*1 Affirmed. Dean HOWARD of Arkansas
STATE 19 S.W.3d CR 99-989 Court of Arkansas 15, 2000 delivered Opinion June *2 Alan David Epley,Judge; Vowell, Stevan E. for appellant. Gen.,
Mark Gen., David R. Pryor,Att’y by: Ass’t Raupp, Att’y for appellee. R. State The filed this interlocu- Just SMITH, ic ic e.e. tory Carroll Circuit Court’s County pre- LAVENSKI
trial order evidence of seized from suppressing drug activity Appel- lee Dean Howard’s residence in rural Carroll property The trial court found the County. warrant search invalid due to its inaccurate The State contends the property description. trial court erred aas matter law due to the rural nature It contends that the owner of naming rural is sufficiently under Arkansas law. The particular this to the appealed case court of which it certified to court appeals, to Arkan- pursuant sas l-2(d). Court Rule
Facts Sheriff Carroll County May On morning a search warrant with Lester supporting Greg prepared Deputy the search warrant. the affidavit for Lester affidavit. also signed Kent them to Court Lester then Judge Municipal Deputy presented based on the search warrant representations whо signed Coxsey, The affidavit and Lester and in the affidavit. made under oath by as follows: searched warrant both described the property #517, Road Ber- on County The residence located Route #2 AR, family located story, single dwelling a one off-white ryville, #517, located County outbuildings on the northeast side Road *3 the and area to surrounding (suspected оn this same pond property, Howard), and and vehicles by owned commonly Jimmy Jerry by How- currently occupied Jerry located on this same property, Howard, Howard, ard, Sue and Howard. Cody Venus Marr, Thereafter, Lester, the and other officers from Officer executed the warrant on Department Carroll Sheriff’s County his residence and residence and and on brothers Jerry’s property the evidence of in Carroll with search County, turning up property and other Police manufacturing drug activity. methamphetamine the his brother who arrested and Jerry, Jimmy, prosecutor charged Proctor, road, also in a on the same Brenda Kay lived house county Howard, Howard, and Susan Steve Oriоn Cody Greer crimes in an information filed on with several drug-related July 1998. the filed motion to evidence
Jerry’s attorney suppress search, in the and the trial court held hearings obtained April 10, 1999. and May During hearings, presented from Officers Lester and Marr and testimony Judge Coxsey regard- evidence of the affidavit and the collection of for and issuance ing then by search warrant. The defense testimony presented Howard, road Steve county videotape presented depicting owned by Jerry. Lester, the of Officer Carroll to
According testimony received call from an Sheriff’s first County Department phone was one before this search conducted year informant approximately residence. activity drug taking place Jimmy’s regarding possible Then, about three weeks before search of calls, receiving “many” ten department began approximately calls, Howards, informants that the fifteen from officers telling Howard, were Jimmy specifically manufacturing methamphetamine at their houses.
Officer Lestеr testified that a few before the search was days conducted, informant, he a confidential informant questioned #175, been who had arrested. The informant indicated just she had been to residence and that was manu- just Jimmy’s Jimmy In order test the of this facturing methamphetamine. veracity information, informant’s Officer Lester the informant questioned about location and residence. layout Officer Lester Jimmy’s testified that he had details this residence knowledge notice, he detainer, because had served an eviction or notice of at his residence. Officer Lester testified that the Jimmy details had, fact, informant indicated to him that she been at provided residence and that she had witnessеd Jimmy’s illegal activity taking place. residence,
With to the warrant for Officer regard Jerry’s Lester that he testified the affidavit for the search warrant supported by references to the callsto anonymous the sheriff’s phone department “inadvertent confidential informants” had who been residences. These “inadvertent” informants were Offiсer people Lester heard on an audio another speaking tape regarding drug and these informants of the Howard “on suspect, residences spoke *4 mountain.” After the defense that objection by this infor- warrant, mation was not in the affidavit for Officer Lester then that testified he based the affidavit for the search of residencе Jerry’s on the information confidential informant provide by #175. cross-examination,
On Officer Lester indicated that he not did include house number or residence address on the warrant for the search of house because he not Jerry’s did think that there were any other houses on the road besides house and county Jerry’s Jimmy’s house, He house. indicated that another Sue Howard’s sister’s house, was close but on a Howards’ houses was different road. Officer Lester also indicated that he described county Jerry’s off-white, house a one-story, located single-family dwelling the northeast side of Road #517. also He indicated that County was described as and pond being part Jimmy’s Jerry’s and that metal shed was across the property, large actually county Lester indicated in the affidavit. Officer that was not road although in all of the outbuildings, indicated that he included general, warrants, inform- and the confidential both of affidavitsfor that that there were his did not indicate ant who him information gave metal or across in the shed building or drug activity any drugs from the road county property. searched, Officer the residents of the two houses
Regarding Susan, that his wife and that he knew and Lester indicated house, Venus, and that their son lived in possibly Jerry’s Steve Jerry’s that he did too. Officer Lester also indicated and Susan’sdaughter, Brenda, lived in knew Howard Cody Jimmy’s that Jimmy, house, that the fact that the affidavit and warrant indicated despite Susan, Venus, lived house. Cody Jerry’s Jerry, deter- testified that he did not look at deeds to any Officer Lester he aware that these mine owned the nor was who actually property, that the tracts were of a subdivision. He indicated of land part that both owned believed Jimmy Jerry jointly department he also that the wooden shed but indicated allеgedly lab was on Jimmy’s property. containing methamphetamine team Officer testified that he was that searched Lester part house, not house. Jimmy’s Jerry’s testified that he the search warrant based Coxsey signed
Judge there to search on the fact that he believed that was cause probable testified, Marr and he indicated the named Officer next premises. that he the team that house and was searched Jerry’s prop- part Marr, the told to Officer confidential informant erty. According him that she had and Officer Lester seen production house, as in shed behind well as sales Jerry’s methamphetamines residences, at both both residences made being paraphernаlia and in on the one week some outbuildings property approximately also testified con- before she the officers. Officer Marr spoke informant, from confidential the information received cerning were and he that the informant indicated that Howards stated houses and and forth between and Jerry’s back Jimmy’s working told him that a Marr indiсated the informant Officer took in the shed behind “cook” Jerry’s methamphetamine *5 house, that that have been a different he would and acknowledged that the one the informant told Officer Lester than the story house down “cook” had taken in the shed behind by Jimmy’s did not who Marr testified that know Officer they pond.
645 and shed house that took no owned the or by pond, they pump on whose land that was located. to building steps investigate that he could Marr also indicated not reason Officer provide why listed Howard was as resident of both and Jimmy’s Cody Jerry’s houses, and he could not be a resident of acknowledged Cody the fact that he was listed on both both affidavits and despite warrants such.
The defense from who noted that presented testimony Jerry, he owned both residences issue the warrants. He over took loan land avoid the bank on foreclosure. testified Jimmy’s Jerry he made for the about which shows the videotape hearing county road from the to his residence. testified that several beginning Jerry road, houses are locatеd his and as well along including Jimmy’s, house, Chris, as Gail a house Howard’s owned someone named house, house, Brandon Smith’s Sam Dada’s and Kay James McNutt’s house. also testified the location of several regarding on his Steve outbuildings Jimmy’s Finally, property. testified his at the search house. regarding presence Jerry’s
After the circuit issued his deci- hearing, judge four-page sion filed that the search warrant did not finding June such, describe searched. sufficiently As the court the evidence seized in the search of suppressed Jerry’s Jimmy’s 24, The 1999, this to the appealed ruling June court of which certified toit this court for appeals, review.
Standard Review
In
evidence,
a case
reviewing
involving
suppression
we mаke
determination based
independent
upon
totality
circumstances
reverse
if the
is
only
ruling
erroneous
clearly
or
of the
v.
against
evidence. State
preponderance
338
Rufus,
305,
State,
Ark.
(1999);
S.W.2d 490
Fouse v.
Ark.
State,
S.W.2d 146
v.
(1999);
332 Ark.
The issue on only appeal sufficiently court, to be searched. The trial described the sup- property search, failure that the warrant was defective “for the held pressing searched and the to be describe the to be things particularly the ARCrP 13.2 court (b) (iii).” seized as Specifically, required by the was so that officers this case noted that the deviation by great risk of the searched. being there was substantial wrong property was “willful” because The also found that violation court have obtained the correct and loca- officers could easily description tion that the search the State argues
In this interlocutory appeal,
case
sufficient under constitutional requirements
warrant in this
was
Procedure. The State
the Arkansas Rules of Criminal
under
the owner of rural
is suffi-
contends that
naming
property
merely
searched,
to describe the
any
ciently
property
particular
the warrant invalid.
errors in the warrant do not make
descriptive
Howard was a
The
avers that the attack on
warrant by
State
Furthermore,
attack,
that this
disfavors those.
technical
court
standard
that even if the
totality-of-circumstances
argues
was
The State
was
unwarranted.
review
appropriate, suppression
doubt
was to bе
notes the
had no
about which property
police
the search had been
searched because two of the officers conducting
had
met with
to this
these officers
previously,
personally
property
issued, and
informant before
warrant was
drug
Overall, the State
admitted that the
was his.
argues
as
were
houses on the same roаd
the fact that there
other
despite
described
the fact that the warrant
Howard’s house and despite
described
color
as well
incorrectly
Howard’s house
incorrectly,
location,
was
valid because
warrant
still
outbuilding’s
of misidentification was small.
possibility
not addressed
we are com
Although
parties,
to address
Ark. R.
P. —Crim. 3 to the
pelled
application
App.
this rule
instant
Under
when the
appeal.
procedure,
appellate
State files an
from the trial court’s
interlocutory
of a
grant
*7
16.2,
to
defendant’s motion
evidence under Rule
an initial
suppress
of this court must be whether
the
involves the
inquiry
appeal
correct and uniform administration of
and of the criminаl
justice
451,
law.
v.
321 Ark.
State
903
170
S.W.2d
State v.
Jones,
(1995);
364, 955
330 Ark.
S.W.2d 502
Section
of the rule
Gray,
(1997).
(a)
outlines
for State
permissive grounds
interlocutory appeals
criminal cases.1 We have
time stated that the State’s
many
ability
a
is not matter of
but limited to those cases
appeal
right
described
State,
266,
under Rule 3. Bowden v.
326 Ark.
pretrial motionunderArk. felony R. Crim. P prosecution (2) 16.2 to seized evidence, (3) grants defendant’s or suppress confession, suppresses motion under Ark. (c) Code Ann. 16-42-101 to allow evidence of the § victim’s prosecuting sexual conduct. The (10) file, shall within ten prior after attоrney days entering the order, of a notice together of with a certificate that the appeal is not taken for the of appeal that the order purposes delay substantially prejudices the of the proceedings case. Further in the trial prosecution court shall be pending determination of the stayed apрeal. (c) When a notice of (a) is filed (b) to either subsection or appeal pursuant rule, clerk of the court in which sought to be took prosecution appealed shall cause a of the trial record to be made and immediately transcript general, transmitted to the prosecuting or delivered attorney to be attorney, general. him delivered to the general, If inspecting by attorney attorney trial is satisfied record, that error has prejudice been committed to the of the state, and that the correctand administration the criminal law review the requires uniform Court, he take filing of the Supreme may trial record appeal by transcript with the (60) clerk of the Court within filing after the of the sixty days (Emphasis notice of added. appeal. 648 Banks,
of law.” 322 Ark.
909 S.W.2d
Where an
does not
an issue of
(1995).
appeal
present
interpretation
ramifications,
of the criminal
rules with
this court has
widespread
held that such an
does not involve the correct and uniform
appeal
Harris,
Statev.
Ark.
administration
lаw.
868 S.W.2d
are not allowed
(1994).
to demonstrate the fact
Appeals
merely
the trial court erred. State v.
Spear
Boyce,
123 Ark.
(1916).
Stephenson,
State’s
turns on the facts of the case and would not
attempted appeal
of our criminal rules with
require “interpretation
widespread
ramifications,”
State’s
is not allowed under
accеptance
appeal
Rule 3.
evidentiary
fact,
of law and
this court will not
question
under
accept
appeal
Ark.
(now
R. Crim. P. 36.10
Ark.
3(c).
R.
P. —Crim.
App.
Hart,
Harris,
597;
We instant case that the State has not demonstrated that the of this matter involves the correct and is, therefore, uniform administration law and dismissed. Dismissed. J.,
Glaze, dissents. We should review this case dissenting. GLAZE, Jus ,, TOM ti ti ce ce P.—Crim. It is the App. 3(a)(1). type Tucker, case this court has reviewed in the See State 268 Ark. past. Cashion, 597 S.W.2d 584 State v. Ark. (1980); 539 S.W.2d 423 A (1976). issue in this significant appeal requires of seven circumstances listed in Rule interpretation 16.2(e) to rural made the to a applied search warrant which subject rule errors. That that a motion to contains provides descriptive shall if the court finds that the evidence granted only suppress it which is based was substantial. Because this violation court upon to have considered Rule in these 16(2)(e) does not circum- appear a search of rural I would reach stances involving of this decide the merits case. BEAVERS v.
Kim
STATE
Arkansas
CR 00-615
Opinion June *9 Firm, Law Alvin D. for by; Clay Clay, appellant.