State of Louisiana v. James G. Buck

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
KW 17-471
STATE OF LOUISIANA
VERSUS

JAMES G. BUCK

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ON WRIT OF CERTIORARI FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, DOCKET NO. 15-59048
HONORABLE LAURIE A. HULIN, JUDGE

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VAN H. KYZAR

JUDGE

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Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar,
Judges.

WRIT DENIED.

Amanda Martin

15" Judicial Public Defender’s Office

P.O. Box 3622

Lafayette, LA 70502

Telephone: (337)232-9345

Fascimile: (337)232-1169

COUNSEL FOR DEFENDANT/APPLICANT:
James G. Buck

Roger Hamilton

Assistant District Attorney

15" Judicial District

Vermilion Parish Court

100 North State Street

Abbeville, LA 70510

Telephone: (337)232-5170

COUNSEL FOR RESPONDENT:
State of Louisiana

KYZAR, Judge

The Defendant, James G. Buck, files this writ seeking a reversal of the trial
court’s denial of his motion to suppress evidence seized in connection with his
underlying criminal charges. For the reasons herein, we deny Defendant’s writ
application.

Background

On June 15, 2015, Defendant, James G. Buck, was charged with possession
with intent to distribute CDS II (methamphetamine), in violation of La.R.S.
40:967(A)(1); possession of CDS IV (alprazolam), in violation of La.R.S.
40:969(C); possession of CDS II (amphetamine), in violation of La.R.S.
40:967(C); transactions involving proceeds from drug offenses, in violation of
La.R.S. 40:1041(D); possession of firearms in the presence of a controlled
dangerous substance, in violation of La.R.S. 14:95(E); and possession of drug
paraphernalia, in violation of La.R.S. 40:1023. On June 22, 2016, Defendant filed
a motion to suppress all evidence obtained as a result of a December 16, 2014
search of Defendant’s residence.

Defendant claimed the warrant was issued without probable cause, arguing
the application for the search warrant lacked particularity and there was no basis
for concluding the individual, Ms. Elizabeth Pate, who provided information to the
applicant, was reliable. Additionally, Defendant argued that the officer applying
for the search warrant, Sergeant Jerath Bessard, “intentionally left off relevant and
important information regarding Ms. Pate’s unstable mental state and erratic
behavior,” thereby misleading the judge who signed the search warrant. The
affidavit seeking the search warrant stated the following:

On December 16, 2014[,] Sgt. Jerath Bessard and other agents with

the Vermilion Parish Sheriffs’ Office Narcotics Unit received
information from Elizabeth Pate W/F stating that Craig Guillory

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brought her to James Buck’s residence located at 14001 Ash Street in
Perry, LA. Ms. Pate continued to say that she and the males smoked
Methamphetamine at the residence, she also stated that James Buck
and Craig Guillory also cooks [sic] Methamphetamine at the
residence, and are associated with the notorious Bandito Motorcycle
Gang. Ms. Pate also stated that James Buck left a guy for dead last
week in a field between Abbeville and Kaplan. VPSO located that
male subject in a field on Cheneau Road.

Ms. Pate stated that James Buck took her over to Marlin [R]Joad, the

residence of his deceased father, and was trying to bring her into a

field on a 4-wheeler and kill her. Ms. Pate said she jumped off the 4-

wheeler and ran to a nearby house to call [the] Sheriff’s Office.

A hearing on the motion to suppress took place on December 22, 2016, and
January 3, 2017. Defendant and the State filed post-hearing memorandums on the
issue, and, on March 31, 2017, the trial court denied the motion to suppress,
stating:

The “direct personal observation of the informant,” the affidavit’s

disclosure of the informant’s name, and the coorborating [sic]

information within the affidavit establish that the named informant

was credible and her information was reliable. Clay, 408 So.2d 1295

(La. 1982). The testimony from Sgt. Bessard of his observations,

conclusions, and personal knowledge of details of a separate narcotics

investigation of the residence located [at] 14001 Ash Street;
establishes that the defendant failed to show any genuine issue of his
veracity or reckless disregard for the truth. Therefore, the affidavit
contains sufficient probable cause and describes with particularity the

place to be searched and the evidence thought to be found therein.

The following information was presented during the hearing on the motion
to suppress. On December 16, 2014, Mr. Jeb Linscombe called law enforcement to
have them remove a woman by the name of Elizabeth Pate from his home. Ms.
Pate told Mr. Linscombe that she believed her acquaintance, Defendant James
Buck, was trying to kill her. Deputy Travis Castille, a patrol deputy with the
Vermilion Parish Sheriff's Office (VPSO), was one of the first officers on the
scene. He testified that Ms. Pate was in an upstairs bedroom, was frantic and

jumpy, and kept grabbing a pair of kitchen knives but would put them down before

grabbing them again. Deputy Castille testified that although Ms. Pate did not

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threaten anyone with the knives, she kept picking them up and seemed terrified, so
he and Deputy Shawn Faulk handcuffed her and escorted her out of the house.
Deputy Castille stated that although Ms. Pate was not cooperative, she was not
charged with any crime. Furthermore, she was eventually taken to the hospital for
medical attention as she admitted to being on methamphetamine.

Deputy Shawn Faulk, a field training officer with the VPSO, testified that he
was the second officer on the scene with Deputy Castille. Deputy Faulk
corroborated Deputy Castille’s description of Ms. Pate’s actions.

Lieutenant Dale Hargrave, a shift commander in the VPSO’s patrol division,
testified that he went out to Mr. Linscombe’s residence and learned that there was
a female in a panic. Lieutenant Hargrave described Ms. Pate as being intoxicated
and paranoid, and she kept saying, in reference to Defendant, that “[h}e was going
to kill me. He was about to kill me. He was going to kill me.”

Sergeant Jerath Bessard, a narcotics detective with the VPSO, testified that
he was called out due to Ms. Pate’s aliegations that Defendant had illegal narcotics
in his house. He testified that Ms. Pate appeared to be under the influence of drugs
and told him that she had been getting high with Defendant and Craig Guillory
before going to a location across the street from Mr. Linscombe with Defendant, at
which time Defendant tried taking her into the woods to kill her. Sergeant Bessard
testified that he questioned Ms. Pate twice, and she told him she had been getting
high on methamphetamine with Defendant and Craig Guillory that day and that
there was a large quantity of methamphetamine still at Defendant’s home.
Sergeant Bessard testified that he included information in the affidavit for a search
warrant that Ms. Pate had admitted to smoking methamphetamine with Defendant
and Craig Guillory and that he obtained the address of Defendant’s home based

upon Ms. Pate’s directions on how to reach the home. He also noted that Ms. Pate

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was taken to the hospital following her interview because “[s]he was using drugs.”
Sergeant Bessard noted that execution of the search warrant resulted in the
recovery of “[a]pproximately 6.8 grams of methamphetamine, three and a half, I
think, Xanax pills, one suspected Adderall, $1,202 in US currency, and about
fifteen guns,” some of which were found near the methamphetamine.

Finally, Lieutenant Sammy Laporte, a homicide detective with the VPSO,
testified that he spoke to Ms. Pate on the day in question and that she was hyper
and excited, that she admitted to using drugs at Defendant’s house, and that she
was scared.

Defendant seeks review of the trial court’s March 31, 2017 denial of his
motion to suppress. He asserts two alleged assignments of error, as follows:

1, The trial court erred as a matter of law by misstating Defendant’s

initial burden in a Franks hearing and by refusing to reexamine the

affidavit for probable cause in light of the affiant’s omission of his

sole informant’s extreme intoxication, where the defendant proved the

materiality of this omission by preponderance of the evidence.

2. The trial court abused its discretion by finding probable cause to

support the search warrant within the four corners of the affidavit and

considering the totality of the circumstances.
Opinion

Defendant argues that the trial court held him to the incorrect burden of
proof and that it abused its discretion in finding that the affidavit for the search
warrant supported a finding of probable cause. As both of the assignments of error
relate to the trial court’s determination that the search warrant was issued upon
sufficient probable cause, we will treat them simultaneously.

It is well established that a search warrant may issue only upon

an affidavit establishing probable cause to the satisfaction of a neutral

magistrate. La.Const. art. 1, sec. 5 (1974); La.C.Cr.P. art. 162; State

v. Klar, 400 So.2d 610 (La.1981). Probable cause exists when the

facts and circumstances within the affiant’s knowledge, and those of

which he has reasonably trustworthy information, are sufficient to
support a reasonable belief that evidence or contraband may be found

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at the place to be searched. State v. Johnson, 408 So.2d 1280

(La.1982); State v. Tranum, 384 So.2d 367 (La.1980); State v.

Morgan, 376 So.2d 99 (La.1979). Further, the facts establishing the

existence of probable cause for the warrant must be contained within

the four corners of the affidavit. State v. Poree, 406 So.2d 546,

(La.1981); State v. Daniel, 373 So.2d 149 (La.1979); see also Aguilar

v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

State v. Duncan, 420 So.2d 1105, 1107-08 (La.1982).

Defendant argues that under Franks v. Delaware, 438 U.S. 154, 98 S.Ct.
2674 (1978), and its progeny, “given the proper showing, a Defendant can traverse
the four corners of a search warrant affidavit and attack the reliability of the
affiant’s information.” Additionally, that court held if a defendant proves perjury
or reckless disregard for the truth by the affiant, false statements from the affidavit
must be excluded and the affidavit reweighed for probable cause. /d. at 155-156.
In State v. Byrd, 568 So.2d 554, 559 (La.1990), the supreme court noted that where
“misrepresentations or omissions are inadvertent or negligent, the warrant will be
retested for probable cause after supplying that which had been omitted or striking
that which had been misrepresented.”

Defendant argues that he proved Ms. Pate’s extreme intoxication, an issue
not contested by the State; therefore, the trial court should have re-evaluated the
affidavit while considering the intoxication as part of the probable cause analysis.
Additionally, Defendant argues the trial court should not have found probable
cause because Defendant proved Ms. Pate was too intoxicated to be credible, but
Sergeant Bessard chose “not to include” her intoxication in his affidavit, and he
fatled to independently corroborate Ms. Pate’s allegations. Defendant claims the
trial court erred in finding “the defendant failed to show any genuine issue of
[Sergeant Bessard’s} veracity or reckless disregard for the truth” and further that

this is not the correct burden of proof he must meet at a hearing. The Franks court,

however, specifically noted that “[a]llegations of negligence or innocent mistake

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are insufficient. The deliberate falsity or reckless disregard whose impeachment is
permitted today is only that of the affiant, not of any nongovernmental informant.”
Despite this language, the supreme court has stated that probable cause
determinations are to be made based on the four corners of the application, “unless
the defendant carries his burden of showing deliberate or negligent
misrepresentations made by the affiant.” State v. Donald, 13-18, p. 1 (La. 5/3/13),
115 So0.3d 1138, 1138. Furthermore, in State v. Watson, 47,980, p. 1 (La.App. 2
Cir. 5/15/13), 135 So.3d 693, 696 n.1, writ denied, 13-1676 (La. 2/7/14), 131 So.3d
856, and writ denied, 13-1788 (La. 2/7/14), 131 So.3d 862, the second circuit
specifically noted that Franks requires that “[a] defendant must proffer specific
proof as to the falsehoods by the state, reflecting the affiant’s deliberate or
negligent misrepresentation.” We find that the law is clear, the trial court correctly
applied the standard, and that the trial court did not misstate Defendant’s burden at
the Franks hearing. The issue at a Franks hearing is the veracity of the
information in the affidavit for the warrant, not the veracity of the informant.
Further, while Defendant argues the “significant material omission of Ms.
Pate’s extreme intoxication,” stating that there was no mention in the affidavit of
Ms. Pate’s intoxication whatsoever, such a claim ignores the fact that the affidavit
specifically noted “Ms. Pate continued to say that she and the males smoked
{mJethamphetamine at the residence.” Although the affidavit does not mention
Ms. Pate’s “extreme intoxication,” it specifically states that she had been smoking
methamphetamine. We conclude that the trial court did not err in finding that
Defendant did not prove a reckless, intentional, or negligent omission. While we
acknowledge that the affidavit is not one-hundred percent clear on exactly when
Ms. Pate, Defendant, and Mr. Guillory smoked methamphetamine, we also

acknowledge the nature and purpose of the document.

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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. (citations omitted)

State v. Kreitz, 560 So.2d 510, 512-13 (La.App. 1 Cir.), writ denied, 565 So.2d 940
(La.1990).

While Defendant argues and believes the affidavit was not explicit enough,
urging that the trial court should have reweighed the affidavit for probable cause
with the inclusion of the information that Ms. Pate was heavily intoxicated when
she spoke to Sergeant Bessard, such re-evaluation ultimately leads to the same
conclusion. The affidavit is clear that Ms. Pate is at least an occasional user of
methamphetamine, and knowledge that she was high at the time she spoke to law
enforcement would not necessarily have led to a finding of no probable cause.
Furthermore, within the four corners of the affidavit, it can, at the least, be inferred
that Ms. Pate had used methamphetamines with Defendant and was subsequently
taken to the other location, where she became fearful for her life, escaped, and then
called authorities. Her excited state, expressing fearfulness to the homeowner Mr.
Linscombe and the officers on their arrival, as well as her admissions against her
own interests that she had been using methamphetamines with Defendant support
the conclusion that the events occurred within the time span immediately prior to
Mr. Linscombe’s call to authorities. Additionally, specific information provided
by Ms. Pate to Sergeant Bessard was corroborated by him, including the location
of the body of a potential homicide victim by VPSO and the location of
Defendant’s home as generally described by her. Accordingly, we find that the

trial court was correct in its denial of Defendant’s motion to suppress.

We also find that the good faith exception, recognized in United States v.
Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984), is applicable here and further supports
denial of the motion to suppress. Defendant recognizes the good faith exception is
a problem that he must overcome, stating in brief that “the good faith exception
does operate here to preclude suppression of the fruits of this seizure.” He argues,
however, that the good faith exception should not apply because it was
unreasonable for Sergeant Bessard to believe in the validity of the search warrant.
We disagree. In Leon, the Supreme Court found that “suppression of evidence
obtained pursuant to a warrant should be ordered only on a case-by-case basis and
only in those unusual cases in which exclusion will further the purposes of the
exclusionary rule.” 468 U.S. at 918. The Court further noted that:

This is particularly true, we believe, when an officer acting with
objective good faith has obtained a search warrant from a judge or
magistrate and acted within its scope. In most such cases, there is no
police illegality and thus nothing to deter. It is the magistrate’s
responsibility to determine whether the officer’s allegations establish
probable cause and, if so, to issue a warrant comporting in form with
the requirements of the Fourth Amendment. In the ordinary case, an
officer cannot be expected to question the magistrate’s probable-cause
determination or his judgment that the form of the warrant is
technically sufficient. “[OJnce the warrant issues, there is literally
nothing more the policeman can do in seeking to comply with the
law.” J/d., 428 U.S., at 498, 96 S.Ct, at 3054 (BURGER, C.J.,
concurring). Penalizing the officer for the magistrate’s error, rather
than his own, cannot logically contribute to the deterrence of Fourth
Amendment violations.

Id, at 920-21 (footnotes omitted).
Further, as noted by the supreme court:

The Leon Court, however, listed four situations where suppression is
the appropriate remedy for a search pursuant to an invalid warrant: (1)
the affiant misled the magistrate by including in the affidavit
misleading statements which the affiant knew were false or would
have known were false, except for reckless disregard for the truth; (2)
the magistrate abandoned his neutral and detached role; (3) the affiant
was so lacking of indicia of probable cause as to render official belief
in its existence entirely unreasonable; and (4) the warrant was
deficient and could not be presumed valid.

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State v. Horton, 01-2529, p. 7 (La. 6/21/02), 820 So.2d 556, 561 (footnotes
omitted).

In the instant case, the only scenario which might arguably apply is number
three. However, we conclude that the information included in the affidavit is more
than sufficient to render official belief in the warrant reasonable. In State v. Wood,
457 So.2d 206, 208-09 (La.App. 2 Cir. 1984), the second circuit found an affidavit
sufficient to justify an objectively reasonable belief in its validity despite noting:

the affidavit does not state that the confidential informants themselves

saw the listed items in the premises to be searched... .

... the affidavit does not state when the items were seen or when the

information was given by the informants to the affiant. . . .

. . . the statement that the informants have been “found to be very

reliable in past investigations” falls short of providing specific facts

sufficient to determine the reliability of the informant.

The court in Wood noted that the magistrate should have never issued the
search warrant; however, the good faith exception applied, and the court affirmed
the trial court’s denial of the motion to suppress. In the case sub judice, while it is
true that the affidavit does not specify exactly when Ms. Pate saw
methamphetamine at Defendant’s home or when she actually used the drug with
Defendant, there is some information supporting the reliability of the informant,
and the information contained in the affidavit as a whole is sufficient for a law
enforcement officer to believe in the validity of the warrant issued pursuant to it.
Defendant argues once more that because Sergeant Bessard withheld Ms. Pate’s
condition “from the issuing judge by omitting any reference to Ms. Pate’s
demeanor or state of mind at the time she gave him her information” Bessard

lacked good faith to believe in the validity of the warrant. However, there was no

showing of bad faith on the part of Sergeant Bessard. There was no error in the

1]

trial court’s finding that “[D]efendant failed to show any genuine issue of
[Sergeant Bessard’s] veracity.” In the absence of a showing of bad faith, the case
does not rise to the level of an affidavit “so lacking of indicia of probable cause as
to render official belief in its existence entirely unreasonable.” Horton, 820 So.2d
at 561. We thus conclude that the good faith exception to the exclusionary rule
established in Leon additionally applies here. As a result, the trial court did not err
in denying Defendant’s motion. Defendant’s writ application is denied.

WRIT DENIED.

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