State Of Louisiana VS Atanacio Guerrero
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL NTH FIRST CIRCUIT 2010 KA 0345 STATE OF LOUISIANA VERSUS ATANACIO GUERRERO JR Judgment rendered SEP 10 2010 On Appeal from the 16 Judicial District Court Parish of St Mary State of Louisiana Docket Number 2009 178706 The Honorable John E Conery Judge Presiding J Phil Haney District Attorney Counsel for Appellee State of Louisiana Jeffrey J Trosclair Assistant District Attorney Franklin Louisiana Robert P Fuhrer Counsel for Appellant Morgan City Louisiana Atanacio Guerrero BEFORE KUHN PETTIGREW JJ KLINE J pro tempore Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court KLINE J The defendant Atanacio Guerrero Jr was charged by bill of information with possession of marijuana with intent to distribute a violation of La R S 1 A 966 40 possession of methamphetamine with intent to distribute a violation of La R 40 and possession of drug paraphernalia a violation of La R S 967 1 A S 1023 40 He pled not guilty to all charges The defendant moved to suppress the evidence and statements Following a hearing the trial court denied the motion Thereafter the defendant withdrew his former not guilty pleas and pled guilty to possession of methamphetamine in excess of 28 grams but less than 200 grams pursuant to State v Crosby 338 So 584 La 1976 reserving his right to 2d challenge the trial court ruling on the motion to suppress The state dismissed the s remaining charges Following a Boykin examination the trial court accepted the s defendant guilty plea and sentenced him to imprisonment at hard labor for five years without the benefit of probation parole or suspension of sentence The defendant was also ordered to pay a fine of 50 plus court costs The defendant 000 now appeals urging two assignments of error as follows 1 The trial court erred in denying the defendant motion to suppress the s evidence seized from the residence located at 420 Duke Street Morgan City Louisiana during the execution of a search warrant on December 15 2008 2 The trial court erred in denying the defendant motion to suppress the s inculpatory statements made during the execution of the search warrant on December 15 2008 For the following reasons we affirm the defendant conviction and sentence s FACTS Because the defendant pled guilty the facts of the offense were not fully developed at a trial The following facts were gleaned from the testimony presented at the hearing on the motion to suppress 2 On December 15 2008 Agent Duvall Arthur III of the St Mary Parish Sheriff s Office executed a search warrant of the defendant residence at 420 Duke s Street in Morgan City Louisiana The warrant was signed by 16th Judicial District Court Judge Lori Landry earlier that day The affidavit of probable cause provided in pertinent part as follows Probable cause is based on the following On December 1 2008 gents a with the St Mary Parish Sheriff Narcotics Task Force s received information from a confidential informant who will hereafter be referred to as Cl to protect his identity This Cl advised that her there was a white male subject known to the Cl as Atanacio Guerrero who was selling illegal narcotics from the residence of 420 Duke St in Morgan City La This Cl agreed to assist a with an investigation gents of illegal narcotics sales from the residence The Cl then met with gents a at a predetermined location where the Cl was searched and found to be free of any contraband and or monies The Cl was equipped with an audio transmitter for safety and monitoring purposes and was issued police marked monies to facilitate the transaction The CI then went to a local business in Morgan City La where the Cl made contact with a white male subject known to the RCI as Atanacio Guerrero The Cl then conversed negotiated and made a purchase of suspected arijuana m from Guerrero The Cl then met with a at a gents predetermined location where the suspected m was turned arijuana over to Agt Duval Arthur III The Cl was again searched and found to be free of any contraband and or monies The suspected m arijuana was tagged and placed into the evidence vault On December 15 2008 a were contacted by a reliable gents and confidential informant who will hereafter be referred to as RCI to protect his identity This RCI advised that there was a white male her subject known to the RCI as Atanacio Guerrero who was selling illegal narcotics from the residence of 420 Duke St in Morgan City This RCI agreed to assist agents with an investigation of illegal narcotics sales from the residence Agents then set up surveillance on Guerrero s residence of 420 Duke St The RCI met with a at a gents predetermined location where the RCI was searched and found to be free of any contraband and or monies The RCI was equipped with an audio transmitter for safety and monitoring purposes and was issued police marked monies to facilitate the transaction The RCI made contact with Guerrero and was instructed to meet him at a local business Agents that were conducting surveillance on Guerrero s residence observed him leave his residence and followed him to the business to meet with the RCL The RCI also traveled to the local business in Morgan City La where the RCI made contact with a white male subject known to the RCI as Atanacio Guerrero The RCI then conversed negotiated and made a purchase of suspected m arijuana from Guerrero The meeting between Guerrero and the RCI was concluded 3 Agents then followed Guerrero as he departed the business and traveled back to his residence When Guerrero arrived at his residence surveillance was terminated The RCI then met with other a at a gents predetermined location where the suspected m was turned arijuana over to Agt Duval Arthur III The RCI was again searched and found to be free of any contraband and or monies The suspected m arijuana was tagged and placed into the evidence vault With the signed warrant in hand Agent Arthur and several other narcotics agents conducted the search The officers entered the residence and found the defendant inside a bedroom standing near the bed with a large ice chest container filled with suspected marijuana Digital scales cellophane bags of marijuana and methamphetamine were also found on the bed The defendant was detained while the remaining officers swept the residence to determine if there were any other occupants The defendant mother was located In response to the detention of his s mother the defendant stated She had nothing to do with this s doesn have a he t key to my bedroom It is padlocked The illegal narcotics and other items were seized and the defendant was arrested Scientific analysis revealed that approximately 4 grams of marijuana and 75 grams of methamphetamine were 305 recovered from the defendant residence in connection with the search s ASSIGNMENTS OF ERROR 1 2 DENIAL OF MOTION TO SUPPRESS THE EVIDENCE AND STATEMENTS In these assignments of error the defendant argues the trial court erred in failing to suppress the evidence seized and the statements made during the search of his residence The defendant argues that the search of his residence should not be upheld because the warrant authorizing the search was based upon an affidavit that was insufficient to support a finding of probable cause Specifically the defendant asserts the information contained in the affidavit failed to establish a sufficient nexus between the items sought marijuana and the place to be searched his residence He further argues that the reliability of the Cl was not described in the affidavit and the information provided by the Cl was unverified Finally the defendant argues M that any statements made during the search of the residence were fruits of the unlawful search without a valid search warrant Article 1 5 of the Louisiana Constitution requires that a search warrant may issue only upon an affidavit establishing probable cause to the satisfaction of an impartial magistrate See also La Code Crim P art 162 Probable cause exists when the facts and circumstances within the affiant knowledge and of which he s has reasonably trustworthy information are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched State v Johnson 408 So 1280 1283 La 2d 1982 The facts establishing the existence of probable cause for the warrant must be contained within the four corners of the affidavit State v Duncan 420 So 2d 1105 1108 La 1982 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 His factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence The harsh result of quashing a search warrant when the affidavit supports a finding of probable cause should obtain only when the trial judge expressly finds an intentional misrepresentation to the issuing magistrate State v Fugler 971936 pp 2425 La App lst Cir 9 721 So 1 19 98 25 2d rehearing granted and amended in part on other grounds 971936 La App 1st Cir 5 737 So 894 writ denied 991686 La 11 749 So 668 99 14 2d 99 19 2d 5 If the basis for the existence of probable cause is the tip of an informant the affiant must articulate the basis for his belief that the informant is trustworthy This may be done by showing circumstances where the informant has given reliable information in the past The affidavit must also indicate the underlying circumstances from which the informant concluded that the drugs were where he said they would be This may be done by reciting that the informant personally observed the drugs under the circumstances recited An allegation of past reliability is not necessarily a sine qua non to sufficiency of probable cause as long as a commonsense reading of the affidavit supports the conclusion that the informant is credible and his information is reliable See State v Clay 408 So 2d 1295 La 1982 The review of a magistrate determination of probable cause prior to issuing s a warrant is entitled to significant deference by reviewing courts A fterthefact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review Illinois v Gates 462 U 213 236 103 S 2317 2331 76 S Ct 2d Ed L 527 1983 Further because of the preference to be accorded to warrants marginal cases should be resolved in favor of a finding that the issuing magistrate s judgment was reasonable State v Rodrigue 437 So 830 833 La 1983 The 2d burden of proof is on the defendant to prove the ground of his motion to suppress La Code Crim P art 703 D In the instant case the defendant argues that the affidavit submitted with the search warrant application was insufficient to establish probable cause because it failed to provide a sufficient nexus between his residence and any illegal contraband In support of this argument the defendant notes that although the affidavit suggests that the Cl advised that the defendant was selling marijuana from the residence at the hearing on the motion to suppress Agent Arthur testified that the CI advised that the defendant did not sell the illegal narcotics 0 directly from his residence predetermined locations Instead he conducted transactions at other The defendant argues that the misstatement of information in the affidavit was an intentional misrepresentation by Agent Arthur to deceive the judge issuing the warrant The defendant further argues that Judge Landry would not have issued the search warrant absent this misrepresentation Our review of the evidence presented at the motion to suppress hearing reveals as the trial court correctly noted in its written reasons for ruling the affidavit contains some potentially misleading information First the affidavit specifically provides that the Cl stated that the defendant sold illegal drugs from the residence However as the defendant correctly points out Agent Arthur s testimony established this was not a true statement Agent Arthur testified that even prior to the first controlled purchase the Cl indicated that the defendant did not conduct drug transactions at his residence The trial court in its reasons noted that the statement regarding drug sales from the home was simply Agent Arthur relaying the information communicated by the confidential informant Thus any suggestion that drugs were being transacted at the residence is inaccurate Nevertheless the affidavit goes on to provide details of two separate controlled marijuana purchases transacted by the defendant Since both of the controlled buys which served to test the reliability of the Cl and formed the basis of the probable cause determination were completed at a location other than the s defendant residence we find the unintentional misrepresentation regarding drug sales from the defendant residence to be immaterial as to the ultimate s determination of probable cause In denying the motion as it relates to the sufficiency of the nexus between the defendant residence and the illegal drugs in this case the trial court relied on s State v Williams 2003 0302 La App 4 Cir 10 859 So 751 writ 03 6 2d denied 20043093 La 11 916 So 133 and State v Hunter 632 So 05 28 2d 2d 7 786 La App 1st Cir 1993 writ denied 940752 La 6 638 So 1092 94 17 2d In Williams the defendant argued that the trial court erred in denying the motion to suppress the evidence seized from his residence because the affidavit on which the officers relied to obtain the search warrant did not set forth sufficient probable cause to support issuing a warrant for that location In summarizing the general rules regarding search warrants the Fourth Circuit quoted the Louisiana Supreme Court ruling in State v Casey 990023 p 4 La 1 775 So s 00 26 2d 1022 1028 cert denied 531 U 840 121 S 104 148 L 62 2000 S Ct 2d Ed where the Court stated in pertinent part that a search warrant must establish a probable continuing nexus between the place sought to be searched and the property sought to be seized It was further noted by the Fourth Circuit that i n determining whether a magistrate could reasonably infer from the facts set forth in the search warrant application that drugs were likely located in the seller s residence the jurisprudence has held that there need not be definite proof that the seller keeps his supply at his residence t I will suffice if there are some additional facts such as that the seller went to his home prior to the sale or that the sale occurred near the home which would support the inference that the supply is probably located there State v Williams 20030302 at p 3 859 So at 756 2d quoting Wayne R LaFave Search and Seizure 3 ed 1996 3rd d 7 In Hunter the police sought a warrant to search the defendant residence s for marijuana and other drug paraphernalia In their affidavit in support of the warrant application the detectives stated that a confidential informant had performed a controlled buy of marijuana from the defendant and the police had kept the defendant under surveillance during the transaction The defendant left the purchase location to go get the marijuana returned to his residence and then returned to the purchase location to complete the transaction Although the affiant did not conduct surveillance of the residence itself or state the contraband was M actually observed at the residence this court held that the affidavit provided a substantial basis for believing that the defendant had obtained the marijuana for the controlled buy from his residence State v Hunter 632 So at 78889 2d Applying Hunter the trial court concluded that based on the information contained in the affidavit in this case the issuing judge was entitled to make a reasonable common sense decision based upon the two controlled buys one in which the defendant was under surveillance as he left his residence completed the sale and returned to his residence and infer that a suspected drug dealer would store his contraband at his residence We agree Considering that Agent Arthur conducted surveillance of the defendant as he departed from his residence to meet the Cl to conduct the drug transaction and he returned directly to his residence afterwards it was reasonable to conclude that it was likely the defendant stored illegal drugs at his residence An issuing magistrate must make a practical commonsense decision whether given all the circumstances set forth in the affidavit there is a fair probability that evidence of a crime will be found in a particular place State v Byrd 568 So 554 559 La 1990 The process of determining probable cause 2d for the issuance of a search warrant does not involve certainties or proof beyond a reasonable doubt or even a prima facie showing but rather involves probabilities of human behavior as understood by persons trained in law enforcement and as based on the totality of circumstances The process simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system See State v Rodrigue 437 2d So at 83233 We further conclude that the affidavit in this case was sufficient to establish probable cause despite the defendant contention that the reliability of the Cl was s z not established First the informant in this case was confidential not anonymous Second the information provided by the CI was not the sole factual basis for the finding of probable cause The information provided by the CI was tested by the officers in two separate controlled drug transactions These transactions and the surveillance of the defendant movement before and after the second transaction s provided the basis for a finding of probable cause At the hearing on the motion to suppress Agent Arthur explained that although the Cl was not initially considered to be a reliable source of information once the first controlled marijuana purchase was successfully completed the informant was deemed reliable At that point in the affidavit the Cl was referred to as RCI reliable confidential informant Although the information in the affidavit could be read as the Cl and the RCI being two different informants the trial court found that the info regarding the two controlled buys to be sufficient to support the issuance of the warrant Under the facts and circumstances of this case the trial court did not abuse its discretion in denying the motion to suppress based on the allegations in the affidavit The trial court did not err in concluding that the search warrant established probable cause since the facts and circumstances were sufficient to support a reasonable belief that an offense had been committed and that evidence or contraband would be found at the place to be searched There is no indication Agent Arthur intended to deceive the judge who signed the warrant Excising any misrepresentations in the affidavit and considering any alleged omissions probable cause for issuance of the warrant still existed Considering the foregoing the defendant claim that the statements he s made during the execution of the search warrant should have been suppressed under the fruit of the poisonous tree doctrine lacks merit Since the search in this Since we do not conclude that the search warrant in this case was deficient we need not analyze the applicability of the goodfaith exception of United States v Leon 468 U 897 104 S 3405 82 L 677 1984 S Ct 2d Ed 10 case was not unlawful it did not result in any poisonous fruits All of the evidence seized and statements made during the execution of the warrant were admissible These assignments of error lack merit DECREE For the foregoing reasons we affirm the conviction and sentence CONVICTION AND SENTENCE AFFIRMED
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