State v. Linkletter

• Court: Louisiana Supreme Court
• Writing for the Court: BARHAM; SANDERS, C.J., and MARCUS; SUMMERS; SUMMERS; Black
• Citation: State v. Linkletter, 286 So.2d 321 (La. 1973)
• Decision Date: 29 October 1973
• Docket Number: No. 53571,53571
• Parties: STATE of Louisiana v. Victor LINKLETTER et al.

Page 321

286 So.2d 321

STATE of Louisiana v. Victor LINKLETTER et al.

No. 53571.

Supreme Court of Louisiana.

Oct. 29, 1973.

John M. Shaw, Opelousas, Kearney Tate, Eunice, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Asst. Atty. Gen., Morgan J. Goudeau, III, Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for appellee.

BARHAM, Justice.

The defendants were convicted of simple burglary, a violation of R.S. 14:62. Defendants, Victor Linkletter and Billy Jack Morris, were each sentenced to six years' imprisonment; defendant, Joyce Linkletter, was sentenced to five years' imprisonment. Defendants rely upon twenty bills of exceptions reserved and perfected for reversal of their convictions and sentences. Since we find that Assignments of Errors 1 and 6 (encompassing Bills Nos. 1, 2, 10, 11 12, 13 and 14) demonstrate reversible error committed by the court below, we need not, and do not, discuss the other bills of exceptions reserved and perfected.

Assignment of Error No. 1, in which the defendants group Bills 1, 10, 11, 12, 13, and 14, complains that the search warrant, under which numerous items introduced into evidence at their trial were seized, was invalid because not based on probable cause. Since the merit of the various defense objections overruled by the trial court depends entirely on the constitutionality of the search of the Linkletter home, we now consider that search. See Code of Criminal Procedure Article 703.

The only warrantless searches and seizures which meet Fourth Amendment standards of reasonableness are searches made incident to a lawful arrest, so-called 'plain view' seizures made when an officer is where he has a right to be, 'consent' searches, and searches made under exigent circumstances or in close pursuit. If none of these exceptions is applicable, as is the case here, a valid search warrant must form the basis for a search and seizure. The first paragraph of Article 162 of our Code of Criminal Procedure provides:

'A search warrant may issue only upon probable cause established to the satisfaction of the judge, By the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. (Emphasis supplied.)

The affidavit submitted to the issuing judge in the case sub judice merely set forth that the affiant '* * * has reason to believe that VICTOR LINKLETTER has in his possession or has concealed * * *' certain drugs, burglary tools and the fruits of a certain theft or robbery, that the affiant's '* * * belief is based on information supplied by Lt. Rudy Guillory of the Louisiana State Police * * *', that affiant '* * * has reason to believe that the information furnished by Lt. Rudy Guillory is reliable because he has furnished information and proof in numerous other cases' and that affiant '* * * believes that Lt. Rudy Guillory is credible because of his record as an officer of the Louisiana State Police for over ten years.'

The defense clearly established, both at the hearing on the motion to suppress and at the trial, that the information possessed by Lt. Guillory, whom the affiant, Sheriff Ledoux, named in the affidavit as the reliable person who supplied the information which prompted the application for a search warrant, did not have personal knowledge of the possession of the named items, but that Guillory's information, passed on to Ledoux, was received from an informant named Eddie Davis. The application therefore set forth only that the sheriff's 'good reason to believe' the illegal activity of the defendants was the unexplained belief and information supplied by the trooper; there was no factual statement to support the bare belief set forth therein.

The United States Supreme Court, in the case of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) held that a search warrant issued pursuant to an affidavit like the one involved here was illegal and invalid. In Aguilar, the United States Supreme Court struck the search warrant because the affidavit submitted as application for the warrant merely stated that the affiants, having received 'reliable information from a credible person' Believed that drugs were kept at a certain named location for the purpose of sale and use contrary to law. The Aguilar Court cited the following rule enunciated in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933): 'Under the Fourth Amendment, an officer may not issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmation of belief or suspicion is not enough.' The Aguilar Court, quoting from Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), further stated: '* * * it is clear that it (the affidavit) does not pass muster because it does not provide any basis for the Commissioner's determination . . . that probable cause existed. The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.'

The United States Supreme Court, in Aguilar, reasoned: 'The vice in the present affidavit is at least as great as in Nathanson and Giordenello. Here the 'mere conclusion' that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only 'contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even contain an 'affirmative allegation' that the affiant's unidentified source 'spoke with personal knowledge.' For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner's possession.' In summation, the Supreme Court stated: 'We conclude, therefore, that the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in petitioner's trial.'

In State v. Wells, 253 La. 925, 221 So.2d 50 (1969), this Court reversed a defendant's conviction where evidence seized pursuant to a warrant was used against the defendant at trial. In its consideration of the issue, the Court stated: 'Nor do we believe that the trial court's observation that the search was illegal (sic, legal), it having been made under authority of a valid warrant, is correct. In our opinion, the warrant was illegally issued, this because the affidavit on which it was based recites nothing more than that the officer seeking the warrant '* * * has reasonable cause to suspect and does suspect and verily believe that a shotgun and other weapons; Spent shotgun shells and other live ammunition; may be located at the residence of Jerry Wells, 510 S. Lebanon St., Hollywood, La. or in the subject's vehicles a White 1966 Dodge Monaco bearing 66--67 La. license 62 D 088 or a Blue 1960 Opel Station Wagon; Above used in attempted murder of Curt Maddox * * *.'

The Court further stated in Wells: 'Under the rulings of the United States Supreme Court in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159, and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 such an affidavit, based on mere affirmance of belief or suspicion, is patently defective and, therefore, the warrant issued pursuant thereto is illegal and invalid.' The Court in Wells then noted that the same results reached in the cited United States Supreme Court's cases would, aside from those rulings, bereached under our Code of Criminal Procedure Article 162. Wells further states: 'The clear and unmistakable language of Article 162 requires, as aforestated, that such facts Be contained in the affidavit * * *.'

The State argues, notwithstanding the clear mandate of our Code of Criminal Procedure, the United States Supreme Court's decision in Aguilar, and this Court's decision in State v. Wells, that neither the Fourth Amendment of the United States Constitution nor Article 162 of our Code of Criminal Procedure requires that the oath or affirmation or affidavit to support the issuance of the search warrant, upon a finding of probable cause, be entirely in writing.¹ We are compelled to follow the United States Supreme Court's interpretation of the constitutional requirement for establishing probable cause for a search warrant.

We believe that the applying officer did not properly supply the issuing judge with adequate credible information strengthened with sufficient facts to support a judicial finding of probable cause upon which a search warrant could be issued. Further, we reject the State's argument that defendants herein had no right to move for suppression of evidence since Article 703 of the Code of Criminal Procedure only allows a defendant to file a motion to suppress when an Unconstitutional search and seizure has taken place, not a mere illegal search and seizure. The United States Supreme Court's decision in Aguilar renders the search and seizure under consideration Unconstitutional, not merely violative of the Code of Criminal Procedure.

We conclude, therefore, that the defendants' objections to the evidence obtained as a result of the illegal search and seizure have merit, and that the trial court's refusal to grant the motion to suppress and its permitting the seized evidence to be introduced constituted reversible error.

Assignment of Error 6, which is based on Bill of Exceptions No. 2Complains that the trial court erred in failing to quash the information because the District Attorney failed to furnish a sufficient bill of particulars. The defendants were charged under a short form information; the bill of...