Stevens v. State

208 S.W.3d 224, 91 Ark. App. 55

• Court: Court of Appeals of Arkansas
• Decided: May 11, 2005
• Docket: CA CR 04-986
• Status: Published

Opinions

John B. Robbins, Judge.

Appellant James Brian Stevens entered conditional guilty pleas to possession of methamphetamine with intent to deliver and possession of drug paraphernalia, and was sentenced to eighty-four months’ probation. Pursuant to Ark. R. Crim. P. 24.3(b), Mr. Stevens reserved his right to appeal from the judgment, and now challenges the trial court’s denial of his motion to suppress the incriminating evidence. He contends that the search of his home violated his Fourth Amendment right against unreasonable searches and seizures. We affirm.

Officer Scott Pillow was the only witness to testify at the suppression hearing. He testified that he executed a search warrant at a residence in Paragould at about 3:00 p.m. on January 23, 2003. During the search, he seized four grams of methamphetamine and arrested three men. At the police station, Officer Pillow obtained statements from two of the individuals after advising them of their Miranda Rights. According to Officer Pillow, one of the men stated that he was present at the home of Mr. Stevens on the previous evening when he observed another person purchase approximately one-eighth of an ounce of methamphetamine from Mr. Stevens. The other man advised Officer Pillow that he had been to Mr. Stevens’ residence on numerous occasions; that he had purchased two “eight-balls” of methamphetamine from Mr. Stevens in the past twenty-four hours; and that Mr. Stevens always had methamphetamine to sell. Officer Pillow indicated that these individuals were interviewed separately.

A photograph of Mr. Stevens’ residence was subsequently shown to the first man who gave a statement, and he identified it as the residence where he witnessed the drug transaction. The second man was transported to the residence, and he correctly identified it as Mr. Stevens’ home.

On cross-examination, Officer Pillow acknowledged that he had no past experience with the men he arrested and could not vouch for their reliability. Officer Pillow also indicated that while he was inquiring about where the men obtained the methamphetamine, he told them he would relay the information to the prosecutor. Officer Pillow testified that he had no information on Mr. Stevens prior to this time, that there had been no surveillance of his home, and that “there was nothing else to bolster these folks’ statements to me.”

At 6:25 p.m. on January 23, 2003, Officer Pillow presented an affidavit for search warrant to a magistrate, wherein he set forth the following facts:

The undersigned, being duly sworn, deposes and says he has reason to believe that on the premises known as the Brian Stevens residence located at 1823 East Kingshighway in Paragould, AR, State of Arkansas there is now being concealed certain property namely, methamphetamine, records concerning the manufacturing and distribution of controlled substances and items used to weigh, package, manufacture and consume controlled substances which are being possessed illegally as described in the Uniform Controlled Substances Act of the Arkansas State Statues.

The residence is described as an apartment complex directly behind 1821 East Kingshighway. The residence is believed to be 1823 East Kingshighway in Paragould, AR. The apartment to be searched is a bottom apartment, with a white door facing the west. No number is present. Two separate individuals have identified the apartment. (See attached photograph of the residence)

And the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:

FACT #1 — My name is Special Agent SCOTT PILLOW and I have been employed by the Arkansas State Police since November of1994 and I have been a certified Police Officer since 1991. I have been assigned to the Criminal Investigation Division of the Arkansas State Police since February 1999. I have also served on a United States Drug Enforcement Administration Task Force, serving as a deputized DEA agent since being assigned to the C.I.D. division of the Arkansas State Police. My primary duties are concerned with the detection and control of illegal drug operations in the State of Arkansas. In this capacity I have directed numerous investigations using undercover police officers, confidential informants and other investigative techniques. I have worked with local, state and federal agencies and from all this I have gained a good working knowledge of the illegal drug trafficking in Arkansas.

FACT #2 — On January 23, 2003,1 executed a search warrant at 808 East Unity Road. Seized during the search warrant was approximately 4 grams of methamphetamine. Also three individuals were arrested at this time.

FACT #3 — After the above individuals were arrested, one stated that he was present last night while approximately 1/8 ounce of methamphetamine was purchased from Brian Stevens at the above described residence. This individual gave me self-incriminating statements about his own involvement in the use and distribution of controlled substances that could result in his incarceration and these type statements tend to show truthfulness. The police have no reason to disbelieve the information.

FACT #4 — One of the other individuals arrested stated that he purchased methamphetamine from Stevens at the above described residence on numerous occasions and has purchased methamphetamine from Stevens twice within the past twenty four hours, having purchased two “eightballs” of methamphetamine from Stevens. The individual also stated that Stevens always has methamphetamine in his possession to sell. This individual gave me self-incriminating statements about his own involvement in the distribution and use of controlled substances and these type statements tend to show truthfulness. The police have no reason to disbelieve the information.

Based on the affidavit the magistrate issued a warrant to search Mr. Stevens’ home, and during the search the police found methamphetamine and other contraband.

After the suppression hearing, the trial court denied Mr. Stevens’ motion to suppress. In denying the motion, the trial court relied on the good-faith exception to the exclusionary rule as set out in United States v. Leon, 468 U.S. 897 (1984).

Mr. Stevens now argues that the trial court erred in applying the good-faith exception, and that the search of his home was illegal. He cites Ark. R. Crim. P. 13.1(b), which provides:

The application for a search warrant shall describe with particularity the persons or places to be searched and the person or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. 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. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.

Mr. Stevens submits that there was no reasonable cause to issue the search warrant because the reliability of the two informants was not established, and there was nothing else in the affidavit to establish a belief that contraband would be found in his home.

Mr. Stevens acknowledges that in United States v. Leon, supra, the Supreme Court held that an officer’s objective, good-faith reliance on a facially valid warrant will avoid application of the exclusionary rule in the event that the magistrate’s assessment of probable cause is found to be in error. This is because the exclusionary rule is designed to deter police misconduct rather than to punish errors of judges and magistrates. Sanders v. State, 76 Ark. App. 104, 61 S.W.3d 871 (2001). However, Mr. Stevens asserts that Officer Pillow was not acting in objective, good-faith reliance. He notes that it was the State’s burden to establish applicability of the good-faith exception, see Hoay v. State, 348 Ark. 80, 71 S.W.3d 573 (2002), and contends that the State failed to meet its burden.

The good-faith exception cannot cure certain errors, 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. United States v. Leon, 468 U.S. at 914-15. Mr. Stevens submits that all but the first of the above four errors were present in this case.

Mr. Stevens notes that Officer Pillow testified that “the judge took not more than fifty-nine seconds to review the affidavit and sign the search warrant,” and argues that this alone defeats application of the good-faith exception. Mr. Stevens contends that no reasonable police officer could believe that this is the type of neutral, informed, deliberate, and detached scrutiny required for the issuance of a warrant to search a person’s home under the Constitution.

Mr. Stevens further maintains that, under the circumstances of this case, the affidavit was entirely lacking and the warrant was so facially deficient that a reasonable officer could not presume it to be valid. In addition to the fact that the veracity of the informants was not established, Mr. Stevens asserts that there was nothing to corroborate or bolster their statements. He notes that there was no attempt to survey the house, such as looking for a high amount of traffic or attempting to execute a controlled buy. Mr. Stevens argues that the uncorroborated statements of the two arrested drug suspects cannot, alone, support application of the good-faith exception.

Mr. Stevens further argues that, even if the statements of the two arrestees had been trustworthy, the statements were nonetheless insufficient to justify the search. He cites Yancy v. State, 345 Ark. 103, 44 S.W.3d 315 (2001), where the supreme court stated that, standing alone, circumstantial evidence that a suspect may be a drug dealer is not circumstantial evidence that anything is in his home. While both arrestees indicated that Mr. Stevens had sold methamphetamine in the past day. Mr. Stevens argues that this was insufficient to support the assertion in the affidavit that methamphetamine was being concealed in his home.

Mr. Stevens directs us to the ruling of the trial court, where after applying the good-faith exception the trial court stated, “It should go without saying that from this date forward Investigator Pillow is on notice that the court will not consider one informant’s testimony as corroboration of another and that conclusory statements will not be considered.” Mr. Stevens urges that this comment reflects that the deterrent effect of the Fourth Amendment will be applied to future instances of similar misconduct, but was not applied in the case at bar in violation of his constitutional rights.

We review a trial court’s ruling on a motion to suppress by making an independent determination 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 trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). Under the totality of the circumstances in the instant case, we hold that the trial court committed no error in denying Mr. Stevens’ motion to suppress.

Contrary to Mr. Stevens’ argument, there were sufficient facts to establish the veracity of the second informant. Factors to be considered in making such a determination include whether the informant’s statements are (1) incriminating; (2) based on personal observations of recent criminal activity; and (3) corroborated by other information. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996).

The second informant’s statements were clearly incriminating as he admitted to purchasing methamphetamine from Mr. Stevens on numerous occasions, and twice within the past twenty-four hours. Moreover, the statements were based on personal observations of recent criminal activity, and there was some corroboration because the first informant gave a similar account of a recent methamphetamine buy at Mr. Stevens’ home.

It has long been held that the self-incriminating nature of a statement is alone sufficient to establish its reliability. See Schneider v. State, 269 Ark. 245, 599 S.W.2d 730 (1980); Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977); Maxwell v. State, 259 Ark. 86, 53 S.W.2d 468 (1976) (“We unhesitatingly find that the mere fact that Harris’s statement was self-incriminating was an adequate basis for according reliability and credibility to the informant^] ”); McCormick v. State, 74 Ark. App. 349, 48 S.W.3d 549 (2001) (holding that the self-incriminating nature of the informant’s statement was alone sufficient to establish its accuracy, where the informant’s admissions could have led to his prosecution for possession of methamphetamine). Thus, in the case at bar the veracity of the second informant was established by the incriminating nature of his statements alone, and the affidavit containing his statements provided reasonable cause to believe that methamphetamine would be found in Mr. Stevens’ residence. Based on our holding that the search warrant was supported by reasonable cause, it is unnecessary to determine whether there was any good-faith reliance on the part of Officer Pillow, as found by the trial court.

As to Mr. Stevens’ argument that the search was illegal because the magistrate was not detached and neutral, we need not address this argument because it was not raised below. See Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003).

Finally, we find no merit to Mr. Stevens’ argument that there was insufficient information that methamphetamine would be found in his home because the informants who made the purchases did not have knowledge that methamphetamine was there. The reliable, second informant not only purchased methamphetamine from Mr. Stevens, but the purchases were very recent and in Mr. Stevens’ home, and he also indicated that Mr. Stevens always had methamphetamine for sale. This was ample information to give reasonable suspicion that methamphetamine would be found at the residence.

Despite the trial court’s language admonishing Officer Pillow, we do not agree that the deterrent purposes of the Fourth Amendment were compromised in this case. This was because the affidavit presented by Officer Pillow gave reasonable cause to issue the search warrant, and there was no police misconduct to deter.

Affirmed.

Hart, J., agrees. Griffen, J., concurs.