State v. Johnson

• Decision Date: 26 September 1984
• Docket Number: No. 16296-KA,16296-KA
• Citation: State v. Johnson, 457 So.2d 732 (La. App. 1984)
• Parties: STATE of Louisiana, Appellee, v. Dan JOHNSON, Appellant.
• Court: Court of Appeal of Louisiana

Page 732

457 So.2d 732

STATE of Louisiana, Appellee, v. Dan JOHNSON, Appellant.

No. 16296-KA.

Court of Appeal of Louisiana Second Circuit.

Sept. 26, 1984.

Smith & Hingle by J. Randolph Smith, Monroe, for appellant.

William J. Guste, Jr., Baton Rouge, Atty. Gen., Johnny Parkerson, Dist. Atty., Michael Fontenot, Asst. Dist. Atty., Monroe, for appellee.

Before MARVIN, JONES and NORRIS, JJ.

JASPER E. JONES, Judge.

The defendant, Dan Johnson, was found guilty after a bench trial of simple burglary in violation of LSA-R.S. 14:62 and of unauthorized use of a movable having a value of over $1,000.00 in violation of LSA-R.S. 14:68. ¹ The trial judge sentenced defendant to nine years and nine months at hard labor on the burglary conviction and to eighteen months at hard labor on the unauthorized use conviction with the sentences to run concurrently. Defendant appeals his convictions and sentences relying on seven assignments of error. We affirm.

FACTS

On Monday morning, November 8, 1982, an employee of Tri-State Delta Chemicals, Inc. found evidence that the fenced compound housing the company had been illegally entered over the weekend. An inspection of the compound revealed that the office building and a warehouse building had been broken into and a 10-wheeler truck was missing from the yard. ² An inventory of the contents of the warehouse was subsequently taken and it was discovered that agricultural chemicals valued at over $200,000.00 were missing. ³

The investigation of the incident led deputies Monroe Hilton, Jr. and Richard Medaries of the Ouachita Parish Sheriff's department to Mississippi. There the truck and most of the missing chemicals were recovered and a number of arrests were made. Defendant's brother, Robert Johnson, was one of those persons arrested. Robert gave a statement to Deputy Hilton implicating defendant in the offenses. This information was relayed to Ouachita Parish authorities and a warrant was issued for defendant's arrest on November 19, 1982. Hilton and Medaries, who were in Mississippi, were informed by telephone and teletype that the warrant had been issued.

Defendant was arrested later the same day near his home in Tutwiler, Mississippi by Hilton, Mississippi Highway Patrolman Jimmy Dees and Chief Deputy Doyle Morrow of the Tallahatchie County, Mississippi Sheriff's Department. A copy of the arrest warrant was not shown to defendant at the time of his arrest but the officers read him his Miranda rights. Defendant was subsequently taken to the Tallahatchie County jail in Sumner, Mississippi. When defendant arrived at the jail he was questioned by Hilton and Medaries after he was again advised of his rights and after he signed a waiver of rights form. On this occasion defendant gave an exculpatory statement.

On December 6, 1982 defendant, while still in jail, sent for Dees and Morrow indicating he was prepared to make a statement. Before taking the statement the officers again advised defendant of his rights and had him sign a waiver of rights form. Defendant gave a full confession which was recorded by the officers.

On this occasion defendant admitted that he actively participated in the planning and commission of the offenses. He stated he and his accomplices held several meetings to discuss their plans and on one occasion, several days before committing the crime, he and two other men made a trip to Monroe to inspect the chemical company. Defendant also stated that the missing truck had been used to transport the chemicals to Mississippi.

A short time after giving the confession defendant signed a waiver of extradition form. Later the same day he asked Morrow for some paper so he could write the facts about the commission of the crimes in order to get them correct. Morrow supplied the paper but did not give defendant Miranda warnings prior to doing so. The next day defendant handed Morrow an eighteen page written statement in which he detailed his entire involvement in the offenses. Morrow accepted the statement without giving defendant Miranda warnings but he did have defendant sign each page of the written confession. Morrow also signed and dated each page then locked the statement in his desk.

Upon being informed of defendant's confession and his waiver of extradition Hilton and Medaries went to Mississippi to take custody of defendant and transport him to Monroe. They arrived in Sumner on the morning of December 8, 1982. When they arrived in Sumner, Morrow supplied them with the recorded and written statements, the waiver of rights form signed by defendant and the waiver of extradition form. They brought defendant to Monroe the same day. Upon arriving in Monroe they questioned defendant. Before doing so they read defendant his rights and had him sign another waiver of rights form. Defendant repeated his earlier confessions. This statement was recorded.

Prior to trial defendant filed numerous motions including a motion to suppress the three confessions and the waiver of rights forms he signed in connection with them. After a hearing on the motion to suppress, it was denied.

Assignment No. 1

By this assignment defendant contends the trial court erred in denying his motion to suppress the confessions and waiver of rights forms. He argues this evidence should have been suppressed because: (A) his arrest was illegal; (B) he confessed under the influence of threats and promises made by the various officers taking the statements; and (C) he was given no Miranda warnings in connection with the written statement.

A

Defendant argues his arrest was illegal because it was not based on probable cause. ⁴

A confession or inculpatory statement, which is the direct result of an illegal arrest, should be suppressed. State v. Rebstock, 418 So.2d 1306 (La.1982); State v. Edwards, 375 So.2d 1365 (La.1979); State v. Giovanni, 375 So.2d 1360 (La.1979). A lawful arrest, whether warrantless or pursuant to a warrant, must be based upon probable cause. State v. Serrato, 424 So.2d 214 (La.1982); State v. Leatherwood, 411 So.2d 29 (La.1982).

The applicable standard for determining when an arrest warrant is based on probable cause was set out by the supreme court in State v. Rodrigue, 437 So.2d 830 (La.1983) as follows:

Probable cause for an arrest exists when the facts and circumstances, of which the police have reasonably reliable information, justify the belief that the person to be arrested has committed a crime. The magistrate may issue an arrest warrant based on the facts and circumstances asserted in the affidavit, as well as those asserted verbally by the officer at the time the warrant is obtained. State v. Haynie, 395 So.2d 669 (La.1981).

The process of determining probable cause for the issuance of search and arrest warrants does not involve certainties or proof beyond a reasonable doubt, or even a prima facie showing, but rather involves probabilities of human behavior, as understood by persons trained in law enforcement and as based on the totality of circumstances. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The process simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965).

Furthermore, this case involves the review of a magistrate's determination of probable cause prior to issuing the warrant. Such a determination is entitled to significant deference by reviewing courts. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). As the Supreme Court stated in Gates "after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review." 462 U.S. at ----, 103 S.Ct. at 2331. Additionally, because of "the preference to be accorded to warrants", marginal cases should be resolved in favor of a finding that the issuing magistrate's judgment was reasonable. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). (footnotes omitted).

Whenever the information contained in the affidavit is supplied to the officer by a third person the underlying credibility of that person must be established. Credibility is to be determined from the totality of circumstances. State v. Brooks, 452 So.2d 149 (La.1984); State v. Morace, 446 So.2d 1274 (La.App.2d Cir.1984).

The affidavit from which the arrest warrant was issued states that defendant committed theft of the farm chemicals and truck or in the alternative he received and concealed the chemicals and the truck under such circumstances that he knew or had good reason to believe them to be the subject of a theft. The affidavit contains the following information relevant to the charges:

On the morning of November 8, 1982, Jack Holloway reported a burglary at Tri-State Chemical Company, Ouachita Parish. Taken was $204,000 worth of farm chemicals and a 1981 bobtail truck, valued at $50,000.00. On November 9, 1982, the 1981 International truck was recovered near Batesville, Mississippi empty of its contents. Subsequent investigation has resulted in the arrest of one Robert Johnson, black male, DOB: 6/21/62 of Rt. 1 Box 155, Tutwiler, Miss. This subject was charged by the St. Landry Parish Sheriff's Department with felony receiving of stolen property with bond being set at $100,000.00; this subject is presently incarcerated in the Tallahatchie County Sheriff's Office, Sumner, Mississippi, awaiting extradition. Robert Johnson has subsequently given a recorded statement to Dy. Monroe Hilton of the Ouachita Parish Sheriff's Department, who related to affiant that Robert Johnson stated he and his brother Dan livved (sic) together in the same residence. That Dan Johnson did not come home during the night of November 7, 1982; Dan Johnson came home 8:00...