Opinion
No. 92-KK-3136.
February 11, 1993.
In re Seventeen Thousand Five Hund. Dollars; — Defendant(s); applying for supervisory and/or remedial writs; Parish of Orleans, Criminal District Court, Div. "J", No. 257-713; to the Court of Appeal, Fourth Circuit, No. 92KW-1675.
Granted. The district court may issue a warrant for seizure of property for forfeiture "on an affidavit under oath demonstrating that probable cause exists for its forfeiture. . . ." La.R.S. 40:2606. The legislature has thereby imposed the same statutory requirement on warrants for seizure for forfeiture that it has on warrants for search and seizure under La.C.Cr.P. art. 162. The district court erred in issuing the warrant of forfeiture on information available to the state but not reduced to affidavit form. See State v. Daniel 373 So.2d 149 (La. 1979). The district court's order of seizure issued on July 8, 1992 is therefore vacated.
MARCUS and KIMBALL. JJ., concur with reasons.
LEMMON, J., dissents and would deny the writ.
WATSON, J., not on panel.
We agree fully with the majority's conclusion that the trial court erred in issuing the warrant of forfeiture on July 8, 1992 based on information available to the state but not reduced to affidavit form. However, the record indicated that on July 13, 1992, the state submitted an affidavit containing the same information in support of probable cause. Since the state's application is now in proper form, the court may issue a new warrant of seizure under La.R.S. 40:2606.