State v. Lewis
| Decision Date | 23 June 1980 |
| Docket Number | Nos. 66720,66977,s. 66720 |
| Citation | 385 So.2d 226 |
| Parties | STATE of Louisiana v. Patrick W. LEWIS and David E. Wilson. STATE of Louisiana v. Frank WILSON. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., David Miller, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee-respondent.
Lewis O. Unglesby, Frank J. Gremillion, Baton Rouge, for defendant-appellant-relator.
Defendants Patrick Lewis, David Wilson, and Frank Wilson were charged with five counts of possession of controlled dangerous substances in violation of R.S. 40:967(A) and 40:969(A). After a motion to suppress the evidence was denied, defendants Patrick Lewis and David Wilson pled guilty to possession of L.S.D. and possession of methaqualone. Defendant Frank Wilson pled guilty of possession of marijuana. Each defendant entered his guilty plea reserving his right under State v. Crosby, 338 So.2d 584 (La.1976) to seek review of the trial court's denial of the motion to suppress. Patrick Lewis and David Wilson were sentenced to five years at hard labor, sentences suspended, and were placed on five years' probation on the condition that they serve six months in the parish jail and pay fines of $2500. Frank Wilson received a six month sentence, suspended, was placed on two years' probation and was fined $250. * The only issue presented here is whether the trial court erred in denying defendants' motion to suppress.
On December 9, 1977, J. P. Thompson, an East Baton Rouge deputy sheriff, applied for a warrant to search the apartment of David Wilson located at 1819 No. Marque Ann in Baton Rouge. In support of his application for the warrant, the officer submitted an affidavit, which in pertinent part, provided:
On the basis of the affidavit, the search warrant was issued December 9th and was executed on the evening of December 12, 1977. In executing the warrant the officers seized a quantity of L.S.D., marijuana, and other controlled dangerous substances. All three defendants who were present in the apartment at the time of the seizure were arrested.
At the hearing on the motion to suppress defendants argued that the affidavit in support of the warrant failed to establish probable cause that the marijuana observed by the informant "on or about December 7, 1977" would be present in the defendant's apartment at the time that the warrant was executed, December 12, 1977. Defendants rely on State v. Boneventure, 374 So.2d 1238 (La.1979) to argue that the affidavit for this reason failed to establish probable cause.
In Boneventure a search warrant was issued on an affidavit which stated that a confidential informant had ". . . observed a quantity of green vegetable material identified and offered for consumption as being marijuana . . . ." This Court found that the affidavit failed to establish probable cause to believe that the evidence or contraband observed by the informant at the defendant's residence was not disposed of but remained at the place to be searched. The Court reasoned that the amount of marijuana observed by the informant was a small amount which might have been consumed by the person to whom or by whom it was offered. Furthermore the Court found that there was no probable cause to believe that marijuana other than that offered for consumption was present in the defendant's residence.
In the present case the affidavit states that a confidential informant had occasion to be in defendant Wilson's apartment "on or about December 7, 1977" and "had occasion to see a quantity of green vegetable like substance, which was offered by David Wilson, occupant of the apartment, to the above confidential informant as marijuana to smoke which he did and experienced a feeling of euphoria." The affidavit contains no allegations that drugs other than the marijuana which was offered to the informant were present in the apartment.
At the hearing on the motion to suppress Deputy J. Thompson, the affiant, testified that at the time the warrant was issued he did not know whether any marijuana observed by the informant was still in the apartment:
Deputy Thompson:
"No, I didn't know it was all smoked up."
Defense Counsel:
"Well, you didn't know that it wasn't either, did you?"
Deputy Thompson:
"No, sir."
Deputy Thompson also testified that as much as a week might have passed between the time that the informant observed, was offered, and smoked the marijuana in defendant's apartment and December 9, the date that the informant contacted the officer and the warrant was issued.
A search warrant may issue only upon probable cause established to the satisfaction of the judge, by affidavit of a credible person,...
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...Crosby has routinely been followed in subsequent cases involving reservations of similar Fourth Amendment claims. E. g., State v. Lewis, 385 So.2d 226 (La.1980); State v. Neyrey, 383 So.2d 1222 (La.1980); State v. Hutchinson, 349 So.2d 1252 (La.1977); State v. Lain, 347 So.2d 167 (La.1977).......
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