State Of Louisiana VS Kelton L. Spann
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 1 Cf 2011 KA 2366 STATE OF LOUISIANA VERSUS KELTON L SPANN Judgment Rendered December 21 2012 Appealed from the Second Twenty Judicial District Court In and for the Parish of Washington State of Louisiana Trial Court Number 10 CR8107535 Honorable William J Crain Judge Presiding Walter P Reed Lewis V Murray Counsel for Appellee III State of Louisiana Franklinton LA Kathryn Landry Baton Rouge LA Frank Sloan Counsel for Defendant Appellant Mandeville LA Kelton L Spann x BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ yj J J s a C s s 6 WHIPPLE J The defendant Kelton L Spann was charged by bill of information with possession of hydrocodone a violation of LSA 40 Count 1 S C R 968 possession with intent to distribute cocaine a violation of LSA 40 S A R 967 1 CounY 2 possession of marijuana a violation of LSA 40 Count 3 S G R 966 possession of a firearm by a convicted felon a violation of LSA 14 S 1 R 95 Count 4 and production and manufacture of cocaine a violation of LSA or S R 1 A 967 40 Count 5 The defendant filed a motion to suppress the evidence and following a hearing on the matter the motion was denied Thereafter the defendant withdrew his prior pleas ofnot guilty and at the Boykin hearing entered a Crosbv plea of guilry to all five counts reserving his right to challenge the trial s court ruling on the motion to suppress See State v Crosbv 338 So 2d 584 592 La 1976 For the possession of hydrocodone conviction Count 1 the defendant was sentenced to five years at hard labor far the possession with intent to distribute cocaine conviction Count 2 he was sentenced to fifteen years at hard labor with the first two years of the sentence to be served without benefit of parole probation or suspension of sentence for the possession of marijuana conviction Count 3 he was sentenced to six months in the parish jail for the possession of a firearm by a convicted felon conviction Count 4 he was sentenced to ten years at hard labor without benefit of parole probation or suspension of sentence and for the production and manufacture of cocaine conviction Count 5 he was sentenced or to fifteen years at hard labor with the first five years of the sentence to be served without benefit of parole probation or suspension of sentence The sentences were ardered to run concurrently The defendant now appeals designating two assignment of error For the following reasons we affirm the defendant convictions and sentences s z FACTS Because the defendant pled guilty the facts were not developed at a h ial On January 21 2010 Detective Lieutenant Donald Ray Phelps with the Bogalusa Police Department executed a search warrant on the defendant sresidence The return on the search warrant indicates that officers seized various items from the s defendant residence including ten grams of suspected crack cocaine a 9mm pistol 22 rifle suspected marijuana suspected hydrocodone assorted plastic baggies two measuring cups containing suspected cocaine and a Digiweigh scale ASSIGNMENT OF ERROR NO 1 In his first assignment of error the defendant argues the search warrant was invalid on its face Specifically the defendant contends the search warrant was issued by a court that does not exist The affidavit for the search warrant indicated that the Honorable Robert J Black was the judge of the Fourth Ward Municipal Court in and far the City of Bogalusa State of Louisiana Parish of Washington Judge Black is a judge of what today is referred to as the City Court of Bogalusa Bogalusa is in the Fourth Ward of Washington Parish As indicated by older jurisprudence in this State cases in the City of Bogalusa were filed in the City Court Ciry of Bogalusa Fourth Ward Washington Parish Louisiana See Champa v Em Liabilitv ne loyers Assur Corp 112 So 2d 118 La App lst Cir 1959 Rider v Rhodes ll0 So 2d 834 La App lst Cir 1959 See also State in the Interest of Pi o 413 So 2d tt 659 660 La App lst Cir 1982 where the defendant was adjudicated in the 61 Juvenile Court for the Fourth Ward Washington Parish In any event the judge referenced in the affidavit and the city court in Bogalusa clearly did exist resulting in the issuance of the search warrant before us and any scribal enar by the affiant notwithstanding the identity of the judge and court were clear from a reading of the entire search warrant and affidavit Further no prejudice was suffered by the 3 defendant The minor referential mischaracterization of the name of the issuing court is not fatal to the validity ofthe search warrant or the affidavit This assignment of error has no merit ASSIGNMENT OF ERROR NO 2 In his second assignment of enor the defendant argues the trial court erred in denying his motion to suppress the evidence seized from his residence Specifically the defendant contends that the search warrant affidavit did not establish probable cause and further that the search warrant cannot be saved by the Leon good exception faith When a search and seizure of evidence is conducted pursuantto a search warrant the defendant has the burden to prove the grounds of his motion to suppress LSA Part 703 State v Hunter 632 So 2d 786 788 La App Cr C D lst Cir 1993 writ denied 94 La 6 638 So 2d 1092 When a trial 0752 94 17 court denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court discretion i unless s e such ruling is not supported by the evidence See State v Green 94 La 0887 95 22 5 655 So 2d 272 280 However a trial court legal findings are 8L s subject to a de novo standard of review See State v Hunt 2009 La 1589 09 1 12 25 So 3d Article 1 i 746 751 5 of the Louisiana Constitution requires that a search warrant issue only upon an affidavit establishing probable cause to the satisfaction of an impartial magistrate LSA art 162 Probable cause exists when the facts P Cr C and circumstances within the affiant knowledge and of which he has reasonably s 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 2d 1280 1283 La 1982 The facts establishing the existence ofprobable cause for the warrant must be contained 4 within the four corners of the affidavit State v Duncan 420 So 2d 1105 1108 La 1982 See State v Green 2002 La 12 831 So 2d 962 969 1022 02 4 Affidavits by their nature are often brief and may omit some factual details 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 Such 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 was made to the issuing magistrate State v Fueler 97 La App lst Cir 9 721 So 2d 1 19 1936 98 25 rehearin r7 and anted amended in part on other ounds 97 La App lst 1936 Cir 5 737 So 2d 894 writ denied 99 La 11 99 14 1686 99749 So 2d 668 19 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 common reading of the affidavit supports the conclusion that the sense informant is credible and his information is reliable Duncan 420 So 2d at 1108 An issuing magistrate must make a practical common decision sense s 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 Illinois v Gates 462 U 213 238 103 S Ct 2317 2332 76 L Ed 2d 527 1983 State v S rd B 568 So 2d 554 559 La 1990 The process of determining probable cause for the issuance of a search warrant does not involve certainties ar 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 Rodri 437 So ie 2d 830 832 La 1983 see also Green 831 So 2d at 968 33 The review of a magistrate determination of probable cause prior to issuing s a warrant is entitled to significant deference by reviewing courts A fact the fter scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review Gates 462 U at 236 103 S Ct at 2331 Further because of the S preference to be accarded to warrants marginal cases should be resolved in favor of a finding that the issuing magistrate judgment was reasonable United s States v Ventresca 380 U 102 109 85 S Ct 741 746 13 L Ed 2d 684 1965 S see Rodrieue 437 So 2d at 833 In both his original and reply brief the defendant repeatedly alleges that the search warrant affidavit did not contain objective facts to support the suspicion that cocaine could be found at his residence Thus accarding to the defendant assertions contained in the affidavit such as agents observed numerous known drug dealers in and out of the residence and there was traffic in and out of the residence consistent with that of narcotics trafficking were merely conclusory allegations unsupported by any facts The defendant also argues that the Leon 6 faith good exception would not apply to the instant matter because a reasonably trained well police officer would have known that the affidavit was completely devoid of any objective facts to support the conclusory assertions contained within it In its ruling denying the defendant smotion to suppress the trial court made the following findings Defendant contends that the contraband found in connection with the search should be excluded from evidence Generally the factual information which is the foundation for the determination of probable cause must be found in the affidavit Mere suspicion or belief is not sufficient to establish probabie cause Furthermore while hearsay is sufficient to support probable cause the affidavit must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the judge might find reliable both the informant and the information given by him In judging the sufficiency of the affidavit a totaliry of the circumstances standard is applied The subject affidavit contains both hearsay and firsthand observations and knowledge of the affiant Lieutenant D Ray Phelps The hearsay information is identified throughout the affidavit as having quote Received information from various sources closed quotes open quote Received information closed quotes that the information was corroborated open quotes By more than one confidential informant closed quotes and that the affiant open quotes Received information from a C who provided additional I information closed quotes The affidavit does not contain facts establishing where the affiant was receiving his information ar facts that established the reliability of confidential informant Nevertheless the affiant provides information establishing that he corroborated the information obtained from the confidential informant by his personal observations The affiant conducted surveillance on the address to be searched Nothing at the motion to suppress hearing suggests that that surveillance was an illegal invasion of the defendant privacy s Affiant saw known drug dealers in and out of the subject address s Affiant observed that the traffic in and out of this residence was consistent with narcotic trafficking These personal observations of the affiant provided corroboration of the informant information that defendant had open s quotes Within the past 24 hours purchased approximately two and a half ounces of cocaine and was keeping it concealed inside the residence closed quotes The Court finds that affiant corroboration of the informant s s information that there were two and a half ounces of cocaine in the subject residence was sufficient to establish probable cause for the United States v Leon 468 U 897 104 S Ct 3405 82 L Ed 2d 677 1984 S 7 search warrant Furthermore the defendant failed to establish that affiant was not in good faith in obtaining the warrant While defendant relies upon the claim the enor that the defendant open quote Arrest s include arrest for the possession of up to 400 grams of cocaine closed quotes defendant failed to prove that this was in fact an error If it was in error there was no evidence that it was asserted in bad faith and there is information independent of that statement that supports the finding of probable cause for the issuance of the search warrant Good faith is presumed and the defendant bears the burden of proving lack of good faith In this case the defendant has not met that burden and consequently the Court is going to deny the motion to suppress We see no reason to disturb the ruling of the trial court The above quoted information contained in the affidavit agents observed numerous known drug dealers in and out of the residence and there was traffic in and out of the residence consistent with that narcotics trafficking are not conclusory allegations but rather are the facts that supported a finding of probable cause If the defendant sought to challenge these factual assertions in the affidavit then he had every opportunity to do so at the suppress to motion hearing However the defendant chose to represent himself at the suppression hearing and did not ask a single question regarding what he now refers to on appeal as conclusory allegations An affidavit supporting a search warrant is presumed to be valid State v Brannon 414 So 2d 335 337 La 1982 The defendant at the suppression hearing had the burden of proving that the representations in the affidavit by the affiant were false See Brannon 414 So 2d at 337 see also Franks v Delaware 438 U 154 171 98 S Ct 2674 2685 57 L Ed 2d 667 S 72 85 1978 Had the defendant proved by a preponderance of the evidence that the affidavit contained false statements then the burden would have shifted to the State to prove the allegations in the affidavit were true See State v Smith 397 So 2d 1326 1330 La 1981 However as noted any such burden never shifting occurred because at the suppression hearing the defendant did not challenge any of s the factual assertions in the affidavit Because the defendant did not prove that the factual representations made in the affidavit were false the factual representations in the affidavit are as a matter of law presumed true See State v Trotter 37 325 La App 2nd Cir 8 852 So 2d 1247 1253 writ denied 2003 03 22 54 2764 La 2867 So 2d 689 04 13 Accardingly the affidavit in the instant matter contained sufficient facts to support a finding of probable cause by the magistrate Under the totality of the circumstances standard the essential undisputed facts in the affidavit that established probable cause included that the affiant had information the defendant was involved in the distribution of cocaine in the area where he lived the affiant had information from various sources the defendant kept large amounts of cocaine in his residence and was distributing cocaine in the area the affiant had received information from a confidential informant that the informant had purchased cocaine from the defendant residence within the last twenty hours the s four affiant along with DTF agents and Louisiana State Police Troopers conducted surveillance on the defendant residence and the agents observed numerous s known drug dealers at the residence and the movement in and out of the residence was consistent with narcotics trafficking and the defendant had numerous arrests and convictions for narcotio offenses related Thus the information that the affiant Detective Lieutenant Phelps received from a confidential informant and other sources was corroborated by surveillance of the defendant sresidence See State v Beach 610 So 2d 908 912 La App lst Cir 1992 writs denied 614 13 So 2d 1252 La 1993 1942 94 La 11 644 So 2d 389 Furthermore 94 Detective Lieutenant Phelps testified at the suppression hearing that he was personally familiar with the defendant and his criminal past Information that the defendant has a record of arrests far drug violations is relevant in determining whether probable cause exists to issue a search warrant See State v Lehnen 403 9 So 2d 683 686 La 1981 State v Baker 389 So 2d 1289 1293 La 87 94 1980 The search warrant affidavit provides that the defendant arrests for narcotic s related offenses include arrest for the possession of up to 400 grams of cocaine The defendant asserts in his reply brief that this claim is false While the rap sheet introduced into evidence at the suppression hearing did not contain the amounts of cocaine possessed by the defendant for his convictions for possession with intent to distribute cocaine and distribution of cocaine it is not clear that the reference in the affidavit to possession of up to 400 grams of cocaine is inaccurate emphasis ours Moreover if unintentional misstatements are included these misstatements must be excised and the remainder used to determine if probable cause for the issuance of a warrant is set forth State v Peterson 2003 La App lst Cir 1806 03 31 12 868 So 2d 786 793 writ denied 2004 La 9 882 So 2d 0317 04 3 606 We find that even with the reference to 400 grams excised the affidavit supports a finding of probable cause since it still gives rise to a reasonable belief that illegal narcotics would be found at the defendant sresidence We find also that even had the search warrant been based on less than probable cause under the Leon good exception the suppression of the faith evidence seized pursuant to that search warrant would not be required It is weil settled that even when a search warrant is found to be deficient the seized evidence may nevertheless be admissible under the good exception of United faith States v Leon 468 U 897 918 104 S Ct 3405 3418 82 L Ed 2d 677 S 22 20 1984 wherein the United States Supreme Court held that the exclusionary rule should not be applied so as to bar the use in the prosecution case of s in chief evidence obtained by officers acting in an objectively reasonable good faith reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid o Under Leon 468 U at 923 104 S Ct at 3421 four instances in which S suppression remains an appropriate remedy are 1 where the issuing magistrate was misled by information the affiant knew was false or would have known was false except for a reckless disregard for the truth 2 where the issuing magistrate wholly abandoned his detached and neutral judicial role 3 where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable and 4 where the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid The instances enunciated in Leon in which suppression remains an appropriate remedy clearly reflect that suppression of evidence seized pursuant to an invalid warrant is not a remedy to be lightly considered Furthermore the jurisprudence presumes good faith on the part of the executing officer and the defendant bears the burden of demonstrating the necessity for suppression of evidence by establishing a lack of good faith State v Maxwell 2009 La 1359 App lst Cir 5 38 So 3d 1086 1092 writ denied 2010 La 10 10 1284 10 17 945 So 3d 1056 Applying these factors to this case we find that even if we considered the search warrant deficient the good exception would apply The defendant did faith not establish any bad faith on the part of the executing officer There were no misleading statements contained in the affidavit There was no evidence that Judge Black abandoned his neutral role in his issuance of the search warrant nor was there anything on the face of the warrant that would make it so deficient that it could not be presumed valid Detective Lieutenant Phelps provided the judge information gathered by the surveillance efforts of Louisiana police officers and narcotics agents Detective Lieutenant Phelps was not unreasonable in believing he provided the judge with sufficient information to support the issuance of a search warrant Accordingly suppression of the evidence would not be appropriate under the Leon good exception to the exclusionary rule See Maxwell 38 So faith 3d at 1092 The trial court did not err in denying the defendant motion to suppress s Accardingly this assignment of error is without merit SENTENCING ERROR Under LSA art 920 we are limited in our review to errors P Cr C 2 discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence See State v Price 2005 La App lst Cir 2514 06 28 12 952 So 2d 112 123 en banc writ denied 2007 La 2 0130 08 22 976 So 2d 1277 After a careful review of the record we have found a sentencing enor For his conviction of possession of a firearm by a convicted felon the defendant was sentenced to ten years at hard labor without benefit of probation parole or suspension of sentence Whoever is found guilty of violating the possession of a firearm by a convicted felon provision shall be imprisoned at hard labor for not less than ten nor more than fifteen years without benefits and be fined not less than one thousand dollars nor more than five thousand dollars LSA S R B 951 14 prior to its amendment by 2010 La Acts No 815 1 The trial court failed to impose the mandatory fine at sentencing Accordingly the defendant s sentence which did not include the mandatory fine is illegally lenient However since the sentence is not inherently prejudicial to the defendant and neither the State nor the defendant has raised this sentencing issue on appeal we decline to correct this errar See Price 952 So 2d at 123 25 CONVICTIONS AND SENTENCES AFFIRMED The minutes also reflectthat no fine was imposed 12 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 KA 2366 STATE OF LOUISIANA VERSUS KELTON L SPANN McCLENDON J concurs and assigns reasons While I am concerned about the failure of the trial court to impose the legislatively mandated fine given the state failure to object and in the interest s of judicial economy I concur with the majority opinion
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