State v. Roach

• Decision Date: 03 November 1975
• Docket Number: No. 56447,56447
• Citation: State v. Roach, 322 So.2d 222 (La. 1975)
• Parties: STATE of Louisiana v. Lal S. ROACH, Jr.
• Court: Louisiana Supreme Court

Page 222

322 So.2d 222

STATE of Louisiana v. Lal S. ROACH, Jr.

No. 56447.

Supreme Court of Louisiana.

Nov. 3, 1975.

Samuel P. Love, Sr., Love, Rigby, Dehan & Love, Shreveport, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., R. Raymond Arthur, Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

Lal S. Roach, Jr. was charged by bill of information with possession of marijuana in violation of La.R.S. 40:966(C). After trial by a judge on September 13, 1974, he was found guilty. He was sentenced to pay a fine of $500.00 and costs or in default thereof to serve six months in the parish jail. Additionally, he was sentenced to serve six months in the parish jail, all but ten days of which were suspended. On appeal, defendant relies upon five assignments of error for reversal of his conviction and sentence.

FACTS

A warrant was issued to search a house owned by Ray Buckner in Natchitoches for marijuana and hashish. On February 11, 1974, Deputy Sheriff Robert Self, accompanied by three members of the narcotics squad of the Natchitoches Parish Police Department, appeared at the residence to execute the warrant. Defendant, who was the only person present in the residence at the time, allowed them to enter. After presenting the search warrant, Deputy Self asked defendant to be seated while the premises were searched. One of the officers discovered what appeared to be marijuana seeds and gleanings in one of the rooms and showed his finding to Deputy Self. Deputy Self then asked defendant where he slept, and defendant answered, giving the location of his bedroom. Immediately after ascertaining that the marijuana had been found in defendant's bedroom, Deputy Self placed defendant under arrest and gave him the Miranda warnings. One of the other officers, meanwhile, searching the carport in the rear of the house, discovered a paper bag of marijuana cigarettes on a motorcycle that was registered in defendant's name.

ASSIGNMENT OF ERROR NO. 1

Defendant first contends that the trial judge erroneously overruled a motion to suppress the evidence seized pursuant to the search warrant. He alleges that the application for a search warrant failed to recite sufficient facts to establish probable cause for its issuance. ¹

Article 162 of the Code of Criminal Procedure ² states in pertinent part:

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.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), also involving a search for illegal drugs, the United States Supreme Court set forth two requirements that must be met before a search warrant may issue. First, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were. Second, he must be informed of the underlying circumstances from which the affiant concluded that the informant was credible or his information was reliable. ³

We believe that the search warrant sub judice met the 'two-pronged test' established by Aguilar. The affidavit recited that the second informant Personally observed that marijuana and hashish were being sold at the specified address. In State v. Paciera, 290 So.2d 681 (La.1974), we stated that direct personal observation by the informant was a factor that supports the reliability of the information reported. ⁴ The affidavit further recited that the information supplied by him had resulted in sixteen arrests during the previous five months. This factor supports the informant's credibility. See State v. Martin, 318 So.2d 25 (La.1975); State v. Paciera, supra. No requirement exists, as defendant contends, that the arrests must have resulted in convictions. The information supplied by the first informant alone did not establish probable cause, but it does serve to corroborate the statements of the second one. See State v. Boudreaux, 304 So.2d 343 (La.1974); State v. Paciera, supra.

Defendant further attacks the affidavit on the ground that it does not specifically state that the informant communicated the facts directly to the affiant. We believe that the context of the application clearly indicates that the informant reported directly to the affiant. Affidavits must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), Cited With approval in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). We therefore conclude that the affidavit recited sufficient facts to show probable cause for the magistrate's issuance of a search warrant.

In his brief on appeal, defendant urges a second ground on which the motion to suppress should have been granted. The motorcycle on which the officers found evidence of marijuana was parked in a carport, or garage, in the rear of the house that was searched. Noting that the search warrant authorizes the search of the 'premises,' he argues that the officers were not authorized by the warrant to search the carport, and that the evidence seized therein was inadmissible at trial.

The motion to suppress the evidence, however, was clearly predicated on the Sole ground that the search warrant was invalid because issued without a showing of probable cause in the affidavit. Defendant has raised the issue concerning the scope of the warrant for the first time on appeal.

Article 703(C) of the Code of Criminal Procedure states that on the trial of a motion to suppress evidence other than written inculpatory statements the burden of proof is on the defendant to Prove the grounds of his motion. Accordingly, our scope of review should be limited to those grounds on which the motion to suppress was based.

In any event, a search warrant authorizing the search of the 'premises' at a stated address must reasonably be interpreted to permit a search of the dwelling house proper, the garage, and any other outbuildings within close proximity of the house proper that one normally associates with and includes within the word 'house' or 'premises.' United States v. Long, 449 F.2d 288 (8th Cir. 1971), Cert. denied, 405 U.S. 974, 92 S.Ct. 1206, 31 L.Ed.2d 247 (1972); Fine v. United States, 207 F.2d 324 (6th Cir. 1953), Cert. denied, 346 U.S. 923, 74 S.Ct. 310, 98 L.Ed. 417 (1954); State v. Brochu, 237 A.2d 418 (Me.1967). This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant avers that his statement in reply to Deputy Self, indicating where his bedroom was located in the apartment house, should have been suppressed because at the time it was made he had not been advised of his privilege against self-incrimination as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant is correct in his assertion that his response was highly inculpatory. The Louisiana jurisprudence has established that a person may be deemed to be in 'constructive' possession of a controlled substance if, though not in his physical custody, it is subject to his dominion and control. State v. Knight, 298 So.2d 726 (La.1974); State v. Porter, 296 So.2d 302 (La.1974); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971). The jurisprudence has also established that guilty knowledge is an essential ingredient of the crime of possession of a controlled dangerous substance. State v. Knight, supra, and cases cited therein. Hence, defendant's admission that his bedroom was the one in which marijuana was found strongly indicated guilty knowledge and was also evidence of constructive possession.

We do not believe, however, that defendant was entitled to Miranda warnings prior to making the statement. In Miranda, the Supreme Court briefly stated its holding as follows:

(T)he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. ⁵

The Supreme Court did not define precisely the meaning of 'custody' or 'significant restraint.' Clearly, whenever the accused is placed under arrest, Miranda warnings must follow. ⁶ There are situations falling short of a formal placing in arrest, however, in which the accused may be said to be under custody or significant restraint. See Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). Like the Court of Appeals for the Fifth Circuit, we believe that a determination of whether a defendant prior to arrest has been so deprived of his freedom to act that he must be deemed to be under custodial restraint must be made on a case-by-case basis. United States v. Carollo, 507 F.2d 50 (5th Cir. 1975); Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972; United States v. Phelps, 443 F.2d 246 (5th Cir. 1971).

Unable to assess the subjective intent of an officer to hold a suspect or the subjective fear of a suspect that he was under restraint, a reviewing court must employ an Objective test to determine the necessity for Miranda warnings. United States v. Hall, 421 F.2d 540 (2d Cir. 1969). An examination of the record normally discloses four factors that are particularly helpful in this task: (1) whether, prior to interrogation, probable cause existed to arrest the accused; (2) statements or actions by the police indicating an intention to hold or restrain him; (3) statements or actions by the accused indicating his reasonable belief that he is in custody; and (4) the extent to which the investigation has focused on the accused.

In the instant case...