Opinion
No. 2007 KA 0220.
February 13, 2009.
ON APPEAL FROM THE 22ND JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF WASHINGTON, STATE OF LOUISIANA TRIAL COURT NO. 04-CR8-91149 HONORABLE LARRY J. GREEN, JUDGE PRESIDING.
Walter P. Reed, Millard K. Gatewood, Franklinton, LA, Kathryn Landry, Baton Rouge, LA, Attorneys for Appellee, State of Louisiana.
Holli Herrle-Castillo, Marrero, LA, Marion B. Farmer, Covington, LA, Attorneys for Defendant/Appellant, Clenives Lewis.
BEFORE: CARTER, C.J., WHIPPLE, AND MCDONALD, JJ.
The defendant, Clenives Lewis, was charged by bill of information with one count of possession with intent to distribute cocaine (count I), a violation of LSA-R.S. 40:967A(1), and with one count of possession of a firearm by a convicted felon (count II), a violation of LSA-R.S. 14:95.1. He pled not guilty on both counts. The defendant moved to suppress the evidence seized, but the motion was denied. He moved for appointment of a sanity commission and a sanity commission was appointed. Following a jury trial, on count I, the defendant was found guilty of the responsive offense of possession of cocaine, a violation of LSA-R.S. 40:967C; and on count II, he was found guilty as charged. He moved for arrest of judgment, for a new trial, and for a post-verdict judgment of acquittal, but the motions were denied.
On count I, the defendant was sentenced to five years at hard labor. On count II, the defendant was sentenced to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence. The trial court ordered that the sentences imposed on counts I and II would run concurrently with each other. The defendant appealed, designating the following two assignments of error:
1. The conviction must be reversed because the trial court failed to rule on the defendant's competency to proceed to trial, despite having ordered a competency evaluation.
2. The conviction must be reversed because the trial court erred in failing to suppress the evidence.
Following the original appeal of the defendant, we conditionally affirmed the convictions and sentences on counts I and II, but remanded to the trial court with instructions to determine whether a stipulation had been reached on the sanity issue, and if not, to determine whether a nunc pro tunc competency hearing was possible. We further instructed that if the trial court determined that the defendant was competent to stand trial, the trial court was to receive the search warrant and affidavit in support thereof at a reopened hearing on the motion to suppress, and to make its ruling on the motion in light thereof. See State v. Lewis, 07-0220 (La.App. 1 Cir. 6/8/07) (unpublished). Following remand to the trial court, the State and the defense stipulated that the defendant was competent to stand trial. Additionally, following the introduction into evidence of the search warrant and affidavit in support thereof, the trial court denied the motion to suppress. For the following reasons, we affirm the convictions and sentences on counts I and II.
We otherwise retained jurisdiction of the appeal.
This stipulation renders the defendant's first assignment of error completely meritless.
FACTS
The facts were set forth in our original decision as follows:
In response to numerous complaints of excessive traffic visiting the defendant's home, Varnado Police Officer Louis Adams conducted intermittent surveillance of the home for approximately two weeks. Surveillance confirmed excessive traffic to the defendant's home and also indicated that the defendant lived in the home alone. During surveillance of the defendant's home, Officer Adams saw Jody Amacker visit the defendant's home and saw the defendant and Amacker "passing" something to each other. Officer Adams learned that there was an outstanding warrant for Amacker and stopped his vehicle as it left the defendant's home. Officer Adams recovered a rock of suspected crack cocaine from a cigarette box Amacker "dropped" as he exited his vehicle. Thereafter, Officer Adams applied for, and obtained, a search warrant for the defendant's home.
On August 30, or August 31, 2004, Officer Adams and certain Washington Parish Sheriff's Deputies executed the search warrant on the defendant's home in Washington Parish. The defendant was apprehended "heading" into the bathroom and throwing the contents of an ashtray into the toilet. Eight pieces of crack cocaine were recovered from the floor of the bathroom and the rim of the toilet, and one piece of crack cocaine was recovered from the toilet. Additionally, a .38 caliber revolver was recovered from under some clothes on a shelf in the master bedroom of the defendant's home. The defendant had previously been convicted of simple burglary of an inhabited dwelling, a violation of LSA-R.S. 14:62.2. He had also previously pled guilty to possession of cocaine, a violation of LSA-R.S. 40:967C.
MOTION TO SUPPRESS EVIDENCE
In assignment of error number 2, the defendant argues the trial court erred in denying the motion to suppress evidence because: (a) the affiant on the affidavit for a search warrant obtained the search warrant for a residence outside of his jurisdiction; and (b) the activity observed by the affiant did not rise to the level of probable cause. These are the same arguments raised by the defendant at the initial hearing on the motion to suppress.
A search warrant may issue only upon probable cause established to the satisfaction of a judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. LSA-Const. art. I, § 5; LSA-C.Cr.P. art. 162. Probable cause exists when the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that the evidence or contraband may be found at the place to be searched. The facts establishing probable cause for a search warrant must be contained within the four corners of the affidavit. LSA-C.Cr.P. art. 162. The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. State v. Fugler, 97-1936 (La.App. 1 Cir. 9/25/98), 721 So.2d 1, 19, rehearing granted and amended in part on other grounds, 97-1936 (La.App. 1 Cir. 5/14/99), 737 So.2d 894, writ denied, 99-1686 (La. 11/19/99), 749 So.2d 668.
An affidavit supporting a search warrant is presumed to be valid. When a defendant proves that an affidavit contains false statements, it should be determined whether the misrepresentations are intentional or unintentional. The defendant must prove by a preponderance of the evidence that the affidavit contains intentional misrepresentations. Fugler, 721 So.2d at 19.
Affidavits, by their nature, are brief, and some factual details must be omitted. Unless the omission is willful and calculated to conceal information that would indicate that there is not probable cause or would indicate that the source of other factual information in the affidavit is tainted, the omission will not change an otherwise good warrant into a bad one. In matters relating to the possibility that a warrant contains intentional misrepresentations, the question of the credibility of the witnesses is within the sound discretion of the trier of fact. Factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence. When the affidavit supports a finding of probable cause, the harsh result of quashing the search warrant should obtain only when the trial judge expressly finds an intentional misrepresentation to the issuing magistrate. Fugler, 721 So.2d at 19.
Our review of the record reveals that Varnado Police Department Captain Louis Adams was the affiant on the affidavit for the search warrant. The affidavit contained the following information: on August 28, 2004, as a result of complaints of illegal narcotics being sold at the defendant's residence on A. Moses Road in Angie, Louisiana, Captain Adams began surveillance on the residence of the defendant; Captain Adams observed four vehicles stop in front of the residence and saw the defendant making "a hand to driver transaction[;]" on August 28, 2004, at approximately 2200 hours, Captain Adams made a traffic stop of a vehicle driven by Jody Amacker immediately after it had left the defendant's residence; and Amacker agreed to cooperate by turning over crack cocaine that he had just purchased from the defendant on A. Moses Road. Captain Adams then stated that based on his observations and recovery of narcotics on the traffic stop, he believed that there would be more narcotics at the defendant's residence. He further stated that, in his experience, stolen property was traded for crack cocaine and there probably would be stolen property at the residence of the defendant. Lastly, Captain Adams stated the defendant had been arrested numerous times for narcotic violations, including possession with intent to distribute cocaine.
We find no abuse of discretion in the trial court's denial of the motion to suppress. The affidavit supporting the search warrant set forth probable cause for issuance of the warrant. Captain Adams set forth facts and circumstances within his knowledge sufficient to support a reasonable belief that distribution of cocaine had occurred and that evidence or contraband would be found at the defendant's residence. Further, even assuming, arguendo, that Captain Adams obtained a search warrant for a residence outside of his jurisdiction, i.e., a residence in Washington Parish rather than Varnado, that fact would not provide a basis for suppression of the evidence. The defendant offers no authority, and we find none, for his argument that only police officers may obtain search warrants, and then only for property located within their jurisdiction. The Louisiana Criminal Code contains a territorial jurisdiction restriction for judges issuing warrants, but provides that any "credible person" may apply for a search warrant by affidavit reciting facts establishing the cause for issuance of the warrant. See LSA-C.Cr.P. arts. 161 162. The defendant does not contend that Captain Adams was not a credible person.
This assignment of error is without merit.