Campbell v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: CORBIN; COOPER; ROGERS; ROGERS
• Citation: Campbell v. State, 766 S.W.2d 940, 27 Ark.App. 82 (Ark. App. 1989)
• Decision Date: 22 March 1989
• Docket Number: No. CA,CA
• Parties: Rondal CAMPBELL, Appellant, v. STATE of Arkansas, Appellee. CR 88-214.

Page 940

766 S.W.2d 940

27 Ark.App. 82

Rondal CAMPBELL, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 88-214.

Court of Appeals of Arkansas Division II.

March 22, 1989.

Rehearing Denied May 3, 1989.

Dale W. Finley, Russellville, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Chief Judge.

This appeal comes to us from Boone County Circuit Court. Appellant, Rondal Campbell, appeals his conviction of possession of a controlled substance with intent to deliver, a violation of Arkansas Code Annotated Section 5-64-401(a) (1987), and the sentence and fine imposed therefor. We affirm.

Appellant was charged by information filed February 19, 1988, with the offenses of possession of a controlled substance and theft by deceiving. The theft charge was severed, and appellant was tried by a jury and convicted on the drug count. Appellant was sentenced to fifteen years in the Arkansas Department of Correction and fined $35,000.00. From the judgment of conviction and the fine comes this appeal.

For reversal, appellant raises the following two points: (1) The initial search was improperly conducted; and (2) the court erred in refusing the request for scientific tests.

The evidence reveals that a warrant to search appellant's home was issued upon an affidavit by Terry Bruce who was previously arrested for burglary of a residence. Mr. Bruce informed the police that he sold three of the items taken in the burglary to appellant for $40.00 cash and a bag of marijuana. Mr. Bruce also stated that appellant knew the items were stolen. Based upon this information, a warrant was issued to search appellant's residence for one Montgomery Ward color television, one Emerson video cassette recorder, and one Sanyo microwave oven. On February 11, 1988, nine or ten officers searched appellant's residence pursuant to the warrant. The VCR and the microwave oven were found soon after the search was initiated; however, the portable television was never found. The search of appellant's two-story home with basement was conducted over a two to three hour period. In the search, the police seized items not listed on the warrant in the belief that they were illegal or stolen; however, none of the items was introduced into evidence against appellant except the marijuana contained in a safe found in the course of the search. The officers testified that while searching the basement, a gun safe was discovered from which the smell of marijuana emanated. The officers involved in the search of that area testified that they smelled the marijuana and the safe was seized and removed from appellant's home. A warrant was obtained the following day to search the safe which resulted in the discovery of 21.8 pounds of marijuana packaged inside 64 ziploc plastic bags contained in 11 grocery sacks. Subsequently, the police obtained a third warrant to search the contents of appellant's lock box.

Appellant filed a motion to suppress all evidence taken in the three searches. The motion was based upon appellant's contentions that the affidavits and search warrants were improper, that there was no probable cause for any of the searches, that the second and third searches were based upon information improperly obtained in the first, and that the time and scope of the search was improper. After a hearing on the motion, the court denied appellant's motion to suppress and found that the searches were lawful.

Appellant challenges the propriety of the initial search and argues that Officer Rodney Combs' participation in the search renders it illegal. At the suppression hearing, Officer Combs generally testified that he understood that a search, pursuant to warrant, was going to be made of appellant's home and that he went along as an assistant in the belief that there might be some illegally possessed controlled substances in the home. His testimony further revealed that he was told that appellant kept drugs in a safe in his home, but he was not told where the safe was located. Officer Combs testified that his primary impression was that methamphetamines were in appellant's home. As a narcotics officer, Combs related that he wanted to "get" appellant because during processing narcotics intelligence for the last five years, appellant's name had been mentioned to him many times as being a dealer. Appellant challenges the scope of the search. He alleges it was a "full-blown search" rather than one limited to the items set out in the search warrant.

Appellant cites Arkansas Rule of Criminal Procedure 13.3(c) as the governing authority for conducting a search. Appellant asserts that under this rule, the scope of the search shall be such as is authorized by the warrant and is reasonably necessary to discover the persons or things specified therein. We agree with appellant that Rule 13.3(c) governs the scope of a search and, therefore, we set out below the latter portion of that rule not relied upon by appellant.

Upon discovery of the persons or things so specified, the officer shall take possession or custody of them and search no further under authority of the warrant. If in the course of such search, the officer discovers things not specified in the warrant which he reasonably believes to be subject to seizure, he may also take possession of the things so discovered.

Arkansas Rule of Criminal Procedure 10.1(i) defines "reasonable belief" to mean a belief based on reasonable cause to believe. "Reasonable cause to believe" means a basis for belief in the existence of fact which, in view of the circumstances under purposes for which the standard is applied, is substantial, objective and sufficient to satisfy applicable constitutional standards. Ark.R.Crim.P. 10.1(h).

Here, although numerous items not listed on the warrant were seized, only evidence of the marijuana was used against appellant. Because appellant can show no prejudice with regard to any items seized except the marijuana, we understand his argument to be that the trial court erred in denying his motion to suppress the 21.8 pounds of marijuana found in his safe.

When this court reviews a trial court's ruling on a motion to suppress evidence, it makes an independent determination based upon the totality of the circumstances and reverses only if the trial court's ruling was clearly against the preponderance of the evidence. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987). A determination of preponderance of the evidence turns heavily on questions of credibility and weight to be given the testimony, and the court of appeals defers to the superior position of the trial court on those questions. Phillips v. State, 25 Ark.App. 102, 752 S.W.2d 301 (1988).

In this case, the officers were legally inside appellant's home pursuant to a search warrant. Under Rule 13.3(c), the officers were required to discontinue the search when the persons or things specified in the warrant were found. Therefore, although the search was lengthy, it was not unreasonable based upon the totality of the circumstances because the evidence reveals that the portable television listed on the warrant was never found. Additionally, the rule allows for further search outside the warrant if what transpires during the search gives the officers reasonable cause to believe that the items are subject to seizure.

Collectively, the undisputed testimony of Officers Jerry Smith, Jerry Jones, Rodney Combs, and Robert Hicks revealed that they were experienced officers trained to...