Coleman v. State, CR

• Court: Arkansas Supreme Court
• Writing for the Court: DUDLEY; NEWBERN; NEWBERN
• Citation: Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (Ark. 1992)
• Decision Date: 23 March 1992
• Docket Number: No. CR,CR
• Parties: , 60 USLW 2683 Lee Marvin COLEMAN, Appellant, v. STATE of Arkansas, Appellee. 91-267.

Page 273

826 S.W.2d 273

308 Ark. 631, 60 USLW 2683

Lee Marvin COLEMAN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-267.

Supreme Court of Arkansas.

March 23, 1992.

Judy R. Dodson, Deputy Public Defender, Little Rock, for appellant.

Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

Appellant was charged as a habitual offender with possessing cocaine with the intent to deliver and with possessing marijuana and drug paraphernalia with intent to use. He filed a motion to suppress the evidence of these crimes that was seized from his residence in a nighttime search. The basis of the motion was that the supporting affidavit did not state sufficient facts for the issuance of a nighttime search warrant. The trial court denied the motion. Appellant then entered conditional pleas of guilty and was sentenced to a total of fifty years in prison. He appeals from the denial of the motion to suppress. See A.R.Cr.P. Rule 24.3(b). We affirm the ruling of the trial court.

An affidavit for a search warrant must set out facts showing reasonable cause to believe that circumstances exist that justify a nighttime search. Those circumstances include: (a) the place to be searched is difficult of speedy access, or (b) the objects to be seized are in danger of imminent removal, or (c) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy. A.R.Cr.P. Rule 13.2(c); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991). In reviewing a trial court's ruling on a motion to suppress because of an alleged insufficiency of the affidavit, we make an independent determination based upon the totality of the circumstances and reverse the trial court's ruling only if it is clearly against the preponderance of the evidence. State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991).

The two and one-half page affidavit, which was prepared by using a word processor with a memory bank, stated that the Little Rock Police Department had received three reports that appellant was selling drugs in Little Rock, and in addition, the police had received three reports that drugs were being sold in the house located at 21 Halifax Court. The affidavit stated that on January 24, 1991, the affiant, a detective, was contacted by a reliable informant who said that appellant possessed cocaine and was distributing it from his residence at 21 Halifax Court. The affidavit additionally said that after dark on the same date the informant purchased cocaine from the appellant at 21 Halifax Court, that the cocaine was packaged in a clear plastic bag, and that the drugs located in the house were "packaged and maintained in a manner that [their] destruction or removal can be easily accomplished." Finally, the affidavit stated that the affiant had been to the residence, and it "is so situated that the approach of the officers serving this warrant can readily be detected."

Our cases have consistently held that a factual basis must be stated in the affidavit, or in sworn testimony, before a nighttime search warrant may be validly issued. See, e.g., State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991). The appellant argues that the affidavit in this case contains only conclusory, not factual, statements. He contends that this case is similar to Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991), in which we held that the affidavit did not contain a sufficient factual statement when the affiant only made check marks on a form that quoted the language of A.R.Cr.P. Rule 13.2(c), which sets out the three circumstances that justify a nighttime search. The appellant argues that the only difference is that the affiant in this case used a word processor with a memory bank rather than a printed form with places for check marks. The appellant's argument is valid with regard to the language generated by the word processor's memory bank that says the residence "is so situated that the approach of the officers serving this warrant can be readily detected." It is regrettable that the affiant used only the language stored in the computer memory bank because, in fact, he knew that the residence was located on a cul-de-sac with only one way of entering, and the affiant had been informed that the appellant watched for cars approaching his house and that he had a gun. Therefore, the only safe way for the police to serve the warrant was to approach the house under cover of darkness.

However, the affidavit did specify that "after dark" on that very night an informant had purchased cocaine from the appellant, that the purchase was made inside appellant's residence at 21 Halifax Court, that the cocaine purchased was packaged in a clear plastic bag, that cocaine was "now being concealed" there, that appellant "was in possession of and was distributing cocaine from the residence," and that the drugs located there were "packaged and maintained in a manner that [their] destruction or removal can be easily accomplished." The last phrase is a computer generated phrase, and if it were all the information that was contained in the affidavit, there would be no difference between this case and Garner v. State, supra, the case where the affiant simply made the check marks. However, in this case, in addition to the rote use of the computer generated phrase, the affiant set out a number of pertinent...