Fuentes v. State

2013 Ark. App. 736

• Court: Court of Appeals of Arkansas
• Decided: December 11, 2013
• Docket: CR-13-351
• Status: Published

Opinion

Cite as 2013 Ark. App. 736

ARKANSAS COURT OF APPEALS DIVISION I No. CR-13-351

RICARDO FUENTES Opinion Delivered December 11, 2013

APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. FIRST DIVISION [NO. 60CR-11-3887]

STATE OF ARKANSAS HONORABLE LEON JOHNSON, JUDGE

APPELLEE AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Ricardo Fuentes appeals from his Pulaski County Circuit Court convictions

of simultaneous possession of drugs and firearms, trafficking controlled substances, possession

of methamphetamine with purpose to deliver, possession of drug paraphernalia, maintaining

a drug premise, and possession of firearms by certain persons for which he was sentenced to

a total of thirty years in the Arkansas Department of Correction. He argues that the trial

court erred in denying his motion to suppress evidence that was seized pursuant to a search

warrant executed on his residence. We disagree and affirm.

Detective Ryan Hudson of the Little Rock Police Department, Street Narcotics

Detail, maintained an investigative file on an individual named David Armando from whom

controlled substances had been purchased. Whenever Hudson wished to purchase narcotics

from Armando, he contacted a translator for communication facilitation because Armando Cite as 2013 Ark. App. 736

did not speak or understand English. Armando, through the translator, informed Hudson

that he obtained his drugs from “El Gordo” at 5502 West 51st Street.

On September 12, 2011, Hudson, through the translator, contacted Armando about

purchasing methamphetamine. Surveillance was set up on the West 51st Street residence just

prior to the September 12, 2011 buy. Armando was observed leaving the residence in a red

1997 Dodge truck registered to Ricardo Alba Fuentes at that address. Armando then picked

up the translator and proceeded to the predetermined buy location. Hudson purchased four

ounces of methamphetamine from Armando for $6,000.

Detective Hudson thereafter applied for and was granted a search warrant for the West

51st Street address. Drugs, guns, and money were discovered and seized during the execution

of the warrant. As a result, Ricardo Fuentes was subsequently charged with the crimes for

which he was convicted.

Prior to trial, Fuentes filed a motion to suppress the evidence seized pursuant to the

search warrant on the basis that the officer’s search of the unattached shop exceeded the

scope of the warrant. At the hearing on the motion to suppress, however, counsel argued

that the affidavit for the search warrant failed to address the reliability of the unnamed

translator, failed to sufficiently identify the time frame in which the prior drug purchases

occurred, and failed to inform the court that drugs had not been seen at that location. The

trial court denied the motion.

In reviewing the denial of a motion to suppress evidence, we conduct a de novo

review based on the totality of the circumstances, reviewing findings of historical facts for

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clear error, and determining whether those facts give rise to reasonable suspicion. Blount v.

State, 2010 Ark. App. 219. Arkansas Rule of Criminal Procedure 13.1 requires probable or

reasonable cause to believe that things subject to seizure will be found in a particular place,

and this must be established by affidavit or recorded testimony. Yancey v. State, 345 Ark. 103,

44 S.W.3d 315 (2001). There is no substantive difference between “reasonable cause” and

“probable cause.” Id.

Probable cause requires a nexus between criminal activity and the item to be seized.

It also requires a nexus between the item to be seized and the place to be searched. Id.

Whether the reasonable-or-probable-cause requirement is met turns on the adequacy of the

affidavit or recorded testimony. Id. The reviewing magistrate must determine whether,

given all the circumstances set forth in the affidavit, including the veracity and basis of

knowledge of persons supplying hearsay information, there is a fair probability that

contraband or evidence of a crime will be found in a particular place. Id. The task of the

issuing magistrate is to make a practical, common-sense decision. The existence of a fact may

be proved by circumstantial as well as by direct evidence. However, the circumstantial

evidence must be sufficient to lead to the inference. Id. When circumstantial evidence is

relied on to establish a fact, the circumstances proven must lead to the conclusion with

reasonable certainty and must be of such probative force as to create the basis for a legal

inference and not mere suspicion. Id. In assessing the existence of probable cause, our

review is liberal rather than strict. Hinojosa v. State, 2009 Ark. 351, 319 S.W.3d 258.

Sufficient evidence was presented to support a finding of probable cause for issuance

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of a warrant in this case. Armando, an individual identified in the warrant by name, advised

Hudson (albeit through a translator) that he obtained his drugs from a man at the residence

identified in the affidavit. Thus, the information contained in the warrant was not provided

by an unnamed confidential informant as alleged by Fuentes, but was based on statements

made by a named individual—David Armando. Based on this information, officers set up

surveillance at the residence. Officers observed Armando leaving the residence just prior to

the drug transaction in which Hudson purchased four ounces of methamphetamine. This

surveillance corroborated Armando’s previous statements regarding where he obtained the

drugs he sells. As such, the facts contained in the affidavit in support of the search warrant

established a nexus between the items to be seized and the place to be searched; probable

cause was established.

Fuentes also argues that the affidavit was insufficient because it did not reference the

time in which the previous drug buys had occurred. This too is incorrect. The warrant was

based primarily on the officers’ surveillance of the residence at the time of the September 12,

2011 drug buy. This surveillance, coupled with Armando’s statement to the officer that he

obtained his merchandise at the residence, supported probable cause. The recent date of the

surveillance satisfies the time element, which serves to prevent execution of a warrant based

on stale information.

Even if the affidavit were deemed defective, the good-faith exception to the

exclusionary rule would apply in this case. In United States v. Leon, 468 U.S. 897 (1984), the

United States Supreme Court fashioned a good-faith exception to the requirement of a valid

4 Cite as 2013 Ark. App. 736

warrant so that suppression of evidence would not be appropriate when a law enforcement

officer acted in good-faith reliance on a facially valid warrant. The test for determining when

the “good faith” exception applies is whether it was objectively reasonable for a well-trained

police officer to conclude that the search was supported by probable cause. The good-faith

exception does not apply in four circumstances, namely: (1) when the magistrate is misled

by information the affiant knew was false; (2) if the magistrate wholly abandons his detached

and neutral judicial role; (3) when the affidavit is so lacking in indicia of probable cause as

to render official belief in its existence entirely unreasonable; and (4) when a warrant is so

facially deficient that the executing officers cannot reasonably presume it to be valid. Id.

None of these exceptions apply.

Fuentes never argued that any of the information in the warrant was false. The seller

of the methamphetamine was identified in the warrant. The warrant stated that the seller

informed the undercover officer through an interpreter where he obtained his

methamphetamine. A subsequently conducted surveillance of the residence corroborated his

statements. As such, it was objectively reasonable for a well-trained police officer to

conclude that the search was supported by probable cause.

Affirmed.

VAUGHT and BROWN, JJ., agree.

James Law Firm, by: William O. “Bill” James, Jr., for appellant.

Dustin McDaniel, Att’y Gen., by: Rachel H. Kemp, Ass’t Att’y Gen., for appellee.