Sims v. State

405 Charles SIMS v. STATE Arkansas CR 97-1350 S.W.2d Court Arkansas Supreme 4, delivered Opinion June 9, denied rehearing July [Petition 1998.] P.A., for Killough, Jr., Larry appellant. Gen., David R. Sr. Asst. Att’y Raupp,

Winston Bryant, by: Gowen, Admitted to Practice Law Student Gen. Att’y James Admission to of the Rules Pursuant Rule XV(E)(1)(b) Governing Court, to the Bar of the Arkansas Supreme appellee. Charles Sims Appellant brings Glaze, Tom Justice. After a mistrial and and raises one for reversal. prior appeal point trial, under entered a conditional of to second Sims plea guilty so, to Ark. P. he reserved 24.3(b). R. Crim. doing right his motion the trial court’s ruling denying challenge appeal found as result ounce of crystal suppress methamphetamine a search of his residence. as a search of house was initiated result actually Sim’s who had inter-

information California authorities provided at addressed to Chuck Samms1 Federal package cepted Express Street, Cabot, 21 McArthur Arkansas. California Steve Clemmons of their notified Arkansas State Police Officer Clemmons, who and forwarded discovery, the McArthur address. for its controlled arranged package, name on the the address While the Samms appeared indisputably Chuck Sims’s. Clem- As a controlled Officer delivery, planning part for a it to mons an affidavit search warrant presented prepared affidavit, Clemmons In the O’Bryan. Municipal Judge Joe had described information concerning authorities, received California but he further from inaccurately averred, Sims, delivered owner of “The to Chuck McArthur, Cabot, vehicles in the at parked driveway fact, Arkansas.” In had not been delivered to yet residence, knew, Sims’s which since the Judge O’Bryan substance was on his desk when he reviewed containing illegal for the Clemmons submitted search warrant. paperwork addition, this error was perpetuated printed boiler-plate form of the search warrant issued wherein the by Judge O’Bryan reflected, warrant “I (Officer am satisfied that there is Clemmons) cause to believe that the so is described property being concealed on or in the Parts of the (Sims’s) form were premises.” stricken, but Clemmons failed to appropriately delete this “being concealed” statement in form so as to conform to an anticipa- search. tory warrant,

After issuance of the Clemmons for the arranged of the Sims’s house. delivery Sims was not home when made, but the delivery accepted Douglas Sims’s brother-in-law. Boyer, Within minutes after the delivery, house, left Boyer him, Sims’s and officers but found no stopped controlled substances on his or in his person vehicle. The .officers then searched and Sims’s house found the Federal Express pack- age, containing methamphetamine, microwave oven. When Sims came later, home about two hours the officers him, arrested and he was with the charged unlawful possession with intent to deliver methamphetamine. search,

In his of that, the officers’ challenge Sims out points while were to obtain and execute an seeking anticipatory search warrant conditioned on a future controlled delivery Sims, Officer Clemmons’s affidavit reflected that falsely substance had been illegal delivered to already Sims short, who had concealed it in his In house. Sims argues that, because Clemmons’s statements were untrue no illegal substance had house, been delivered to yet Sims’s no accurate 408 to exist which was shown Judge cause upon

showing could issue warrant. O’Bryan that courts Sims recognizes

In making argument, warrants, and while our have validity anticipatory upheld issue, Circuit been confronted with Eighth court has not courts, has circuit such as well as other upheld Court of Appeals, Bieri, v. 1994); v. 21 F.3d 811 Cir. U. S. U. S. (8th See practice. Rivera v. United 1993) F.2d 946 Cir. (8th [citing 985 Tagbering, States, United v. 859 1991); F.2d 592 Cir. States (2d Dornhofer, 928 919 F.2d 969 United States v. F.2d 1195 Cir. (4th 1988); Wylie, Lowe, v. F.2d 1193 (6th Cir.), Cir. United States 575 (5th 1990); Odland, denied, F.2d U.S. 869 UnitedStates 502 (1978); cert. denied, U.S. United cert. States (7th Cir.), (1974); denied, Hale, cert. 479 U.S. 829 (9th (1986)]. 784 F.2d 1465 Cir.), Bieri, warrant the court held that an search should anticipatory if the evidence shows of con independent upheld traband or is to occur and the warrant is conditioned on will likely that, Bieri, states unlike in the statements Sims given delivery. unreliable and the officer here to were insuffi judge issuing cient to the issuance of a warrant. support mentions in an

Sims also Circuit’s case Eighth Tagbering it from the facts here. to distinguish attempt Tagbering, Miami, U. S. Officials in Florida Customs intercepted Smart, addresed to Kim 10557 Cypress, c/o Gary Tagbering, Apt. D, Missouri. The customs officials forwarded the Kansas City, authorities, the Missouri and a Kansas detective City package a search-warrant form and affidavit to accompanying prepared of an The to a issuance warrant. judge present anticipatory detective’s affidavit the for a con provided government’s plans trolled of the and stated that “the warrant would delivery not be unless the occurs and the is executed delivery recited, and The issued the search warrant accepted.” judge “ will deliv here is cause to believe the be [T] ered The controlled was controlled delivery.” delivery through made as and the He was Tagbering accepted package. planned, arrested, and, warrant, the apartment subsequently pursuant searched and the and contraband were seized. warrant, the validity challenging government’s did not contended the warrant was invalid because it Tagbering the nor did condition search a controlled delivery, expressly upon if occur. the warrant reflect it would be void the did not delivery warrant, construed, held Circuit that the did Eighth fairly condition the search because the detective’s affidavit contained that to the the warrant would issuing judge representation executed until was delivered accepted. that, court did if the warrant executed say before Tagbering occurred, controlled well be warranted. delivery may suppression Id. at 950. Sims his situation from distinguishes Tagbering’s because here no conditional in either Officer language appeared that, Clemmons’s or affidavit warrant. Sims claims without warrant, in the it limiting was left to the language officers’ solely discretion as to when and how warrant would be executed. the affidavit and

Unquestionably, search warrant contained untrue presented Judge O’Bryan statements since no had been at made the time Officer Clemmons requested warrant from the if cause judge. Obviously, and the issu ance aof warrant were on information dependent that showing contraband residence, been delivered to Sims’s previously issuance warrant judge’s execution of the warrant However, were invalid. defective, even if the warrant is as argued Sims, we conclude the contraband evidence was still admissible because officers the warrant did so in executing faith. Leon, See U.S. U.S. see (1984); also U.S. v. Livesay, F.2d 135 (8th that, Cir. 1993) held it (court is well settled circumstances, absence of unusual evidence seized to a pursuant search warrant is that invalidated is still subsequently admissible). Leon, the Court held Fourth Amend ment rule should not be so exclusionary as to bar use applied of the prosecution’s case-in-chief evidence obtained in reasonable reliance acting search warrant issued aby detached and neutral magistrate, found to be ultimately inva lid. The Court further concluded that remains an suppression if the or appropriate remedy a warrant judge issuing was misled information in by an affidavit that the affiant knew was false or would have known was false for his reckless disre- except 410 923; alsoFranks Id. at see added.) of the truth.2 (Emphasis

gard not look to we Delaware, Although may U.S. 154 (1978). cause, when to determine an affidavit probable outside of facts the the faith, look to totality can and must we assessing good knew, but did circumstances, the affiant what including Cir. F.2d 752 (8th affidavit. U.S. include in his 1987). on the the State’s reliance good-faith only

Sims’s response have relied could not in Leonis that Clemmons exception warrant, own misguided participation faith on the given the or resolve fails to address Such comment warrant process. us. issue before good-faith discussed,- furnished

Flere, Officer Clemmons as previously misinformation, and circum- but the evidence the issuing judge the or to he intended to mislead judge fail to show that stances from the manner the warrant differently represented execute the or reliability does not authenticity Sims question judge. the California Clemmons by related Officer the information in his affida- while Officer Clemmons misspoke authorities. And delivered to Chuck “the (had been) vit to judge misstatement, because Sims,” not misled judge he was on his desk when reviewing saw the judge addition, the officer the warrant. before signing paperwork delivered, been that the had not yet told the judge stated that based on the officer having the warrant judge approved be delivered. would sum, not a valid warrant was even State’s though warrant, and execut we hold officers requesting anticipatory relied on judge’s the warrant reasonably objectively ing determination, since knew they cause especially the contraband that the containing was aware judge executed that the would not be be delivered and warrant would warrant when evidence obtained under a search Other instances may magistrate’s on the cause include when an officer’s reliance suppressed objective and when the judged standard, unreasonable, determination was (8th F.2d 135 a neutral stance. U.S. v. the warrant from who issued Livesay, departed 1993). Cir. Therefore, we affirm the trial until court’s delivery accepted. denial of motion. Sims’s suppression

Newberjnf Imber, dissent. JJ., Imber, The Justice, dissenting. Annabelle Clinton Officer of Clemmons’s affidavit as inaccu- majority’s description is, best, at rate Officer misnomer. Clemmons averred knowingly in his affidavit that the been delivered and had already Sims, been received Charles when such by was not case. No had been delivered to Sims at the time the warrant was nor delivered sought, to Sims. The package finally pack- was not delivered until after the warrant was age obtained brother-in-law, was made to Sims’s The Douglas Boyer. majority candidly error affidavit and recognizes the sub- warrant and further that sequent the warrant recognizes was inva- However, lid. they search on the justify validity basis the good-faith to the rule. exception exclusionary

I cannot subscribe course of action taken reliance on majority. rule majority’s good-faith United Leon, v. States 468 U.S. 897 is We (1984), have had an misplaced. the Leon opportunity apply good-faith exception Pyle State, 314 Ark. 165 and we (1993), stated that fact in an every “ correct, affidavit need not be but necessarily ‘must truthful in the sense that the information forth is or put believed appropri- ately the affiant as true.’” Id. accepted Franks v. Dela- (citing ware, 438 U.S. 154 It is (1978)). nor could it be suggested, maintained truthful, that Clemmons’s affidavit was or that believed his affidavit to be accurate. Officer Clemmons admitted during that he was aware suppression hearing his affidavit mis- the true state of affairs. represented majority responds by tes- relying suppression hearing of Officer timony Clemmons and knew Judge O’Bryan they false, the affidavit and warrant were also knew that no they search would This, take until after place delivery. majority holds, demonstrates that there was faith. Such an good outcome defies The affidavit and logic. the warrant were both false. knew and the knew were false Officer Clemmons they however, look that we may were false. The posits majority, they faith, to determine citing outside affidavit to information 1987). F.2d 752 Cir. (8th United States support holding. and Leon do little to support majority’s Martin Leon, on belief a search warrant served good-faith but the affidavit estab- that it was issued validly magistrate, Martin, the court was cause was insufficient. lishing probable or Nowhere in Martin an insufficient affidavit. also faced with were that affidavits in is it question Leon opinions suggested Moreover, that the the court in Martin noted sufficiency false. close which courts in that case was a the affidavit question Therefore, we court stressed “[although could disagree. to outside of affidavit to determine not look facts prob- may cause, can must to the we look able assessinggood when faith . knew officer . . circumstances what including totality [an] Martin, in affidavit.” (citations did not include his supra but omitted). a the Martin to allow holding

The extends unwisely majority to an insuf- to an court affidavit beyond merely supplement go . . but did not “what officer . knew ficient affidavit with [an] affidavit,” to a affidavit and also false include in replace cor- The Martin court invalid warrant with unsworn testimony. affida- that an examination of information outside the nation could be made in this case is the unsworn testimony Officer Clemmons. faith, to find attempting major- in essence ity’s holding allows a court to look outside a false affida- vit and establish an basis entirely independent which hinge cause for a warrant that is “so indicia of lacking any cause that it rendered invalid.” supra. reasons,

For above I must dissent. respectfully Newbern, in J., joins dissent. notes rectly there is warranted to determine faith “where vit good [have] in the affi- no material false statements or been misrepresentations in this davit.” That is what occurred case. exactly affidavit must be We have held that an supported by long State, 228, v. 287 Ark. 697 S.W.2d sworn testimony. Herrington State, 303, 556 (1977); Baxter v. 262 Ark. S.W.2d 428 899 (1985); Moreover, State, 1, Ark. 552 S.W.2d 646 (1977). Lunsford our Rules of Criminal Procedure state that specifically applica- more (1) warrant “shall be one or tion a search supported by before officer recorded under oath a affidavits or judicial testimony P. added). . . . .” Ark. R. Crim. 13.1(b) major- (emphasis relegates sworn-testimony requirement posi- ity’s holding tion of Under an officer insignificance. majority’s approach, false obtain an war- affidavit and invalid may knowingly present rant, but so as he what will tells take long actually has acted faith when warrant is place good eventually unwise, executed. Such an outcome is illogical, contrary the law. Furthermore, Martin states that under certain circumstances remains the where the warrant suppression appropriate remedy and affidavit are so in indicia of lacking cause as render official belief in its existence unreasonable. entirely supra. There can be faith where an officer has only reasonably relied determination upon magistrate’s cause. State Hart, 582, 329 Ark. Blevins, 952 S.W.2d 138 State v. (1997); 388, 304 Ark. 802 S.W.2d 465 (1991). information on only which the determi- probable-cause

Case Details

Case Name: Sims v. State

Court Name: Supreme Court of Arkansas

Date Published: Jun 4, 1998

Citation: 969 S.W.2d 657

Docket Number: CR 97-1350

Court Abbreviation: Ark.