the Louisiana Revised Statutes, and that your affiant requests a Warrant of Search to issue herein for the purpose of allowing your affiant to search the said premises for the purpose of locating, if possible, the same, or any part of said chemical substances possibly containing arsenic.'

The issuance of the search warrant and the ensuing search is assailed in this case upon the following grounds: (1) the affidavit does not contain sufficient facts to satisfy the requirements that probable cause existed for the issuance of the warrant; (2) the classification of the items listed in the search warrant as the object of search is so broad as to allow the police to seize almost anything found in the trailer; and (3) the issuing judge went outside the four corners of the affidavit to determine if probable cause existed, which is in direct contravention of Article 162 C.Cr.P.

The first argument that the affidavit fails to state sufficient facts to satisfy the 'probable cause test' is without merit. We must bear in mind that this is a prosecution of a wife for the murder of her husband by arsenic poisoning. The evidence in such a case, as here, is usually circumstantial. Generally, the complaint lodged against the affidavit is that it sets forth mere suspicions, beliefs, opinions and conclusions. Here, the affidavit sets forth facts. It specifically states that Mrs. Flood's husband died on June 2, 1972 of acute pulmonary edema which cause of death was determined by Dr. Leslie Walker, attending physician, at the time of death; that, on August 4, 1972, results of laboratory examination made by the Louisiana Crime Laboratory indicated a high concentration of arsenic in the body organs and blood of her deceased husband; that, on August 14, 1972, after extensive investigation by the Houma Police Department (of which affiant was a member) and the Terrebonne Parish Sheriff's Office, an affidavit was filed by affiant charging Mrs. Flood with the murder of her late husband.

Aguilar recognized that an affidavit may be based on hearsay information and need not reflect the direct personal observation of the affiant so long as the magistrate is informed of some of the underlying circumstances supporting the affiant's conclusions and his belief that the informant involved, whose identity need not be disclosed, was credible or his information reliable. However, here the affiant asserts facts and information resulting from an investigation by the police department of which he is a member. As a matter of fact, he is the person who filed the affidavit charging Mrs. Flood with the murder of her husband.

After reviewing the jurisprudence in regard to the issuance of a search warrant, the United States Supreme Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), stated:

'These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements, of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.'

Recently, in State v. Paciera, 290 So.2d 681, 687 (La.1974), we stated:

'As Spinelli observed, 'in judging probable cause magistrates are not to be confined by niggarly limitations or by restrictions on the use of their common sense' and 'their determination of probable cause should be paid great deference by reviewing courts.' 393 U.S. (410,) 419, 89 S.Ct. (584), 590, (21 L.Ed.2d 637). Further, where the law enforcement officers have respected the constitutional mandate to secure a warrant before searching, 'Although in a particular case it may not be easy to determine...