State v. Searle

Appellant Frank J. Searle III was charged by separate bills of information with the July 4, 1974 simple burglaries of the residences of J, H. Pace and A. S. Atkinson. La.R.S. 14:62. The charges were consolidated, and in a trial by jury, on July 30 and 31, 1975, Searle was acquitted of the Pace burglary and convicted of the Atkinson burglary.

Sentence was deferred for five years, during which time Searle was placed on active probation, a condition being that he spend one year in the parish jail. On this appeal three assignments of error are relied upon for reversal of the conviction and sentence.

Assignment 1

A motion to suppress was filed by defendant on April 24, 197S alleging that on July 6, 1974 at 3:30 in the morning he was the victim of an unconstitutional search and seizure at the residence of his parents at 323 Kay Drive, Baton Rouge. Pursuant to this search, certain items allegedly the fruit of criminal activity were seized by the Baton Rouge City police who refused to produce a search warrant until the following day. The motion sets forth that no warrant existed at the time of the search and seizure; alternatively, it alleges that the search warrant was defective and not based upon probable cause.

All items seized were sought to be suppressed, including a brown fur rug, black and orange stereo equipment, a .38 Smith and Wesson pistol, an eight-track cartridge tape player and assorted eight-track tapes, hair dryer, hunting vest with shotgun shells,' eight-track stereo-tape-carrying- • case/box, and stereo headphones.

Display of the Warrant

At the hearing on the motion to suppress, the defense called Officer San-desky. He testified that he answered a call from John J. Pace during the early morning hours of July 5, 1974. Pace complained at that time that his room, in his father’s residence,' had been burglarized. He also informed the officer that he had been at defendant Searle’s house about four weeks before. During this visit he saw a fur rug and an orange tape player which he recognized as belonging to the Atkinsons, friends of his who lived nearby. Pace had visited the Atkinson house some time previously and had seen these objects there. He asked Pace not to tell anybody.

Later that day Officer Sandesky checked with the Atkinsons who verified the fact that the rug and tape player were missing. Therefore he awakened Judge Parker in the early morning hours of July 6, 1974 and obtained a search warrant. Then, in company with other officers, he went directly to Searle’s house to execute the search warrant.

He was met at the door by Jeff Gerald and informed him that a search warrant had been issued to search the house. Thereupon Gerald turned and walked down the hall to a back bedroom where Searle was sitting on the bed. Although neither Gerald nor Searle asked to see a copy of the search warrant, the officers nevertheless informed Searle that they had a search warrant, and they showed him a copy of it. They then proceeded to search for and seize the objects which are the subject of the motion to suppress, made an inventory, and gave Searle a copy.

Gerald testified to the contrary. He denied that the search warrant was ever shown to him or to Searle in his presence. Searle did not testify.

On the issue thus formed the question resolves itself into one of credibility. Since only Officer Sandesky and Gerald testified, both of whom were called as defense witnesses, there was no error in the ruling of the trial judge in accepting Officer Sandesky’s version of the facts. Our review of the testimony is in accord with this finding. Officer San-desky testified that he awakened the district judge in the early morning hours and proceeded directly to the residence where the search and seizure were conducted. No plausible reason is advanced why he would conceal the fact of the issuance of the search warrant obtained under such circumstances. The warrant signed by the judge and dated July 6, 1974 is attached to defendant’s brief, and the transcript indicates that it was introduced in evidence.

Moreover, the Code of Criminal Procedure does not require the executing officer to display the warrant or furnish a copy to those present in the place searched. La.Code Crim.Proc. art. 167; cf. State v. Hills, 259 La. 436, 250 So.2d 394 (1971). And since there is no statutory requirement that the owners of the premises or the property seized be present at the time of the search, it would follow that the display of a warrant is not a necessary prerequisite to a valid search. La. Code Crim.Proc. arts. 161-67.

Probable Cause

Basing his argument upon constitutional principles announced by the United States Supreme Court, defendant contends that the affidavit and search warrant fail to reflect the requisite probable cause to support the search and seizure.

Officer Sandesky signed an affidavit before Judge Parker setting forth that probable cause existed for the issuance of a search warrant authorizing the search of the residence at 323 Kay Drive, Baton Rouge, where the following objects, fruit of a crime, were located: a black and orange stereo, brown fur rug, and assorted stereo tapes. The affidavit set forth that the probable cause was based upon the following :

“One John J. Pace advised Det. Sadesky that while at residence o'f Frank Searle of 323 Kay Dr. he John Pace observed a black and orange stereo and brn fur rug, that he knew belonged to the Atkinson Family on Goodwood. John Pace asked Frank Searle where he obtained items. Searle said ‘ “From the Atkinson house, but don’t say anything to anyone.’ ”

The federal constitutional rule established by a line of United States Supreme Court cases acknowledges that an affidavit may be based upon hearsay, but it must contain underlying circumstances sufficient to convey to the issuing magistrate information concerning the reliability of the informant. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinetti v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

. Searle relies heavily on the two-pronged test announced in the Aguilar v. Texas decision requiring: 1) that the affidavit indicate the underlying circumstances from which the informant concluded that the objects stolen were where he claimed they were, and 2) some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed was “credible” or his information “reliable”.

Unquestionably the affidavit in the case at bar satisfactorily supplies information indicating that Searle had the stolen objects at his house where Pace had seen them. Thus, the first of the two-pronged Aguilar test is satisfied.

Significantly, Officer Sandesky’s informer was not a confidential, unnamed informer. He was, instead, a named and non-professional informer who gave definite and detailed information relating to the stolen items. He was also in a position to repeat verbatim an incriminating admission by Searle in his presence. Pace’s information, therefore, was based upon personal observation of the stolen objects, together with a declaration of the defendant that he was the thief, all of which pointed to the strong inference that Pace obtained his information in a “reliable” way. Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). These factors formed a “substantial basis” for crediting the hearsay. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

The leading United States Supreme Court cases, relied upon by defendant and referred to above, all involve situations where unknown professional informants were involved. Understandably, in those cases, the Court was concerned that there be a showing of the informer’s credibility in order to forestall a search based upon an idle rumor or upon unfounded suspicion. An effort to solve the problem of the anonymous troublemaker giving information — perhaps exaggerated or fabricated — because of the promise of a reward was the aim of the two-pronged test of the Aguilar Case. United States v. Darensbourg, 520 F.2d 985 (5th Cir. 1975).

The rule growing out of these cases should not be applied as readily to an eyewitness such as Pace. An ordinary citizen complaining of a burglary would not usually be familiar to the police, or have had occasion to inform in the past. As a consequence his credibility could not be vouched for by the officer. The circumstances and facts of which he had knowledge, and which he disclosed in his complaint, would in most cases be the only information available to the officers or magistrate upon which his credibility could be determined.

Responding to a contention that the warrant was defective for want of a recital in the affidavit that the informant was known to be reliable, as Aguilar and Spinelli were claimed to require, the Second Circuit in United States v. Burke, 517 F.2d 377, held in 1975 that:

“Apart from the question of the precise standing of Spinelli after U. S. v. Harris, 403 U.S. 573, 581-83, 91 S.Ct. 2075, 29 L.Ed.2d 723 . . ., there has been a growing recognition that the language in Aguilar and Spinelli was addressed to the particular problem of professional informers' and should not be applied in a wooden fashion to cases where the information comes from an alleged victim of or a witness to a crime. Indeed any other view would mean that, despite the 1972 amendment to F.R.Crim.P. 41(c) to the effect that ‘[t]he finding of probable cause may be based upon hearsay evidence in whole or in part,’ it would generally be impossible to use hearsay statements of victims or witnesses since ordinarily they would not be previously known to the police.” 517 F.2d at 380.

United States v. Bell, 457 F.2d 1231 (5th Cir. 1972) also stands for the general proposition “ . . . that Aguilar and Spinelli requirements are limited to the informant situation only.” It is significant to recall Chief Justice Burger’s statement that the Aguilar informant-reliability rule applies to “an affidavit based solely on the hearsay report of an unidentified informant.” (emphasis added). United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

Defendant’s contention is without merit.

Assignment 2

In his charge to the jury before they retired to deliberate the trial judge instructed :

“Article 432 of Title 15 sets forth the presumptions. A legal presumption relieves him in whose favor it exists from the necessity of any proof but may, nonetheless, be destroyed by rebutting evidence. They give some examples of presumptions in law. Such is the presumption . . . that the person in the unexplained possession of property recently stolen is the thief.”

Defense counsel’s objection to this charge was overruled, and the trial judge continued :

“. . . The presumption concerning possession of stolen property has been extended in the case of State versus Shelby which states that unexplained possession of property recently stolen at the time of a burglary creates a presumption that the possessor committed the burglary.”

Again, defense counsel’s objection was overruled. He assigns these rulings as error. His objection is based upon several contentions. Section 432 of Title 15, he argues, does not specifically support such a legal presumption. There is a difference between theft and burglary, the argument runs, for burglary requires acts beyond the simple taking of something of value belonging to another, La.R.S. 14:67; it requires an unauthorized physical entry into a structure with a specific intent to commit a felony or theft therein. La.R.S. 14:62. While there may be some logic in a legal presumption that one found in the unexplained possession of recently stolen goods may have taken the goods, he asserts, the presumption should not be broadened to include both unauthorized taking and the unauthorized entry.

This contention is answered in State v. Shelby, 215 La. 637, 41 So.2d 458 (1949). There this Court said:

“Counsel for defendant contends that the recent possession of stolen goods does not create a presumption of guilt of the crime of simple burglary. He points out that Article 432 of the Code of Criminal Procedure provides that such possession creates a presumption of theft and contends that such possession does not create a presumption of burglary. The charge given by the trial judge was proper under the evidence in this case because there was no attempt made to explain the possession. It was denied that the defendant had possession of the property at any time. Under the charge it was incumbent upon the State to prove an intent to steal or an intent to commit a forcible felony because simple burglary is an unauthorized entering with such intent. The recent possession of property taken at the time of the burglary creates a presumption that the property was stolen. Such being the case, it would at the same time create a presumption that the defendant was guilty of the bur-lary because the property was stolen at the time of the unauthorized entering.

The other argument advanced in support of the defense contention asserts that this legal presumption has the effect of reversing defendant’s constitutionally granted right against self-incrimination by compelling him to meet the presumption head on and endeavor to overcome the same by explaining his possession.

This argument is not well-founded.

The presumption referred to in Section 432 is a presumption of fact — not a presumption of law. See State v. Pace, 183 La. 838, 165 So. 6 (1935). It does not no more than to make possession of the prohibited article prima facie evidence of guilt. It leaves the accused entirely free to testify or not as he chooses. If the accused happens to be the only repository of the facts necessary to negative the presumption arising from his possession, that is a misfortune which the statute does not create but which is inherent in the case. Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925). See also United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); State v. Curry, 319 So.2d 917 (La.1975); State v. Womack, 283 So.2d 708 (La.1973); State v. McQueen, 278 So.2d 114 (La.1973).

Assignment 3

Searle argues that the conviction should be reversed because in the prosecutor’s closing argument he told the jury, in effect, that unless they convicted Searle of burglary in the cases before them he could not later be charged with receiving stolen things. This was an erroneous statement of law, according to defense counsel, for double jeopardy would not attach to a charge of receiving stolen things, La.R.S. 14:69, after an acquittal of the charge of simple burglary, La.Code of Crim.Proc. art. 596, and, therefore, Searle could thereafter be prosecuted for receiving stolen things.

The prosecutor answers this contention by an argument that double jeopardy would apply and by pointing out that his argument was made in rebuttal of the defense plea to the jury in which defense counsel declared that he wouldn’t be surprised if Searle was charged with “receiving stolen things” if he was acquitted of this burglary.

Since the defense complaint that the prosecutor misstated the law to the jury does not fall within one of the specified grounds authorizing mistrial, La.Code Crim.Pro. arts. 770 and 775, it must be considered as possibly within the general mandate that a mistrial be granted . . when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial . ” La.Code Crim.Pro. art. 775.

Our conclusion is that the grounds advanced by the defense does not fall within the general mandate.

Leaving aside the merits of the respective contentions of the defense and the State on the question of double jeopardy, the prosecutor was entitled to answer the question of law advanced in the defense plea to the jury. If, in his effort to do so, the prosecutor erred on the question of law at issue, this error would not furnish grounds for setting aside this conviction. He is not held to infallibility in the law. State v. Viator, 246 La. 809, 167 So. 2d 374 (1964); State v. Stahl, 236 La. 362, 107 So. 2d 670 (1959); State v. Wren, 121 La. 55, 46 So. 99 (1908). And the jury is instructed to take the law from the judge, not opposing counsel. Before a verdict is set aside on the ground of improper argument, this Court must be thoroughly convinced that the jury was in some manner influenced by the remarks and that the remarks contributed to the verdict. State v. Dennis, 250 La. 125, 194 So.2d 720 (1967); State v. Jackson, 227 La. 642, 80 So.2d 105 (1955). No such showing has been made here.

For the reasons assigned, the conviction and sentence are affirmed.

TATE, J., dissents and assigns written reasons.

DIXON, J., concurs.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents for reasons assigned by CALOGERO, J.