State v. Tyson

2012 Ark. 107, 388 S.W.3d 1, 2012 WL 745300, 2012 Ark. LEXIS 124

• Court: Supreme Court of Arkansas
• Decided: March 8, 2012
• Docket: No. CR 11-713
• Status: Published

Opinions

PAUL E. DANIELSON, Justice.

|,Appellant State of Arkansas appeals from the circuit court’s order granting a motion to suppress evidence in favor of appellee Mark Tyson. The State argues on appeal that the circuit court erred in granting Tyson’s motion to suppress evidence discovered during the execution of a nighttime search warrant. We agree that the circuit court erred, and we reverse and remand.

On the evening of September 4, 2010, after receiving complaints of narcotic activity, patrol officers began to watch the area around trailer number 23 in the Lamplighter Trailer Park located at 1201 South Highway 161 in Jacksonville. At approximately 8:30 p.m., an officer observed a male carry three black trash bags from that trailer to a nearby dumpster. The officer retrieved those three trash bags to investigate the names of the adults living in the trailer. The manager of the trailer park had informed the officer that there were three small | ^children living there and two adults, but the manager did not know the adults’ names. Upon opening the bags, the officer found items relating to narcotics, specifically methamphetamine. The officer then contacted narcotics officers, Detective Cindy Harbor and her supervisor, Sergeant Amanda Temple, to further investigate.

Detective Harbor and Sergeant Temple found several items in the trash bags used to manufacture methamphetamine, such as organic iodine packages, a bottle of Heet, rubber gloves, red stained paper towels from a pill soak, two boxes of pseu-doephedrine, a milk jug that was used for the pill soak, several empty blister packs, and coffee filters. The coffee filters they found were wet, and the HC Generator and other “actual lab components” were not in the trash; therefore, the officers believed that the occupants of the trailer were still in the active process of manufacturing methamphetamine. Additionally, the officers found what Detective Harbor described as “fresh” baby diapers in the trash and observed toys around the trailer.

Detective Harbor immediately typed up a search warrant and included a nighttime clause because it would be after 8:00 p.m. when the search was executed. The affidavit supporting the search warrant contained the following “Justification for the Nighttime Clause:”

THE CONTENTS OF THE TRASH-BAGS REVEALED SEVERAL BABY DIAPERS. OFFICER TEMPLE WAS ADVISED BY THE TRAILER PARK MANAGER THAT THERE ARE THREE SMALL CHILDREN BETWEEN THE AGES OF 3 AND 8 YEARS OF AGE LIVING IN TRAILER NUMBER 23. THE MANAGER WAS UNCERTAIN OF THE NAMES OF THE ADULTS WITHOUT GOING TO THE OFFICE TO PULL THE LEASE. AGREEMENTS. IT IS BELIEVED BECAUSE OF THE LACK OF THE ACTUAL LAB ^COMPONENTS IN THE TRASH THAT THEY MAY BE IN THE ACTUAL PROCESS OF COOKING THE METHAMPHETAMINE AT THIS TIME.

A judge signed the warrant, including the nighttime clause, at 9:42 p.m. on September 4, 2010. Detective Harbor immediately executed the warrant after getting it signed.

Tyson was present when officers entered the trailer. Officers discovered methamphetamine being manufactured in the bathroom, while three small children were asleep inside the trailer.

Tyson moved to suppress any evidence found in the trailer, arguing that the issuing judge lacked probable cause to issue the warrant and that the nighttime search clause in the warrant did not meet the requirements of Ark. R.Crim. P. 13.2(c). After a suppression hearing, the circuit court found that there was probable cause to issue the search warrant. However, the circuit court granted Tyson’s motion to suppress, finding that none of the nighttime-search conditions in Rule 13.2(c) applied to the search in the instant case. The State timely filed this appeal.

Prior to examining the merits of any state appeal, we must first determine whether it is a proper state appeal. Arkansas Rule of Appellate Procedure-Criminal 3(a)(1) provides that “[a]n interlocutory appeal on behalf of the state may be taken only from a pretrial order in a felony prosecution which (1) grants a motion under Ark. R.Crim. P. 16.2 to suppress seized evidence [.] ” Ark. R.App. P. — Crim. 3(a)(1) (2011). The rule further states:

(d) The Supreme Court will not consider an appeal filed under either subsection (a)(1) or (2) or subsection (b) of this rule unless the correct and uniform administration of the criminal law requires review by the court.

|4Ark. R.App. P.-Crim. 3(d).

As this court has frequently observed, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. See State v. Jones, 369 Ark. 195, 252 S.W.3d 119 (2007) (citing State v. Nichols, 364 Ark. 1, 216 S.W.3d 114 (2005)). The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Ark. R.App. P.-Crim 3. See id. We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. See id.

As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. See State v. Thompson, 2010 Ark. 294, 377 S.W.3d 207. We do not permit state appeals merely to demonstrate the fact that the circuit court erred. See id. Thus, where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. See id. Similarly, where the resolution of the issue on appeal turns on the facts unique to the case or involves a mixed question of law and fact, the appeal is not one requiring interpretation of our criminal rules with widespread ramifications, and the matter is not appealable by the State. See id. Finally, where an appeal raises an issue of the application, not interpretation, of a criminal rule or statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State under Rule 3. See id.

The issue presented in the instant case is whether the circuit court erroneously I.r,concluded that the third circumstance that allows the issuance of a nighttime search warrant only applies to officer safety and, therefore, that none of the nighttime search conditions of Rule 13.2(c) of the Arkansas Rules of Criminal Procedure applied. We conclude that this appeal does present an issue involving the interpretation of our criminal rules and is one that will have widespread ramifications in that it will provide guidance to our law enforcement officers and our courts as to the law in our state when faced with similar circumstances in the future. Therefore, we accept this case as a proper state appeal and now turn to the merits.

The State alleges that the circuit court erred by finding that none of the nighttime-search conditions applied because the facts provided in the affidavit and the search warrant supported a nighttime search pursuant to Rule 13.2(c)(iii). The State contends that while case law until now has only discussed how Rule 13.2(c)(iii) applies to officer safety, neither the rule itself or case law has limited it to officer safety. The State further argues that the interest in protecting small children inside a residence containing an active methamphetamine laboratory is undoubtedly comparable to the interest in protecting the safety of law-enforcement officers approaching such a residence. Tyson avers that there is no authority to apply the rule to the safety of children. We agree that Rule 13.2(c)(iii) provides a limited exception that does not apply to the facts in the instant case; however, we hold that the officers acted in good faith when they executed the warrant.

On review of a suppression challenge, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due | ¿weight to inferences drawn by the circuit court. See Thompson, supra.

Rule 13.1(b) of the Arkansas Rules of Criminal Procedure provides the requirements for a valid application for a search warrant and the totality-of-the-circumstances approach to be taken in determining whether reasonable cause exists for the search. Nighttime searches, however, are treated differently under our criminal rules and require that the judicial officer find reasonable cause that at least one of three listed exigent circumstances exists:

Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:

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

(ii) the objects to be seized are in danger of imminent removal; or

(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy; the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.

Ark. R.Crim. P. 13.2(c) (2011).

Tyson is correct in his assertion that, thus far, the case law that does focus on the safety factor in Rule 13.2(c) has overwhelmingly been in the context of officer safety. For example, in Tate, supra, the affidavit contained a statement to the effect that surveillance cameras were mounted on the outside of the house in which the officers believed methamphetamine was being produced and would reveal the officers to the occupants, thereby creating a risk to their safety. As a result, this court held that the affidavit in support of the nighttime search warrant was sufficient because it illustrated that there would have been a greater danger to the officers’ safety if the occupants were aware of their approach. Tate v. State, 357 Ark. 369, 380, 167 S.W.3d 655, 17662 (2004).

Additionally, in Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996), this court held that there was a sufficient factual basis for a nighttime search when one of the factors presented by the affiant dealt with the safety of the officers. There, the conditions surrounding the area to be searched would have required the officers to approach the residence in their vehicles at a reduced or slow rate of speed, exit their vehicles approximately 250 yards from the residence, and approach the residence on foot, thereby dangerously exposing them to detection. See id. This court specifically took the opportunity to note that while more than one factor was presented in Owens, the use of the word “or” in the rule makes it clear that the existence of any one of the factors may justify a nighttime search.

In Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998) there was information in the affidavit presented to the court for a search warrant that a police informant had seen drugs and weapons in the residence to be searched, the suspect had threatened one of the informants with a weapon within the last week, and that the location of the residence made speedy access impossible. This court held that the information, part of which obviously fit subsection (c)(i) of the rule and part of which seemed to deal with safety in some sense, constituted a sufficient factual basis for a nighttime search. See id. While it was not clearly expressed, the safety of the informant was impliedly one of the factors presented to and considered by the judiciary who issued the warrant.

Rule 13.2(c) (iii) of the Arkansas Rules of Criminal Procedure does not expressly limit the safety concern to the safety of police officers. It is well settled that we construe court rules fusing the same means and canons of construction used to interpret statutes. See Jackson v. Sparks Reg’l Med. Ctr., 375 Ark. 533, 294 S.W.3d 1 (2009). The basic rule to which all other interpretive guides defer is to give effect to the intent of the drafting body. See Jonesboro Healthcare Ctr., LLC v. Eatan-Moery Envtl. Servs., Inc., 2011 Ark. 501, 385 S.W.3d 797. When the language is plain and unambiguous, we determine the intent of the drafting body from the ordinary meaning of the language used. See City of Little Rock v. Rhee, 375 Ark. 491, 292 S.W.3d 292 (2009). Subsection (e)(iii) simply allows for a judicial officer to issue a nighttime search warrant when there is reasonable cause to believe that “the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy.” Nothing in that language suggests that the only safety concern in executing the warrant is the officers’ safety.

The problem with the affidavit in the instant case is that there were not facts to support a finding that the children, or anyone else, would only be safe during the execution of the warrant if the execution took place in the cover of darkness that nighttime affords. Rather, it appears that the officers included facts to support a finding that, in order to keep the children on the premises safe, who might have been at risk of serious bodily injury, they had probable cause to go in immediately, which happened to be nighttime. These scenarios are factually different and, currently, Rule 13.2 does not include an exception that applies to the second scenario. Therefore, the issuing judicial officer was mistaken by finding reasonable cause pursuant to Rule 13.2 and erred by issuing the nighttime search warrant.

The final issue is whether the executing officers operated in good faith under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and if so, whether that salvages an otherwise defective search and seizure. We have previously held that we would apply the Leon good-faith exception to our criminal rules under appropriate circumstances. See Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990).

In Leon, the Court cited four instances in which suppression of evidence is an appropriate remedy, or, stated differently, where the objective good faith of the officers would not save the warrant:

1. Where the officers misled the issuing judge with information they knew was false or would have known was false, except for reckless disregard of the truth.

2. Where the issuing judge abandons the judicial role of neutrality and detachment and becomes an adjunct law enforcement officer.

3. Where the officers’ affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.

4. Where the search warrant is facially deficient in failing to identify the place to be searched or things to be seized.

468 U.S. at 923, 104 S.Ct. 3405. This court has taken note that the Leon Court was emphatic in its decision that suppression of evidence is designed to deter police misconduct rather than to punish the issuing judges for their errors. See Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991).

In the instant case, the judicial officer was not presented with mere con-elusory statements when the search warrant was sought. The facts presented were these: baby diapers were found in the trash bags taken from the trailer to the dumpster; the trailer park manager had informed officers that three small children between the ages of three and eight were living in the trailer; and, no lab components were found in the trash, which led officers to believe 110that the occupants of the trailer might have been in the actual process of cooking the methamphetamine.

Although we may not look to facts outside of an affidavit to determine probable cause, when assessing good faith, we can and must look to the totality of the circumstances, including what the affiant knew, but did not include in his affidavit. See Moya v. State, 335 Ark. 193, 201, 981 S.W.2d 521, 525 (1998) (citing Sims v. State, 333 Ark. 405, 969 S.W.2d 657 (1998)). In the instant case, the officer testified at the suppression hearing that the diapers that had been found in the trash bags were “fresh” and that the filters that had been found were wet, indicating they had just been used. At the time these discoveries were made, it was the evening hour, which common sense would suggest made it even more likely that children were home.

The facts presented in the affidavit here did not simply mirror the boilerplate language that sets out the requirements of Rule 13.2. However, after reviewing and analyzing the language in Rule 13.2, specifically the language in 13.2(c)(iii) dealing with safety, this court concludes that Rule 13.2 does not contain an exception for a nighttime search warrant that applies to the facts that were presented in the affidavit in the instant case. Regardless, the executing officers no doubt believed they were complying with the law as the facts in the affidavit and search warrant provided reasonable cause that children were in immediate danger.

The issuing judge found that the facts presented to it provided a basis for reasonable cause for a nighttime search warrant pursuant to Rule 13.2 even though this court now holds In they do not. Additionally, as evidenced by this split opinion, this court cannot unanimously agree in the exact interpretation of the language in Rule 13.2(e)(iii). Therefore, we cannot hold that an officer should have known that the threat of immediate harm to the children inside a trailer with an active methamphetamine lab was not the type of reasonable cause covered by Rule 13.2(e)(iii) to execute the search warrant in hand that had been considered and signed by a judge. Accordingly, we hold that the Leon good-faith exception applies under these circumstances and that the circuit court erred in suppressing the evidence from the nighttime search and seizure.

Reversed and remanded.

HANNAH, C.J., BROWN, and BAKER, JJ., dissent.