State v. Martinez
811 S.W.2d 319
Ark.
1991
Check Treatment

*1 was, view, no agreed, Coe owed such RLI entitled duty. my due included notice of procedural process, pending and an to be lawsuit heard. The record reflects RLI opportunity Therefore, join was afforded such due I process. majority’s decision judgment. Coe’s upholding MARTINEZ,

STATE of C. Arkansas v. Jesse Jr. and Nadine C. Martinez CR 91-75 811 S.W.2d 319

Supreme Court of Arkansas delivered Opinion *2 Gen., Vining, Asst. Bryant, Att’y

Winston Att’y by: Jeff Gen., for appellant. for Bumpass, E. Levin and Ronald E.

Jeffrey appellees. Corbin, interlocu- brings Justice. The state this Donald L. of Circuit Court granting from an order the Johnson tory appeal evidence. Ark. R. Crim. P. motion appellees’ pretrial suppress whether the issue in this trial appeal 36.10. The sole presented due to an ruling erred the evidence seized suppressed court We affirm. invalid search warrant. grant a trial court’s decision to a defend reviewing evidence, we make an independent

ant’s motion to suppress the circumstances and totality determination based on it is clearly against court’s decision if reverse trial Blevins, of the evidence. State preponderance 802 S.W.2d 465 that, reveals on four different

Our review the evidence arrest of July the month during occasions prior Drug Fifth Judicial Task both Officer Hanes of the appellees, Jesse Martinez marijuana Force from purchased appellee the Martinez residence Martinez which consists both property, Gun On Marty’s Shop. and a Martinez-owned business entitled 26,1990, regarding contacted Officer Hanes July At pound marijuana. point, of a purchase quarter warrant. He steps Officer Hanes initiated to obtain search and then execute the above-referenced planned purchase 27, 1990, Officer Hanes On July Martinez property. Sheriff’s County met with Chief of the Johnson Deputy Dorney Office and Judge Len Bradley obtain search warrant. Officer Hanes was sworn and signed the prepared affidavit. The search warrant was then issued at 6:45 approximately Because Ark. R. Crim. P. 13.1(b) for requires application search warrant be or one more affidavits or supported by recorded we do not testimony, consider unrecorded oral that testimony or not have been may may given. we only consider the information contained in the affidavit. 27, 1990,

The affidavit was dated and recited arrangements had been made to a controlled purchase substance from Jesse Martinez on that day. The affidavit also stated that it *3 was believed Martinez stored the controlled substance at his residence and that the proposed sale was to occur there. expected

The argues state the search warrant issued in this case contained the appropriate language that the warrant was to be any executed “at time of day night” therefore, the or the trial court erred in granting motion to suppress. With this argument we cannot agree.

It is well-settled that an affidavit must set out facts showing reasonable cause to believe that circumstances exist which justify nighttime search. State v. Broadway, 269 Ark. 215, 599 S.W.2d (1980); State, Harris v. 262 Ark.

S.W.2d 143 (1977). Ark. R. 13.2(c) Crim. P. that: provides

(c) Except hereafter war- provided, search rant shall that provide it be executed between the hours of six eight time, a.m. and and within a p.m., reasonable tonot exceed sixty (60) days. finding by Upon issuing judicial officer of reasonable cause to believe that:

(i) place be searched is difficult of speedy access; or

(ii) be objects to seized are in danger immi- removal; nent or

(iii) the warrant can be safely or successfully executed at nighttime or under circumstances the occur- rence of which is difficult to predict accuracy; the issuing judicial officer may, appropriate provision warrant, time, authorize its execution at or day sixty time not exceed within a reasonable

night, date issuance. from the days showing does not set out facts in this case affidavit The found of the that any for Judge Bradley cause reasonable merely The affidavit existed. above quoted three circumstances been had made marijuana four sales of previous that provides Hanes, were that controlled substances to Officer residence, that another stored at Martinez believed The residence that day. to occur at the was scheduled purchase regarding reasonable to anything with respect affidavit silent or removed would be marijuana destroyed to believe cause it error for the we hold was morning. the next before been issued. warrant to have nighttime with Hall holding Our consistent Both (1990), Broadway, supra. and State v. S.W.2d 456 the facts in the Broadway have facts similar to present Hall and Hall, reciting simply we held that an affidavit case. In residence and that a confidential drugs were illegal appellant’s within the last sev- marijuana there purchased informant had did not state facts sufficient to support hours enty-two The Hall case is of a search warrant. issuance all controlling respects. of the case in present *4 warrant Although we hold the issuance of this search to 13.2(c), R. Crim. P. a motion suppress was in violation Ark. R. unless the violation is “substantial.” Ark. granted will not into is 16.2(e). nighttime P. intrusion a home private Crim. “The interest, from the record before the violation of an important us that the evidence would not still nothing there to indicate Hall, 344, at morning.” have been there next Hall, into at with we hold the intrusion S.W.2d 458. Consistent home, at 9:00 began approximately appellees’ the next was a substantial through day, continued 4:00 p.m. violation of our rules. to us faith urges good exception

The state to apply which was first enunciated United warrant requirements Leon, we We stated that (1984). States 468 U.S. 897 given the this to violations of our state laws apply would exception Hall, However, was also case. determined supra. appropriate Hall, Hall, not case. See supra, this is the appropriate 344, bar, at S.W.2d at 458-59. In the at case Chief Deputy testified he was Dorney somewhat familiar with our rules of criminal procedure regarding nighttime searches. There can be no doubt then that he knew the search which began approxi- 9:00 mately p.m. was conducted in violation of our rules. The conducted, search violated our rules in that it was almost one hour constraint, the 8:00 time pursuant an affidavit that after not did of the three specify nighttime conditions for issuing warrant. Because the officers did indeed executing have knowl- rules, of our we edge need not address the issue of whether the issuing judicial remained officer neutral and detached and refrained from as a acting for the law rubberstamp enforcement officers. Id. we decline to faith apply good exception this violation of our rules criminal procedure.

In it was summary, error to issue the nighttime search good warrant. The faith is not exception applicable case. evidence, Based on our review of the we cannot the trial say judge’s grant decision to motion against suppress Hall, preponderance of the evidence. ais case strikingly similar facts to this case and we are bound decision. the trial Accordingly, court’s suppression order is affirmed.

Holt, C.J., Hays, J., dissent. Hays, Justice, is, Steele dissenting. believe, It I a mistake to decide this case from the standpoint of whether the search warrant meets the requirements search. The correct I approach, suggest, to determine whether the manner and means which the search warrant was executed constitutes a substantial violation governing of our rules search and seizure evidence. is, all, Ark. R. Crim. P. 16.2. It after only unreasonable searches that are offensive to the Fourth Amendment. Harris v. States, United 331 U.S. 67 S.Ct. 91 L.Ed. 1399 determining whether the violation was substantial we *5 are obliged circumstances, to consider all the including the extent of deviation from lawful officers, conduct the the extent to willful, the violation was the of importance the particular violated, interest the extent to which privacy was invaded. Rule 16.2. When the examined, circumstances of this case are there is no basis for a conclusion that the officers acted in any improperly

358 unreasonable. sense the was or that manner 27,1990, warrant was day the the of morning the In late Hanes, acting as an called Officer issued, appellee of what want” you got plenty to “I’ve say agent, undercover a could handle if Martinez Hanes asked marijuana). (referring “Yeah, be easy.” that would and Martinez said pound quarter warrant, which was a search to secure began the steps Hanes a.m. to 8:00 time p.m. well within the 6:00 at 6:45 p.m., issued 13.2(c). is evident the officers P. It of Ark. R. Crim. frame hours, during executed daytime warrant would be the assumed house, to his to come arrange called Martinez when they but off the grounds he them on put the to make ostensibly purchase, arranged to meet them near Martinez he had company. 103, some distance from his on Bridge Highway River Mulberry it and so it was arrived was 8:10 the time Martinez By home. and drive to could make the arrest the officers 8:48 before was It is clear the delay search. begin Martinez’s house officers, but to conduct by not to improper attributable which the officers appellee directed arrangements without his arousing suspicions. to counter-mand were powerless circum issue whether under all the simply is minutes a “substantial violation” stances a delay forty-eight 341, State, 302 Ark. The on Hall v. 13.2(c). majority rely of Rule 215, v. 269 Ark. (1990) Broadway, 456 and State 789 S.W.2d But search in Hall was executed (1980). S.W.2d 721 a.m., Broadway product and 3:00 was between 1:00 a.m. not does tell us opinion divided court and the sharply majority executed, it a nighttime was that was what time the warrant on grounds. July evening But 8:48 search without required no light, It is and there is of 1:00 a.m. still hardly equivalent short, this evening. had retired for the In evidence these appellees State, v. resembles Brothers nearly case more S.W.2d 715 and James to a warrant

S.W.2d 382 In Brothers a search pursuant as soon thereafter completed “about 8:00 began a material violation This court found that not possible.” 13.2(c): Rule strictly comply case the failure to this particular willful, additional invasion 13.2(c)

Rule was not no *6 occurred, privacy suffered no appellant prejudice. Therefore, suppression was not warranted.

In James the search commenced at 7:10 but was interrupted amended, so that the warrant could be which was not reissued F.Supp. until 9:12 p.m. Koller, Similarly, United States v. 559 5 (E.D. 1983), court, the federal district applying law in Arkansas the interpretation 13.2(c), of Rule denied a motion to suppress where the warrant was at 7:55 signed p.m.. arrived at approximately 8:10 at the defendant’s home. Citing Brothers, the language from quoted district judge wrote:

Any failure to strictly Rule comply 13.2(c) did not violate the policy of prohibiting unexpected searches in the middle of the night, minutes, was only matter and did not cause a surprise intrusion into defendant’s privacy. There was no substantial violation of Rule 13.2(c), of federal or the policy, Untied States Constitution. Appellees made no to show attempt prejudice [Prid- geon v. 559 S.W.2d 4 (1977)] or that the relatively short delay executing warrant created any added intrusion into their privacy, or that the delay attributable to anything other than the instructions interposed by the appellee Jesse Martinez. It is exactly this sort of situation to which United Leon, States v. 468 U.S. was intended to apply. Holt, C.J., joins.