Brannon v. State

761 S.W.2d 947, 26 Ark. App. 149, 1988 Ark. App. LEXIS 588
CourtCourt of Appeals of Arkansas
DecidedDecember 14, 1988
DocketCA CR 88-91
StatusPublished
Cited by4 cases

This text of 761 S.W.2d 947 (Brannon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brannon v. State, 761 S.W.2d 947, 26 Ark. App. 149, 1988 Ark. App. LEXIS 588 (Ark. Ct. App. 1988).

Opinion

Melvin Mayfield, Judge.

Appellant, Calvin Brannon, Jr., was convicted by a jury of the crime of possession of cocaine with intent to deliver. He was sentenced to serve 12 years in the Arkansas Department of Correction and to pay a fine of $ 10,000. On appeal, appellant argues the trial court erred in denying his motion to suppress because the reliability of the confidential informant was not established and the good faith exception as set forth in United States v. Leon, 468 U.S. 897 (1984), does not apply.

On May 1,1987, a warrant to search the premises known as Trailer #20 of Riverdrive Trailer Park #2 was issued upon the affidavit of Jim King, a criminal investigator with the Arkansas State Police. The warrant also described the trailer and its physical location and stated it was the appellant’s trailer.

The affidavit for the warrant stated in pertinent part that:

On 4/29/87 I received information from a Confidential Informant that a Calvin Brannon who lives in Riverdrive Trailer Park #2 had received a shipment of drugs on or around Wednesday, 4/29/87. The Confidential Informant observed the suspected drugs being removed from the car and carried into the trailer occupied by Calvin Brannon. The Confidential Informant said that there is always a lot of traffic at the trailer upon receiving the drugs. Confidential Informant states that hypodermic syringes that have been used to shoot up are laying in the yard at the trailer. The Confidential Informant stated that grow lights are also being utilized underneath the trailer, to grow marijuana.
On 5/1/87 this Investigator received a call from a Confidential source who stated that they had information that Calvin Brannon and Tina Inu residing at Riverdrive Trailer Park #2 had received a shipment of \xh pounds of Cocaine on 4/29/87. The Cocaine came in at the Little Rock Airport and was transported to the trailer occupied by Calvin Brannon and Tina Inu, said trailer being trailer No. 20 of Riverdrive Trailer Park #2. The Confidential Informant said that the Cocaine was kept at the trailer and dispensed from that site. The Confidential Informant stated that the Cocaine was kept in a bedroom of the trailer. The Confidential Informant also said that one of the users would be driving a 1974 red or maroon Pontiac LeMans. This Investigator along with Detective Jerry Bradley went to Riverdrive Trailer Park #2. The trailer is trailer number 20 and is located on the right side of the drive, being the next to the last trailer on that side. The trailer is yellow in color.
On checking with AP&L records it shows the utilities to be in the name of Calvin Brannon at trailer number 20, Riverdrive Trailer Park §2.
On 5/1/87 there were five vehicles at the residence, one being the 1974 Pontiac LeMans, maroon in color, which the Confidential Informant referred to. Also there is a 1957 Chevrolet, tan in color, which this Investigator has personal knowledge belongs to Calvin Brannon. The other vehicles we were unable to identify.

Appellant argues that although the Arkansas Supreme Court has adopted the Illinois v. Gates, 462 U.S. 213 (1983), “totality of the circumstances” test in reviewing the sufficiency of an affidavit in support of a search warrant, the Aguilar v. Texas, 378 U.S. 108 (1964), test for evaluating probable cause based on informant hearsay has not been replaced, but is contained in that portion of Ark. R. Crim. P. 13.1(b) which provides as follows:

If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.

Appellant argues that no facts are contained in the affidavit made by King that would tend to show the reliability of the informants who provided the information; that none of the information from the first informant was corroborated; that there is no statement about how the informant obtained the alleged information or that the informant had produced information in the past that had resulted in conviction; that unverified anonymous telephone tips do not support or contribute to a probable cause determination; and that there was no corroboration of any incriminating details but only of innocent details. He also contends that the affidavit did not provide a substantial basis for determining the existence of probable cause; therefore, the good faith exception as set forth in Leon, supra, does not apply. Appellant says the affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” See Leon, 468 U.S. at 923.

The Arkansas Supreme Court accepted the “totality of the circumstances” test set out by the United States Supreme Court in Illinois v. Gates, supra, in the case of Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), and pointed out that this “new, more flexible” test would be applied in the future instead of the “two-prong” test of Aguilar. As explained by our decision in Wolf v. State, 10 Ark. App. 379, 664 S.W.2d 882 (1984), under this new test the magistrate issuing the warrant is to make a practical, commonsense decision based upon all the circumstances set forth in the affidavit, and it is the duty of the reviewing court to simply ensure the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant. Moreover, in Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983), the Arkansas Supreme Court stated:

Recently in Illinois v. Gates,_U.S_, 103 S. Ct. 2317 (1983), the United States Supreme Court overruled previous decisions which held warrants obtained on the basis of informants’ tips must satisfy a strict “two prong” test. Instead the Court substituted a totality of the circumstances test, the one ordinarily used to determine probable cause in other instances. We have readily accepted the Gates decision in Thompson v. State ....

280 Ark. at 455.

Most courts agree there is no substantive distinction between the terms “reasonable cause” and “probable cause.” McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979); Johnson v. State, 21 Ark. App. 211, 730 S.W.2d 517 (1987). Indeed, Articles III and IV of the Arkansas Rules of Criminal Procedure, which pertain to arrest and search and seizure, use the term “reasonable cause” throughout in preference to “probable cause” because it was felt that the use of the term “probable cause” might imply that the existence of facts must be “more-probable-than-not.” See Commentary to Article IV following Ark. R. Crim. P. 10.1. Under Ark. R. Crim. P. 13.1(d)

If the judicial officer finds . . .

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Related

Stevens v. State
208 S.W.3d 224 (Court of Appeals of Arkansas, 2005)
Townsend v. State
6 S.W.3d 133 (Court of Appeals of Arkansas, 1999)
Hawk v. State
826 S.W.2d 824 (Court of Appeals of Arkansas, 1992)

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Bluebook (online)
761 S.W.2d 947, 26 Ark. App. 149, 1988 Ark. App. LEXIS 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brannon-v-state-arkctapp-1988.