State v. Hodges

• Decision Date: 12 April 1988
• Docket Number: No. CR87-915,CR87-915
• Citation: 526 So.2d 1275
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. George Robert HODGES, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1275

526 So.2d 1275

STATE of Louisiana, Plaintiff-Appellee, v. George Robert HODGES, Defendant-Appellant.

No. CR87-915.

Court of Appeal of Louisiana Third Circuit.

April 12, 1988.

John M. Crochet, Public Defender Office, Lake Charles, for defendant-appellant.

Beth McCall, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.

Before GUIDRY, DOUCET and KNOLL, JJ.

DOUCET, Judge.

On April 18, 1985, appellant, George R. Hodges, was indicted by a Calcasieu Parish Grand Jury for knowingly and intentionally possessing methamphetamine, a schedule II stimulant, with the intent to distribute the controlled dangerous substance, a violation of La. R.S. 40:967(A)(1). Also indicted at the same time were appellant's wife, father, and an acquaintance. After determination of various pre-trial motions including severance of the trial of appellant and his wife from the other two defendants, trial was held on January 28, 1986. The appellant was found guilty as charged by eleven jurors. He was sentenced on March 3, 1986, to eight years in the Department of Corrections and ordered to pay a $5,000 fine. On May 15, 1987, the appellant was granted an out-of-time appeal converted from appellant's application for post conviction relief. Appellant asserts twelve assignments of error. Assignments of Error Numbers Two, Three, Six and Ten were abandoned subject to the reservation that should appellate counsel receive additional information to show that an abandoned issue is viable, leave will be sought to file a supplemental brief.

FACTS:

On January 24, 1985, Kenneth Savant was stopped for a traffic violation and found to have a firearm in his car despite being a convicted felon. Narcotics officers called to the scene of the traffic stop noticed the smell of methamphetamine inside the Savant vehicle. Mr. Savant, while not being found to possess methamphetamine, offered to aid the police in arresting George Robert Hodges, the appellant, as he was the person the police would want in connection with methamphetamine. Mr. Savant, in return for consideration in his case, which was never pursued by the district attorney, told of a quantity of drugs at appellant's residence and that he had witnessed a lab for production of methamphetamine in appellant's residence within the last four hours before arrest. An affidavit was prepared in order to obtain a search warrant but the Sheriff's deputies conducting the investigation desired more because Mr. Savant had not shown his reliability in the past. Therefore, the officers provided money to Mr. Savant to set up a controlled buy. Before the buy was set up, an officer photostatically copied the money and the copies were attached to the affidavit prepared in support of the issuance of the search warrant. Mr. Savant was searched thoroughly twice before going to appellant's house and the car he would use was searched thoroughly with no contraband found in either search. Mr. Savant went to the appellant's home once and was informed that appellant would return shortly. Deputy Otis Long, surveilling the house during that night, saw a vehicle drop someone off at appellant's house and another vehicle circling the block stop and someone enter, then leave. Mr. Savant, with a body monitor attached, then entered the appellant's residence in his attempt to buy methamphetamine. He emerged later and was surveilled and followed continuously to a parking lot where he turned over a small quantity of what was apparently methamphetamine. At this time, after Savant informed the surveillance team that appellant had a police scanner, one of the surveillance officers radioed a short communication to the Sheriff's Office confirming that the buy had "gone down." After this, it was learned that Savant still had the buy money and that the methamphetamine was not actually purchased but apparently donated.

The search warrant obtained as a result of the informant's activity was then executed at approximately 12:30-1:00 a.m. The appellant and his wife were in the bedroom upstairs and appellant's father was in the bathroom doorway where the toilet was running and a bag containing methamphetamine residue was found in the commode. Appellant was given his Miranda ¹ rights and indicated he understood them. Deputies found $1,840 in cash in the purse in the bedroom and, when asked, appellant said $1,000 had come from narcotics sales. Appellant also stated that he sold his methamphetamine for $800 an ounce, that he did not sell to kids, and that his methamphetamine was of higher quality than a competitor, Johnny Upchurch, because he cured it with distilled water. Marijuana was also found in the bedroom where appellant and his wife were apprehended. The methamphetamine recovered from appellant's house weighed a total of 520 grams. There was also a quantity of phenylactic acid, which is used to make phenylacetone, an immediate precursor to methamphetamine. A sample of toilet water also contained methamphetamine. Expert testimony revealed that an individual dose of methamphetamine is .1 gram to .2 grams, meaning a total of 2,500 to possibly 5,200 doses were found on the premises.

ASSIGNMENT OF ERROR NUMBER 1:

Appellant argues that the motion to suppress the physical evidence seized at appellant's house should have been sustained. Specifically, he claims that certain statements contained in the affidavit were known to be false or given with reckless disregard for the truth. Alternatively, he asserts that should the statements lacking total veracity be found to be merely negligent that the remaining portion be found to lack a proper showing of probable cause.

Appellant points to the statement in the affidavit that a "buy" had taken place, and that a "lab" had been seen within four hours by the confidential informant, Mr. Savant. It is undisputed that no purchase of narcotics by Mr. Savant took place although the affidavit contained statements that it had. The mistake in the instance of the purported narcotics purchase was not intentional nor given with reckless disregard for the truth. The police reasonably believed that time was of the essence to ensure that the contraband was still on the premises in light of the activity surrounding the residence. The police, through the confidential informant, learned of the presence of a police scanner making them fearful of more communication over police frequencies. Upon finding the confidential informant had gained possession of methamphetamine, Deputy Johnson radioed Deputy Fryar, one of the affiants, that the "deal had gone down." It was only later that it was learned that the "buy" money had not been used to obtain the narcotics. Although a short discussion between Johnson and Fryar occurred before Fryar went before the issuing judge, it was not communicated to Fryar that the transfer of drugs had been gratuitous--not a purchase.

Where intentional misrepresentations are made in the affidavit supporting the search warrant, or statements made with a reckless disregard for the truth, in order to synthesize probable cause, the warrant will be quashed. State v. Paster, 373 So.2d 170 (La.1979); State v. Ogden, 391 So.2d 434 (La.1980); Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The task is to find whether under the totality of the circumstances, the affiant acted in good faith in preparing the affidavit. State v. Racheau, 467 So.2d 544 (La.App. 3rd Cir.1984), writ denied 472 So.2d 29 (La.1985). Because the affiants did not know that a purchase had not taken place and, having prepared the affidavit earlier in anticipation of a purchase and wanting to act promptly, the affiants fully and reasonably expected that, since they had provided buy money, a purchase would take place. The fact that a purchase did not take place does nothing to overturn the affiants' good faith effort to report the facts as they knew or reasonably perceived them to be.

Appellant also points to the statement in the affidavit by the confidential informant that a "lab" was on the premises and had been seen within four hours prior to his arrest. A functioning apparatus for the manufacture of methamphetamine was not found during the search. However, chemicals, precursors to the finished product, and other paraphernalia were found. The issue is not the veracity of the informant's statement but the veracity of the affiant and whether belief in the informant's statement was reasonable. State v. Mosley, 412 So.2d 527 (La.1982); State v. Paster, supra. The affiants truthfully restated what the informant represented to them and the informant just received what appeared to be methamphetamine which, along with the intelligence about the appellant, made the reliance reasonable. The fact that the confidential informant may have misidentified what he saw as a "lab", which denotes the capability of manufacture, or that a "lab" was seen by him and was subsequently removed, does not invalidate the search warrant due to the inclusion of the suspected presence of a manufacturing capability.

When unintentionally false statements are included in the affidavit supporting the issuance of a search warrant, the procedure for testing the affidavit is to correct the erroneous information under the mandate of State v. Rey, 351 So.2d 489 (La.1977), as extended in State v. Lehnen, 403 So.2d 683 (La.1981). This procedure was succinctly restated in State v. Morris, 444 So.2d 1200 (La.1984) where the Supreme Court stated:

"Following the rule established in State v. Rey, supra, and expanded in State v. Lehnen, supra, we will rectify misstatements or omissions in the search warrant by correcting errors or supplying the missing information and then retest the affidavit for the presence of probable cause."

La.C.Cr.P. art. 162 states that a search warrant shall issue only on probable cause. Probable cause to obtain a search warrant exists where the facts and circumstances within an affiant's personal knowledge, and of...