State v. Paster
| Decision Date | 25 June 1979 |
| Docket Number | No. 63811,63811 |
| Citation | 373 So.2d 170 |
| Parties | STATE of Louisiana v. Lester Glen PASTER. |
| Court | Louisiana Supreme Court |
Gilmer P. Hingle, Smith & Hingle, Monroe, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Parkerson, Dist. Atty., Lavalle Bernard Salomon, Asst. Dist. Atty., Monroe, for plaintiff-appellee.
Defendant, Lester Glen Paster, was charged by bill of information with the possession of a controlled dangerous substance (marijuana) with intent to distribute, R.S. 40:966. Defendant waived trial by jury and was found guilty after a trial by the court. Defendant was subsequently sentenced to serve six years at hard labor in custody of the Department of Corrections but the court suspended sentence and placed him on supervised probation for five years conditioned on defendant serving one year imprisonment without hard labor in the parish prison and other conditions in the record. On appeal, defendant argues four assignments of error.
Defendant contends that the trial court erred at the hearing on his motion to suppress and at the trial when it denied him the opportunity to test the veracity of the affiant, a police officer, and the veracity of the confidential informants. Defendant argued that the allegations in the affidavit that one informant personally saw marijuana in defendant's possession in his residence and vehicle within seventy-two hours before the warrant application were false, because defendant was in Houston, Texas during the specified time, and his vehicle and house were locked and vacant.
The following allegations were included in the affidavit to support the search warrant application:
"OATH IN SUPPORT OF SEARCH WARRANT
BEFORE ME, the undersigned Judge of the Fourth Judicial Court, personally came and appeared Deputy Royce Toney of the Ouachita Parish Sheriff's Office, WHO, BEING duly sworn by me, depose and says the following:
Probable cause exists for the issuance of a search warrant authorizing the search of the Residence & vehicle, located at 1933 CAGLE DRIVE, and a vehicle operated by Glenn Paster which is further described as a 1970 Olds Cutlass bearing 32F822 where the following items are believed to be: CONTROLLED DANGEROUS SUBSTANCES: ESPECIALLY BUT NOT LIMITED TO MARIJUANA
THE PROBABLE CAUSE is based on the following: WITHIN the last two months your affiant has been contacted by a confidential informant and this confidential informant has proven reliability to your affiant by furnishing information which has lead (sic) to at least five persons being arrested for narcotic law violations. This reliable confidential informant has provided information to your affiant which has lead (sic) to search warrants being issued and narcotics being seized upon execution of the search warrants. This reliable confidential informant has purchased marijuana and given said marijuana to your affiant and said marijuana tested to be genuine. This reliable confidential informant has had the occasion within the last seventy-two hours to be in both the above described vehicle and in the residence, and while in the residence and vehicle the reliable confidential informant observed marijuana in the possession of Glen Paster.
Your affiant has received information within the last seven days from another reliable confidential informant that observed a quantity of marijuana in the above described residence, said informant has provided information which has lead (sic) to at least 10 arrests and has provided affiant with control (sic) dangerous substance, i. e. marijuana which when tested proved to be marijuana."
At the motion to suppress, after the affiant testified that the facts alleged were true according to the account given by his informant, defense asked the affiant for the identity of the informant. The court immediately sustained the state's objection, but gave defendant the opportunity to argue his reasons. Defendant then argued that he intended to demonstrate that the information was false because defendant was in Houston at the time specified in the warrant, and that he needed to question the informant because he had to prove whether the affiant or the informant provided the false information. When defendant attempted later to testify regarding his whereabouts during the time the informant allegedly personally observed defendant in the possession of marijuana, the state objected, contending that this testimony was not relevant to the veracity of the affiant. The trial court sustained the objection, which ended the hearing.
In brief defendant argues that he can show that the information was false but cannot carry the burden of proving who falsified the information without the identity of the informant. Defendant argues that the trial court erred in not allowing him to develop fully the facts surrounding the affidavit by cross-examining the affiant and by not allowing him to call witnesses to testify to the falsity of the information. Defendant finally contends that the above denial meant he could not confront and cross-examine the witnesses against him.
Defendant's contention concerning the trial court's disallowing him to present his case is meritorious. It is well established that the credibility of the affiant's informant may not be attacked on a motion to suppress. State v. White, 368 So.2d 1000 (La.1979); State v. Williams, 366 So.2d 1369 (La.1978); State v. Tassin, 343 So.2d 681 (La.1977); State v. Cox, 330 So.2d 284 (La.1976); State v. George, 273 So.2d 34 (La.1973); State v. Anselmo, 260 La. 306, 256 So.2d 98 (1971), as interpreted by State v. Giordano, 284 So.2d 880 (La.1973); State v. Melson, 284 So.2d 873 (La.1973). However, the credibility of the affiant himself may be traversed on a proper showing of "a genuine issue of the affiant's veracity supported by convincing allegations of fact which, if proven, would establish the falsity of the affidavit." State v. Cox, supra, 330 So.2d at 292 (on rehearing); State v. Giordano, supra, 284 So.2d at 881.
In the instant case, defendant made the proper showing in his allegations of fact in his motion to suppress to obtain the hearing, but the trial court incorrectly prevented defendant at the hearing from further developing the facts surrounding the seeming untruthfulness of the affiant's affidavit and the consequential illegality of a warrant secured by untruthful allegations. Defendant should have been allowed to testify concerning from where he was coming when he arrived with a suitcase in hand at 3:30 a. m. to find officers searching his house. Defendant should have also been allowed to introduce at the hearing his witnesses whom he claims would substantiate his alibi. Instead, after the affiant testified that he was given the information by his informant, the trial court considered defendant's attack on the truthfulness of the information contained in the affidavit as a prohibited attack on the informant. Thus, no matter how substantial defendant's allegations, the trial court automatically prohibited him from challenging further the truthfulness of the affiant and prevented him from establishing that his house might have been searched pursuant to a search warrant issued without probable cause.
Therefore, we find that the trial court erred in not allowing the defendant to present his entire case. Consequently, we reverse the trial court's denial of the motion to suppress and remand this case for a second hearing on the issue whether the affiant had probable cause to support the issuance of a search warrant. At that hearing, defendant will be permitted to attack the allegations in the affidavit and the veracity of the affiant, and may show, if he can, that it was impossible for the affidavit to be true. After defendant has produced his evidence, and if he carries his burden of establishing by a preponderance of the evidence, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), that the affidavit contains false statements, then the burden of proof will shift to the state to prove that the allegations in the affidavit are true, or that the informant misrepresented the situation but the affiant reasonably believed him and thus had probable cause. 1
After both the defendant and the state have presented their evidence the trial court must decide whether the statements were false, and, if so, whether the affiant intentionally or unintentionally included them in the affidavit or whether the informant falsified the information but the affiant reasonably believed him and thus had probable cause. If the trial court finds that the information was false and the misrepresentations were intentionally made by the affiant, then the warrant should be quashed; but if they were unintentionally made by the affiant, then the warrant is tested for probable cause without reference to the incorrect facts. State v. Rey, 351 So.2d 489, 491-492 (La.1977). 2 If the state carries its burden of proving the information was true or that the affiant reasonably believed his informant's information then the trial court should find that the warrant was issued based on probable cause.
Defendant contends that the trial court erred in overruling his motion to quash and in finding that prosecution for several offenses for the same conduct was not prohibited by federal and state constitutions.
Although defendant submits this assignment on the record and attempts to reserve his right to argue it if the multiple prosecution continues, we find this assignment lacking in merit. Defendant alleged in his motion to quash that he was put in double jeopardy, which attached when defendant was allegedly charged with both possession of marijuana and possession of marijuana with the intent to distribute, and with both resisting an officer and simple escape, all arising out of the same occurrence. At the hearing on the motio...
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State v. Boyer
...... Beals, 410 So.2d at 749. . Nor do we find this court's decision in State v. Paster, 373 So.2d 170 (La.1979) applicable. In that case, the search warrant authorized the search of the residence occupied by the named defendant, his vehicle and "any person at the .. described location at the time of the search." Paster, 373 So.2d at 176. This case did not concern a visitor to the ......
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....... Where intentional misrepresentations are made in the affidavit supporting the search warrant, or statements made with a reckless disregard for the truth, in order to synthesize probable cause, the warrant will be quashed. State v. Paster, 373 So.2d 170 (La.1979); State v. Ogden, 391 So.2d 434 (La.1980); Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The task is to find whether under the totality of the circumstances, the affiant acted in good faith in preparing the affidavit. State v. Racheau, 467 ......
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