Yancey v. State

30 S.W.3d 117, 71 Ark. App. 280, 2000 Ark. App. LEXIS 670

• Court: Court of Appeals of Arkansas
• Decided: October 25, 2000
• Docket: CA CR 99-1360
• Status: Published

Opinions

Margaret Meads, Judge.

Appellants, Curtis Yancey and Lee Cloud, each appeal from their conditional pleas of guilty to one count of possession of a controlled substance (marijuana) with intent to deliver, a Class C felony, for which each received four months in a regional punishment facility followed by four years’ probation and a $2,000 fine. By agreement of the parties, these cases were consolidated for trial purposes. On appeal, appellants argue that the trial judge erred in refusing to grant their motions to suppress evidence found at their residences. We affirm. When reviewing a trial court’s denial of a motion to suppress, the appellate courts make an independent determination based upon the totality of the circumstances and reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Embry v. State, 70 Ark. App. 122, 15 S.W.3d 368 (2000).

At the suppression hearing, Arkansas Game and Fish Officer David Evans testified that on June 17, 1998, at approximately 9:30 p.m., he observed a Jeep going down a road into the woods in Monroe County. He followed the vehicle, and using night-vision equipment, he observed two persons he identified as appellants get out of the vehicle and begin to water some marijuana plants. He followed appellants back out to the highway and stopped the vehicle in front of Cloud’s residence in Arkansas County. When he asked them what they were doing, appellants told Evans that they had been frogging, but they had not caught any frogs. Evans asked to look in the vehicle, and appellants consented. As he shone his flashlight into the Jeep, he saw gallon jugs and five-gallon cans, but he saw no frog-gigging equipment. Additionally, Evans noticed that appellant Cloud was wearing hip boots, but instead of being wet from frogging, the boots had dry dust on them. Finding nothing further, Officer Evans left.

The next day, Evans called the Monroe County Sheriff’s department to report what he had found. When he did not hear back from them, he contacted Wendall Jines, a CID investigator with the Arkansas State Police, and took him to the marijuana patch on June 19. Jines and another deputy maintained surveillance of the patch, and when no one appeared, they harvested three of the plants. They removed the remaining fifteen plants on June 22.

On June 22, 1998, Officer Evans appeared before Municipal Judge Norman Smith seeking a search warrant of each appellant’s residence. In his affidavit, Evans stated:

At approximately 9:30 p.m. on Wednesday, June 17, 1998,1, David Evans, a wildlife officer with the Arkansas County [he] Game and Fish Commission, observed a vehicle, specifically a newer model red Jeep with a white hard top, going into a remote wooded area near the “Lookout” community in Monroe County, just over the Arkansas County fine. I followed the Jeep with my lights off while using night vision equipment. I parked my vehicle at the end of the road and continued to follow the vehicle on foot. I observed two individuals, whom I recognized as Curtis Yancey and Lee Cloud, exit the Jeep carrying jugs. They appeared to be watering marijuana plants. I then returned to my vehicle undetected.

After a short time, the vehicle exited the woods. I waited until the Jeep passed my location and I followed it back to the highway with my fights off. After turning onto the highway, I turned my fights on and followed the vehicle until it stopped at Lee Cloud’s residence at the comer of Highway 33 and River Road.

I stopped and talked tol'both individuals. Mr. Yancey was wearing briar pants and Mr. Cloud was wearing hip boots. The individuals stated that they had been out frogging. I asked to see the frogs and they replied that they had not gotten any frogs but I was welcome to look in the vehicle. I shined the flashlight through the window and observed several plastic jugs which appeared to be empty. I also observed some plastic jugs that appeared to be partially filled with liquid. A metal five gallon can of the type used to carry liquids or chemicals was also inside the vehicle.

On Friday afternoon, June 19, 1998, at approximately 2:00 p.m., I, along with Chief Deputy Frank Borman and State Police Investigator Wendall Jines, returned to the area where Mr. Yancey and Mr. Cloud were observed watering the plants. A total of eighteen marijuana plants were found growing in the wooded area.

On Friday night, June 19, between the hours of 7:00 p.m. and 11:00 p.m., Chief Deputy Frank Borman and State Police Investigator Wendall Jines returned to the area where Mr. Yancey and Mr. Cloud were observed watering the plants. Three of the marijuana plants were harvested for evidence. The plants are now in the custody of the Arkansas State Police while awaiting transport to the Arkansas Crime Lab.

On Monday, June 22, at approximately 10:00 a.m., Borman, Jines, and Evans returned to the location and harvested fifteen additional plants. Two of these plants were growing in plastic buckets and five were growing in a blue ice chest.

Lee Cloud has, over the past several years, been convicted for possession of controlled substances on a number of occasions. Information and intelligence developed by different law enforcement agencies working within Arkansas County indicates that both Lee Cloud and Curtis Yancey have been involved, and continue to be involved, in the propagation, preparation, consumption and delivery of controlled substances, specifically marijuana.

Authority is now sought to search the residences of Curtis Yancey and Lee Cloud, as well as all outbuildings and the curtilage surrounding the residence, and all vehicles, boats and trailers found thereon, for the presence of controlled substances, paraphernalia used in the preparation, ingestion, storage, delivery, consumption or manufacture of controlled substances, records of controlled substance purchases and deliveries, proceeds of controlled substance sales and other items connected with those persons who use or deliver controlled substances.

The affidavit was signed by Evans and attested. Based upon this information, Judge Smith issued search warrants for each appellant’s house and all outbuildings, boats, trailers, and vehicles. Marijuana was found at the residence of each appellant.

Appellants contend on appeal that the search warrants were fatally defective because they failed to forge a sufficient nexus between the marijuana seized and the search of the homes. Specifically, appellants contend that: (1) the affidavit failed to state any underlying circumstances for the conclusion that appellants were involved in drugs and failed to link the drugs to their homes; (2) the affidavit given in support of the search warrant was misleading in violation of Franks v. Delaware, 438 U.S. 154 (1978); and (3) the affidavit omitted any reference of time to any drug activity.

Appellants first argue that there was no sufficient nexus between the plants seized from the marijuana patch and the search of their residences. They contend that it was illogical to conclude that marijuana would be found at their residences, because Evans did not find any contraband when he searched the Jeep and no one saw them harvest any of the marijuana plants. In support of this argument, appellants cite Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977), for the following proposition:

We have long since recognized that an affidavit which states a mere conclusion of an unidentified informant is not sufficient basis for a magistrate’s finding probable cause for the issuance of a search warrant, under federal constitutional standards, and that it is necessary that some of the underlying circumstances from which the informant arrived at his conclusion be included.

262 Ark. at 3, 552 S.W.2d at 647. However, Evans’s affidavit did not state a “mere conclusion”; rather, it included a recitation of what Evans personally observed, as well as information gathered by law enforcement agencies. Thus, Lunsford does not apply.

The task of the magistrate who issues the warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238 (1983). Our duty as a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Id. This approach was adopted by our supreme court in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), and followed by this court in Wolf v. State, 10 Ark. App. 379, 664 S.W.2d 882 (1984).

We are persuaded by the reasoning set forth in cases from the Ninth Circuit cited by the State. In U.S. v. Pitts, 6 F.3d 1366 (9th Cir. 1993), the court of appeals held that “a ‘reasonable nexus’ does not require direct evidence that the items listed as the objects of the search are on the premises to be searched. The magistrate must only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.” 6 F.3d at 1369. A magistrate may “draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense,” United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986), and the magistrate may also rely on the conclusions of experienced law-enforcement officers regarding where evidence of a crime is likely to be found. U.S. v. Terry, 911 F.2d 272 (9th Cir. 1990). In the case of drug dealers, “evidence is likely to be found where the dealers live.” Id. at 275; United States v. Angulo-Lopez, supra.

Other circuits have followed the Ninth Circuit’s reasoning. In United States v. Feliz, 182 F.3d 82 (1st Cir. 1999), cert. denied, 120 S. Ct. 942, 145 L.Ed. 2d 819 (2000), the First Circuit held that there was a sufficient showing of probable cause to issue a search warrant for the appellant’s residence based upon drug sales made away from the residence. In so holding, the court stated:

The nexus between the objects to be seized and the premises searched need not, and often will not, rest on direct observation, but rather “can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [evidence of a crime] . . . .”

182 F.3d at 88, citing United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979).

Likewise, the Seventh Circuit has held that warrants may be issued even in the absence of direct evidence linking criminal objects to a particular site. See U.S. v. Lamon, 930 F.2d 1183 (7th Cir. 1991); U.S. v. Malin, 908 F.2d 163 (7th Cir. 1990),abrogation on other grounds recognized in United States v. Monroe, 73 F.3d 129 (7th Cir. 1995). In Lamon, the court of appeals upheld a search warrant for appellant’s principal residence for drugs and drug-related items, even though there was no evidence that appellant had ever sold drugs out of that location. In Malin, the search warrant for appellant’s house was upheld based upon the fact that marijuana was seen growing in appellant’s yard. In finding probable cause to search the house, the Malin court held that probable cause deals in probabilities that are the “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id. at 165-66 (quoting Brinegar v. United States, 338 U.S. 160 (1949), reh’g denied, 338 U.S. 839 (1949)).

In the present case, the magistrate considered the affidavit’s recitation of the events of June 17-22 and the statement that the investigation by law-enforcement agencies indicated that both appellants had been and continued to be involved in the propagation, preparation, consumption, and delivery of marijuana. Applying a practical, common-sense assessment, we believe the judge who issued the search warrant had a substantial basis to conclude that probable cause existed and that marijuana would likely be found where appellants lived.

Moreover, even if the finding of probable cause for the issuance of the search warrant had been clearly erroneous, we would still uphold the search under the good-faith exception found in United States v. Leon, 468 U.S. 897 (1984). In Leon, the United States Supreme Court held that the Fourth Amendment exclusionary rule should not bar the use of evidence obtained by officers acting in reasonable reliance upon a search warrant issued by a detached and neutral magistrate that is later determined to be invalid. The Court stated:

It is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient. Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.

468 U.S. at 921.

Here, Judge Smith determined that there was probable cause based upon Evans’s affidavit and his questioning of Evans. The officers acted in reasonable reliance upon the warrants issued.

Though the dissent clearly does not believe that appellants’ present and past cultivation of marijuana plants justifies a search of their homes, we think the magistrate could properly rely on the personal knowledge and observations of Officer Evans, the information and intelligence developed by area law enforcement, and basic common sense to reasonably conclude that appellants would likely have marijuana at their residences. Although there was no direct evidence that marijuana was in fact located at appellants’ residences, we do not believe a reasonable nexus requires direct evidence under these facts.

Appellants next contend that Evans’ affidavit was misleading in ■violation of Franks v. Delaware, supra, because Evans failed to state that he did not find marijuana in the Jeep on the night of June 17. In Franks, the United States Supreme Court held:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at the hearing the allegation of pegury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

438 U.S. at 155-56.

Appellants do not argue that Evans included a false statement, but rather that he failed to include the fact that he found no marijuana in the Jeep when he searched it. For an omission from an affidavit to justify the invalidation of a search warrant, the party challenging the validity of the search warrant must show that the affiant knowingly and intentionally, or with reckless disregard, omitted facts, and that if supplemented with the omitted information, the warrant would be insufficient to establish probable cause. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999). It is obvious upon reading the affidavit that no marijuana was found in the Jeep because Evans stated that he found only empty plastic jugs, some partially filled plastic jugs, and a five-gallon metal can. Moreover, had Evans found marijuana in the vehicle, that fact would surely have been included in the affidavit, as it would have made an even stronger case for issuing the warrants.

Appellants also argue that the officer placed false information in the affidavit when he stated that information developed by law-enforcement agencies indicated that appellants had been and continued to be involved in the “propagation, preparation, consumption and delivery of controlled substances, specifically marijuana.” We agree with the State that appellants did not preserve this argument for review, as required by Partin v. State, 22 Ark. App. 171, 737 S.W.2d 461 (1987). Appellants did not meet the Partin requirements. It is axiomatic that we do not address arguments raised for the first time on appeal.

Finally, appellants argue that the affidavit omits any reference of time to any drug activity in their homes. In support of this contention, they cite Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985), and Ulrich v. State, 19 Ark. App. 62, 716 S.W.2d 777 (1986). In both of those cases, the appellate courts reversed based upon the failure of the search warrants to mention time or establish a time. While some mention of time must be included in the affidavit for a search warrant, it can also be inferred from the information in the affidavit. Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983).

Appellants are mistaken that the search warrant does not indicate a time frame. The marijuana was first observed on June 17, 1998, and the warrant was applied for on June 22. The affidavit includes the dates when Officer Evans first saw the marijuana and when he and the other officers removed the marijuana plants.

Appellants also argue that the addresses in the search warrant were not correct. However, an incorrect address is not a fatal defect. Pike v. State, 30 Ark. App. 107, 783 S.W.2d 70 (1992). Here, the search warrants identified with particularity the places to be searched. There is no argument that officers searched the wrong residences when executing the search warrants; therefore, if the addresses were incorrect, it is de minimis.

We cannot say that the trial judge’s denial of appellants’ motions to suppress the evidence found as a result of the execution of the search warrants was clearly erroneous. Therefore, we affirm.

Affirmed.

Pittman, Jennings, and Crabtree, JJ., agree. Hart and Roaf, JJ., dissent.