Anx.l Faron BAXTER and Debra Ann BAXTER u. STATE of Arkansas cR 77-135 Opinion delivered October (Division l. Cnlutxer LAw sEARcH wARRANT, CIES IN AFFIDAV I T MAY NOT BE SUPPLIED AT HEARING To suppREss. At a hearing on evidence obtain e d pursuant to a search missible for the state to introduce testimony deficiencies in the affidavit on which the 2, CRturuer LAw sEARcH WARRANT - ISSUANCE DETERMINED BY INFORMATION Probable cause for the issuance of a search determined upon the basis of the information to the issuing judicial officer. 3. Cntutner LAw sEARcH WARRANTS IssuANcE TNTE R pRETED IN coMMoNs evaluating the showing of probable cause search warrants, affidavits for search and interpreted by magistrates and courts and realistic fashion. 4. Cnlurrunr LAw sEARcH wARRANTS MAGISTRATES BA - SED ON COMMONSENSE FrDAvrr. - Issuing magistrates upon a commonsense reading of an entire alfidavit. 5. Cntulual LAw - INFoRMANT, UNNAMED TABLIsHED By TNcRIMINATINc NA?URE reliability of an unnamed informant by the incriminating nature of his 6. Cnrutnnr LAw - sEARcH wARRANT BE sEARcHED GIVEN wEtcI{T BY ISsu should be given to the reputation where illegal drugs could be purchased fiqer's testimony beflore an issuing former's statements.. 7. CnItr,tInnl LAw - sEARcH WARRANT FrDAvrr. - An affidavit by a deputy search warrant was sufficient where the affidavit information furnished to the deputy cent purchases of drugs by the inlormant tion of the place where controlled 303 556 S.W. 2d 428 17, 1977 II) AFFIDAvIT FoR - DEFICIENON MOTION a motion to suppress the warrant, it was not perto supply alleged warrant was issued' PRoBABLE cAUsE FoR - GIVEN ISSUING OFFICER. warrant can only be given, under oath, PRoBABLE cAUSE FoR - ENsE FAsHIoN. In for the issua n ce of warrants must be tested in a commonsense - JUDcMENTS oF rssuING READING OF ENTIRE AF' should base their judgments RELIABTLTTY EsoF ST A TEMENTs. The can be established m erely statements. REPUTATIoN oF PLAcE To IN c MAcIsTRATE. Weight of place to be searc h ed as one in considering an of-magistrate based on an inSUFFIcTENCY oF AF-she r iff for the issuance of a gave specific by an informant as to reand a detailed descripsubstances were kept; where
304 Bnxrnn u. Srarr she was a known addict police officers; and where her statements officers' knowledge of appellants' 8. Cnrlrtuel LAw sEARCH DFJ,CI,ARATIONS AGAINST INTEREST cREDIBILITv. - Where the ing a search warrant shows that given specific details indicating recent witnessed by him at a definitely the informant's statements are sufficient basis for a finding credibility, 9. CnruIrueL LAw - INFoRMANT MAy ESTABLISH RELIABILITY information given by an informant rounding circumstances made known and other information within corroboration of the informant's establishing the informant's 10. CntutxnI- LAw - Rur-n 13.1 CI,USIONARY S'IATEMENT METr{oDS oF suppLyING. that informant had given - would not be sufficient under Proc., for the issuance of a search that respect is supplied by eyewitness to recent events declarations against interest; and a seller of drugs lent support to 1 1. Snrrnclt & snlzunn BY wARRANT 13.2 (n) (rr) MEANINc. (lrim. Proc., m eans that the search warrant lindine lhat there was probable cause not mean t.hat the search the specilic facts on which the Jrrdbable cause has been shown. 12. Cnrr'rrr,{nL LAw - sEARCH WARRANT 'r'A(;rrrN(; 'ro WARRANT. - is attached to the warrant, all forded by a detailed finding by the issuing the person served. 13. Cnrrtarnrnr, LAw - MorIoN To suppRESS SEARC}I WARRANT VIOLATION 16.2 (.e), Rules of C rim. press evidence obtained by a [262 who had given information to other were supported by the reputation as drug sellers. wARAANT InnonueNt's SUFFICIENT TO ESTABLIST{ evidence before the magistrate issua confidential informant has illegal activity actually described place, the fact that declarations against interest is a of the informant's reliability and - suRRouNDINc cIRCUMSTANcES oF INFoRMATIoN. The reliability of may bC e stablished by surto the issuing magistrate, the affiant's knowledge furnishing disclosures may be a basis for reliability. (n), Rurns or CRIM. Pnoc., col.t-INSUFFICIENT UNDER DEFICIENCY' - Although a conclusionary statement reliable inlbrmation to the city police Rule 13.1 (b)' Rules of Crim. warrant, any deficiency in the fact that the informant was an detailed by her; her statements were the reputation of appellant as her reliability and credibility' - Rulrs oF CRIM. Pnoc., Rtrr.n - Rule 13.2 (b) (ii), Ark. Rules of shall include a for the search, but does warrant shall recite, in detail, each ol judicial officer concludes that r- AFFIDAvTT, EFFECT or A'l'-Where an affidavit for search warrant the information that would be afofficer is available to EVIDENcE oItrArNED By MUST BE SUtsSTANTIAL' RUIC Proc., provides that a motion to supsearch warrant shall be granted
Anr.l Bexrnn a. Srntn only if the trial court finds that the violation was substantial. 14. Cnnunel pRocEDURE - sEARCH TACHED TO WARRANT DESCRIBING FrcrENr. - Although a search warrant did place to be searched in detail, nevertheless, attached to it described the place ticularity, there was substantial compliance ment of Rule 13.2 (b) (iii), Ark. Rules 15. SnnncH & suzunn - sEARCH wARRANT SION OF INSUFFICIENT BASIS FOR SUPPRESSION sEARcH. - Where a warrant was actually served allowable period, there was no appellants, and the violation is not substantial, the return date in the warrant as Ark. Rules of Crim. Proc. (1976), suppression ol the fruits of the search. 1 6. Cnturxnt- pRocEDURE - sEARcH WARRANT COPY OF WARRANT NOT GROUND FOR r.rNDER cIRCUMSTANCES. Although a warrant was not left wit h appellant searched, as required by Rule 13.3 Proc, (1976), nevertheless, where an it was executed, was afforded ah opportunity rant, and where a copy was furnished her attorney, sion to leave a copy with her does not constitute a suppression listed in the Comment of Crim. Proc. (1976), and was not a Rule 13.3 (b). Appeal from Saline Circuit Judge; affirmed. Jack T. Lassiter, for appellants. Bill Clinton, Atty. Gen,, by: Terry ty. Gen., for appellee. Jonx A. Foclruen, Justice. Appellants ty of possession of controlled substances They seek reversal only on matters their motion to suppress certain evidence seized in a their house pursuant to a search arguments relate to the reliability that the affidavit on which the search 30s wARRANT - AFFIDAvIT ATPLACE TO BE SEARCHED SUF-not describe the where the affidavit to be searched with great parwith the requireo[ Crim. Proc. (1976). - RETURN DATE, oMISOF FRUITS OF within the showing of any prejudice to the omission of required by Rule 13.2 (b) (v)' does not afford a basis for FATLURE To LEAvE SUPPR E SSION OF EVIDENCE copy of the search when her premises were (b), Ark. Rules of Crim. appellant was present when to read the warthe omis' ground for to Rule 16.2, Ark. Rules substantial violation of Court, Henry B. Means, R. Kirkpatrick, Asst. At-were found guilwith intent to sell. pertaining to the denial of search of warrant. Their principal of an informant. We find warrant was issued suf-
306 Bax'rnn u. Srnrr ficient to establish the reliability of At the hearing on the motion permitted to introduce testimony to cies in the affidavit. The testimony was given by ant, who was identified at the hearing as Cathy Auld. is not permissible and appellants'objection should sustained. The information disclosed not before the issuing magismate. Probable cause issuance of a search warrant can only be determined basis of the information given, under judicial officer. Lunsford v, Statc, Cockrcll v. State,256 Ark. 19, 505 S.W. 2d 204; Durhamv. State, 251 Ark. 164, 471 S.W. 2d 527. The affidavit for search warrant Sheriff William P. Sprecher and formation received by him The recitation of facts in the affidavit of the informant are these: On this date, May 5, 1976,I received confidential informant identity will be furnished informant purchased from residence ten capsules of $1.50 per pill. Informant were made at 10:00 P.M. 2 A.M. and 4 A.M. on further states that she by Mr. Baxter in her marijuana cigarettes morning. The informant ently stored in a refrigerator in the Baxter's residence and a large quantity of marijuana of the bedrooms of the formant since Mr. Baxter tion with me and other (She'(informant) is an addict an informant to Benton Appellants rely upon the 1262 the informant. to suppress, the state was supply alleged delicien-the informThis have been by her testimony was for the upon the oath, to the issuing 262 Ark. l, 552 S.W. 2d 646; was made by Deputy was based entirely upon infrom the confidential informant. going to the reliability information from not named herein, but whose to the court on request. This one- Farron Baxter at his phenobarbital at a price of further states these purchases Tuesday, May 4, 1976 and at this date May 5, 1976. Informant witnessed two sales of marijuana presence and that he gave her the which she brought to me this states that barbituates are presis being hidden in one residence. *** I believe my inhas a long standing reputapolice agents as a drug seller. and has been reliable as City Police.) requirement of Rule 13.1 (b),
Anr.l Baxrnn a. S'rntr Arkansas Rules of Criminal Procedure, effective 1976, that the affiant set forth particular facts informant's reliability and disclose, as means by which the information based to a great extent upon Aguilarv. Texas,378 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Aguilar were considered in U.S. v. Harris,403 U.S. Cl 2075,29 L. Ed. 2d723 (1971) requirements was expressed in the Juitice Burger, in parts of which four majority of the court took the view showing of probable cause for the warrant, the admonition of U.S. v. Ventrcsca,380 S. Ct. 741 ,13 L. Ed. 2d 684 (1965) monition was there quoted, viz: [T]he Fourth Amendment's stitutional requirements, are If the teachings of the Court's and the constitutional policy warrants, such as the one involved and interpreted by magistrates monsense and realistic fashion. drafted by nonlawyers in the criminal investigation. Technical elaborate specificity once exacted pleadings have no proper place in this or negative attitude by reviewing warrants will tend to discourage submitting their evidence to a acting. This is an appropriate admonition. magistrates should base their monsense reading of an entire affidavit. 510, 534 S.W. 2d 230. ln Harris, an officer's affidavit held constitutionally suflicient. [t had a reputation as a trafficker in nontaxed that the oflicer had received information sons of all types as to the defendant's 307 January 1, bearing on the far as practical, the was obtained. This rule is U.S. 108, 84 The requirements of 573' 91 S. and the better view of these opinion of Mr. Chief other justices joined. A that, in evaluating the issuance of a search U.S. 1O2,85 should be heeded. The adcommands, like all conpractical and not abstract. cases are to be followed served, affidavits for search here, must be tested and courts in a com-They are'normally midst and haste of a requirements of under common law area. A grudging courts toward police officers from judicial officer before We have said that issuing judgments upon -t,coT-Cary v. State,259 Ark. for search warrant was stated that the defendant distilled spirits; from numerous peractivities; that a local
308 Baxrnn constable had seized illicit whiskey under the defendant's control; information from a confidential had interviewed and found had "personal knowledge whiskey from within the residence two years and within the preceding son who had purchased illicit days from this house and had whiskey was consumed by purchasers located about 50 feet from the defendant's he had seen defendant go The particular statements as informant's reliability in this case conclusion that she was prudent. addict, had furnished reliable police. Factors which the court reliability of the inlormant the defendant and the informant's against interest. We have heretofore held that named inlormant could be established criminating nature of his statements. Ark. 86, 531 S.W. 2d 468. reputation of a place as one where purchased in considering issuing magistrate based on shinksy v. state,250 Ark. 614, The informant here incriminated Ann. $ 82-2617 (c); Armour 1974), citing and quoting from gave specific information as to recent purchases detailed description of the place were kept, she was a known tion to other police ollicers, ported by the officers' knowledge a drug seller. This affidavit seems Hanis and was certainly more prehensive that the one held U.S. 257, 80 S. Ct. 725, 4 L. u. Srers 1262 in an abandoned house that the officer had received informant whom the oflicer prudent; and that the informant of and had purchased illicit described" for more than two weeks, knew of a perwhiskey in the preceding two personal knowledge that illicit in an outbuilding residence, to which to obtain whiskey for purchasers. to the a{Iiant's knowledge of his go much further than a It was stated that she, an information to the Benton city found supportive of the in Hanis were the reputation of incriminating declaration the reliability of an unmerely by the inMaxwcll v. State, 259 We have also given weight to the illegal drugs could be an oflicer's testimony before an an informant's statements. See 446 s.w. 2d 909. herself. See Ark. Stat. v . Salisbury, 492 F . 2d 1032 (6 Cir. , Hanis. But, in addition, she by her and a where controlled substances addict, who had given informaand her statements were supof appellants' reputation as to be comparable to that in specific, detailed and comsufficient in Jorcs v. U.5., 362 Ed. 2d 697,78 ALR Zd 233
Anx.l Bnxrnn a. (1960), cited with approval in Aguilar. Hanis has been widely construed.as holding that the evidence before the magistrate issuing a search shows that a confidential informant has indicating recent illegal activity, at a definitely described place, the fact that statements are declarations against sis for a finding of the informant's reliability and credibility, at least when coupled with a showing that the to be carrying on the illegal activity engaging in such activities. See Armour @iSS v. Estcllc, 492 F. 2d 343 (9 U.S. 848, 95 S. Ct. 86,42 L. Ed. NJ. Super 501, 366 A.2d 692 (1976); App. 17, 220 S.E. 2dl'1 (1975), cert. Cl 1671,48 L. Ed.2d179; U.S. (7th Cir. 1974); Ringel, Searches and Confessions, 1976 Cumulative Supplement, Certainly Aguilar would permit reliability sumounding circumstances made magistrate. Slate v. Sulliaan, 267 S. (1976). Other information within the furnishing corroboration of the be a basis for establishing the Blankenship v. state,258 Ark. 535, State, supra. 136 Ga. App. 17. It has also been held that detailing tion previously given by the afliant's when the informant was an eyewitness to the facts related by him. ll/oods v. Slate, Tenn. Cr. App., (1977); Tones v. Statc, 552 S.W. 1977).t This might be a sound view insofar standards are concerned, but Rule 13.1 The conclusory statement that reliable information to the Benton city itself hearsay, would not be sullicient however, any deficiency iri that respect is supplied facts: (1) the informant was an detailed by her; (2) her statements lSee also, State v, Sulliaar,, supra, where Srarn 309 where warrant given specific details actually witnessed by him, the informant's interest is a sufficient baperson alleged has a reputation for v. Salisbury, supra; Cir., 1974), cert. den. 419 2d78; State v. Southard,744 Smith v. Statc,136 Ga. den.425 U.S. 938, 96 S. v. DeCesaro,502 F.2d604 Seizures, Arrests and p. 330, $ 335.01. to be established by known to the issuing C. 610, 230 S.E. 2d 621 knowledge of the affiant informant's disclosures may inflorrnant's reliability. See 527 S.W. 2d 636; Smith v. the reliable informainformer is unnecessary 552 S.W. 2d 782 2d 821 (Tex. Cr. App. as constitutional (b) requires more. the informant had given police, which was under that rule; by these eyewitness to recent events were declarations against the informant was identified.
310 BnxrnR interest; (3) the reputation her reliability and credibility. When we view the affidavit rather than hypertechnically, warrant issued by the magisfate in reliance ment of probable cause therein. Appellants also complain that statement that the issuing that there is reasonable ground for sufficient compliance with Rule of Criminal hocedure. The finding stated in the preamble to the warrant WHEREAS, Complaint before the undersigned, Benton, by Chief Deputy Bill Sprecher attached Affidavit for search plaint suspects that such house occupied by Faron as, being satisfied that there is such suspicion. The rule requires that the ty, the judicial officer's finding of reasonable issuance of the warrant. We do search warrant shall recite, in detail, each on which the judicial oflicer concludes has been shown. We take it to clude a finding that there was Although the language of the magistrate's have been couched in the most desirable have been chosen, it is clear that the grounds" for the issuance of the fidavit attached to it. There with the requirements of the We find no merit in appellants'argument conclusionary statement is patently unconstitutional and authorities cited in their brief this point. Those cases relate to u. Srnre [262 of Faron Baxter lent support to in a commonsense manner' we should not invalidate the upon the stateU..1. v. Vmtresca, supra. the search warrant's mr.rnicipal judge was "satisfied such suspicion, " was not a 13.2 (b) (ii), Arkansas Rules of reasonable cause was in the following words: has been made, on oath, Municipal Judge for the City of that certain see warrant and that said comproperty is concealed in the Baxter in said county; wherereasonable ground for warrant state with particularicause for not take this to mean that the of the specific facts that probable cause mean that the warrant shallin-probable cause for the search. finding may not words that could court lound "reasonable search warrant in the afwas a substantial compliance rule. that such a the do not support their position on statements in supporting af-
Anx.] Bnx'mn a. Srerr lidavits and not to the findings of the Aguilarv. Texas, supra; Cwkrellv. Za ZO+; Montgomery v. State,251 The commentary on this particular Rule 13.2 (b) (i) and (ii) provide needed by a person served who desires to contest of the warrant. When the affidavit on based is attached to the warrant, would be afforded by a detailed finding is available son served. Appellants also argue that the non-compliance with the Arkansas Proceduie governing search warrants stantial violation of their constitutional to suppress should have been granted. Rule that a motion to suppress evidence warrant shall be granted only if violation was substantial. See Brothers 546 S.W. 2d 715. Comment I to qrounds upon which such a motion grounds there enumerated upon which than the alleged lack of reasonable the issuing.judicialofficer, are (1) describe the place to be searched (2) the failure to indicate the time period within search was to be made, and (3) ecutinq the warrant to leave appellants. There was a substantial compliance ment of Rule 13.2 (b) (iii)' Arkansas Procedure, that the warrant designation of the place to be searched is true that the warrant itself only house occupied by Faron Baxter. to the warrant described the place with viz: 'rrr The Baxter's residence quarter mile north of the , tersects the Old Oklahoma a rock house on the left, down a 3l I issuing magistrate. See State,256 Ark.19,505 S.W. Ark. 645, 473 S.W. 2d 885. provision recites that information which may be the validity which the linding is all the information that to the percumulative effect of the Rules of Criminal constituted such a subrights that the motion 16.2 (e) provides obtained by a search the trial court finds that the v. Stale, 261 Ark. 64, this rule states various may be based. The only appellants rely, other cause on the record before the failure of the warrant to with suflicient particularity, which the the failure of the officers ex-a copy with either of the with the requireRules of Criminal describe the location and with particularity'-It described the place as "the " Still, the affidavit attached great particularity, is located approximately one stop sign where Hwy 229 in' Road being located just past gravel driveway, ap-
312 Bnxrnn proximately 200 yards. white mobile home with front and a small fence around There was no return date stated quired byRule 13.2 (b) (v). there specified is five days alter issuance. made on the same date the warrant was issued. warrant was actually served within there was no showing of any violation is not substantial, basis lor suppression of the fruits of the search. (e); Brothns v. Slate, supra. Appellants also say that the warrant as required by Rule 13.3 Criminal Procedure. That particular the executing oflicer shall give person in apparent control of the premises to before undertaking the search, material here. , Chief Deputy Sheriff Sprecher testified was present when the warrant was thought he had left a copy with remember whether he had. Mrs. Baxter testified that a copy was not left, and that Deputy warrant briefly, but took it had started reading it. She admitted that read it, but could not recall municipal judge. She remembered seeing her name, the premises to be searched name. We do not consider the action of the in full compliance with the rule. 13.3 (b). On the other hand, it is clear from copy was furnished to appellants'attorney and the who was present when the forded an opportunity to read the leave a copy with her does pression listed in the Comment to Rule sider the violation substantial on the basis of the cumstances enumqndted in u. Srnrn 1262 Said residence being a black and a screen-in porch across the the front yard. *f* in the warrant as reThe outer limit of the return date The return was Since the the allowable period, prejudice to appellants, and the this omission does not afford the See Rule 16.2 they did not receive a copy of (b), Arkansas Rules of provision requires that a copy of the warrant to the be searched, except in circumstances not that Mrs. Baxter executed. He said that he Mrs. Baxter , but could not Sprecher only showed her the away a couple of times after she she was allowed to seeing the signature of the husband's and Deputy Sprecher's oflicers herc to be See Commentary on Rule the rccord that a appellant warrant was cxecuted, war a[warrant. The omission to not constitute a ground for sup16.2. We do not concir. Rule 16.2 (e).
\.\ Anr.l FrNcH u. Srnrn 313 Violations of the rules governing the search of which appellants complain, when considered collectively, do not indicate any substantial violation of, or prejudice to, the rights of appellants. The judgment is affirmed. We agree. Gnoncr Rosn SuIrH, Roy and Holr, JJ Herschell Milton FINCH u. STATE of Arkansas QR 77-149 s56 S.W. 2d 434 Opinion delivered October 17, 1977 (Division II) 1. Cnrurrual LAw - vorR DIRE ExAMtNATtoN - couRT-AppoINTED ATTORNEYS, RESTRICTIONS ON DISCLOSING APPOINTMENT PERMISSIBLE. - It is not reversiblb error for the trial court not to permit a defendant's attorneys to comment, during the aoir dire examination of prospective jurors, on the fact that they were appointed by the court. 2, Junons - vorR DIRE ExAMINATIoN * ExTENT & scopn wtrllrN DrscRETroN oF 'TRIAI- JUDcE. The extent and scope of ooir dire examination is largely a ma -tt er lying within the sound judicial discretion of the trial judge and the latitude of that discretion is rather wide. 3. Junons - vorR DrRE EXAMINATIoN - Rvrn 32.2, Rurrs on Cnru. Pnoc., E!-FECT oF. - The rule that the trial court's restriction of uoir dire examination will not be reversed on appeal unless that discretion is clearly abused has not been materially affectcd by Rule 32.2 (b), Arkansas Rules of Criminal Procedure (1976), which requires the trial judge to permit such questions by the defendant or his attorney as the judge deems reasonable and proper. 4. CnrulNRr- pUNTsHMENT As HABITUAL cRIMINAL PREVIOUS OF'FENSE MUST BE ALLEGIiD IN INDICTMENT OR INFORM A. TroN. Whenever the state seeks to charge one as a previous offende - r or habitual criminal in order to warrant the imposition of additional punistrment for the offense charged, the previous offense is an essential element in the punishment, which must be alleged in the indictment or inflormation.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.