State v. Sanchez 284 So. 2d 918

CALOGERO, Justice.

Appellants, Gilbert Sanchez and Tina Russelle, were tried jointly with a co-defendant, Leonard Jerome Bastida, on a charge of armed robbery. LSA-R.S. 14:64. All three were found guilty as charged. Gilbert Sanchez was sentenced to serve 25 years at hard labor. Tina Rus-selle was sentenced to serve 15 years at hard labor. From their convictions and sentences defendants Sanchez and Russelle here appealed, relying upon eight bills of exceptions to obtain reversals.

Leonard Jerome Bastida, co-defendant of the present appellants, had also appealed to this Court. See State v. Bastida, 271 So.2d 854 (La. 1973).1 Several of the identical bills of exceptions urged by the appellants herein were considered and rejected by this Court in State v. Bastida, supra. *920We have, however, reconsidered all of these bills on this appeal.

Bills of Exceptions Nos. 2, 5 and 6

Bill of Exceptions No. 2 was reserved when the trial court refused the defendants’ motion to suppress evidence. Bill of Exceptions No. 5 was reserved during the state’s examination of Detective Terrance Strada as to the evidence seized under the search warrant. Bill of Exceptions No. 6 was reserved when the physical evidence sought to be suppressed was admitted into evidence at the defendants’ trial on the merits. The evidence, consisting of a homemade leather holster for an automatic pistol and twelve .32 calibre bullets had been seized from the residence of Leonard Bastida pursuant to a search warrant. The basis for these bills as set out in appellant’s brief before this Court is: (1) that the affidavit supporting the search warrant failed to establish probable cause for the search of Bastida’s residence, and (2) that the premises to be searched are not adequately described in the affidavit.2

These issues were fully discussed in State v. Bastida, supra, and no purpose would be served by restating that opinion in full here.

In his dissenting opinion to State v. Bastida, Mr. Justice Barham raises the issue that the scope of the search warrant is broader than that of the supporting affidavit. A few comments and clarification of that issue are called for here.

The search warrant was issued upon the affidavit of Det. Terrance Strada. The affidavit states that Det. Strada received a phone call from a confidential informant who had given him reliable information in the past. The informant advised Det. Strada that Leonard Bastida and another subject had just told him about an armed robbery they committed in which they cut the victim badly and thought that he might have died. The informant noted that both of the subjects were carrying automatic pistols, at the time of the conversation. The informant also stated to Det. Strada that Leonard Bastida was a narcotics addict and that he had heroin in his possession at the time of the conversation and was going to Bastida’s residence to “shoot up”.

These allegations were sufficient to establish probable cause for the issuance of a warrant to search for automatic pistols and narcotics. However, the warrant also lists as items to be seized, rifles, barbiturates, amphetamines, marijuana, and stolen credit cards. Nothing in the affidavit established probable cause to search for these items.

If any of these other items had been seized and offered into evidence they would, or at least should, have been suppressed by the trial court upon proper motion as being beyond the scope of the affidavit in support of the search warrant. However, the only items offered into evidence were a holster and ammunition for an automatic pistol which clearly were within the scope of the affidavit and as to which items the search warrant was clearly supported by probable cause.

The fact that the search warrant also described items not within the scope of the supporting affidavit does not render the warrant wholly invalid. The warrant was invalid only insofar as it authorized the seizure of evidence beyond the scope of the supporting affidavit. Since no evidence beyond the scope of the supporting affidavit was introduced at defendant’s trial, the existence of surplusage in the warrant caused the defendant no prejudice.

For this reason and the reasons assigned in State v. Bastida, supra, these bills are without merit.

*921 Bill of Exceptions No. 8

Bill of Exceptions No. 8 was reserved when the trial judge rejected appellant’s Motion for a New Trial. The motion alleged that the verdict was contrary to the law and the evidence in that the state failed to prove “that it was possible at the time of the commission of the alleged crime for the victim to be able to make an identification of his assailants.”

This rather vague allegation was answered by the trial judge in his per curiam to Bill of Exceptions No. 8 as follows:

“The question of identification was a question of fact for the jury to determine on the trial of the case; and in this Court’s opinion the identification of the defendants was a good identification.

“For the above reasons, this Court overruled the Motion for a New Trial.”

Defense counsel’s brief does not elaborate on the meaning of the allegation contained in the Motion for a New Trial. At the hearing on the Motion, no evidence was introduced to support this allegation. We therefore find that the trial court acted within its discretion in denying the Motion for a New Trial. This bill is without merit.

Bills of Exceptions Nos. 1, 5, 4 and 7

These bills were submitted to the Court without argument or citation of authority. They may therefore be considered abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).3 We have nevertheless reviewed them and find them to be without merit.

For the reasons assigned, appellants’ convictions and sentences are affirmed.

BARHAM, J., dissents with reasons.

BARHAM, Justice

(dissenting).

The majority has held the search warrant valid, and the introduction of a homemade leather holster for a pistol and twelve 32-caliber bullets seized under that warrant has been approved. This is the same warrant which the majority approved in State v. Bastida, 271 So.2d 854 (La. 1973), in which I dissented. The affidavit for this warrant details that a reliable informant related to the officers that Leonard Bastida and Terry Morgan had told him of an armed robbery they had committed. The victim had told the officers that the ones who robbed him were carrying pistols. The informant told the officers that Bastida and Morgan were carrying pistols when he talked with them, and further stated, according to the officers, that they were in possession of heroin at the time.

A photograph of Bastida was shown to the victim and he identified Bastida as one of his assailants. A photograph of Morgan was shown to the victim and he, according to the officers’ affidavit, stated that he thought Morgan was one of the subjects but he was not sure. Based upon this information in the affidavit, a warrant was issued for the search of Bastida’s premises at “621 Alvar St. in the rear”. The warrant authorized the officers to search for “automatic pistols, rifles, heroin, barbiturates, amphetamines, marijuana, and narcotics administering paraphernalia, knives and stolen credit cards”.

*922First, we note that Gilbert Sanchez is the only other male charged with Bastida for the crime of armed robbery. The “reliable” informant apparently was not reliable when he tied Terry Morgan to this offense. However, that is immaterial to the issue before us. The precise question presented is whether a search warrant as broad and general as the one we consider can be valid for the purpose of seizing two items not named in that search warrant, which were admitted as evidence in the trial of this case. Every item named in the search warrant is foreign to the probable cause stated in the affidavit except “automatic pistols” and “heroin”. The detectives did not seize and return automatic pistols. They seized and returned the holster for a pistol and some 32-caliber bullets.

The majority admits that the affidavit fails to establish any probable cause for a search for rifles, barbiturates, amphetamines, marijuana and stolen credit cards, which are named in the warrant. The majority admits that the warrant is general and over-broad. They justify their holding that the denial of the motion to suppress was valid, on the basis that the items seized were within the scope of the probable cause affidavit and the warrant. This is not true. The items seized are not named in the affidavit. They could only be admissible as evidence in this case if they were discovered during a search properly conducted by the officers under a totally legal search warrant. That is, if these items tended to prove the commission of any offense,* they could be legally seized if found during the course of a search for items named in a totally legal warrant, and in an area where such named items might logically be situated.

The issue of whether or not objects not named in a search warrant are seizable under the warrant resolves itself into one question, was the warrant itself constitutionally valid? This one was not. It exceeded the affidavit. It ordered the search for items for which there was no probable cause. Under this invalid search warrant the officers, in the course of their search, seized material offered as evidence which was totally outside the scope of the warrant.

The majority errs in suggesting that although the warrant is general and broad (actually the greatest number of items named therein are not supported by probable cause), the officers could use the warrant to gather other evidence of criminal activity, since probable cause existed to search for a pistol. When we are required to determine whether other evidence seized, not contained in the search warrant, is admissible in evidence, we must determine only if the search warrant was valid. The majority has admitted that it was constitutionally invalid for the most part. They sever a tiny portion of the search warrant, find that a warrant ordering the search for two of nine items is valid (excluding the other seven items named in the warrant), and conclude that all evidence seized in the course of the search is constitutionally admissible in evidence.

I re-emphasize what may be a vital distinction in this case. The items admitted in evidence were not named in the search warrant. The majority would have a better case if the police had discovered in the search the pistol named in the warrant, and it were offered in evidence in this case. We need not and I do not address myself to the proposition that a search warrant is divisible into constitutional and unconstitutional parts, even in the latter instance. Under the facts presented and under the admissions by the majority, I am constrained to assert my belief that the search warrant was unconstitutional, and that the evidence seized in that search should be suppressed.

I respectfully dissent.