*1 The Chancellor found had a “loose knit operation. they open-door The new members came in that door and are now policy.” open members, new, Church. All Unity agree members of the old and is a Baptist that the church church and is a present structure of the Southern organizational cooperative Baptist All members of that church voting Convention. democratic are members. equal
Affirmed. James v. STATE of Arkansas Welton JACKSON “Spike” CR 86-167 Court of Arkansas
Supreme delivered Opinion January *2 Clint for Huey, appellant. Clark, Gen., Hendrix,
Steve J. Blake Att’y by: Asst. Att’y Gen., for appellee.
Robert H. Justice. The Dudley, from a appellant appeals conviction motion, for of a possession controlled substance. On the Court of certified Appeals the case to this Court 29(4) (b) Rule of the Rules of the Court and Court of Supreme Appeals. We affirm the judgment of conviction.
Appellant sets out three and the points appeal, appellee two, reorganizes issue, them into but there is one really only evidence, whether the admission of obtained with a search warrant, was proper.
A sheriff deputy went before the issuing magistrate warrant, executed an and, addition, affidavit for a search he and a confidential informer sworn gave oral which was testimony recorded by magistrate. The state later refused to disclose to appellant recorded because the did testimony prosecutor not want to reveal the name of the informant. (c)
A.R.Cr.P. Rule 13.1 recordation requires of such oral testimony. of such purposes a rule are to facilitate review subsequent for the existence of cause probable and to avoid the possibility justification for a search based becoming facts or upon evidence discovered in the course of execution warrant, and, in the event the cause is based probable hearsay, explaining of the informant. These consid-
erations are
for the review of ex
particularly appropriate
parte
the valued
proceedings involving
right of
also serve
privacy. They
to minimize the
necessity
calling issuing magistrates to prove
Russell,
easily
what can
be documented. State v.
293 Or.
LaFave,
(1982);
The written affidavit is deficient. A.R.Cr.P. 13.1(b), Rule part, provides:
If an affidavit or is based in whole or in on part hearsay, the affiant or shall set particular witness forth on the bearing reliability shall facts informant’s disclose, as far as the means practicable, by which the information was obtained. informant,
On the issue of the of the reliability the affidavit only provided:
Reliable
advised
that he gave another
informant
affiant
$20.00 to
him
boy
get
marijuana
some
go
watched him
to Spike Jackson’s house. When he came out he have him a
bag
green leafy sub. and he returned this bag to me.
The affidavit did not
the
provide
issuing magistrate any
particular facts
bearing
the informant’s
as
required
Rule 13.1
(b). The
“reliable
conclusory language
informant” is
not sufficient to
the
satisfy
facts
See
particular
requirement.
State v. Bradbury, 269 Ark.
(vi) but for the such evidence would discovered; have been
(vii) the extent to which the violation prejudiced motion, moving his or to party’s ability support defend himself in in which such evidence proceedings in sought against to be offered evidence him. decided, Leon was we have our since interpreting rule found the and we following three violations were substantial refused to the rationale: apply
(1) There was no or in support affidavit recorded Anderson, 58, 688 of the warrant. State v. 286 Ark. 102 (1985).
S.W.2d 947
(2) The affidavit contained no indication whatsoever
date the criminal
to have been seen.
activity
supposed
State,
228,
Ark.
Herrington
(3) The
did
not act in
faith and the
good
issuing
Stewart v.
magistrate wholly
abandoned his
role.
State,
272,
Ark.
(1986).
(1) Failure to return the executed warrant to the issuing
magistrate in violation of
13.4(b).
A.R.Cr.P.
McFarland
State,
533,
284 Ark.
684 S.W.2d
(1985).
(2) Confidential informant affirmed that she had directly
contraband,
obtained
when she should have affirmed that
she obtained contraband from an
but such
intermediary,
statement was not of
significance
view of other details.
107,
Lincoln v.
(1985). of the informant was not a issue, primary and the case was decided on other facts. Anderson, In State v. there was no affidavit or supra, recorded testimony support warrant. The Constitution of Arkansas requires an oath or affirmation before a search warrant Here, bemay affidavit, issued. Article Section 15. there was an so, this case is from State v. clearly distinguishable and we can the Leon faith apply good to the case before faith, us. The officer who executed the warrant did act in case, this and we apply exception.
We recognize that some of the in State v. language *5 Anderson that A.R.Cr.P. provides Rule 13.1 is a “threshold before we requirement consider the faith on the question good part That is police.” language overruled to the extent it conflicts with this opinion.
Affirmed. J., dissents.
Purtle, J.,
Glaze,
not participating.
Justice,
The
is
dissenting.
majority opinion
Purtle,
John I.
of its reliance
of the law with the
an excellent statement
415,
(1985),
support executing who for the warrant. He warrant was the same officer applied file, therefore, knew on he could not that there was no affidavit Leon doctrine. We stated have been faith under the acting in Anderson'. holds faith reliance” a “objective good by police
Leon detached, of affidavit a acceptance magistrate neutral will avoid of the exclusion- rule in the is found to ary magistrate’s event the assessment be in error. Under this rationale the rule exclusionary designed to deter misconduct on the part rather than to errors punish judges magistrates, admitting evidence seized to a defective warrant will not reduce on the incentives officers to comply with the dictates of the Fourth Amendment. 104 S.Ct. 3418. Massachusetts v. S.Ct. Sheppard, [104 3424] Leon, case to rule companion Leon applied technical deficiencies in warrant and found the officers had acted in reasonable reliance a warrant objectively which was technically inadequate.
The above statement is a fair quoted summary However, we anchored the Anderson opinion. opinion upon basic procedural safeguards afforded a defendant under the Arkansas this Rules of Criminal Procedure. In Court stated: “We review that section Rule 13.1 [A.R.Cr.P.]
as a we threshold before consider the of requirement question good faith on the the The of the rule police.” pertinent part reliability concerns the of the information furnished by infor- If for a mants. an affidavit search warrant based upon hearsay or witness “shall particular bearing the affiant set forth facts upon disclose, the informant’s as far as reliability practicable, shall the the was means which information obtained.” A.R.Cr.P. by (b). Rule 13.1 No facts bearing reliability the informant case, in were contained the affidavit in this neither were they Therefore, to magistrate. the threshold presented require- the ment was not satisfied.
Neither the rule nor the changed law has since we decided The Anderson. affidavit the case at bar is absolutely silent as to the bearing facts the upon informant. The affidavit in this case stated: “Reliable informant advised $20.00 affiant that he gave another to him boy get some marijuana and watched him go Spike Jackson’s house. . . .” identified, In fact neither was ever boy thereby it making for the impossible investigate the informant’s appellant relia- There bility. were no reasons the informant given why should remain unknown.
The affiant in the was a present case sheriff. There is deputy no reason to believe that the who officers executed search warrant did not know that the affidavit must state supporting facts bearing upon informant’s The warrant itself reliability. reveals clearly that it was based the hearsay information of a upon “confidential informant.” Such information have should been a warning to executing officers. “good There can be no faith” reliance an on a warrant which he knows is invalid. This of action not type “good does come within the Leon faith” exception.
The result reached the majority opinion is based partially on misunderstanding of our in Toland decision supra. We the warrant there under the upheld the circum- totality stances test Thompson stated in S.W.2d 350 (1983), and opined that search could also have been The upheld under the Leon rule. decision Toland is to the inapposite present appeal because search warrant in that case was not based information furnished upon by an had marijuana. informant. Toland cultivated an outdoor patch and his information was investigating officer the affiant True, based his own an informant personal knowledge. *7 furnished the officer information which was used in investigating However, no case. informant was longer confirmed, air, at issue after the land and that Toland was indeed growing marijuana. both Anderson Toland were my opinion correctly
decided. We have established line of cases interpreting should we hold to those decisions. All of the stated reasons the majority reversal. opinion require
The majority opinion effectively emasculates A.R.Cr.P. 13.1(b) Rule without any warning. The of the rule is to purpose built-in provide safeguards against unreasonable searches. The majority long holds that as as today “acting are faith,” it is irrelevant whether Arkansas Rules of Criminal Procedure have been with. bench bar complied of this state should be able to upon our own rules rely until are they changed. prospectively The rules should not be changed during the game.
I would reverse.
Robert Keith STATE of Arkansas MEADOWS CR 86-166
Supreme Court of Arkansas Opinion delivered January