Cardozo v. State

• Decision Date: 23 February 1983
• Docket Number: No. CA,CA
• Citation: 646 S.W.2d 705,7 Ark.App. 219
• Parties: Patty CARDOZO and Christine Paige, Appellants, v. STATE of Arkansas, Appellee. CR 82-158.
• Court: Arkansas Court of Appeals

Page 705

646 S.W.2d 705

7 Ark.App. 219

Patty CARDOZO and Christine Paige, Appellants, v. STATE of Arkansas, Appellee.

No. CA CR 82-158.

Court of Appeals of Arkansas.

Feb. 23, 1983.

Marc G. Kurzman, Minneapolis, Minn., and William R. Wilson, Jr., Little Rock, for appellants.

Steve Clark, Atty. Gen., by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

CLONINGER, Judge.

In this case, after the trial court denied appellants' motion to suppress evidence obtained by an allegedly defective search warrant and their motion to suppress evidence obtained by a warrantless search behind appellants' house, appellants were adjudicated guilty of manufacturing a controlled substance, marijuana, in violation of Ark.Stat.Ann. § 82-2617 (Supp.1981). Appellants were sentenced to four years in prison and placed on probation under suspended sentence.

For reversal, appellants contend, first, that the affidavit for the search warrant was fatally defective for lack of reference to the time of the affiant's observations, and they contend, secondly, that marijuana found behind appellants' house was improperly seized because it was found as a result of a warrantless search without consent. We find no merit to appellants' contentions and we affirm the judgment of the trial court.

Sheriff Ray Watkins and Deputy Sheriff Larry Whitney arrived at the property of appellants about noon on August 29, 1981 pursuant to a search warrant issued August 28, 1981. The affidavit upon which the search warrant was based was signed by Sheriff Watkins and described the location of the property in detail. The sheriff stated that he had received a report that there was marijuana growing on the property, and then related that he went to the area and found twenty or so marijuana plants growing along with corn and other vegetables. The affiant made no reference as to when his observations were made.

Appellants' first point for reversal poses the narrow question of whether the affidavit for the search warrant adequately revealed the time of the sheriff's observations, so as to justify the issuing judge in concluding that probable cause existed at the time the warrant was issued. Apparently the question has not been addressed by an Arkansas court, but there are guidelines furnished in cases from other jurisdictions. Some courts have concluded, under certain factual situations, that the failure to state when the alleged facts occurred is fatally defective. Pierson v. State, 338 A.2d 571 (Del.1975); Thomas v. State, 353 So.2d 54 (Ala.Cr.App.1977).

The facts in an affidavit for a search warrant must be current. The issuing magistrate must be able to reasonably infer the existence of probable cause at the time of the issuance. Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). In State v. Sager, 169 N.J.Super. 38, 404 A.2d 52 (N.J.Super.1979), the court stated:

The core question when staleness is raised in an attack upon a search warrant was simply stated in State v. Blaurock, 143 N.J.Super. 476, 363 A.2d 909, 910 (App.Div.1976), as follows: '... do all the circumstances exhibited ... reasonably conduce to a belief that the law was being violated at the time the warrant issued? '

In determining whether a search warrant has been issued on probable cause, the results of the search are immaterial and may not be considered. U.S. v. Nichols, 89 F.Supp. 953 (E.D.Ark.1950).

In the instant case, the trial judge believed it was reasonable to infer that the events related in the affidavit occurred on the same day the affidavit was dated, and there is justification for that belief. The affiant stated that he had reasonable grounds for believing marijuana was being grown at the described location on the date he signed the affidavit, and then stated why; that he had personally observed the growing plants.

The growing of marijuana is an illegal activity of a continuing nature, and the magistrate could take note that August 28, the date the affidavit was made, was within the growing season for marijuana, as well as corn and other vegetables. In State v. Louchheim, 296 N.C. 314, 250 S.E.2d 630 (N.C.1979), the court dealt with the issue of staleness and stated:

The ultimate criterion in determining the degree of evaporation of probable cause, however, is not case law but reason. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: The character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. ...

In United States v. Dennis, 625 F.2d 782 (8th Cir.1980), the Court stated:

If, because of delay in applying for a warrant, the information in the affidavit is stale, probable cause may be diminished. Andresen v. Maryland, supra, 427 U.S. at 478 N. 9, 96 S.Ct. at 2747. But the delay is not considered separately. The length of the delay is considered together with the nature of the unlawful activity. United States v. Johnson, 461 F.2d 285, 287 (10th Cir.1972). And they are considered in the light of common sense. Id. Hence, in United States v. Johnson, a three-week delay did not undermine probable cause where the illegal distilling was an ongoing business, rather than a mere isolated violation. Id. In Andresen v. Maryland, a three month delay did not undermine probable cause because the warrants were for business records that were likely to be maintained for a long time. Supra, 427 U.S. at 478, N. 9, 96 S.Ct. at 2747.

In order to grant appellants' motion to suppress the evidence obtained by the search, it would have been necessary for the trial court to abandon the common sense rule laid down by the Arkansas Supreme Court in Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977), in which the court quoted with approval the following excerpt from U.S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965):

... If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. They are normally drafted by non-lawyers in the midst and haste of a criminal investigation....

Hence, we find that the trial judge's denial of the motion to suppress evidence was not an abuse of discretion.

Additionally, we find that appellants' second point is without merit. When we view the evidence in the light most favorable to the appellee, the state, the following events transpired at the time the search warrant was executed. Upon arrival at the site of the growing plants, located in a rural, heavily forested area, the officers encountered appellants and appellant Paige's ten-year-old daughter. Appellants informed the officers that two women had lived in a teepee near the garden area, but that the women had left and the F.B.I. was looking for them. The officers were told that appellants lived in a cabin down the hill, and when the officers asked if they could check to see if the two missing women were down there the appellants said they could. Appellant Paige's daughter disappeared, but she was on the porch of appellants' cabin when the officers and appellants arrived there. Upon reaching the cabin, appellants were advised of their rights which they indicated they understood. The officers were told that the missing women had been gone for six weeks, however, the garden had been recently tended. The officers were given permission by the appellants to look inside the house and to "look around." When the deputy sheriff went around the cabin, he observed cut marijuana plants on top of a ladder behind the cabin.

It is not an unreasonable search for an officer to move into a position where he has a legal right to be and look for things he may have reason to believe will be seen. Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). Deputy Whitney had a right to be where he was. Appellants had given the officer permission to look around, and there was uncontradicted testimony that appellants were not intoxicated or otherwise incapable of giving consent. See White v. State, 261 Ark. 23, 545 S.W.2d 641 (1977). In Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980), the court stated:

Knowledge of the right to refuse consent to search is not a requirement to prove the voluntariness of consent. McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979). Specifically, a Miranda warning is not required before a warrantless search is conducted, Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

We recognize that the state has the burden of proving by clear and positive testimony that consent to a search was freely and voluntarily given and there was not actual or implied duress or coercion, Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978)....

At the time Deputy Whitney walked to the rear of the cabin, the officers had reason to suspect that the two missing women may have been in the area, and that appellant Paige's daughter had gone to warn them. The only incriminating statement previously made by the appellants was that one of the appellants owned the property. The finding by the trial court that the officers were given consent to not only search the cabin, but to "look around" the house, and that there was no duress or coercion, is not clearly against the preponderance of the evidence.

Affirmed.

COOPER, GLAZE and CORBIN, JJ., dissent.

COOPER, Judge, dissenting.

While I do not disagree with the majority opinion as it relates to the evidence obtained through the warrantless search, I respectfully dissent from that portion of the opinion which affirms the trial court's refusal to suppress the evidence...