State v. Krolowitz
| Decision Date | 16 November 1981 |
| Docket Number | No. 81-KA-0374,81-KA-0374 |
| Citation | 407 So.2d 1175 |
| Parties | STATE of Louisiana v. Paul M. KROLOWITZ. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jack Rowley, Dist. Atty., Glenn Diaz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
Ronald S. Ruiz, New Orleans, for defendant-appellant.
*
Defendant, Paul M. Krolowitz, has appealed from a conviction for armed robbery (a violation of LSA-R.S. 14:64). He was tried before a jury and sentenced to fifty years hard labor without benefit of parole, probation, or suspension of sentence. We affirm the conviction and sentence.
On March 26, 1979, at 6:30 a. m. two armed men (one found to be Paul M. Krolowitz) entered a food store owned by Dennis Acosta in St. Bernard Parish, robbed him of approximately $43.00 and fled. In carrying out the robbery, the men beat Acosta with a pistol, stepped on his leg, and shot him in the knee with a Smith & Wesson .357 magnum revolver which one of them was carrying. Two bullet fragments were found in Acosta's leg after he was discovered at the store and received medical attention. Acosta died of his injuries some weeks later. A pistol identified by ballistics experts as having fired the bullet, the fragments of which were removed from Acosta's leg, was found in Krolowitz's trailer in the execution of a search warrant. Krolowitz was tried for armed robbery, not murder, in the case now before us on appeal.
Defendant contends that the search warrant in the execution of which the Smith & Wesson revolver was seized was granted under an improper affidavit.
The following facts underlie the issuance of the affidavit. On the night of May 2, 1979, law enforcement officers in St. Bernard Parish were called to a trailer park in which pistol shots had been fired. When they arrived at the scene, certain law enforcement officers saw one Juanita Tyson run out of a trailer owned by Krolowitz and drop certain objects under the trailer. These objects were found to be narcotic drugs and narcotics paraphernalia. Miss Tyson was arrested and after having been arrested told the law enforcement officers that the pistol that had been fired was in "the" (meaning Krolowitz's) trailer.
Upon the issuance and execution of the affidavit, a Smith & Wesson .357 magnum pistol was found hidden in the trailer. A motion to suppress evidence (the pistol) was filed by Krolowitz together with a motion not here pertinent, and after hearing, the motion to suppress evidence was denied. The lower court's action on this motion was sought to be brought before us by application for writs, which were denied. (See No. 67,173, April 8, 1980).
When the state attempted to introduce the revolver in the trial for armed robbery, the defense objected, the objection was overruled, and the revolver was introduced. To this introduction the present bill of exceptions was reserved. Defendant contends the search warrant under which the revolver was seized was unconstitutionally obtained in violation of Amendment IV of the United States Constitution as rendered applicable to the states by Amendment XIV.
The affidavit for issuance of the warrant reads as follows:
The two affiants were Officers Stohlmann and Bonura.
Many of the statements contained in the affidavit are somewhat in error. Defendant concedes these errors were made unintentionally. It is not true that Miss Tyson was firing a gun. In fact, one Elsie Bass fired the gun. Although the report to Officer Stohlmann was that Miss Tyson was firing a gun, the report received by Officer Bonura was that a man was firing a gun. Neither Officer Bonura nor Officer Stohlmann saw Miss Tyson throw an object under the trailer, although Officer Bonura saw Miss Tyson running out of the trailer. The only object found by Officers Stohlmann or Bonura was a purse belonging to Miss Tyson, which was found by Officer Bonura. It is true that the other stated objects were found, but not by Officers Bonura or Stohlmann.
Furthermore, Miss Tyson never said that the gun she had been firing was inside the trailer as she did not say she had fired the gun. She did, however, say that the gun was inside the trailer.
If unintentional misstatements are made by the affiants seeking to obtain a search warrant, these misstatements must be excised and the remainder used to determine whether or not the affidavit sets forth probable cause for issuance of a warrant. State v. Rey, 351 So.2d 489 (La.1977).
We have deleted the items from the affidavit that are inaccurrate, and find with the inaccuracies (which the defendant admits are unintentional) deleted, the affidavit reads as follows:
Officers Bonura and Stohlmann as affiants were swearing to hearsay so far as Miss Tyson's statement, that the pistol was in the trailer, is concerned, and Miss Tyson stands in the role of an informant. Hearsay may be used as the basis for the issuance of a search warrant, if there are corroborating circumstances of which the affiants have personal knowledge. State v. Paciera, 290 So.2d 681 (La.1974); State v. Turner, 337 So.2d 1090 (La.1976); State v. Gilbert, 354 So.2d 508 (La.1978). Also, if the informant is identified in the affidavit, rather than permitted to remain anonymous, greater reliability is attached to the informant's alleged assertion, as the informant, if identified, is subject to questioning by the magistrate. State v. Paciera, supra. Here, reliability to Miss Tyson's assertion in the expurgated affidavit that the gun was in the trailer is lent by the fact that Officer Bonura saw Miss Tyson running from the trailer where she stated the gun was to be found. Also, the fact that Miss Tyson was arrested for the Illegal Firing of a Weapon (even if a groundless charge) lent credibility to her assertion that the gun was in the trailer. Furthermore, her statement comes close to being a declaration against interest, as she admitted that she knew where a gun that had been illegally discharged was located (and, as another part of the expurgated affidavit asserts, she was seen running out of the trailer where the gun was located), although she herself did not fire the gun. The informant is named and is stated to be under arrest, so a magistrate, if he doubted the veracity of the reported assertions, could easily bring Miss Tyson before him for questioning.
Affiants to search warrants generally are not accomplished in the law, and although they are expected to make a conscientious effort to tell the truth, we cannot expect perfection from them in preparing a document that is comparable to a legal pleading. Proof beyond a reasonable doubt is not necessary to support an affidavit for a search warrant; all that is necessary is that there be probable cause for the issuance of the warrant. State v. Lehner, No. 81-KA-0034, September 8, 1981. Only unreasonable searches fall within the constitutional prohibition. Probable cause must not be interpreted hypertechnically in such a fashion as to prevent a reasonable search. State v. Guidry, 388 So.2d 797 (La.1980). The affidavit, with the inaccuracies striken, still would lead a magistrate to believe that probable cause existed to issue a warrant to obtain the pistol, and that is all the constitutional guarantees require.
We find no merit in Assignment of Error No. 1.
One Harry Christoff discovered Acosta lying on the floor of his store in a pool of blood shortly after he was robbed, beaten, and shot. Acosta said "they" had robbed and beaten him. Christoff left the store to call authorities. When he returned, Acosta made the following statement to him:
"He told me that two men had came into the store and one guy was tall with light brown hair, kind of long, almost to the shoulder, and the other shorter with a moustache, and he said one of them ordered something, a box of matches or something and when he went to get them to him or open the cash register drawer the tall guy reached over the counter and hit him in the head...
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