Heaslet v. StateHeaslet v. State
- Reporters:
- , ,
- Before:
- Bird
Pursuant to
On October 12, 1999, Deputy Steve Rich of the Lonoke County Sheriff s Office swore out an affidavit for a search warrant of Charles Heaslet’s residence. The warrant authorized a nighttime search, and the search was conducted on the same date the warrant was approved. As a result of the search, Heaslet was charged in CR 99-554-543 with conspiracy to manufacture a controlled substance, possession оf drug paraphernalia, and possession of a controlled substance.
On November 10, 1999, Chief Brent Cole of the Carlisle Police Department swore out an affidavit for a second search warrant of Heaslet’s residence. After the warrant was issued and the search conducted, Heaslet was charged in CR 99-554-554, аs a habitual offender, with five counts of forgery in the second degree.
1. CR 99-543
A. Nighttime Search
When this court reviews a trial court’s denial of a motion to suppress evidence, it makes an independent determination based on the totality of the circumstances, but will only reverse if the trial court’s decision was clearly against the prеponderance of the evidence. Simmons v. State, 72 Ark. App. 238, 34 S.W.3d 768 (2000).
As a prerequisite to the issuance of a warrant for a nighttime search, the affidavit or other evidence presented in support thereof must set forth a factual basis that justifies a nighttime search. Langley v. State, 66 Ark. App. 311, 990 S.W.2d 575 (1999). Arkansas Rule of Criminal Procedure 13.2(c) providеs that before a warrant authorizing a nighttime search is issued, the issuing judicial officer must have reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy.
Our supreme court has invalidated nighttime search warrants when the evidence presented in support of the nighttime search lacked facts supporting one or more of these exigent circumstances. See, e.g., Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). In Richardson v. State, supra, the supreme court stated:
We have consistently held that a factual basis supporting a nighttime search is required as a prerequisite to the issuance of a warrant authorizing a nighttime search. . . . We have held conclusory language . . . unsupported by facts is insufficient to justify a nighttime search. . . . Given that there was nothing to give reasonable cause to believe the items specified in the search warrant would be disposed of, removed, or hidden before the next morning, issuance of the nighttime search warrant was in error.
Id. at 518-19, 863 S.W.2d at 576. In State v. Broadway, 269 Ark. 215, 218, 599 S.W.2d 721, 723 (1980), the supreme court held that “[a]n affidavit shоuld speak in factual and not mere con-clusory language. It is the function of the judicial officer, before whom the proceedings are held, to make an independent and neutral determination based upon facts, not conclusions, justifying an intrusion into one’s home.”
In this case, the officers merely checkеd off the conclusory statements to establish reasonable cause. It is obvious that the affidavit form was drafted to reflect the requirements for reasonable cause as set out in
In Garner v. State, supra, the judge issued a nighttime search warrant and checked two boxes on the warrant that stated: “the place to be searched is difficult of speedy accеss” and “the warrant can only be safely or successfully executed at night time or under circumstances the occurrence of which is difficult to predict with accuracy.” In reversing the trial court’s denial of appellant’s motion to suppress, the Garner court stated:
[Cjonclusory statements [do] not suffice to establish the requisite factual basis for reasonable cause. . . . We, therefore, hold that the two statements “checked” were conclusory and unsupported by sufficient facts and, accordingly, did not establish reasonable cause for a nighttime search. Without sufficient factual premises, it was impossible for the municipal judge to make an intelligent finding of reasonable cause to justify a nighttime search.
Id. at 357-58, 820 S.W.2d at 449.
It is our duty as a reviewing court to ensure that the magistrate had a substantial
B. Good-Faith Exception
We now address the question of whether thе police officers acted in good faith in executing this search warrant under United States v. Leon, 468 U.S. 897 (1984). In Leon, the Court held that the Fourth Amendment exclusionary rule should not be applied to exclude evidence obtained by police officers acting in reasonable reliance on a search warrant thаt is ultimately found to be invalid. We have held that an objective standard of good faith is not met when a police officer only presents suspicions regarding removal of contraband and the municipal judge only repeats the boilerplate language from
C. Judicial Notice
In denying the motion to suppress evidence, the trial court judge stated that hе could not look to the testimony of Chief Cole as a basis for his ruling; instead, he could only look at those facts that appeared on the face of the affidavit. The judge then stated that the court took judicial notice that the location of Heaslet’s house was such that daytime access may be unsuсcessful, unsafe, and that evidence may be destroyed. Arkansas Rule of Evidence 201(b) provides that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by rеsert [resort] to sources whose accuracy cannot reasonably be questioned.”
A court may take judicial notice of adjudicative facts in a criminal case, whether requested or not.
D. Suppression of the Evidence
The next issue is whether the failure to establish reasonable cause with sufficient facts was such a substantial violation of the Rules as to warrant suppression of the evidence obtained. Ark R. Crim. P. 16.2(e) requires that the circuit court consider the following circumstances in determining whether a violation is substantial:
(i) the importance of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, such evidence would have been discovered; and
(vii) the extent to which the violation prejudiced moving party’s ability to support his motion, or to defend himself in the proceedings in which such evidence is sought to be offered in evidence against him.
State v. Martinez, supra, Hall v. State, supra, and State v. Broadway, supra, all held that substantial violations occurred under Rule 16.2 due to failure to justify a nighttime search with sufficient factual information. The privacy of the citizens in their homes, secure from nighttime intrusions, is a right of vast importance as attested not only by our Rules but also by our state and federal constitutions. Garner v. State, supra. Intrusion without sufficient factual justification substantially violates our Rules, and previous cases have so held. Id.
II. CR 99-554
The affidavit in support of a search warrant in CR 99-554, dated November 10, 1999, contained six paragraphs of allegations. The first four paragraphs merely repeated the allegations contained in the affidavit for search warrant in CR 99-543. Paragraph five аlleged that on November 8, 1999, a confidential informant told Chief Cole that Heaslet was forging checks using a glass table. Paragraph six alleged that on November 10, 1999, a confidential informant told Chief Cole that Heaslet was forging and cashing checks at a particular store and that Heaslet had again started making methamphetamine. Heaslet contends that the affidavit does not comply with
When an affidavit for a search warrant is based, in whole or in part, on hearsay, the affiant must set forth particular facts bearing on the informant’s reliability, and shall disclose, as far as practicable, the means by which the information was obtained. Ark. Rule Crim. P. 13.1(b). A search warrant is flawed if there are no indicia of the reliability of the confidential informant. Fouse v. State, 73 Ark. App. 134, 43 S.W.3d 158 (2001). Furthermore, the conclusory statement, “rehable infоrmant,” is not sufficient to satisfy the indicia requirement. Id. There is no fixed formula for determining an informant’s reliability. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). Factors to be considered in making such a determination include whether the informant’s statements are (1) incriminating; (2) based on personal observations of recent criminal activity; and (3) corroborated by other information. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). Additionally, facts showing that the informant has provided reliable information to law enforcement in the past may be considered in determining the informant’s reliability in the present case. See Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998); Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Failure to establish the veracity and bases of knowledge of the informant, however, is not a fatal defect if the affidavit viewed as a whole “provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.”
The affidavit in issue here makes no mention of the informant’s reliability. Because there are other factors that make the affidavit deficient, the affidavit viewed as a whole does not provide a substantial basis for a finding of reasonable cause to support a search warrant.
For the foregoing reasons, we hold that the circuit court erred in denying Heaslet’s motions to suppress. Accordingly, we reverse and remand with directions that all the evidence seized from Heaslet’s arrest be suppressed and that he be allowed to
Reversed and remanded.
Hart and Neal, JJ., agree.