author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Arthur G. DIXON.
    No. 82-KA-2745.
    Supreme Court of Louisiana.
    April 2, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Kerry Hogan, William C. Credo, Asst. Dist. Attys., for plaintiff-appellee.
    Martha E. Sassone, Indigent Defender Board, Gretna, for defendant-appellant.
   BLANCHE, Justice.

Defendant Arthur Dixon was originally charged by bill of information with one count of aggravated burglary, a violation of La.R.S. 14:60, and one count of simple burglary, a violation of La.R.S. 14:62. The State later amended the bill of information, reducing the charges to two counts of simple burglary. Thereafter, Dixon withdrew his not guilty pleas and entered guilty pleas. A pre-sentence investigation was ordered by the trial judge, and on April 6, 1982, the court imposed sentences of twelve years at hard labor on each count, the maximum under the law, with the sentences to run consecutively. The defendant himself immediately objected to the sentence, and it is that objection which forms the basis for this appeal.

Dixon assigns as error the fact that the trial court did not order his guilty plea to be withdrawn. He contends that his guilty plea was entered only because it had been represented to him by the prosecution and his own attorney that he would receive sentences substantially less than twelve years on each count and that the sentences would be concurrent. Although Dixon never made a formal motion to withdraw his guilty plea, he did object to the sentence which had been imposed and did immediately inform the court that he wished to appeal. This court has consistently permitted a constitutionally infirm guilty plea to be withdrawn after sentencing by way of appeal or post conviction relief. State v. Hayes, 423 So.2d 1111 (La.1982), and cases cited therein. It is by now settled law that a guilty plea is constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by what he justifiably believes was a plea bargain, and that bargain is not kept. In such a case a defendant has been denied due process of law because the plea was not given freely and knowingly. State v. Hayes, supra; State ex rel. LaFleur v. Donnelly, 416 So.2d 82 (La.1982); State v. Jones, 398 So.2d 1049 (La.1981); State v. Neitte, 363 So.2d 425 (La.1978); State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977).

In the instant case, after the court gave its reasons for the maximum sentences and remanded the defendant to the Department of Corrections, Dixon spoke out and the following exchange took place:

Defendant: Your Honor, can I say something now? I was told prior to trying to plead guilty, that the sentences would run concurrent, and that I would get less than twelve years. That’s why I plead [sic] guilty.
Court: It’s not what the pre-sentence report indicates, I’ll read you what the Court has agreed to. Let me see it. Who made that statement to you?

At this point defense counsel asked to approach the bench and Dixon turned to his lawyer to protest:

Defendant: You told me that the District Attorney told him [the trial judge] I’ll get twelve ...
Court: Twelve years on each count.
Defendant: To run concurrent. No, that I would get less than twelve. Somebody else told me that I’d get four, but uh.
Court: I would suggest that if you want to take an appeal, the Court will grant you any appeals that you want to take but the Court is not inclined to give you any less under these circumstances.
Defendant: Your Honor, I’d like a — if my attorney won’t, I’d like to let you know that I’m gonna appeal.
Court: We can do that right now. Give me the appeal to file.

The transcript of the sentencing hearing ends at this point, but the Minutes of Court indicate that Dixon signed the Motion for Appeal at that time.

In his brief to this Court, Dixon admits that in his oral Boykin colloquy with the trial court he stated that he understood the potential penalties for the crimes he was pleading to and that he also responded that he had not been promised anything in return for his guilty plea. The State also points to the “Waiver of Rights” form which Dixon signed at the same time and in which he gave the same responses. The written waiver also contains a question asking the defendant if he had been informed by his attorney that, if the court accepted his guilty plea, he would be sentenced in accordance with a pre-sentence investigation, to which Dixon responded affirmatively. Dixon asserts that these answers were given on the advice of his attorney, who assured him that the questions and answers were merely “procedural” for the purpose of entering the guilty plea and would have no effect on his plea bargain agreement.

Two weeks after the sentencing hearing, on April 20, 1982, the trial court, on its own motion amended the sentence so that the two twelve-year terms were to run concurrently. The trial court explained that it was taking this action pursuant to La.C. Cr.P. art. 881, since the sentence had not yet become executory. Defense counsel maintained the objection to the length of sentence, and a second order of appeal was entered.

The fact that the trial court of its own volition sought to amend the sentence to provide for the concurrent terms Dixon said he was promised certainly lends credence to his assertions, as does his immediate objection and explanation at the time sentence was imposed. The record is entirely devoid, however, of any comments from the prosecutor regarding the allegations of unkept promises, nor was there any comment, explanation, or argument by the attorney representing Dixon at the time.

Because of the insufficient record before us, the ease must be remanded for an evi-dentiary hearing. If the evidence adduced at that hearing supports the finding that Dixon’s guilty plea was induced in part by the state’s promise of concurrent sentences of less than twelve years, the plea bargain must be enforced or Dixon allowed to withdraw his guilty plea. Likewise, if there was no such agreement, but Dixon justifiably believed there was and pled guilty in part because of that justifiable belief, the guilty plea was not knowingly made and must be set aside. State v. Jones, 398 So.2d 1049 (La.1981); State v. Thompson, 414 So.2d 1218 (La.1982); State v. Baudoin, 334 So.2d 186 (La.1976).

DECREE

For the reasons assigned, the case is remanded to the district court with instructions to hold an evidentiary hearing to determine whether defendant’s plea was (knowingly and voluntarily made. If the plea was not entered knowingly and voluntarily, the defendant must be permitted to withdraw it and the case proceed in accordance with law.

REMANDED with instructions.


source: Caselaw Access Project

author: WATSON, Justice. DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Henry F. DAVIS.
    No. 82-KA-2682.
    Supreme Court of Louisiana.
    April 2, 1984.
    William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Madeleine Slaughter, Susan Scott Hunt, Asst. Dist. Attys., for plaintiff-appellee.
    William Noland, Lawrence J. Boasso, New Orleans, for defendant-appellant.
   WATSON, Justice.

The issue in this appeal from a conviction for aggravated battery is whether the trial court erred in allowing evidence of another crime through the identification testimony of a second victim.

Defendant, Henry F. Davis, pled guilty in Orleans Parish to battering Rebecca Sachnit with a dangerous weapon, a pellet pistol, in violation of LSA-R.S. 14:34. Prior to the guilty plea, the trial court denied the state’s request to introduce evidence of other crimes. A writ was granted; the ruling was reversed, and the ease was remanded for a new hearing:

“to determine: (1) Is identity of the offender a real issue? and (2) Is there clear and convincing evidence that defendant committed the other offenses?” State v. Davis, 389 So.2d 71 at 73 (La., 1980).

After the trial court made an affirmative ruling on these questions; a second writ was denied on the ground that appeal was an adequate remedy for any error. When defendant pleaded guilty, he reserved the right to contest the trial court’s ruling under State v. Crosby, 338 So.2d 584 (La., 1976).

Madeleine Slaughter, assistant district attorney for the Parish of Orleans, testified that she had interviewed four girls, two from Orleans and two from Jefferson Parish. The two girls from Orleans Parish, Rebecca Sachnit and Lisa Flores, were walking to Dominican High School on successive days when they saw the-same driver in the same light colored car. On January 8, 1980, Rebecca was struck on the right hip. A doctor’ confirmed that Rebecca had been shot with a pellet gun. On the following day, Lisa had a gun or a weapon or a pellet gun of some kind pointed at her. On January 10, 1980, the girls saw the same car and obtained a license number. The car was registered to Henry Davis. The two girls from Jefferson Parish were also walking to a Catholic girls’ high school when they were shot on the right hip with a pellet gun. The four girls’ descriptions of the car and the assailant were very similar.

Louise Crouchet, a resident of Marrero, testified that, after attending Immaculata High School on January 4, 1980, she was hit by a BB gun on the right lower hip. Louise Crouchet made a positive identification of defendant Davis in court. On cross-examination, she admitted previously identifying defendant at the Jefferson Parish Correctional Center on .February 21, 1980.

Louise Crouchet’s identification on February 21, 1980, had been the subject of a suppression hearing in a Jefferson Parish prosecution of Henry Davis for the aggravated battery of Dawn Biggers and Louise Crouchet.' In State v. Davis, 409 So.2d 268 (La., 1982) the out-of-court identifications of Davis by Crouchet and Julie Baye in a one-on-one confrontation at the police station were suppressed because of the “substantial likelihood of irreparable misidenti-fieations.” 409 So.2d at 270. The trial court was reversed and the matter remanded. Defendant argues that Louise Crou-chet’s in-court identification should have been suppressed because of the decision in State v. Davis; 409 So.2d 268 (La., 1982). His guilty plea here was qualified; he reserved the right to review the trial court’s ruling on his motion to suppress Crouchet’s testimony. . .

It is undisputed that defendant’s modus operandi is peculiarly distinctive, making these signature crimes. Aggravated battery is an “intentional” crime. LSA-R.S. 14:33. Defendant’s intent was a relevant issue. It would be possible to accidently hit a person with a missile from a pellet gun. Evidence of defendant’s other identical acts was admissible to prove his intent. LSA-R.S. 15:445, 15:446. Also, although there was no trial on the merits, identity was obviously a crucial issue. Victim Sachnit did not come face to face with her assailant. She was walking; he was in an automobile; the encounter was brief. Evidence of the other identical acts was admissible to prove defendant's identity. State v. Davis, 389 So.2d 71 (La., 1980).

Commission of another crime, which is independently relevant and admissible, need not be proven beyond a reasonable doubt. McCormick on Evidence, § 190, p. 451 (2d ed., 1972). It is sufficient if the evidence is clear and convincing. State v. Hatcher, 372 So.2d 1024 (La., 1979).

The question is whether the evidence of defendant Davis’ Jefferson Parish crime against Louise Crouchet was sufficiently clear and convincing to allow her testimony in this Orleans Parish prosecution.

Despite the fact that the out-of-court identification by Louise Crouchet was ordered suppressed in State v. Davis, 409 So.2d 268 (La., 1982), her in-court evidence at this hearing was clear and convincing. She remembered the day in question as the day she was shot. Around lunch time, defendant was “riding around the school. And, he looked sort of suspicious.” After school, the man was still “riding around.... we just kept on watching him.” Subsequently, that same day, he shot her with a BB gun.

One factor tainting the out-of-court identifications was the lack of precautions to prevent the two girls from influencing each other. That factor was not present at this hearing. Of the two witnesses whose identifications were suppressed in State v. Davis, 409 So.2d 268 (La., 1982), Louise Crouchet gave the more detailed description. According to her testimony here, she watched Davis attentively before she was shot. She made an unequivocal in-court identification. Despite the suppression of her out-of-court identification at the police station, defendant did not establish that Louise Crouchet’s in-court identification was unreliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The trial court did not err in allowing this evidence to establish intent and identity.

For the foregoing reasons, the conviction and sentence of defendant, Henry F. Davis, are affirmed.

AFFIRMED.

LEMMON and CALOGERO, JJ., concur.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent. This court should not permit the state to use the identical evidence it ordered suppressed in a previous prosecution against the defendant. State v. Davis, 409 So.2d 268 (La.1982).

      . Defendant was sentenced "to two years at hard labor. Said sentence is suspenced (sic). And, the defendant is placed on active probation for a period of three years. Special condition of the probation is that the defendant serve six months in the Parish Prison. And, that he receive mental health counseling, that he seeks help with it, to see if he can obtain some assistance. ...” (Tr., Hearing on November 9, 1981, p. 5-6)

      . Tr., Hearing of January 13, 1981, p. 6.

      . The United States Fifth Circuit adopted a lower standard than clear and convincing proof in United States v. Beechum, 582 F.2d 898 (5 Cir.1978) cert. den. 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979):
      "As the rule provides, the task for the trial judge is to determine whether there is sufficient evidence for the jury to find that the defendant in fact committed the extrinsic offense. See Morgan, Functions of Judge and Jury in the Determination of Preliminary Questions of Fact, 43 Harv.L.Rev. 165 (1927). The judge need not be convinced beyond a reasonable doubt that the defendant committed the extrinsic offense, nor need he require the Government to come forward with clear and convincing proof. The standard for the admissibility of extrinsic offense evidence is that of rule 104(b): ‘the preliminary fact can be decided by the judge against the proponent only where the jury could not reasonably find the preliminary fact to exist.' 21 Wright & Graham, Federal Practice and Procedure: Evidence § 5054, at 269 (1977)."


text:
    STATE of Louisiana v. Alvin T. WELCH.
    No. 83-KA-0541.
    Supreme Court of Louisiana.
    April 2, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Mamoul-ides, Dist. Atty., William C. Credo, III, Philip Boudousque, W.C.D. Friederichsen, Asst. Dist. Attys., for plaintiff-appellee.
    Joseph L. Montgomery, New Orleans, for defendant-appellant.
   WATSON, Justice.

Defendant, Alvin T. Welch, was convicted of aggravated rape in violation of LSA-R.S. 14:42 and sentenced to .life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The issue in the appeal and the only counseled assignment of error concerns whether the trial court erred in not suppressing the physical evidence taken from defendant’s apartment without a search warrant.

FACTS

After the victim telephoned the City of Westwego Police Department, two officers met her in the Canal Bank Inn. She said she had been attacked twenty minutes before by a white male in an upstairs apartment behind the building and led the officers to the apartment. Her face was bruised; she was upset and crying. The complaint was made at 3:52 A.M. on August 22, 1981. In the door of the apartment there were uncurtained glass panes. There was no answer to a knock. The window fan was operating. Because the victim said her assailant had been drinking, she and the officers believed he had probably “passed out” on the bed in the back room. (Tr. 69) The victim pointed out her sandals and shorts inside on the floor.

According to Officer Robert P. Bourgeois, it would have taken at least twenty-four hours to obtain a search warrant. Lieutenant Nolan Dufrene, Jr. went through the adjoining window, opened the door, and the three entered the apartment. The victim’s sandals, underpants, shorts, and tank top were in the living room. The victim identified her assailant in a picture album on the coffee table; Officer Bour-gois knew him. Removed from the apartment were: “a pair of lady’s panties; a pair of jogging shorts; a tank-top; a pair of lady’s sandals; a serpentine-gold chain with a little cross on it ... a flowered cigarette case and ... the bed sheets.” (Tr. 74) There was no seminal fluid on the clothing or sheets. Later that morning, defendant Welch was arrested. Seminal fluid was found on his clothing.

The victim testified that she had been at the Canal Bank Inn. Her sixteen year old son had also been there. Subsequently, while looking for the son:

“this young guy about 18, he told me, he said, T know where your son is.’ and I said, ‘Where?’, and he said, ‘In the back.’. I said, ‘In the back, where?’, and he said, ‘Back there.’. I said, ‘What is he doing back there?’, and he said, ‘They are having a party.’. So I said, ‘Where, can you show me?’, and he said, ‘Yes.’, and we went back there. I had to go up steps.” (Tr. 211)

The escort then disappeared. At the upstairs apartment, she was made to perform oral sex and raped vaginally and anally. She fled from the apartment without her clothes and got some clothing from her daughter before calling the police. Defendant Welch was identified in court as the offender.

Dr. Friedrichsen, who examined the victim, said she appeared disturbed. She had a contusion on her neck and in the perianal area between the vagina and rectum.

CONCLUSION

Warrantless entries into the home for arrest or seizure are invalid in the absence of exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Exigent circumstances include: lack of sufficient time to prepare an affidavit, locate a magistrate and obtain warrant after probable cause arises; imminent danger of destruction of evidence; and the possibility of escape. United States v. Hultgren, 713 F.2d 79 (1983). These factors influenced this entry without a warrant. Once the officers had corroborated the victim’s complaint by accompanying her to the crime scene, probable cause was clearly present. Further delay might have allowed destruction of the evidence and escape of the suspect, who was believed to be on the premises. When a short time has elapsed between a crime and a complaint, exigent circumstances sometimes make immediate police action imperative. Scott v. Maggio, 695 F.2d 916 (1983).

Since the entry into the apartment was justified by exigent circumstances, the evidence in plain view was subject to immediate seizure. United States v. Thompson, 700 F.2d 944 (1983). The motion to suppress the evidence was properly denied.

Even if the clothing had been suppressed, the officers could have testified about what they saw through the glass door panes prior to their entry into the apartment. There was an independent basis for this evidence, which antedated any illegality connected with their warrantless entry. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); State v. Johnson, 371 So.2d 1155 (La., 1979); State v. Marshall, 359 So.2d 78 (La., 1978). Compare State v. DeHart and Bergeron, 445 So.2d 419 (La., 1983). The clothing seized inside the apartment did not strengthen the state’s case. Any error in allowing it into evidence was harmless. LSA-C.Cr.P. art. 921.

For the foregoing reasons, the conviction and sentence of defendant, Alvin T. Welch, are affirmed.

AFFIRMED.

CALOGERO, J., concurs.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur. I am not certain this case meets the requirements of “exigent circumstances” or “urgent need”, see Dorman v. U.S., 435 F.2d 385 (D.C.Cir.1970) but I agree that the introduction of the clothing seized added nothing substantial to the prosecution case consisting of the testimony of the victim (including pre-seizure identification of her clothes) and police officers.

      . In a pro se brief, defendant claims he received ineffective assistance of counsel. Defendant’s showing is insufficient to demonstrate merit to his contention; in fact, the record indicates the contrary, that counsel "vigorously defended Mr. Welch" (Tr. 156) as noted by the trial judge. In any event, defendant has the right to pursue his contention in post-conviction proceedings.


author: WATSON, Justice. LEMMON, J., MARCUS, Justice DENNIS, Justice, BLANCHE, J.

text:
    Ramon A. AIZPURUA, et ux. v. CRANE POOL COMPANY, INC., et al.
    No. 83-C-2260.
    Supreme Court of Louisiana.
    April 2, 1984.
    William D. Grimley, Baton Rouge, for applicants.
    Guy A. Módica, Susan Dowden, Guy A. Módica, Ltd., Baton Rouge, for respondents.
   WATSON, Justice.

Plaintiffs, Dr. and Mrs. Aizpurua, filed this suit on May 29, 1981, to recover for defects in a swimming pool which they purchased in conjunction with a residence on December 6, 1977. Named as defendants were: Edward M. and Anna Lee Smith, the vendors of the house and pool; Crane Pool Company, Inc., and/or Cory Crane, who constructed and manufactured the pool; and Watts Brothers Buildings, Inc., which developed the lot where the residence and pool are located. The trial court sustained exceptions of no cause of action, no right of action and prescription as to the Crane defendants. The Court of Appeal affirmed. Aizpurua v. Crane Pool Company, Inc., 439 So.2d 572 (La.App. 1 Cir.1983). A writ was granted to review the judgment. 443 So.2d 591 (La., 1983).

The trial court concluded that any claims in redhibition or tort had prescribed. Because there was no privity of contract between plaintiffs and the Crane defendants, exceptions of no cause of action and no right of action were also sustained.

At the hearing on the exceptions, photographs were introduced in evidence which showed that the pool was in very poor condition prior to its repair. Problems with the pool were first apparent in December of 1979 and became progressively worse. Crane Pool Company was contacted in February of 1980 when the liner of the pool had separated from the cement wall and started to rip. Subsequently, cracks appeared in the coping of the pool.

An employee of Soil Testing Engineers testified as an expert from his company’s records that the Aizpuruas’ problems with the pool resulted from a six inch differential in settlement of the soil under the pool. The compressible soil materials which caused the pool problem were below the depth of the test borings. In this expert’s opinion, the condition began developing shortly after the pool was built in 1976 and continued, probably at a decreasing rate. If there had been appropriate testing prior to construction, the pool could have been placed on pilings “going down to a competent soil” or the incompetent soil could have been removed and replaced with a different material. (Tr. 70) The feasibility of both of these courses of action was open to serious question.

The trial court correctly found that any actions in tort and redhibition against Crane had prescribed. LSA-C.C. arts. 2546 and 3536. The question remaining is whether plaintiffs have a right of action against Crane for breach of any implied or express warranty in the Crane building contract with the Smiths.

Plaintiffs rely on Media Pro. Consult., Inc. v. Mercedes-Benz of N.A., Inc., 262 La. 80, 262 So.2d 377 (1972), which allowed a consumer without privity to recover against the distributor of an automobile for latent defects under the implied warranty of fitness inherent in every sale. In Media, an American automobile distributor was found to occupy the position of the foreign manufacturer.

Liability of a contractor to the owner or other contracting party is governed by a ten year prescriptive period. LSA-C.C. art. 3500. The Smiths, vendors of the house and pool, warranted to the Aizpuruas, the vendees, that the things sold were free of hidden defects. LSA-C.C. art. 2476. The Aizpuruas were subro-gated to the Smiths’ rights and actions in warranty against “all others”. LSA-C.C. art. 2503. This article has been interpreted as including only actions against other vendors. See LeBlanc v. Ellerbee Builders, Inc., 317 So.2d 1 (La.App. 1 Cir.1975). This reading of the article erroneously qualifies its literal language. “[T]he right to sue for breach of warranty of quality is transmitted with the object of the sale.” XIV Tul.L.Rev. at p. 471. The implied warranty of materials and workmanship in a building contract is one to which a subsequent purchaser is subrogated. Media, supra. Despite lack of privity, one who acquires immovable property can enforce a contract made for the improvement of the property by the person from whom he acquired it. LSA-C.C. art. 2011; Breaux v. Laird, 223 La. 446, 65 So.2d 907 (1953).

For the foregoing reasons, the judgment is affirmed insofar as it sustained the Crane defendants’ exceptions of prescription. Insofar as the judgment held that plaintiffs had no cause of action and no right of action against the Crane defendants, the judgment is reversed, and the matter is remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

DIXON, C.J., concurs.

DENNIS, J., concurs with reasons.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents and will assign reasons.

LEMMON, J.,

concurs, believing that the contract between defendant and Smith was a building contract, but that plaintiffs have a right of action to enforce defendant’s obligation imposed by La.C.C. Art. 2762.

MARCUS, Justice

(dissenting).

The majority opinion holds that La.Civ. Code art. 2503 subrogates a purchaser to his seller’s rights and actions against a building contractor for breach of the implied warranty of workmanship in a building contract. Chapter 6 of Book III, Title VII of the Civil Code is divided into three sections corresponding to the three principal obligations of the seller: tradition or delivery of the thing sold, warranty against eviction and warranty against redhibitory vices. Article 2503 is located in section two, entitled “Of the Warranty in Case of Eviction From the Thing Sold,” and deals exclusively with the warranty against eviction. Because plaintiff has failed to allege that either his seller or the pool contractor breached the warranty against eviction, art. 2503 is inapplicable. Accordingly, I respectfully dissent.

DENNIS, Justice,

concurring.

I respectfully concur.

Since the instant case is clearly covered by the second example described by Civil Code Article 2011,1 do not feel there is any necessity to construct an analogy upon the Media case.

Further, I interpret the majority opinion to hold that, although plaintiffs’ causes of action in tort and redhibition have prescribed, their cause of action based on the construction contract is governed by a ten year period and therefore has not prescribed.

BLANCHE, J.

(dissenting).

The majority opinion broadly interprets C.C. art. 2503 to allow a vendor of a house to subrogate to the vendee the vendor’s actions in warranty against any contractor who may have worked on the home or its immediate concomitants. By so doing, any notion of privity of contract which remained after Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972), has been dispelled.

Regardless of the merits of disposing of the theory of privity of contract, the codal authority cited by the majority to do so is inapposite. Art. 2503 is located in the civil code under the section entitled: “Of the Warranty in Case of Eviction From the Thing Sold. Article 2500 states that eviction is the loss suffered by the buyer of the thing sold, occasioned by the right or claim of a third person. Thus, the warranty to which a vendee becomes subrogated under Article 2503 is simply the vendor’s own warranty from eviction owed to him by previous vendors. LeBlanc v. Ellerbee Builders, Inc., 317 So.2d 1 (La.App. 1st Cir.1975). Article 2503 was ever intended to provide subrogation to claims of defective workmanship or implied warranties of fitness. Had it been, the article would have been placed in the section of the code dealing with the vices of the thing sold, Art. 2520, et seq.

Finding no basis in the civil code for the type of subrogation created by the majority opinion, I therefore respectfully dissent.

      . It appears that the problem resulted from an inherent vice existing in the soil rather than any defect in fill or construction. An undertaker is liable for the loss resulting from a structure falling into ruin when he should have known of a latent defect in the soil. Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268 (1967). Unless Crane knew or should have known of the defect or warranted that the soil was suitable for pool construction, plaintiffs could not recover for such a latent defect. An owner who sues a builder for defects in a swimming pool constructed under a building contract has the burden of showing that the defects were due to badness of workmanship or material rather than any latent defect of the soil. Unverzagt v. Young Builders, Inc., 207 So.2d 405 (La.App.3 Cir.1968), affirmed 252 La. 1091, 215 So.2d 823 (1968).

      . Former LSA-C.C. art. 3536 was vacated by Act No. 173 of the 1983 Regular Legislative Session effective January 1, 1984. See, now, LSA-C.C. art. 3492. The reenactment did not change the law.

      . LSA-C.C. art. 3500 provides:
      "An action against a contractor or an architect on account of defects of construction, renovation, or repair of buildings and other works is subject to a liberative prescription of ten years. Acts 1983, No. 173, § 1, eff. Jan. 1, 1984.
      Comments
      "(a) This Article is based on Article 3545 of the Louisiana Civil Code of 1870. It broadens the scope of the source article by adding the phrases ‘renovation, or repair’ and ‘other works’ and by suppressing the phrase ‘of brick or stone’. It does not change the law because an action against a contractor or an architect on account of defects of construction, renovation, or repair of buildings or other works is a personal action subject to a liberative prescription of ten years.”

      . LSA-C.C. art. 2476 provides:
      “The warranty respecting the seller has two objects; the first is the buyer's peaceable possession of the thing sold, and the second is the hidden defects of the thing sold or its redhibi-tory vices.”

      . LSA-C.C. art. 2503 provides:
      "The parties may, by particular agreement, add to the obligation of warranty, which results of right from the sale, or diminish its effect; they may even agree that the seller shall not be subject to any warranty.
      “But whether warranty be excluded or not the buyer shall become subrogated to the seller's rights and actions in warranty against all others.”

      . LSA-C.C. art. 2011 provides:
      "Not only the obligation, but the right resulting from a contract relative to immovable property, passes with the property. Thus the right of servitude in favor of immovable property, passes with it, and thus also the heir or other acquirer will have the right to enforce a contract made for the improvement of the property by the person from whom he acquired it."


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Leon WALKER.
    No. 81-KA-2253.
    Supreme Court of Louisiana.
    April 2, 1984.
    Rehearing Denied May 3, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., for plaintiff-appellee.
    Richard C. Howell, Baton Rouge, for defendant-appellant.
   CALOGERO, Justice.

Defendant Leon Walker was charged by Grand Jury indictment with the crime of armed robbery, in violation of La.R.S. 14:64. He was tried by a twelve person jury and found guilty as charged. He was thereafter sentenced to thirty-five years at hard labor without benefit of parole, probation or suspension of sentence.

On appeal originally, this Court affirmed his conviction, but upon finding that the trial judge failed to comply with the sentencing guidelines of La.C.Cr.P. art. 894.1, vacated the sentence and remanded the case to the district court for resentencing in accordance with law. State v. Walker, 414 So.2d 1245 (La.1982).

On December 6, 1982, the trial judge again imposed a sentence of thirty-five years’ imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant again appeals, arguing that the sentence is excessive. We have reviewed the record of the sentencing proceedings on remand and find that the trial court has now adequately complied with the sentencing guidelines of La.C. Cr.P. art. 894.1 in articulating the reasons for the sentence imposed. Thus we find no merit in defendant’s argument.

Decree

Accordingly, we affirm defendant’s sentence.

SENTENCE AFFIRMED.


author: CALOGERO, Justice. WATSON, Justice, MARCUS, Justice

text:
    Faye D. DURHAM v. LOUISIANA STATE RACING COMMISSION.
    No. 83-CA-2446.
    Supreme Court of Louisiana.
    April 2, 1984.
    Rehearing Denied May 3, 1984.
    William J. Guste, Jr., Atty. Gen., Robert A. Barnett, Staff Atty., John E. Jackson, Jr., Asst. Atty. Gen., New Orleans, for defendant-appellant.
    Mary Olive Pierson, Cooper, Thompson & Pierson, Baton Rouge, for plaintiff-appel-lee.
   CALOGERO, Justice.

The Louisiana State Racing Commission has appealed to this Court a judgment of the Civil District Court for the Parish of Orleans which declared unconstitutional La.R.S. 4:150 B(10) and LAC 11-6:25.18, one of the rules and regulations of racing for the State of Louisiana adopted by the Louisiana State Racing Commission (commonly referred to as Rules of Racing).

La.R.S. 4:150, pertaining to the Louisiana State Racing Commission, in part governs the Commission’s granting and refusing licenses to racehorse owners, trainers and others; it prescribes at subsection B that an applicant for a license “shall meet the following qualifications and conditions.... (10) Is not the spouse of a person whose application has been denied or whose license has been revoked, unless judicially separated or divorced.”

LAC 11-6:25 “Entries,” provides at Section 25.18, in part, that “No entry shall be accepted from husband or wife while either is disqualified.”

This case arose when the plaintiff, one Faye D. Durham, a licensed racehorse trainer and owner, was told by the head steward at Evangeline Downs that she had been “ruled off the track” and that her licenses had been suspended, for the reason that her husband, one Clemson Wayne Durham, had had his license suspended by the Racing Commission, and the two were not judicially separated or divorced.

At a steward's hearing which Mrs. Durham demanded, she was told that she had been suspended by the Racing Commission.

She appealed to the Racing Commission, which did not grant her a hearing within ten days as required by La.R.S. 4:154(F). Therefore she filed a petition for writ of mandamus to force a call for a hearing on her appeal, in an effort to reinstate the privileges attached to her racehorse licenses.

After several legal skirmishes (a perfunctory hearing before the Commission, a rule for contempt, defense motion to quash and dismiss plaintiffs contempt rule, petition for judicial review of court ordered hearing, supplemental petition, answers and exceptions), the trial judge ruled in favor of Mrs. Durham and against the Louisiana State Racing Commission and found both the statute, La.R.S. 4:150 B(10), and the Rule of Racing, LAC 11-6:25.18, unconstitutional and therefore unenforceable. In his judgment the trial judge specifically found the statute and rule to be a “denial of an opportunity to earn a livelihood ... of sufficient legal consequence to invoke the constitutional protection of due process of law.”

For the following reasons we determine that the trial judge correctly decided favorably to the plaintiff Mrs. Durham, that LAC 11-6:25.18 is unenforceable, and that she is entitled to all of the rights and privileges normally associated with her racehorse owner’s and trainer’s licenses. We reverse the judgment of the Civil District Court, however, insofar as it declared unconstitutional La.R.S. 4:150 B(10) and insofar as it declared LAC 11-6:25.18 unconstitutional, rather than simply illegal and unenforceable.

Mrs. Durham, at the time she was ruled off the track, was a person duly licensed by the Louisiana State Racing Commission as a racehorse trainer and owner. She was not an applicant for a license, who, under the provisions of La. R.S. 4:150 B(10) must show among her qualifications that she “[i]s not the spouse of a person whose application has been denied or whose license has been revoked, unless judicially separated or divorced.” La.R.S. 4:150 B(10) therefore, is simply not relevant to this controversy and its constitutionality therefore need not be addressed and should not have been addressed by the district court.

LAC 11-6:25.18, on the other hand, is applicable to Mrs. Durham. By providing that “no entry shall be accepted from husband or wife while either is disqualified,” it effectively “rules her off” of Louisiana race tracks notwithstanding that she is otherwise a duly licensed racehorse trainer and owner. That regulation appears among the rules of racing. It does not, however, prescribe a rule applicable to her conduct. Rather it dictates to racing officials that they shall not accept an entry from a licensed trainer or owner, like Mrs. Durham, who has the misfortune of being married to a person who has been disqualified.

As interpreted by the Louisiana State Racing Commission, what that rule really constitutes, then, is a determination that it shall be a cause for terminating racing privileges that a licensed trainer is married to a person who has been disqualified.

The Louisiana State Racing Commission is an agency within the Department of Commerce of the Executive Branch of the Louisiana state government. The Commission has full powers to prescribe rules, regulations and conditions under which all horse racing, upon the result of which there shall be pari-mutuel wagering, shall be conducted within the State of Louisiana. 1968 La.Acts No. 554. The Louisiana State Racing Commission thus is given broad powers. The Commission no doubt thinks that LAC 11-6:25.18 is a reasonable extension of the Legislature’s determination that applicants whose spouses have had licenses denied or revoked should be denied a license of their own. Thus, the Commission would terminate the racing privileges of someone already licensed, like Mrs. Durham, whose spouse is disqualified.

Nonetheless it is not the province of the Commission to determine “just cause” for terminating racing privileges where the Legislature itself has enacted a statute on that very subject.

The Legislature has, by the enactment of La.R.S. 4:152, determined causes for termination of racing privileges of those persons who have been licensed. That statute provides:

A. The commission may refuse, suspend, or withdraw licenses, permits, and privileges granted by it or terminate racing privileges for just cause in accordance with the provisions of Subsection B of this Section. Those things constituting just cause are:
(1) Any action or attempted action by a permittee contrary to the provisions of this Part and law.
(2) Corrupt practice.
(3) Violation of the Rules of Racing.
(4) Willful falsification or misstatement of fact in an application for racing privileges.
(5) Material false statement, under oath, to a racing official, other than a commissioner, or to the commission.
(6) Willful disobedience of a commission order or of a lawful order of a racing official other than a commissioner.
(7) Continued failure or inability to meet financial obligations connected with his business, occupation, or profession performed or engaged in on the track grounds.

Thus, the Legislature has directed that the Commission may terminate racing privileges only for just cause and the Legislature has recited those exclusive “things constituting just cause.”

None of the seven listed causes is applicable to Mrs. Durham, nor does this exclusive list of legislatively determined “causes” for terminating racing privileges, and for refusing, suspending, or withdrawing licenses, permits, and privileges granted by it, include the fact that a licensee’s spouse has been disqualified.

The Legislature has set forth as a qualification of an applicant for a license that the applicant’s spouse has not been denied, or had a license revoked. Yet in setting forth the exclusive causes for terminating the racing privileges of a person who has been licensed, the Legislature has not seen fit to include therein that same circumstance. Where legislative intent is not otherwise manifest, the maxim of statutory construction inclusio unius est exclusio alterius applies. State ex rel. Fitzpatrick v. Grace, 187 La. 1028, 175 So. 656 (1937). We apply that maxim to this case. Having included as a requirement for applicants that a spouse’s license has not been denied or revoked, while excluding that same circumstance from an exclusive list of causes for the termination of the racing privileges of already licensed persons, the Legislature is presumed to have intended that the revocation or denial of a spouse’s license does not provide grounds for the termination of existing licenses.

Only La.R.S. 4:152(3) gives us pause. It provides that one of the causes for terminating racing privileges is “Violation of the Rules of Racing,” and the Commission may argue that Mrs. Durham violates LAC 11-6:25.18. But this is not so, for 25.18 does not mandate any conduct on her part; and she has not been charged with violating this or any other rule. If she were, she would be entitled to a hearing where proof might be adduced that she has or has not done so. The truth of this latter assertion (that plaintiff was not charged with a rules violation) is evident from the Commission’s “hearing” at which no evidence was taken or allowed to be heard.

Rule LAC 11-6:25.18 recites a cause for disallowing the entry of a horse by a licensed racehorse owner or trainer. It is a cause which effectively terminates racing privileges, and as we have noted herein-above, the exclusive causes for such termination, which do not include spouse disqualification, have been determined by the Legislature in La.R.S. 4:152.

We recently were presented with a similar issue concerning a regulatory agency’s interpretation and application of the law that it administers in Benson & Gold Chev. v. La. Motor Veh. Com’n, 403 So.2d 13 (La.1981). In Benson & Gold, an automobile dealership with an existing license in Orleans Parish had been denied a license from the Louisiana Motor Vehicle Commission to relocate its dealership in Jefferson Parish. One of the reasons that we decided that the M.V.C. had exceeded its authority in denying the license to Benson & Gold was because the grounds on which the denial was based applied only to new applicants for a dealership license and did not apply to dealerships with an existing license. In so concluding we said at 403 So.2d 20:

Although a regulatory agency is entitled to a certain amount of hegemony over the statutes it is entrusted to administer, it cannot go too far afield from the letter of the law even if it perceives that it is furthering the law’s spirit. While the jurisprudence of this state has not frequently treated matters of administrative law, the principle is well established that an administrative agency must act in conformity with its statutory authority, which it cannot exceed. See, e.g., Charbonnet v. Board of Architectural Examiners, 205 La. 232, 17 So.2d 261 (1944); Realty Mart, Inc. v. Louisiana Board of Tax Appeals, 336 So.2d 52 (La. App. 1st Cir.1976); Pearce v. Kramer, 128 So.2d 304 (La.App. 3d Cir.1961); Hunter v. Hussey, 90 So.2d 429 (La.App. 1st Cir.1956); Kramer v. State Board of Veterinary Medical Examiners, 55 So.2d 93 (La.App. 1st Cir.1951).

The Legislature, of course, may choose to add to the causes for terminating racing privileges. Indeed, they may choose to amend La.R.S. 4:152, and perhaps include therein, marriage to a disqualified person. Until the Legislature does so, however, licensed horse trainers and owners like plaintiff, Mrs. Durham, may not be denied the privileges normally associated with their licenses.

Because the Commission’s rule (LAC 11-6:25.18) effectively establishes a cause for terminating racing privileges which is not included among the exclusive causes set forth in La.R.S. 4:152, Rule LAC 11-6:25.18 is illegal and unenforceable. Whether it is constitutional need not be addressed.

Decree

For the foregoing reasons the judgment of the trial court in favor of plaintiff Mrs. Durham is affirmed insofar as it declares Rule of Racing, LAC 11-6:25.18 unenforceable, it is reversed insofar as it declared R.S. 4:150 B(10) and Rule of Racing LAC 11-6:25.18 unconstitutional, and Mrs.-Durham is entitled to have her owner and trainer racing privileges reinstated.

DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART AND RENDERED.

MARCUS, J., dissents and assigns reasons.

WATSON, J., concurs with reasons.

WATSON, Justice,

concurring.

The majority reaches, by following a somewhat tortuous route, the correct con-elusion as to Mrs. Durham’s right to own and train race horses.

lt seems obvious that if an applicant for a license must certify that they are not married to a person whose license has been revoked, then it follows a fortiori, that the holder of a license cannot be a person married to one whose license has been suspended. Thus, the court should have addressed the question of constitutionality and should not say that the legislature might choose to add the status of being married to a person with a revoked license as a ground for revoking a license, the implication being that such would be within the authority of the legislature.

The provisions in question are unconstitutional and this court should say so.

Therefore, I respectfully concur in the result.

MARCUS, Justice

(dissenting).

Applicants for a racehorse owner’s or trainer’s license to be qualified cannot be the spouse of a person whose license has been revoked, unless judicially separated or divorced. La.R.S. 4:150(B)(10). This legislative provision may not directly govern Mrs. Durham’s case because she is not an applicant but rather is already duly licensed. However, the Commission may suspend or withdraw licenses or terminate racing privileges for “just cause,” which includes as one of the seven statutory grounds “violation of the Rules of Racing.” La.R.S. 4:152(A)(3). One rule of racing provides “no entry shall be accepted from husband or wife while either is disqualified.” LAC 11-6:25.18. This rule completes the legislative prohibition in instances such as this one where after a license is issued either a marriage to a disqualified person or a spouse’s disqualification occurs. Thus, since an entry by Mrs. D.urham as an owner or trainer while her spouse is disqualified would violate a rule of racing, I consider that the Commission had just cause to terminate her racing privileges under La.R.S. 4:152(A)(3). Moreover, I do not consider either La.R.S. 4:150(B)(10) or LAC 11-6:25.18 unconstitutional. Accordingly, I respectfully dissent.

      . La. Const, art. V, § 5(D) permits an appeal directly to this Court when a law or ordinance had been declared unconstitutional.

      . The written Findings and Decision of the Commission read in part:
      The Commission may be sympathetic to Mrs. Durham's dilemma, but laws and the rule of racing expressly direct this Commission in this matter.
      Counsel for the Commission urged that Mrs. Durham’s contentions do not state a claim upon which relief can be granted and excepts to her claims on the basis of no right or cause of action.
      The Commission find merit in its attorneys' exceptions and finds that indeed considering the law and rules of racing Mrs. Durham has not presented nor can she under the legal circumstances present, a claim or contention upon which this Commission can grant the relief sought.

        Mrs. Durham continues to argue the foregoing, notwithstanding, that she is entitled to present additional evidence, call additional witnesses, including several racing officials and in general conduct any type hearing she may desire before the Commission.

        The Commission does not agree. The law does not require the doing of a thing which is vain, futile and useless. The Commission could not allow Mrs. Durham to race her horses if it wanted to do so and any further hearing of her contentions would not change a thing.
      Accordingly the claims and contentions of Mrs. Faye D. Durham are dismissed.

      . Mrs. Durham, in her Petition for Judicial Review, sought a judgment declaring the statute and rule unconstitutional. The trial court ruled that La.R.S. 4:150 B(10) and LAC 11-6:15.18 were an unconstitutional denial of an opportunity to earn a livelihood and consequently a deprivation of due process of law. Before this Court, Mrs. Durham argued that the statute and rule were an unconstitutional denial of equal protection and due process of law. Specifically, she argued that the statute and rule interfered with two fundamental, constitutionally guaranteed rights: the right to be free from state interference with the marital relationship and the First Amendment right of freedom of association. She also contends that the statute and rule deny her equal protection of the laws because “[m]arried and unmarried persons are treated differently in the exercise of their fundamental right of association.”
      The state, on the other hand, argues that the statute and rule are constitutional and not a denial of due process or equal protection. They contend that La.R.S. 4:150 B(10) and LAC li-6:25.18, are rationally related to the achievement of a legitimate state interest — protecting the public from corrupt and dishonest horse racing practices.
      Because we have determined that La.R.S. 4:150 B(10) is inapplicable in the instant case, and that the Commission exceeded its authority in relation to that portion of LAC 11-6:25.18 under attack, we need not decide the constitutional issues. As we said in Benson & Gold Chev., Inc. v. La. Motor Veh. Com’n., supra at 23:
      It is a long standing judicial principle that courts will not consider constitutional challenges unless necessary to the resolution of a dispute. See, e.g., Orleans Parish School Board v. Williams, 312 So.2d 647 (La.1975); State in Interest of Toler, 262 La. 557, 263 So.2d 888 (1972); Tafaro’s Investment Co. v. Division of Housing Improvement, 261 La. 183, 259 So.2d 57 (1972); Aucoin v. Dunn, 255 La. 823, 233 So.2d 530 (1970); Doss v. Board of Commissioners of Mermentau Levee District, 117 La. 450, 41 So. 720 (1906); Parish of St. Landry v. Stout, 32 La.Ann. 1278 (1880).


author: MARCUS, Justice. CALOGERO, Justice, DENNIS, Judge,

text:
    STATE of Louisiana v. Hector MANSO and Susan Warden.
    No. 82-KA-2244.
    Supreme Court of Louisiana.
    April 2, 1984.
    Rehearing Denied May 3, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Margaret Coon, J. Kevin McNary, Thomas L. Watson, Peter Garcia, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Michael M. Ogden, Walter L. Sentenn, Jr., Metairie, for defendants-appellants.
   MARCUS, Justice.

Hector Manso and Susan Warden were charged in the same information with one count of possession with intent to distribute cocaine in violation of La.R.S. 40:967(A)(1), one count of possession of methaqualone in violation of La.R.S. 40:967(C) and one count of possession of diazepam in violation of La.R.S. 40:969(C). Defendants entered pleas of not guilty to all three counts. The trial judge denied defendants’ motion to suppress which had been submitted on memoranda. Thereafter, pursuant to a plea bargain, Manso entered a plea of guilty to possession with intent to distribute cocaine and Warden entered a plea of guilty to possession of methaqualone. The other two counts were nol prossed as to each defendant. Defendants expressly reserved their right to appeal the court’s denial of their pre-plea motion to suppress. Subsequently, Manso was sentenced to serve twelve years at hard labor and to pay a fine of $5,000, or, in default thereof, to serve one year at hard labor; Warden was sentenced to serve three years at hard labor. On appeal, defendants rely on one assignment of error for reversal of their convictions and sentences.

Defendants contend the trial judge erred in denying their motion to suppress evidence seized from a motel room pursuant to a search warrant. They argue that the affidavit supporting issuance of the search warrant failed to set forth facts demonstrating probable cause to believe that illegal drugs were in the motel room.

The search warrant in question was issued to search two adjoining motel rooms rented in the name of Hector Manso, rooms 212 and 214 of the Holiday Inn on Interstate 10 and Gause Blvd. in Slidell. Its purpose was to seize cocaine, marijuana, methaqualone and associated paraphernalia and documents. It was issued based upon facts recited in an affidavit by Officers Freddy Drennan, Stan Hughes and Lynn Bertaut. The affidavit states in full:

That on Saturday September 5, 1981, Hector E. Manso w/m 4500 110 Service Road Metairie, La. a subject known to have trafficked in narcotics, was found to have rented rooms 212 and 214 of the Holiday Inn in Slidell, La. and was in fact staying in both rooms that are adjoining. Subject was observed to be accompanied by one white male and one white female. The investigation began because of Hector Manso’s known past narcotic activities. Investigating officers contacted the Jefferson Parish Sheriff’s Office and spoke with Agent Dexter Accardo relea-tive [sic] to his investigations releating [sic] to the narcotic arrest of Hector Manso on 12-10-80 and 6-17-81 for possession with the intent to distribute cocaine, marijuana and methaquaalone [sic]. Agent Accardo advised the investigating officers of Manso’s method of operation while under investigation in Jefferson Parish. These met the exact method of operation now being observed by the investigating officers. These activities include the use of two adjoining motel rooms to traffic narcotics, numerous incoming and outgoing telephone calls, and awaits a narcotics delivery to be made to his person and to then distribute the narcotics from the rented motel room. This knowledge was gained from undercover operations as well as from overt surveillances [sic] conducted by the Jefferson Parish Sheriff’s Office and re-leated [sic] to the investigating officers. Affiants on this warrant have maintained a continuous survellance [sic] of Hector Manso and have observed the same activities as described to the affiant’s [sic] by agent Dexter Accardo.
On the basis of the facts described herein affiant’s [sic] request a search warrant to be issued for the above described premises.

Constitutional provisions insure a person from an unreasonable search and seizure of his house, papers and effects. No such search or seizure shall be made except upon a warrant issued upon probable cause, supported by an oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. U.S. Const.Amend. IV; La. Const. art. 1, § 5. Comformably, our Code of Criminal Procedure in art. 162 provides in pertinent part:

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.

We have held that probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient to justify a man of reasonable caution to believe that an offense has been committed. The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. State v. Hughes, 433 So.2d 88 (La.1983); State v. Mena, 399 So.2d 149 (La.1981).

Prior to the United States Supreme Court’s decision in Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), courts mechanically followed the “two-pronged” test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), to determine whether an affidavit containing hearsay has established probable cause. Under this test, the affiant was required to articulate facts relating to the informant’s “basis of knowledge” and his “veracity” or “reliability.” In Gates, supra, the United States Supreme Court abandoned an inflexible application of this test in favor of a “totality of the circumstances analysis.” However, although the informant’s “veracity” or “reliability” and his “basis of knowledge” are no longer controlling, they are still relevant factors in the totality of the circumstances examination. The Court summarized its holding as follows:

[W]e conclude that it is wiser to abandon the “two-pronged test”_ In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations _ The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband ... will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding] that probable cause existed.”

In addition, the Court reaffirmed its policy on review of search warrant affidavits. It stated that in light of the fact that affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation[, technical requirements of elaborate specificity ... have no proper place.” Also, “a magistrate’s determination of probable cause should be paid great deference by reviewing courts.”

In the instant case, the affidavit states that the Slidell police officer affiants have maintained a continuous surveillance of Manso. On Saturday, September 5, 1981, Manso rented two adjoining motel rooms in Slidell. Because of the affiants’ familiarity with Manso’s narcotics activity, they contacted a named Jefferson Parish agent about the agent’s experience with Manso. The agent told the affiants about Manso’s arrest three and nine months earlier for narcotics trafficking. They were also informed that Jefferson Parish undercover operations and overt surveillance leading to these arrests established Manso’s method of operation as follows:

the use of two adjoining motel rooms to traffic narcotics, numerous incoming and outgoing telephone calls, and awaits a narcotics delivery to be made to his person and to then distribute the narcotics from the rented motel room.

The Slidell affiants then informed the magistrate that they were now observing these “same activities” and this “exact method of operation” by Manso. In essence, the magistrate was informed that Manso’s peculiar modus operandi, which had indicated nar-cotíes activity on two previous occasions, was being repeated in Slidell. The information concerning Manso’s previous conduct was supplied to the affiants by a reliable source (police officer). Based on the totality of these circumstances, a practical, common-sense decision would recognize a “fair probability” that contraband would be found in Manso’s motel rooms. Hence, we find that the magistrate had a “substantial basis for concluding that probable cause existed.” Accordingly, since the affidavit in support of the search warrant sets forth facts demonstrating probable cause to believe that illegal drugs would be found in the rooms, the trial judge correctly denied defendants’ motion to suppress.

DECREE

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

DIXON, C.J., concurs.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

CALOGERO, Justice,

dissenting.

I respectfully dissent.

No search or seizure shall be made except upon a warrant issued upon probable cause, supported by an oath of affirmation, and particularly describing the place to be searched and the persons or things to be seized. U.S. Const., Amend. IV; La. Const. 1974, Art. I, § 5; La.C.Cr.P. art. 162. Probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed and that the evidence or contraband may be found at the place to be searched. State v. Lewis, 427 So.2d 835, 839 (La.1982); State v. Duncan, 420 So.2d 1105,1108 (La.1982); State v. Johnson, 408 So.2d 1280, 1283 (La.1982); State v. Mena, 399 So.2d 149, 151 (La.1981). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. Mena, supra. It is fundamental that an affidavit upon which a search warrant is based must inform the issuing magistrate of underlying facts sufficient to support a determination that evidence of a crime is presently on the premises to be searched. State v. Loehr, 355 So.2d 925 (La.1978); State v. Paciera, 290 So.2d 681 (La.1974).

The affidavit in this case is based in large part upon hearsay information. In determining whether such an affidavit establishes probable cause for issuance of a warrant this Court has applied the “two prong test” established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Paciera, 290 So.2d 681 (La.1974). Under this test the magistrate must be informed of the basis of the informant’s knowledge and must be supplied with information which shows either the inherent credibility of the informant or the reliability of the information on this particular occasion. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

However, in Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court recently substituted for the Aguilar “two prong test” a “... totality of the circumstances analysis that traditionally has informed probable cause determinations.” Gates, supra at 2332. Notwithstanding this, the Gates majority acknowledged that “an informant’s ‘veracity’, ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” Id. at 2327. Thus, the Court explained:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. at 2332.

The circumstances set forth by the affidavit in the instant case include the following: Defendant had been arrested twice within the prior nine months for possession with intent to distribute. The activities associated with his other arrests included renting adjoining motel rooms (from which narcotics were presumably delivered and distributed) and placing and receiving numerous phone calls. The only factual allegation about defendant Manso’s activities urged upon the magistrate in support of the sought warrant is that he had again rented two adjoining motel rooms and was accompanied by another man and a woman. The affidavit does not say that investigating officers observed any overt criminal activity. Nor did they assert in the affidavit that they had been told by an informant that narcotics had been observed or would be found at the Slidell Holiday Inn. Essentially the affidavit recites informer information relative to activities preceding the two prior arrests and affiant information concerning ongoing activities at the Slidell Holiday Inn.

The case for issuance of the warrant is an ostensibly logical inference that narcotics violations are likely ongoing at the Sli-dell Holiday Inn since on prior occasions narcotic violations were found to have existed in Jefferson Parish on the heels of activities similar to those at the Slidell Holiday Inn. Given specific recitation of observed facts, by the informer Accardo relative to the two prior incidents, and by the affiants investigating defendant’s activities at the Slidell Holiday Inn, the magistrate might well have been in a position to draw the logical inference which would support issuance of the warrant. Nonetheless, because of the affidavit’s deficiencies, i.e., lack of specificity, and the conclusory nature of affiants’ statements and the statements ascribed to the informant Accardo, I do not agree that it can support a magistrate’s independent judgment that probable cause exists.

An affidavit must recite facts, not simply conclusions, and the facts which establish probable cause must appear within the four corners of the affidavit. La.C.Cr.P. art. 162; State v. Poree, 406 So.2d 546, 547 (La.1981). It is the magistrate’s function to examine the facts and determine whether probable cause exists. State v. Brannon, 414 So.2d 335 (La.1982). Thus, the magistrate should have been informed of more specific facts relating to the previous investigations, as well as more facts observed during this latest surveillance. A determination of whether the “method of operation” was the same should have been made by the magistrate after he had been informed of sufficient facts to enable him to make such a determination.

In the affidavit “Agent Accardo advised the investigating officers of Manso’s method of operation while under investigation in Jefferson Parish.” Note that what’s asserted here is that Accardo told affiants how Manso operated, not the specifics of what was observed concerning Manso’s activities and/or by whom he was observed. Further, the affidavit says that “these met the exact method of operation now being observed by the investigating officers.” Note that the specific activity observed by affiants (in Slidell) is not recited here. The affidavit thereupon goes on to recite the respective methods of operation. (“These activities include the use of two adjoining motel rooms to traffic narcotics, numerous incoming and outgoing telephone calls, and awaits narcotics delivery to be made to his person and to then distribute the narcotics from the rented motel room.” [sic]) Yet there is no assertion, as relates to either the prior arrests or the ongoing situation, that specific criminal activities of this nature were seen by any identified person or persons, be it Accardo relative to the prior arrests or affiants during the ongoing investigation. “This knowledge was gained from undercover operations as well as from overt surveillances conducted by the Jefferson Parish sheriff’s office and related to the investigating officers.” Note that the affiants are not reciting what Accardo told them he observed in Jefferson Parish nor what they, the affiants, had personally observed in Slidell. Their recitation could just as well, or perhaps even more logically be, that this information was supplied them by others, unidentified.

What the affiants recite here about their knowledge is sufficient to arouse their own legitimate suspicions. However, “unsupported suspicions are not sufficient to constitute probable cause for issuance of a search warrant.” State v. Boksham, 370 So.2d 491, 497 (La.1979).

In Illinois v. Gates, 103 S.Ct. at 2327-2328, the United States Supreme Court did not entirely dispense with the usefulness of the Aguilar “two prong test.” The present affidavit clearly falls far short under the Aguilar “two prong test” standard. Conceding that the informant, Officer Ac-cardo, was credible, there is still a major problem with the information supplied by him. In particular, the affidavit does not tell us of Accardo’s basis of knowledge, nor is his information given in sufficient detail. The recitation supports, at least as well as a possible direct observation on Accardo’s part, hearsay furnished him and/or gathered by him from other sources. To the extent that the Aguilar “two prong test” is still “useful” under the United States Supreme Court’s current Gates standard, its utility is to negate rather than support probable cause.

Furthermore, in applying the Gates totality of circumstances analysis this case falls far short of establishing probable cause. In Gates the unverified anonymous tipster gave very specific information about the activities of Gates and his wife. They were partially predictive in nature (Gates and his wife separately would be going down to Florida, etc.) and the details of the prediction were corroborated by an exhaustive surveillance by the officers, from Chicago to Florida, and back to Chicago. In the case under consideration the circumstances for the magistrate’s consideration consist exclusively of the recitations contained in the affidavit and discussed hereinabove. It did not include specific observations of criminal conduct, nor specifically recited confirmatory surveillances.

The essential problem in this case is that the affiant police officers did not supply sufficient particular information, other than conclusory assertions, to support a magistrate’s independent judgment that probable cause existed for issuance of the warrant.

For the foregoing reasons I respectfully dissent.

DENNIS, Judge,

dissenting.

I respectfully dissent.

The U.S. Supreme Court has not yet said that suspicious duplications per se constitute probable cause to search. Even under the totality of circumstances approach, the affidavit does not establish probable cause. It merely shows similar suspicious actions by the defendant on two different occasions. The affidavit does not link the defendant’s conduct with criminality, except by suspicion, at either time or place.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . Manso contends in a second assignment of error that his sentence is illegal. He argues that his sentence of twelve years is in excess of the statutory maximum of ten years. However, as provided by La.R.S. 40:967(B)(1), the penalty for possession with intent to distribute cocaine in violation of La.R.S. 40:967(A)(1) is imprisonment at hard labor for up to thirty years. Hence, this assignment of error is without merit.

      . Gates involved a search conducted after police received an anonymous letter informing them that Gates and his wife Sue were selling drugs from their suburban Chicago residence. The letter stated that the two purchased their drugs in Florida. The wife would drive the car to Florida where it would be loaded with drugs and the husband would fly to Florida and drive the car back to Illinois while the wife flew home. The letter continued that the wife would be driving to Florida on May 3 and the husband flying there a few days later. Police investigation revealed that an Illinois driver’s license had been issued to one Lance Gates who resided at the address given in the letter. Further investigation showed that L. Gates had made reservations for a May 5 flight to West Palm Beach, Florida. Police observed Gates board the flight and federal agents in Florida saw him arrive and take a taxi to a nearby motel where he went to a room registered to a Susan Gates. The following morning Gates and a woman left the motel driving a car with Illinois license plates. The plates were registered to a car owned by Gates, but not the car being driven at that time. Gates drove northbound on an interstate frequently used by travelers to the Chicago area. The police set forth the above facts in an affidavit, accompanied by the anonymous letter, and requested a search warrant for the Gates' home and car which the judge issued. The Court found that the affidavit set forth sufficient probable cause for the issuance of the warrant. The Court noted that independent police investigation corroborated much of the information in the letter.


author: WATSON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Charles HENRY.
    No. 83-K-2272.
    Supreme Court of Louisiana.
    April 2, 1984.
    Rehearing Denied May 3, 1984.
    Bernard E. Burk, New Orleans, for applicant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Louise Korns, Steve Wimberly, William C. Credo, III, Andrea M. Price, Asst. Dist. Attys., for respondent.
   WATSON, Justice.

Defendant, Charles Henry, was convicted by a jury of the aggravated rape of an eight year old girl on October 9, 1981. LSA-R.S. 14:42. Defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence, and the Court of Appeal affirmed the conviction and sentence. State v. Henry, 439 So.2d 1242 (La.App. 5 Cir.1983). A writ was granted to consider whether there was reversible error in the trial court’s failure to charge the jury that forcible rape was a responsive verdict. 443 So.2d 599 (La., 1983).

FACTS

The relevant facts are contained in the testimony of the eight year old victim. Charles Henry, thirty-one years old at the time of trial, was living with her mother. During the mother’s absence: “Charles put my underwear to the side and he got on top of me and he started humping on me.” (Tr. 161) According to her testimony, he put his “thing” in her front on one occasion and in her backside on another. (Tr. 166) Approximately ten days later, a medical examination revealed that her vaginal and rectal areas were red and tender, but there were no other marks on her body. There was a tear measuring between an eighth and a quarter of an inch in the “hymen ring” which was healing at the time of the examination. (Tr. 114)

CONCLUSION

LSA-C.Cr.P. art. 814 lists forcible rape as a responsive verdict to aggravated rape. LSA-C.Cr.P. art. 803 provides: “[wjhen a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the provisions of Article 814 or 815, the court shall charge the jury as to the law applicable to each offense.”

Forcible rape is defined in LSA-R.S. 14:42.1 as a rape where “the victim is prevented from resisting the act by force or threats of physical violence.” While some “force” or strength is inherent in the act of rape, the force contemplated by the forcible rape statute is that which coerces the victim’s consent and prevents his or her resistance. There was no evidence that this child was overcome by force or threats of physical violence. The age difference was sufficient. If a forcible rape charge had been given, there was a possibility that the jury would have returned that verdict despite lack of proof of one of its elements.

On the question of responsive verdicts, defense counsel stated:

“I did not know whether the lesser included offenses are the lesser included offense. I left it up to the judge to properly charge the jury. If I have to make an objection just to preserve my record, I do so. I don’t know whether it is correct or not. I’m not suggesting it is incorrect. I just don’t know and I don’t want to waive any rights my client may have.” (Tr. 238-239)

LSA-C.Cr.P: art. 801 provides in pertinent part:

“A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection.”

LSA-C.Cr.P. art. 841 provides in pertinent part:

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.... It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.”

Counsel’s failure to specify the ground of his objection to enable the court to cure the error should prevent him from raising the issue on appeal. State v. Thomas, 427 So.2d 428 (La., 1983); State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La., 1982). Compare State v. Dufore, 424 So.2d 256 (La., 1982).

Even if the unspecified objection were valid, any defect in not including forcible rape in the charge to the jury did not affect substantial rights of the accused. LSA-C. Cr.P. art. 921. State v. Dauzat, 392 So.2d 393 (La., 1980) held that “evidence offered to support a conviction for a greater offense will not necessarily and automatically support a conviction for a lesser offense which has been made responsive by legislative action.” 392 So.2d at 396. See State v. Booker, 385 So.2d 1186 (La., 1980). In Dauzat, the conviction was reversed when the jury found defendant guilty of a statutory responsive verdict which was not supported by the evidence. Defendant was charged with attempted second degree murder and found guilty of aggravated battery, but there was no evidence of an essential element of battery, physical contact.

If the trial court had instructed on forcible rape and if Charles Henry had been convicted of forcible rape, this court would be required to reverse'. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When there is a conflict between a statute and defendant’s constitutional rights, the statute must yield. Therefore, the defendant cannot now complain of the trial court’s protecting his constitutional rights.

Dauzat stated that it was trial error for the court to read the jury the responsive verdicts listed in LSA-C.Cr.P. art. 814 “without instructing them that aggravated battery would not be an appropriate responsive verdict where there was no evidence to support that charge.” 392 So.2d at 397. Hence, if the trial court here had given a charge on forcible rape, the court would also have been required to charge the jury that there was no evidence to support a charge of forcible rape. Thus, this defendant could not have benefited from inclusion of the responsive verdict of forcible rape and was not prejudiced by its omission. The jury was charged that simple rape was a responsive verdict and had the option of finding defendant guilty of a lesser offense.

Moreover, although the court must charge the jury of the law applicable to lesser included offenses under LSA-C.Cr.P. art. 803, the charges must be pertinent; there must be evidence which would support a conviction of the lesser offenses. LSA-C.Cr.P. art. 807; State v. Anderson, 390 So.2d 878 (La., 1980); State v. Toomer, 395 So.2d 1320 (La., 1981). A trial judge is required “to charge the jury as to the law applicable to the case, under which he is required to cover every phase of the case supported by the evidence, whether or not accepted by him as true.” (Emphasis supplied). State v. Marse, 365 So.2d 1319 at 1323 (La., 1978). See State v. Mead, 377 So.2d 79 (La., 1979). A comment at 17 La.L.Rev. 211 points out that LSA-C.Cr.P. art. 803 can reasonably be interpreted as requiring only those charges of which the accused can be found guilty under the indictment and the evidence.

The majority of other jurisdictions provide that there is no duty to instruct on lesser included offenses in the absence of evidence tending to prove such offenses. “[D]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. The jury’s discretion is thus channelled so that it may convict a defendant of any crime fairly supported by the evidence.” Hopper v. Evans, 456 U.S. 605 at 611, 102 S.Ct. 2049 at 2053, 72 L.Ed.2d 367 at 373 (1982).

Since the jury could not rationally have convicted Henry of forcible rather than aggravated rape, a charge on forcible rape was not required. Another compromise verdict, simple rape, was available to the jury. Failure to charge the jury that forcible rape was a responsive verdict did not prejudice any of Henry’s substantial rights, and his counsel did not comply with the contemporaneous objection rule.

For the foregoing reasons, the judgment of the Court of Appeal upholding defendant’s conviction and sentence is affirmed.

AFFIRMED.

LEMMON, J., concurs and will assign reasons.

DIXON, C.J., dissents.

CALOGERO, J., dissents and assigns .reasons.

CALOGERO, Justice,

dissenting.

La.C.Cr.P. art. 802 requires that the court “shall charge the jury: (1) As to the law applicable to the case.” At the time of the offense in this case, La.C.Cr.P. art. 814(A)(8) included forcible rape and attempted forcible rape as responsive verdicts to the charge of aggravated rape.

The trial judge did not instruct the jury on forcible rape or attempted forcible rape. Defense counsel voiced an objection before the jury returned its verdict.

For these reasons, I respectfully dissent.

      . LSA-R.S. 14:42 provides in pertinent part:
      “Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
      * * * * * *
      "(4) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
      "Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”

      . LSA-C.Cr.P. art. 814 was amended by Act No. 763 of 1982 to add subsection C. as follows:
      "C. Upon motion of the state or the defense, the court may, in its discretion, exclude a responsive verdict listed in Subarticle A if after all the evidence has been submitted there is no evidence to establish that responsive verdict.”
      Here, there was no motion by the state or the defense to exclude forcible rape as a responsive verdict. However, the prosecutor argued that no force was used and might have made such an objection if the amendment had been in effect.

      . LSA-C.Cr.P; art. 921 provides:
      “A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”

      . However, following this dictate of Dauzat would probably result in a prohibited comment on what had been proved or not proved. LSA-C.Cr.P. art. 806.

      . LSA-C.Cr.P. art. 807 provides:
      “The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
      "A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

      . LSA-R.S. 15:386, the article discussed in the law review, is the source of present art. 803 and the official revision comment states that art. 803 makes no change in the law.