State v. Hymer

• Decision Date: 22 June 1981
• Docket Number: No. 80-K-2933,80-K-2933
• Citation: 400 So.2d 637
• Parties: STATE of Louisiana v. Samuel HYMER.
• Court: Louisiana Supreme Court

Page 637

400 So.2d 637

STATE of Louisiana v. Samuel HYMER.

No. 80-K-2933.

Supreme Court of Louisiana.

June 22, 1981.

Redmann, J., pro tem., dissented and filed opinion.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Walter Lee Perkins, Jr., Asst. Dist. Atty., for plaintiff-relator.

James Sharp, Jr., Monroe, for defendant-respondent.

CUTRER, Justice. ^*

Defendant, Samuel Hymer, was charged, by a bill of information, with possession of a controlled dangerous substance, to wit: "marijuana, a violation of La.R.S. 40:967." Defendant filed a motion to suppress the evidence. After a hearing the motion to suppress was granted by the trial court. ¹ The State contends that this ruling was error and now appears before this court under a grant of supervisory writs. 396 So.2d 910.

The single assignment of error contends that the trial court erred in suppressing the marijuana and other contraband located in the room occupied by defendant, Samuel Hymer, at 2101 South Grand Street in Monroe, Louisiana.

Acting upon information from a confidential informant, Officer Brian Boney obtained a search warrant authorizing the search of a residence located at 2101 South Grand, Monroe, Louisiana, being a large white wood frame house with a gray roof. The search warrant authorized the executing officer to search any person, and his/her belongings at the above described location at the time of the search. The warrant authorized a search for controlled dangerous substances including marijuana.

The only testimony presented at the hearing on the motion to suppress was that of Officers Brian Boney and William Beckham, the officers who carried out the execution of the search warrant.

That testimony reveals the following:

At 7:55 P.M. on September 26, 1980, the residence was searched. James Newell Till and his wife, Ms. Mary Jo Till, were present when the officers arrived. Hymer came in during the search. Mr. Till was advised of his rights and when asked if he had any marijuana, he responded affirmatively and handed over to the officers marijuana he had taken from a dresser in a bedroom. Officer Boney testified that Mr. and Ms. Till were very cooperative and sat quietly as the officers located marijuana elsewhere in the large, two-story residence.

Officer Beckham stated that while conducting a search of the residence, he encountered a door which was locked. Ms. Till, when asked where it led, said only that it was a bedroom and produced a key which the witness used to unlock the door. This witness, as did Officer Boney, testified that when the room was entered, they did not know that it was being occupied by Hymer. Once in the room, Officer Beckham found a bag of marijuana and a wooden pipe in a dresser drawer. When asked at what point he realized that it was Hymer's bedroom, he responded that it was not until Officer Boney entered the room and found a bill in the dresser with Hymer's name on it. Officer Boney had testified earlier that his confidential informant had told him that a brother-in-law by the name of "Newell" also lived in the residence at 2101 Grand but that he did not learn that the bedroom searched was the defendant's until a J. C. Penney bill addressed to Hymer was found in a dresser in the room.

Officer Beckham testified that the defendant arrived at the residence while the search was in progress and after the marijuana was found in his bedroom.

Neither the defendant nor Mr. and Ms. Till testified at the hearing. No witnesses were called on their behalf.

After hearing this evidence, the trial court, in granting the motion to suppress the evidence found in Hymer's room, commented that the search warrant "did not entail the search of Mr. Hymer's room." The ruling of the trial court was erroneous and we will reverse.

The State contends that the scope of the search warrant extended to all portions or rooms of the residence, including the room occupied by Hymer. The defendant contends that the warrant, authorizing the search of premises at 2101 Grand, established probable cause for and applied only to the portion of the house occupied by the Tills. Defendant contends that the door to his room, being locked, put the executing officers on notice that this room was actually a "sub-unit" or an "apartment" and the search warrant for the residence did not authorize a search of such "sub-unit" or "apartment."

These arguments bring up the issue of whether it was necessary, under the circumstances, that the search warrant particularly describe Hymer's room as the place to be searched.

In the case of State v. Manzella, 392 S.2d 403, 405 (La.1980), this court held as follows:

"A search warrant must describe with particularity the place to be searched. U.S.Const., Amend. IV; La.Const. art. 1, § 5; C.Cr.P. art. 162. As we said in State v. Cobbs, 350 So.2d 168, 177 (La.1977):

"The object of the description in a search warrant is to prevent the search of the wrong premises. If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises, the description is sufficient."

The description of the premises to be searched, found in both the application for the warrant and the warrant itself, was as follows:

"2101 SOUTH GRAND, MONROE, LA., being a large white wood frame house with a gray roof. The residence is located at the corner of Chestnut St. and South Grand St."

As we review the information furnished to Officer Boney contained in the application, ² we note that the confidential informant stated that he could purchase marijuana at the described premises. After a search of the informant, and while he was under surveillance, such informant went into the particular premises and made the purchase and turned same over to the officers. Also, the informant told Officer Boney that he had observed marijuana in the premises in the possession of a person known as "Newell."

The reference to the name "Newell" would not have the effect of placing a limitation upon the area to be searched within the premises. The information, in addition to reflecting possession by "Newell," reflects that marijuana was located in the premises and also a purchase was made in the premises. Under these circumstances there existed probable cause for a...