author: SANDERS, Chief Justice. TATE, Justice DENNIS, Justice TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. William Allen TASSIN.
    Nos. 57800, 57801.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    On Rehearing Feb. 28, 1977.

      Thomas W. Davenport, Jr., Davenport, Piles, Kelly & Marsh, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

On October 10, 1974, defendant, William Allen Tassin, was charged by bill of information with possession of marijuana with intent to distribute, a violation of LSA-R.S. 40:966, and, on January 20, 1975, he was charged by bill of information with possession of LSD, also a violation of LSA-R.S. 40:966. The defendant pleaded not guilty to both charges. The court denied a motion to suppress physical evidence in the marijuana case. An identical motion was denied in the LSD case. On May 7, 1975, the LSD case ended in a mistrial when the jury was unable to reach a verdict. On September 30,1975, a second trial began on the consolidated charges. The jury returned a verdict of guilty as charged on the possession of LSD charge and a responsive verdict of guilty of possession of marijuana on the possession of marijuana with intent to distribute charge. The court sentenced defendant to pay a fine of $500.00 and to serve five months in jail on the marijuana conviction. On the LSD charge, he was sentenced to pay a fine of $1,000.00 and was placed on supervised probation for five years, with the condition of probation being that he serve one year in the parish jail. The five month sentence on the marijuana charge would run concurrently with the sentence on the LSD charge.

On appeal to this Court, defendant relies upon four assignments of error for reversal of his convictions and sentences.

On September 12, 1974, Detective Frank Bougere of the Monroe Police Department, on special assignment to the Morehouse-Ouachita Parish Strike Force, presented Judge Robert T. Farr of the Fourth Judicial District Court with an affidavit and application for a search warrant. Judge Farr signed the order issuing the search warrant and authorizing a search of the defendant’s residence. Officers executed the warrant the same day at approximately 8:00 p. m. Arriving at defendant’s residence, they found the apartment locked and unoccupied. Using a pass key furnished by the manager of the apartment complex, they gained entrance, and, during the search of the apartment, a quantity of marijuana, approximately fourteen clear plastic bags, two “window panes” of LSD, and a variety of drug paraphernalia were seized. The officers left a copy of the warrant in the apartment. The next day defendant surrendered at the Sheriff’s office on the advice of an attorney.

ASSIGNMENT OF ERROR NO. 1

Here, defendant alleges that the trial court erred in failing to sustain the motion to suppress the physical evidence. Defendant challenges the sufficiency of the affidavit supporting the search warrant.

Louisiana Code of Criminal Procedure Article 162 provides:

“A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
“A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.”

Our examination of the affidavit reveals the following facts: (1) the affiant’s information came from a confidential informant whose reliability had been established in the past by his purchasing of controlled dangerous substances under the direct surveillance of the affiant; (2) information given to the affiant by the informant had been verified through other reliable informants; (3) the informant in question knew the physical characteristics of marijuana, because the affiant had conducted positive field tests of the marijuana purchased by the informant under direct surveillance; (4) the informant had occasion to be present at the Tassin residence within seventy-two hours of the preparation of the affidavit and had observed personally a quantity of marijuana; and (5) the affiant was well acquainted with Bill Tassin as a user and dealer in controlled dangerous substances.

Our decisions, following the landmark case of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), hold that affidavits in support of search warrants must recite enough circumstances to provide a factual basis upon which a judge or magistrate may reasonably infer that the information is reliable; if an unidentified informant’s services are utilized in providing information in support of a search warrant, there must additionally be presented to the magistrate circumstances adequately supporting the reliability of the informant. State v. Martin, La., 318 So.2d 25 (1975); State v. Humble, La., 309 So.2d 138 (1975); State v. Paciera, La., 290 So.2d 681 (1974).

The state and federal jurisprudence supports the view that probable cause for the issuance of a search warrant is a practical concept, which must not be unduly burdened with technical requirements. State v. Anselmo, 260 La. 302, 256 So.2d 98 (1971). In State v. Vince, 305 So.2d 916 (1974), quoting United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), we stated:

“They [search warrant affidavits] are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.”

In United States v. Townsend, 394 F.Supp. 736 (Mich.1975), the court appropriately stated:

“The magistrate deals not in certainties, or even near certainties, but in probabilities. These are not technical, they are the factual and practical considerations of everyday life in which prudent men, not legal technicians, act.”

Clearly, the police officer presented sufficient information for the judge to find that probable cause existed for issuing the warrant. Defendant has isolated and attacked each fact and circumstance presented to the court. However, one must consider the affidavit in its entirety in making a determination of probable cause.

In brief, defendant attacks Detective Bougere’s affidavit statement that he was “well acquainted” with the defendant’s narcotics usage and dealings. In questioning Bougere at the hearing on the motion to suppress, it was disclosed that Bougere had worked with this informant for three to four months and that three reliable informants had supplied information to Bougere concerning the defendant’s drug related activities within thirty to forty-five days of the execution of the warrant — further verifying the information provided by the reliable confidential informant. Defendant consistently equates the statement “well acquainted with” with personal knowledge. The affidavit does not recite that the officer had first-hand knowledge of Tassin’s activity. We agree with the trial judge, that defendant’s argument is one of semantics only.

Defendant also contends that no prior convictions had ever been obtained as a result of information provided by the reliable informant in the affidavit; hence, he asserts, the warrant could not issue on the basis of this information. There is no jurisprudential requirement that information provided by reliable informants in the past must have resulted in convictions in order to establish probable cause for the issuance of a search warrant. State v. Roach, La., 322 So.2d 222 (1975). Prior conviction is but one means of establishing the reliability of a confidential informant. As noted above, in the present case there were other factors which tended to establish the informant’s reliability.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial court erred in denying his motion for “surrebut-tal” evidence during the trial on the merits.

According to the defendant, the State presented its case which consisted of the testimony of the several officers who had conducted the search of the apartment on September 12, 1974, identifying the various items seized and inventoried at that time, and the chemist who had performed the tests and analysis of the seized drugs. The State then rested.

The defendant then testified on his own behalf denying ownership, possession, or knowledge of the seized substances and stating that approximately a month prior to the search he had taken a ten-day vacation and had left his apartment key with a girl friend and that on his return he was given back an extra key apparently made for the use by an acquaintance of his girl friend. Defendant also testified that he had never used drugs of any kind. Several other witnesses testified for the defense.

On rebuttal, the State presented the testimony of defendant’s former employer, a former fellow employee, both of whom testified to incidents indicating that defendant had previously used drugs. Additionally, the fellow employee testified to a threat made by defendant to commit suicide by the use of drugs.

At the conclusion of the rebuttal testimony, defendant moved to be allowed to put on surrebuttal testimony in the form of a witness apparently present outside the courtroom, who was under subpoena of the State. The court denied the motion.

Defendant contends that, despite the assertion by the State that the testimony of the two witnesses was offered on rebuttal only to refute defendant’s denial of prior use of drugs, it was in fact proof of intent by prior use, LSA-R.S. 15:445-446, and, as such, should have been presented in the State’s case in chief or, if presented after the defendant had rested, defendant should have been given the opportunity to respond. He argues that the denial of that opportunity was an abuse of discretion by the trial court.

LSA-R.S. 15:282, in pertinent part, states: “The prosecution has the right to rebut the evidence adduced by the defendant, but the defendant is without right to rebut the prosecution’s rebuttal.” However, Article 765 of the Louisiana Code of Criminal Procedure provides that after the presentation of evidence by the State and the defendant and by the State in rebuttal: “The court in its discretion may permit the introduction of additional evidence prior to argument.” Since the matter is discretionary with the trial court, its ruling will be reversed only on a clear showing of abuse of discretion.

In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), dealing with the admissibility of evidence tending to show that defendant had previously used drugs after a defendant denied prior use, this Court stated:

“In State v. Monroe, 205 La. 285, 17 So.2d 331, we stated:
‘Rebutting evidence is that which is offered to explain, repel, counteract or disprove facts given in evidence by the adverse party. State v. Hemler, 157 La. 902, 103 So. 257.
‘It is rebuttal, not impeaching, to show that the statement of the witnesses as to what occurred is not true. State v. Foster, 150 La. 971, 91 So. 411. And contradiction is one of the means of rebutting the testimony of a witness produced by the defendant in a criminal prosecution as the State can not contradict the testimony of a witness for the defendant until the testimony is offered in defendant’s behalf on the trial of the case. State v. Blount, 124 La. 202, 50 So. 12.
“See also State v. Poe, 214 La. 606, 38 So.2d 359 (on rehearing); Marr’s Criminal Jurisprudence of Louisiana, § 633, pp. 966-967 (1923).
“The evidence of prior use of marijuana was properly admitted to rebut or contradict the defendant’s testimony on an essential issue. We discern no error in the rulings of the trial judge.”

We find no abuse of discretion on the part of the trial judge.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Here, defendant argues that the trial court erred in prohibiting defendant from playing to the jury a tape recording that had been offered and filed as an exhibit in evidence.

This assignment of error has been adequately treated by the trial judge in his Per Curiam:

“On direct examination, able counsel for the defendant questioned the defendant about a ‘deal’ that had been promised him if he would help the State Police with their efforts to investigate an accident that happened in Rapides Parish and which involved a person the defendant identified as Doyle Luno. The defendant testified that he was promised by Sergeant Elton Breaux of the Louisiana State Police that if he (defendant) would say that Luno had staged the accident that the charges against the defendant could be dropped because the District Attorney for Ouachita Parish owed Sergeant Breaux a ‘couple of favors’. (T. 46). The defendant testified that the next time he had a conference with ‘these people’ (State Police) that he had a tape recorder on him and taped the conversation unbeknowing to the persons with whom he was talking. Defendant then testified as to what the conversation that was taped consisted of and further testified that he subsequently appeared before a Federal Grand Jury concerning this particular accident and testified truthfully before that Grand Jury as to the facts concerning the Luno accident and also told the Grand Jury about the insinuation and implications that Sergeant Breaux had tried to ‘force on him.’ ■ The taped discussion took place, according to the defendant’s testimony on April 3,1975 at 1:02 p.m. This taped conversation was defendant’s exhibit number eight, which defendant counsel introduced into evidence, not at the time the defendant was testifying about same, but at the end of the case for the defense. (T. 130). This offering was allowed by the undersigned over the objection of the state solely for the purpose of showing that the tapes had in fact been made and existed. The defendant, as stated aforesaid, had already testified as to the contents of the tapes. At no time during the presentation of the defendant’s case in chief did the defense attempt to play the tapes. Neither Sergeant Breaux nor Trooper Connella was called by the state to testify in an effort to contradict what the defendant stated was contained on the tapes.
“However, during the closing argument of defense counsel, he told the jury he was going to show them the tapes, namely, D-8. At that time the state asked if defense counsel was going to attempt to play the tapes during closing argument. In reply to the prosecutor’s question, defense counsel replied that the jury was entitled to see the tapes to which the court agreed. Thereafter, defense counsel, in answer to the state’s argument that the defense had every opportunity to play the tapes during the case of the defense in chief, decided he did indeed want to play the tapes to the jury during closing argument. The undersigned ruled that playing of the tapes at this time was not within the proper scope of closing argument. While defense counsel objected to the court’s ruling he gave no reason for wanting the tapes played. The evidence of what the tapes contained was already before the jury by virtue of defendant’s uncontradicted testimony and the undersigned had, as pointed out earlier, let the tapes be admitted intp evidence solely to show that they existed.”

As the trial court correctly noted, the playing of the tape at the time requested would have been improper. Article 774 of the Louisiana Code of Criminal Procedure provides:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
“The argument shall not appeal to prejudice.
“The state’s rebuttal shall be confined to answering the argument of the defendant.”

Assignment of Error No. 3 is without merit.

ASSIGNMENT OP ERROR NO. 4

Defendant alleges that the trial court erred in deleting certain portions of the charge to the jury and in failing to instruct the jury pursuant to and as to LSA-R.S. 15:445 and 15:446 as requested by defense counsel.

The content of the deletions was adequately covered in other portions of the general charge to the jury.

Regarding defendant’s request that the court read LSA-R.S. 15:445 and 15:446 to the jury, we note initially that the motion was correctly denied because the requested charges were not in writing and were not presented to the opposing party as required by Article 807 of the Louisiana Code of Criminal Procedure. Additionally, they were correctly denied because the pertinent portions of the statutes were adequately covered in the general charge to the jury. LSA-C.Cr.P. Art. 807.

Assignment of Error No. 4 is without merit.

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

DIXON, J., concurs.

TATE, J., dissented and assigned reasons.

DENNIS, J., dissented with reasons.

TATE, Justice

(dissenting).

I respectfully dissent.

With regard to Assignment of Error No. 2, in the writer’s opinion the trial court abused its discretion by failing to reopen the case to allow the “surrebuttal” testimony offered by the accused. Under La.C. Cr.P. art. 765(5), the normal order of trial is state evidence, defense evidence, and state rebuttal evidence; nevertheless, “The court in its discretion may permit the introduction of additional evidence prior to argument * * *.”

The majority correctly holds that, in proper rebuttal, the state presented the testimony of two witnesses who testified, for the first time, as to incidents indicating that the defendant had previously used drugs. Even although this evidence, under the circumstances, was proper rebuttal, it for the first time introduced gravely prejudicial testimony as to factual incidents, which by the trial court’s ruling, the defendant had no opportunity to rebut.

Under the “guilty knowledge” jurisprudence, see, e.g., State v. Smith, 257 La. 896, 244 So.2d 824 (1971), the state was entitled to introduce in its case in chief this evidence as to prior use, in order to prove the defendant’s present knowing possession of an illegal drug. The state did not introduce this evidence in its case in chief, one would think, out of a commendable effort to rely upon its actual proof of present possession rather than to prejudice the trial jury by evidence concerning prior use (which only doubtfully is more-probative-than-prejudicial evidence of guilt of the present offense charged).

Had the state actually introduced this prior-use evidence in its case in chief, the defendant could have defended against its factual accuracy by producing evidence disputing these prior incidents. By the state’s waiting to produce these prior-use incidents in rebuttal, it deprived the defendant of any chance to produce evidence disputing such prior use.

If the state intended from the first to use this prior-use evidence, it is apparent that it would be proper rebuttal against almost any defense presented by the defendant’s evidence.

It is fundamentally unfair to permit the state to inject new factual issues by way of rebuttal, without giving the defendant any chance at all to defend against them — especially when such evidence is normally part of the state’s case in chief. To permit the evidence to be offered by way of “rebuttal”, without permitting the accused to introduce additional evidence to dispute the new factual issues so injected for the first time, is to deprive the accused of a fair opportunity to defend against these newly raised factual issues. (See Uniform Rules of Criminal Procedure, Rule 521(5) (National Conference of Commissioners on Uniform State Laws, 1974).)

With regard to Assignment of Error No. 1,1 am inclined to believe that the affidavit fails upon proof that the affiant, was not, in fact, well-acquainted with the accused as a user and dealer in controlled dangerous substances (as averred in the affidavit). At the hearing on the motion to suppress, it developed that, in fact, the affiant detective had only been informed by hearsay of such reputation by three anonymous informants. Generalized underworld gossip by faceless informers does not provide a sufficient basis to invade the home of an American citizen, Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

For these reasons, I respectfully dissent.

DENNIS, Justice

(dissenting).

The majority quite correctly states that, in reviewing questions concerning the constitutional requirements for obtaining a search warrant, we have in the past followed the landmark ease of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In that case the United States Supreme Court stated:

“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 [78 A.L.R.2d 233], the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825 [11 L.Ed.2d 887], was ‘credible’ or his information ‘reliable.’ Otherwise, ‘the inferences from the facts which lead to the complaint’ will be drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead, by a police officer ‘engaged in the often competitive enterprise of ferreting out crime,’ Giordenello v. United States, supra, 357 U.S. [480] at 486, 78 S.Ct. [1245] at 1250 [2 L.Ed.2d 1503, at 1509]; Johnson v. United States, supra, 333 U.S. [10] at 14, 68 S.Ct. [367] at 369 [92 L.Ed. 436, at 440], or, as in this case, by an unidentified informant.” 378 U.S. at 114, 84 S.Ct. at 1514, 12 L.Ed.2d at 729. (Footnote omitted.)

However, I believe the majority has strayed from the path of constitutionality in the instant case by failing to apply these principles to the facts recited in the search warrant affidavit. The affidavit, in pertinent part, stated:

“The reason for and facts in support of the issuance of the search warrant are: Within’ the last 72 hours your affiant has been contacted by reliable confidential informant whose realiablity [sic] has been established by direct surveillance buy [sic] said surveillance, made by your affiant. Reliable confidential informant has also provided your affiant with information in the past which has been checked and verified through other reliable eonfindential [sic] informants. The reliable confidential informant has purchased marjuiana [sic] in the past for your affiant which has been tested and proven genuine therefore the reliable confidential informant knows the appearance of marijuana.
“The reliable confidential informant has contacted your affiant and relaited [sic] the following facts within the last 72 hours the reliable confidential informant has had an occasion to be upon the premise of 2315 Fort Miro, Apartment 11A, Fort Oliver Apartment, Monroe, Louisiana. Reliable confidential' informant stated to your affiant that while at said resident reliable confidential informant did personally observed [sic] a quantity of marijuana on the premises. The reliable confidential informant also stated your affiant that said resident or apartment is occupied by one Bill Tassin. Your affiant is well acquainted with Bill Tassin as a user and dealer in controlled dangerous substances.”

As I read the affidavit, it did inform the issuing magistrate of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, but it failed to inform the magistrate of any underlying circumstances from which he could determine that the officer reasonably concluded that the informant was credible or his information reliable. The informant, according to the affidavit, in the past had succeeded in purchasing marijuana under police surveillance. The affidavit is susceptible to the interpretation that the affiant officer observed one such purchase. However, the affidavit does not indicate the informant had ever given law enforcement officers information gained by him while not under surveillance that had been determined to be reliable by the officers. It does not necessarily follow from the fact that a person is an effective buyer of illegal drugs that he is a truthful individual or that his information about other persons is reliable. It is true the affiant officer stated the informant “gave him information in the past which had been' verified by other reliable confidential informants.” But the affidavit again fails to provide any of the underlying circumstances from which the officer concluded that these “other” informants were credible or their information reliable. Finally, contrary to the majority’s opinion, the officer’s assertion that he was well acquainted with the defendant as a drug dealer sets forth no facts for the magistrate to assess in determining probable cause, but merely the conclusion or opinion of the officer.

In my view the issuing magistrate did not have before him sufficient facts from which he could have inferred that the unidentified informant was credible or his information reliable. Instead, he issued the warrant on the basis of an inference drawn, not by himself as the constitution requires, but by the police officer, in contravention of the constitutional principles expounded in Agui-la r and the other authorities cited in the majority opinion. Therefore, I conclude the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in defendant’s trial.

I respectfully dissent.

ON REHEARING

TATE, Justice.

The defendant was convicted of two narcotics possession offenses, which were consolidated for trial and appeal (as arising out of simultaneous possession), as is more fully set forth in our opinion on original hearing. There, we affirmed the convictions.

On rehearing, however, we now reverse these convictions. After further consideration, we now determine that the trial court erred in denying a motion to suppress the physical evidence. Assignment of Error 1.

We find that the evidence was seized pursuant to a search warrant improperly obtained. The basis for this holding is that the affidavit upon which the search warrant was obtained was constitutionally defective.

(1)

Article 1, Section 5, of our state constitution of 1974 guarantees every person affected by Louisiana law security of his person and property “against unreasonable searches, seizures, or invasions of privacy.” This constitutional provision further requires that no warrant for a search of a person’s property shall issue “without probable cause supported by oath or affidavit.”

Our law requires that, before a search warrant is issued, the probable cause for the search must be demonstrated to the issuing-magistrate by the affidavit of a credible person “reciting facts establishing the cause for issuance of the warrant.” La. C.Cr.P. art. 162. (Italics ours.)

A search warrant may not be issued upon an affidavit reciting nothing more than the affiant’s reasonable cause to suspect that the premises shelter contraband or evidence of crime. The affidavit must recite facts establishing to the satisfaction of the judge, not the affiant, that probable cause exists for issuance of the search warrant. If a search warrant is illegally issued by virtue of an insufficient affidavit, the evidence thereby illegally seized is inadmissible in a criminal prosecution.

See: State v. Paciera, 290 So.2d 681 (La.1974); State v. Holmes, 254 La. 501, 225 So.2d 1 (1969); State v. Wells, 253 La. 925, 221 So.2d 50 (1969).

The affiant may, however, establish the facts by his hearsay knowledge of them. However, if he does so, see State v. Paciera, cited above, at 290 So.2d 685-86, the affidavit “must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him.

“Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information reported include (a) direct personal observation by the informant, or (b) if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.”

The credibility of the affiant’s informant or the correctness of the information furnished by the informer may not be attacked on a motion to suppress. State v. George, 273 So.2d 34 (La.1973); State v. Anselmo, 260 La. 306, 256 So.2d 98 (1971), as interpreted by State v. Giordano, 284 So.2d 880 (La.1973) and State v. Melson, 284 So.2d 873 (La.1973).

However, as Giordano and Melson held, upon proper allegations and showing of a genuine issue of the falseness of the affidavit (as in the present case), allegations made by the affiant himself may be traversed as untruthful on the affiant’s part. These decisions point out the constitutional and statutory reasons which cannot permit untrue ex parte allegations made by an affiant to be exempt from judicial inquiry.

Misrepresentation by an affiant cannot justify the invasion of an individual’s home or his privacy, when there is in fact no true probable cause for the invasion. The constitutional requirement of prior probable cause for a governmental agent to invade a person’s privacy or home cannot be evaded by the simple expedient of perjury by that agent.

(2)

Applying these principles to the affidavit used to procure a search warrant to invade the accused’s home, we find:

The affidavit by the police officer attempts to establish probable cause for the search (a) upon the hearsay report to the officer of a confidential informant and (b) upon what on its face seems to be personal knowledge by the affiant that the accused was a user and dealer in illegal drugs. (The latter, as it turned out at the hearing on the motion to suppress, was actually unverified gossip elicited by him from anonymous informers.)

The affidavit, set forth in the margin below, establishes (a, b, c):

(a)

A confidential informant told the affiant police officer that within 72 hours he had seen marijuana on the premises of the accused’s apartment. This informant is shown to have knowledge of marijuana’s characteristics, since he had purchased some marijuana in the past for the officer, which had been tested and found genuine.

The informant’s eyewitness knowledge of marijuana on the accused’s premises thus establishes the reliability of the information, assuming the credibility of the informant is also shown by the affidavit.

(b)

The reliability of the anonymous informant is sought to be established by (1) his having purchased illegal drugs in the past under the direct surveillance of the affiant police officer and- (2) his having provided the officer in the past with other information (of unknown content) which was corroborated by other anonymous informants (characterized as “reliable” for reason not disclosed).

The reliability and veracity of an anonymous informer is not, in our opinion, pertinently reflected by his willingness to buy illegal drugs under the surveillance of a police officer for whom he works. The ability to traffic in illegal narcotics, under the immediate surveillance of a directing police officer, does not appear to be related to the informer’s uncoerced probable truthfulness in securing outside of that officer’s presence other information for the latter’s use.

Further, while other unidentified informants may have corroborated information (of unknown content) furnished by this informer to the officer in the past, this circumstance establishes neither the informer’s reliability nor the reliability of the information shared by him with other unknown individuals in their unverified covert associations. Neither in the affidavit (nor in the suppression hearing itself, for that matter) does the officer state that the previous (unknown) information by his informer was independently verified, except by hearsay report from faceless tipsters.

On its face, accordingly, the affidavit does not demonstrate the requisite factual probable cause, based on shown reliability of informant and information. To justify the invasion of an individual’s home, the officer’s strong suspicion of unlawful possession required some independent factual corroboration beyond the report of an informant working in the underworld of the narcotics traffic, corroborated as to his personal truthfulness only by the hearsay report of other individuals similarly engaged and of unknown truthfulness themselves.

(c)

The affidavit concludes: “Your affi-ant is well acquainted with Bill Tassin as a user and dealer in controlled dangerous substances.” The motion to suppress specifically traversed as untruthful this allegation.

At the hearing on the motion, the affiant police officer admitted that he had never himself seen or observed Tassin using or distributing illegal drugs. He and Tassin knew one another well, having taken law enforcement courses at college together. Tassin, a former law enforcement officer, now worked as an insurance adjuster in the same city as the affiant officer.

In explanation of the misleading (if not deliberately inaccurate) statement, the police officer stated that within 30-45 days of the affidavit he had received information from two of his confidential informants about Tassin “involving narcotics.” (We may say that, so far as the record indicates, Tassin may have personally used narcotics during periods in his life, but that the information he had dealt in them is completely false.)

This is an unsatisfactory basis upon which to establish any factual indicia of probable cause. Generalized underworld gossip by faceless informers does not provide a sufficient basis to invade the home of a person living under the protection of the Louisiana constitution.

Further, even if reliable, information that a suspect has engaged in illegal activity cannot by itself justify an intrusion into his home at the whim of governmental officers. The assertion of the suspect’s reputation for past criminal activity, unrelated to specific incident giving probable cause for a search, “is but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate’s decision” to issue a warrant. Spinelli v. United States, 393 U.S. 410, 414, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969).

(3)

The affidavit, as we have analyzed it, is solely based upon a report of an unidentified informer, not shown to be himself reliable, and upon generalized derogatory information concerning the accused elicited from two or three other unknown informers of unknown reliability (who were themselves engaged in narcotics activity). Probable factual cause, not underworld gossip, is required by our state constitution before governmental agents may invade the privacy of an individual living under protection of that constitution.

Accordingly, we conclude that the evidence seized in the accused’s apartment was the product of an unconstitutional search. The motion to suppress was incorrectly denied, the evidence was improperly admitted, and the convictions and sentences must be reversed and set aside.

(4)

Brief mention should be made of Assignment 2, however. By this, the defendant complains of the denial of an opportunity to counter “rebuttal” evidence introduced by the state.

Some members of the court feel that a serious issue for reversal is presented by the failure to allow the accused to counter the state testimony insofar as it exceeded the scope of proper rebuttal (see footnote 2). Nevertheless, we have determined that it is unnecessary to decide this issue (or whether the state’s testimony was indeed proper rebuttal at all), since the issue almost certainly will not arise on a re-trial.

Decree

For the reasons assigned, we reverse the convictions and sentences, and we remand for new trials in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., dissents adhering to the views expressed on original hearing.

MARCUS, J., dissents adhering to views expressed in original opinion.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting from the opinion on rehearing).

Rehearing was granted to reconsider two issues presented on this appeal: the contention that the trial judge erred in issuing a search warrant upon an inadequate affidavit; and the failure of the trial judge to allow the defense to present surrebuttal evidence following the introduction of rebuttal evidence by the State.

I.

The search warrant in question particularly describes the place to be searched, the things to be seized and the purpose — that is, to seize controlled substances, “especially but not limited to marijuana.” The only controverted question remaining, therefore, is whether probable cause was established to the satisfaction of the judge by a credible person reciting facts establishing the cause for issuance of the warrant. Const, art. 1, § 7 (1921); La.Code Crim.Pro. art. 162.

The application for rehearing on this issue principally relies upon the contention that the affidavit was “intentionally inaccurate.” Affiant’s statement that he was “well acquainted with Bill Tassin as a user and dealer in controlled dangerous substances,” which this Court accepted, is erroneous according to this application for rehearing. The application sets forth that the statement is not founded on personal knowledge of the affiant or on information received from informants whose reliability is established by the affidavit. Thus, it is urged, the affidavit is a misrepresentation, or, at least, “unintentionally inaccurate.” As such, the applicant contends, the affidavit cannot support the issuance of the warrant, and the trial judge should have sustained the motion to suppress evidence seized upon that authority.

Even if it be conceded for argument’s sake that this statement by the affiant was intentionally or unintentionally inaccurate, the affidavit will nevertheless support a finding of probable cause for issuance of the search warrant.

Affiant, who the judge found to be a credible person, concluded in the affidavit that the narcotics were at the designated address from the recent information he received from the confidential informant to the effect that he, the informant, had “personally observed” a quantity of marijuana on the premises. With this information, the judge who issued the warrant needed only to ascertain from the affidavit whether it set forth “the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was ‘credible’ or his information ‘reliable.’ ” Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

Reliability of informants in these drug cases may be established by their previous cooperation with law enforcement authorities. Here the affidavit set forth that the reliability of the informant had been established by a “direct surveillance buy,” that is, made by the informant, affiant having observed the transaction personally. Also, the informant had, according to the affidavit, provided affiant with information in the past which was checked and verified by other confidential informants. And, further, informant had purchased marijuana for affiant, which had been tested and proven genuine. All of these activities on the part of the informant were such that he had become “reliable” and “credible”, indicating by his action a tendency to cooperate with law enforcement.

Prom these facts, plainly set forth in the affidavit, the judge could also infer that the informant was “credible” and “reliable”. Aguilar v. Texas, supra. The credibility and reliability looked for in these cases is that which is considered worthy of belief by the police in their effort to suppress illegal drug traffic. Information of this nature must, of necessity, often be obtained from those who participate in this covert realm of illicit conduct, either as addicts or paid informers. In either instance the standard of credibility or reliability is that which produced results in the past and must be judged in this context by the magistrate issuing the warrant.

Realizing the role these circumstances play in the determination, the cases, both state and federal, support the view that probable cause for the issuance of a search warrant is a practical concept which should not be unduly burdened with technical requirements. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Nix, 327 So.2d 301 (La.1976) cert. denied 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 198 (1976); State v. Luneau, 323 So.2d 770 (La.1975); State v. Paciera, 290 So.2d 681 (La.1974); State v. Anselmo, 260 La. 306, 256 So.2d 98 (1972), cert. denied 407 U.S. 911, 92 S.Ct. 2438, 32 L.Ed.2d 685 (1972).

“As Spinelli [Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637] observed, ‘in judging probable cause magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense’ and ‘their determination of probable cause should be paid great deference by reviewing courts.’ 393 U.S. 419, 89 S.Ct. 590. Further, where the law enforcement officers have respected the constitutional mandate to secure a warrant before searching, ‘[although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Ventresca v. U. S., 380 U.S. 102, at 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684. See also Jones v. United States, 362 U.S. 257, at 270, 80 S.Ct. 725, 735-736, 4 L.Ed.2d 697.” 290 So.2d at 687. State v. Paciera, supra.

Applicant’s contention is unduly technical. The trial judge had probable cause to issue this search warrant.

II.

The contention that the trial judge erred by failing to allow the defense to present surrebuttal evidence after the State introduced evidence in rebuttal is also without merit.

After defendant testified on cross-examination that he had never smoked marijuana, the State introduced rebuttal evidence (which raised the inference that defendant used other drugs), such as, testimony that adhesive tape was noted on defendant’s arm at a time when he was drowsy and disoriented (implying an intraveneous injection of a narcotic drug), and testimony that he had threatened suicide by taking an overdose of drugs. Defendant was granted ample opportunity and latitude to cross-examine these State witnesses.

Conceding that surrebuttal was not provided for, defense counsel sought nonetheless to call one witness for very brief testimony on surrebuttal, a witness who had been subpoenaed by the State and who was then in the hall outside the courtroom.

As a general proposition, the defense has no right to rebut the prosecution’s rebuttal. La.Rev.Stat. 15:282. However, the court in its discretion may permit the introduction of additional evidence prior to argument. La.Code Crim.Pro. art. 765(5).

In my view the State’s briefly outlined evidence was proper rebuttal to defendant’s disclaimer that he had never smoked marijuana. A reasonable inference may follow from the use of narcotic drugs that the user has smoked marijuana. It would only be where the State’s rebuttal was improper that the defense would be entitled, in the court’s discretion, to surrebuttal.

Under the circumstances of this case, the trial judge did not abuse his discretion.

I would affirm the conviction.

      . The affidavit, in pertinent part, states:
      “The reason for and facts in support of the issuance of the search warrant are: Within the last 72 hours your affiant has been contacted by reliable confidential informant who realiabil-
      ity has been established by direct surveillance buy said surveillance, mady by your affiant. Reliable confidential informant has also provided your affiant with information in the past which has been checked and verified through other reliable confidential informants. The reliable confidential informant has purchased marjuiana in the past for your affiant which has been tested and proven genuine therefore the reliable confidential informant knows the appearance of marijuana.
      “The reliable confidential informant has contacted your affiant and relaited the following facts within the last 72 hours the reliable confidential informant has had an occasion to be upon the premise of 2315 Fort Miro, Apartment 11A, Fort Oliver Apartment, Monroe, Louisiana. Reliable confidential informant stated to your affiant that while at said resident reliable confidential informant did personally observed á quantity of marijuana on the premises. The reliable confidential informant also stated your affiant that said resident or apartment is occupied by one Bill Tassin. Your affiant is well acquainted with Bill Tassin as a user and dealer in controlled dangerous substances.”

      . For instance, the present record contains substantial evidence that, after the arrest of the present accused himself on narcotics charges, law enforcement officers offered to drop these charges if he would cooperate with them in making cases against other suspects.

      . Under cross-examination by the state, the accused denied he had ever smoked marijuana in his apartment. In alleged rebuttal, but cf. State v. Ghoram, 290 So.2d 850 (La.1974), the state then introduced the testimony of a girl he worked with and whom he had dated, that the accused had smoked marijuana with her one time, that he had admitted a prior use of drugs, and that he had written her a suicide note, the contents of which she testified to from memory. The state also introduced the testimony of the accused’s employer (who stated that he was an excellent employee) as to an ambiguous incident when the accused was sick at work, at which time the use of marijuana was discussed, without the accused either admitting or denying his use of it.


source: Caselaw Access Project

author: SANDERS, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. Larry CALLOWAY.
    No. 58280.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Rehearing Denied Jan. 21, 1977.

      Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The Orleans Parish Grand Jury indicted Larry Calloway for the first degree murder of William Mummaw in violation of LSA-R.S. 14:30. After trial, the jury returned a verdict of guilty as charged. The court sentenced defendant to death. Defendant now appeals his conviction and sentence, relying upon five assignments of error.

ASSIGNMENT OF ERROR NO. 4

In Assignment of Error No. 4 defendant alleges that the trial court committed prejudicial error when it allowed the State to excuse four prospective jurors for cause based on their opposition to capital punishment. See LSA-C.Cr.P. Art. 798(2).

Counsel relies upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), wherein the United States Supreme Court held:

“that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”

On July 2, 1976, the United States Supreme Court invalidated the mandatory death penalty of our first degree murder statute, LSA-R.S. 14:30, in Roberts v. State of Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Complying with this decision, this Court has concluded:

“that the appropriate sentence to be imposed upon a valid conviction for first degree murder is the most severe penalty established by the legislature for criminal homicide at the time of the offense, La. R.S. 14:29 et seq., which we may presume to be constitutional in the wake of Roberts v. Louisiana, supra. This penalty is imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. See La.R.S. 14:30.1, as amended by Acts 1973, No. 111, § 1.”

State v. Jenkins, La., 340 So.2d 157, No. 56,944 (1976). See also State v. Sledge, La., 340 So.2d 205, No. 57, 766 (1976); State v. Morris, La., 340 So.2d 195, No. 57, 775 (1976); State v. Lee, La., 340 So.2d 180, No. 57, 716 (1976).

We have uniformly held that a defendant insulated from the death penalty has no valid Witherspoon complaint. State v. Rester, La., 309 So.2d 321 (1975); State v. Adams, La., 302 So.2d 599 (1974); State v. Brown, La., 302 So.2d 290 (1974); State v. Fallon, La., 290 So.2d 273 (1974).

ASSIGNMENT OF ERROR NO. 5

In Assignment of Error No. 5 defendant alleges that the trial court erred in denying his challenge for cause of juror Cyril J. Miller. Defendant objected to Miller because Miller’s nephew was a police officer. Inasmuch as the defendant exhausted all peremptory challenges, his objection is properly before us. LSA-C.Cr.P. Art. 800.

Although the juror’s nephew was a police officer, the juror stated that despite this fact, he would give the defendant a fair trial. (Tr. p. 100) Moreover, the judge conducted a thorough examination of this juror, wherein the juror reiterated that after examining the facts and evidence and being instructed on the law that if he felt the defendant was not guilty he would “come in with not guilty.” (Tr. p. 105)

It is well settled that the relationships to persons who might be prejudiced does not, “ipso facto” disqualify a person from serving as a juror. The connection must “be such that one might reasonably conclude that it would influence the juror in arriving at the verdict.” State v. McClure, 258 La. 999, 249 So.2d 109 (1971).

The trial judge is vested with wide discretion in appraising the impartiality of prospective jurors, and his ruling will not be disturbed on appeal absent a clear showing of abuse of that discretion. State v. Jones, La., 315 So.2d 650 (1975).

Upon reviewing the voir dire examination, we find no abuse of discretion on the part of the trial judge in denying defense’s challenge. State v. Weathers, La., 320 So.2d 895 (1975); State v. Jones, supra; State v. Richmond, La., 284 So.2d 317 (1973); State v. Flucas, 262 La. 625, 264 So.2d 586 (1972); State v. Isaac, 261 La. 487, 260 So.2d 302 (1972).

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 7

In Assignment of Error No. 7 defendant complains that the trial court erred in ordering him, over his objection, to display the back of his right hand, upon which a cross was tattooed, to the jury without the proper foundation having been laid. Defendant objected to Mrs. Mummaw’s identifying him by means other than that stated in the State’s opening statement. Defense counsel asserts that because he first learned of this manner of identification when Mrs. Mummaw testified at trial he was caught by surprise and, therefore, prejudiced.

In brief, defendant correctly states that in its opening statement the State is required to explain the nature of the charge and to set forth, in general terms, the nature of the evidence by which the State intends to prove the charge. LSA-C.Cr.P. Art. 766. He argues that because the State did not mention in its opening statement that Mrs. Mummaw, an eyewitness victim of the armed robbery in which her husband was killed, would identify defendant by means of a tattooed cross on his right hand, that the tattooed-cross testimony was not fairly within the scope of the State’s opening statement and thus was inadmissible. LSA-C.Cr.P. Art. 769.

In its opening statement, the State declared that the victim’s wife, an eyewitness, would positively identify the defendant as the assailant. The State is not required to describe the evidence in minute detail. State v. Sneed, La., 316 So.2d 372 (1975). We find that the evidence is admissible as the witness’s identification of defendant was made known in the State’s opening statement.

Regarding defendant’s objection that a proper predicate was not laid, we note that Mrs. Mummaw testified that she was present when the robbery occurred. She testified that the tattoo was on the back of the upper part of defendant’s right hand, the hand in which he held the gun pointed at her.

We find, therefore, that a proper predicate was laid for the introduction of this evidence.

Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 9

In this assignment of error, defendant contends that the trial court erred in denying his motion to have two witnesses, who had not been sequestered, testify in his behalf concerning his general appearance at the time of the crime. He argues that he was prejudiced because the sequestration rule should yield to his overriding constitutional right to call witnesses and confront his accusers. U.S.Const. Amend. YI; La. Const. Art. 1, § 16 (1974).

The trial court judge denied defendant’s motion because the witnesses had not been sequestered with the other witnesses and had remained in the court and 'heard the testimony of the State’s witnesses. The two witnesses’ proposed testimony related to whether defendant had a mustache at the time the crime was committed.

In State v. Holmes, La., 305 So.2d 409 (1974), we stated:

“The purpose behind the order of sequestration is to encourage development of the true facts of the case by preventing witnesses from being influenced by the testimony of other witnesses and by allowing for effective cross-examination. State v. Raymond, 258 La. 1, 245 So.2d 335 (1971), appeal dismissed, cert. denied, 404 U.S. 805, 92 S.Ct. 101, 30 L.Ed.2d 38 (1971); State v. McAllister, 253 La. 382, 218 So.2d 305 (1969), vacated in part on other grounds, 408 U.S. 934, 92 S.Ct. 2854, 33 L.Ed.2d 748 (1971); State v. Lewis, 250 La. 876, 199 So.2d 907 (1967).”

Because defense counsel failed to apprise the court that he would call the two witnesses, they remained in the courtroom throughout the trial and heard the testimony, including that of the victim’s wife, that defendant did not have a mustache.

Louisiana Code of Criminal Procedure Article 764 grants to the trial court the discretion to modify a sequestration order in the interest of justice. The trial court also is vested with discretion in disqualifying a witness for non-compliance with the order. State v. Holmes, supra; State v. Williams, La., 271 So.2d 857 (1973); State v. Edwards, 257 La. 707, 243 So.2d 806 (1971); State v. Rouse, 256 La. 275, 236 So.2d 211 (1970). The trial judge’s ruling will not be reversed on appeal absent a clear showing of abuse of discretion.

As we have noted, the two witnesses were in the courtroom throughout the trial and heard the crucial testimony that- the defense sought to contradict. To allow them to testify under these circumstances would violate the purpose of the sequestration order. Moreover, other witnesses were available to testify concerning defendant’s appearance and mustache. Indeed, three of them were called and did testify that defendant had a mustache on the date that the crime was alleged to have been committed. Under all the circumstances, we find no abuse of discretion.

Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant reserved Assignment of Error No. 10 to the trial court’s denial of his motion for a mistrial based on two jurors’ acquaintance with two witnesses who testified at trial.

Approximately three hours after the jury retired for its deliberation, jurors Lawless Honoré and Saul Aaron returned to the courtroom and informed the court that they had been acquainted with certain witnesses who testified. The jurors were questioned concerning their acquaintance with the witnesses. The trial court judge informed defendant personally of the above, and after discussing the matter with defense counsel, the defense agreed that the jurors should continue with their deliberation. Later, defense counsel informed the court that the defendant had changed his mind and that defendant wanted to move for a mistrial. Defendant now complains of the denial of his motion for a mistrial.

In the light of defendant’s failure to seek remedial action at the crucial time and his agreement to allow the jurors to continue in their deliberation, the motion for mistrial is foreclosed on appeal. LSA-C.Cr.P. Art. 841; State v. Marcell, La., 320 So.2d 195 (1975).

Moreover, a juror’s acquaintanceship with a witness for either the State or the defense is not of itself a ground for a mistrial. Ordering a mistrial is a drastic remedy and is authorized only when there is a clearly specified ground. LSA-C.Cr.P. Art. 775; State v. Nicholas, La., 312 So.2d 856 (1975).

Assignment of Error No. 10 is without merit.

ASSIGNMENTS OF ERROR NOS. 1, 2, 3, 6, AND 8

In Assignments of Error Nos. 1, 2, 3, 6, and 8, defendant alleges, respectively, that: the trial court erred in refusing to grant the motion to suppress the identification of the defendant by Mrs. Mummaw at the hearing on that motion; the trial court erred in refusing to grant his motion to quash which alleged that the grand jury had no women or males below 21 to 18 on it; the trial court erred in denying his motion for continuance; the trial court erred in allowing the introduction of the coroner’s proces verbal before defendant had an opportunity to cross-examine; and the trial court judge erred in admitting the lineup photograph into evidence.

These assignments of error were neither briefed nor argued. However, in light of the magnitude of the crime with which defendant is charged, we have reviewed them and, after examining the record, find them without merit.

For the reasons assigned, the conviction is affirmed. The death sentence is annulled and set aside, and the case is remanded to the district court with instructions to the trial judge to impose a sentence of life imprisonment without benefit of probation, parole, or suspension of sentence for a period of twenty years.

      . The author of this opinion dissented from the sentence reduction in these judgments. See his dissent in State v. Davenport, La., 340 So.2d 251, No. 57,963 (1976).

      . At the hearing on defendant’s motion to suppress the identification, Mrs. Mummaw did not testify concerning the tatooed cross. In its brief, the State asserts that Mrs. Mummaw did not mention the tatooed cross until the day following that hearing.


author: DENNIS, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Frank J. AMATO.
    No. 58619.
    Supreme Court of Louisiana.
    Feb. 28, 1977.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plain tiff-appellant.
    Joseph Neves Marcal, III, New Orleans, for defendant-appellee.
   DENNIS, Justice.

Defendant, Frank J. Amato, was charged by bill of information with five violations of the state obscenity statute, La.R.S. 14:106. These charges were based upon his alleged conduct in exhibiting five pornographic magazines for commercial gain. Upon defendant’s motion, the district judge quashed the bill of information on the grounds that portions of paragraph A, sub-section (2) of the statute are unconstitutionally vague and overbroad. The State appealed.

The pertinent parts of La.R.S. 14:106 involved in the district judge’s decision provide

“A. The crime of obscenity is the intentional:
ti * * *
“(2) Participation or engagement in, or management, production, presentation, performance, promotion, exhibition, advertisement, sponsorship or display of, hard core sexual conduct when the trier of fact determines that the average person applying contemporary community standards would find that the conduct, taken as a whole, appeals to the prurient interest; and the hard core sexual conduct, as specifically defined herein, is presented in a patently offensive way; and the conduct taken as a whole lacks serious literary, artistic, political or scientific value.

“Hard core sexual conduct is the public portrayal, for its own sake, and for ensuing commercial gain of:

* “(a) Ultimate sexual acts, normal or perverted, actual, simulated or animated, whether between human beings, animals or an animal and a human being; or
“(b) Masturbation, excretory functions or lewd exhibition, actual, simulated or animated, of the genitals, pubic hair, anus, vulva or female breast nipples; or
“(c) Sadomasochistic abuse, meaning actual, simulated or animated, flagellation or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals or female breast nipples, or the condition of being fettered, bound or otherwise physically restrained, on the part of one so clothed; or
“(d) Actual, simulated or animated, touching, caressing or fondling of, or other similar physical contact with, a pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or
“(e) Actual, simulated or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured and marketed for such purpose.
Hi * * >>

In his reasons for judgment the district judge expressed his personal abhorrence of obscenity, and recognized the difficulties implicit in defining it. Nevertheless, he found that the failure of the existing statute to inform clearly a reader of common intelligence what is proscribed renders the law unconstitutional. These views do not lack persuasiveness, and we find them similar to those held by a respectable minority of the United States Supreme Court. Mr. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall joined, dissenting in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), stated: “Although we have assumed that pbscenity does exist and that we ‘know it when [we] see it,’ Jacobellis v. Ohio, [378 U.S. 184] at 197 [84 S.Ct. 1676], 12 L.Ed.2d 793 (Stewart, J., concurring), we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech.” 413 U.S. at 84, 93 S.Ct. at 2648, 37 L.Ed.2d at 473.

Despite the ring of truth in Justice Brennan’s words, we are duty bound to follow the majority statements of our nation’s highest court in assessing the attack upon our state obscenity statute which the defendant seeks to mount on federal constitutional principles. In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Court held that obscenity, although expression, falls outside the area of speech or press constitutionally protected under the First and Fourteenth Amendments against state or federal infringement. Although the attempt to define obscenity has “produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication,” Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704-705, 88 S.Ct. 1298, 1314, 20 L.Ed.2d 225, 244 (1968) (Harlan, J., separate opinion), the Court has consistently recognized that the states have a legitimate interest in prohibiting dissemination or exhibition of obscene material. E. g., Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966); Redr-up v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967); Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972).

The currently prevailing definition of obscenity was announced by a new majority of the high court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). As we read the opinion, obscenity is a work or material which, (a) taken as a whole, the average person, applying contemporary community standards, would find appeals to the prurient interest; and (b) depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (c) taken as a whole, lacks serious literary, artistic, political, or scientific value. In order to provide the states further guidance the Court gave a few plain examples of what a state statute could define for regulation under part (b) of the definition, viz., representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Vagueness

The district judge found that the legislature’s use of the terms “contemporary community standards” and “patently offensive way” in defining obscenity, renders the Louisiana obscenity statute unconstitutionally vague. Yet, these are precisely the words used in the Miller definition, which Chief Justice Burger, writing for the Court, described as “specific requisites [which] will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.” 413 U.S. at 27, 93 S.Ct. at 2616-17, 37 L.Ed.2d at 432-33. Therefore, we conclude the obscenity statute cannot be considered to be in violation of federal constitutional principles because of the legislature’s use of these terms.

On appeal defendant argues that the statute is vague not merely because of these terms, but also due to the absence of any definition of “community standards” in that portion of the statute which requires the trier of fact to determine whether “the average person applying contemporary community standards would find that the conduct, taken as a whole, appeals to the prurient interest.” The district judge did not elaborate upon this issue; however, we find that defendant’s argument in this regard is without merit. Again, the language of the Louisiana statute tracks very closely that set forth and approved in the Miller opinion. Furthermore, in Miller and the cases following it the United States Supreme Court has made it clear that a state may choose to define an obscenity offense in terms of “contemporary community standards” without further specification, as Louisiana has done, thus permitting juries to rely on the understanding of the community from which they come as to contemporary community standards; or a state may choose to define the standards in more precise geographic terms, as has been done in other jurisdictions.

In Jenkins v. Georgia, 418 U.S. 163, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), a decision rendered by the Supreme Court a year after the Miller case, the Court commented:

“We agree with the Supreme Court of Georgia’s implicit ruling that the Constitution does not require that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide community. Miller approved the use of such instructions; it did not mandate their use. What Miller makes clear is that state juries need not be instructed to apply ‘national standards.’ We also agree with the Supreme Court of Georgia’s implicit approval of the trial court’s instructions directing jurors to apply ‘community standards’ without specifying what ‘community.’ Miller held that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards, and the States have considerable latitude in framing statutes under this element of the Miller decision. A State may choose to define an obscenity offense in terms of ‘contemporary community standards’ as defined in Miller without further specification, as was done here, or it may choose to define the standards in more precise geographic terms, as was done by California in Miller." 418 U.S. at 157, 94 S.Ct. at 2753, 41 L.Ed.2d at 648.

The high Court, in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed. 2d 590_(1974), ^further elaborated on the Miller requirement that the trier of fact ascertain whether an “average person applying contemporary community standards” would find that the work or material, considered as a whole, appeals to prurient interest. The Court stated:

“The result of the Miller cases, [Miller v. California, supra; Paris Adult Theatre I v. Slaton, supra; United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1972)], . . as a matter of constitutional law . is to permit a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion ‘the average person, applying contemporary community standards’ would reach in a given case. * * *” 418 U.S. at 105, 94 S.Ct. at 2901, 41 L.Ed.2d at 613.

In view of the position taken by the United States Supreme Court in these cases, we conclude that La.R.S. 14:106(A)(2) is not unconstitutionally vague because the legislature has called upon the collective wisdom of the jury to determine whether certain specifically defined hard core sexual conduct is presented in a patently offensive manner, appeals to prurient interest, and lacks serious independent value.

Overbreadth

In addition to finding the statute unconstitutionally vague, the district judge concluded that its provisions specifically defining the representations or descriptions of sexual conduct subject to proscription, as required by the Miller decision, are over-broad, because they exceed the “few plain examples of what a state statute could define for regulation” given by the Supreme Court. In his opinion, the district judge, citing La.R.S. 14:106(A)(2)(d), reasoned that because the statute subjects to possible prohibition as obscenity works or materials which portray conduct involving the “female breast nipple,” which was not mentioned in Miller, it encroaches upon constitutionally protected free expression. If he is correct, then many of the other specific definitions of sexual conduct are over-broad, because the legislature has in several instances defined as punishable the portrayal of sexually oriented matter by reference to parts of the human anatomy which were not mentioned in the “few plain examples” given by the high court in Miller.

However, in Jenkins v. Georgia, supra, the Supreme Court made it clear that the “plain examples” given in Miller are “not exhaustive,” and that other representations or descriptions of sexual conduct, if “sufficiently similar,” could likewise be regulated by the states under the Miller formula for determining whether a material or work is obscene.

After carefully examining the representations or descriptions of sexual conduct specifically defined by the legislature in La.R.S. 14:106(A)(2)(a)-(e), we find them sufficiently similar to the plain examples given by the Supreme Court in Miller to fall within the limits of permissible state regulation. It must be borne in mind that representations or descriptions fitting these definitions, standing alone, do not amount to obscenity or unprotected speech. Additionally, the trier of fact must find that the work or material within which the representations or descriptions are contained, taken as a whole, would be found by the average person applying contemporary community standards to appeal to the prurient interest; and that the work or material depicts or describes the defined sexual conduct in a patently offensive way; and that the work or material, taken as a whole, lacks serious literary, artistic, political, or scientific value. Furthermore, under the Louisiana statute it must be found that the defined sexual conduct was publicly portrayed, for its own sake, and for ensuing commercial gain. Within this context, we do not find that the representations or descriptions of sexual conduct defined by the Louisiana obscenity statute cause the statute to exceed the Miller guidelines or to encroach upon constitutionally protected speech or expression.

We emphasize, however, lest it be lost sight of, that “sex and obscenity are not synonymous,” Roth v. United States, 354 U.S. at 487, 77 S.Ct. at 1310, 1 L.Ed.2d at 1508, and that matter which is sexually oriented but not obscene is fully protected by the constitution. Furthermore, as the district judge aptly noted, “nudity alone is not enough to make material legally obscene under the Miller standards.” Jenkins v. Georgia, 418 U.S. at 161, 94 S.Ct. at 2755, 41 L.Ed.2d at 650. It is only when the sexually oriented matter fulfills all of the requirements of the definition of obscenity set forth in the Miller decision that it may be proscribed by law.

In our opinion the legislature, in enacting the provisions contained in La.R.S. 14:106(A)(2) conscientiously and successfully followed the Miller guidelines. Accordingly, we conclude that this part of the statute is neither vague nor overbroad, and that the district judge fell into error in quashing the bill of information based thereon.

For the reasons assigned, the judgment of the district court is reversed, and the case is remanded for further proceedings.

DIXON, J., dissents with reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

Under Louisiana law, a criminal statute must inform the citizen of the acts for which he can be convicted and sentenced. Although the federal system permits it, our system of criminal law will not permit the jury or the trial judge to fix the “community standard” which the offensive conduct might have violated. “Serious literary, artistic, political or scientific value” is not an acceptable standard by which to measure criminal conduct in Louisiana. And the United States Supreme Court to the contrary notwithstanding, appellate judges in Louisiana do not have the “ultimate power to conduct an independent review” of the facts of a defendant’s guilt or innocence.

      . The Court’s majority continues to subscribe to the view that obscenity is not protected by the First Amendment, and may be regulated by the states. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); United States v. Reidei, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971).

      . “ * * * State statutes designed to regulate obscene materials must be carefully limited. * * * As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
      “The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest. * * * (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; 'and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. * * * ” Miller v. California, 413 U.S. at 23-24, 93 S.Ct. at 2615, 37 L.Ed.2d at 430-31. (Footnote and citations omitted.)

      .“(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
      “(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” 413 U.S. at 25, 93 S.Ct. at 2615, 37 L.Ed.2d at 431.

      . Defendant argued before this Court and, according to his brief, before the district court, that La.R.S. 14:106 is unconstitutional in its entirety because paragraph C, which provides a limited immunity from conviction for theatre and bookstore employees, contains an obvious typographical or clerical error, the word “obscure” appearing where “obscene” was clearly intended. Defendant contends the presence of this error renders the statute confusing and vague to persons of common intelligence, and thus constitutionally defective. Today in State v. Johnson, consolidated with State v. Hensley, 343 So.2d 705 (La. 1977), docket numbers 58,-495 and 58,496, we held that although-the portion of La.R.S. 14:106(C) containing the defect complained of was unconstitutional because it created an arbitrary and unreasonable distinction between two classes of theatre and bookstore clerical employees, in violation of the equal protection provisions of state and federal constitutions, the last clause of paragraph C was separable from the remainder of the statute. For this reason we reserve judgment, as we did in Johnson and Hensley, on the effect of the typographical error in the statute.

      . Whether material appeals to the “prurient interest,” is “patently offensive,” and without serious value are, of course, questions for the jury. However, juries do not have unbridled discretion in determining these issues because while these are questions of fact, they are also questions of constitutional law determinative of the ambit of protection to be afforded freedom of expression. Accordingly, the First and Fourteenth Amendments require that such questions be subject to the ultimate power of state appellate courts to conduct an independent review of constitutional claims when necessary. In Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974) the United States Supreme Court expressly rejected the contention that a jury’s determination of guilt precludes appellate review of claims that the depictions or materials are protected by the First and Fourteenth Amendments. The Court reasoned:
      “ * * * Even though questions of appeal to the ‘prurient interest’ or of patent offensiveness are ‘essentially questions of fact,’ it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is ‘patently offensive.’ Not only did we there say that ‘the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,’ 413 U.S., at 25, 93 S.Ct., at 2615 [37 L.Ed.2d 419], but we made it plain that under that holding no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct . Id., at 27, 93 S.Ct., at 2616 [37 L.Ed.2d 419],
      “We also took pains in Miller to ‘give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced,’ that is, the requirement of patent offensiveness. Id., at 25, 93 S.Ct., at 2615 [37 L.Ed.2d 419]. These examples included ‘representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,’ and ‘representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.’ Ibid. While this did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination. It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant’s depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty.” 418 U.S. at 160-61, 94 S.Ct. at 2755, 41 L.Ed.2d at 650.

      . The Miller court, after setting forth its three part definition of obscenity, suggested later in the opinion that this factor is also an essential element:
      “ * * * ‘The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ * * * But the public portrayal of hard-core •sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter.” 413 U.S. at 34, 93 S.Ct. at 2620-21, 37 L.Ed.2d at 437.