Hall v. State
| Decision Date | 29 May 1990 |
| Docket Number | No. CR,CR |
| Citation | 302 Ark. 341,789 S.W.2d 456 |
| Parties | Melvin HALL and Sandra Hall, Appellants, v. STATE of Arkansas, Appellee. 90-77. |
| Court | Arkansas Supreme Court |
Craig Lambert, Little Rock, for appellants.
John D. Harris, Asst. Atty. Gen., Little Rock, for appellee.
Appellants were charged with a felony.Both moved to suppress the evidence against them.The trial court denied the motion.They entered conditional pleas of guilty and appeal.SeeA.R.Cr.P. Rule 24.3(b).We reverse.
At 6:00 p.m., on February 26, 1987, a confidential informant told Saline County Deputy SheriffTim Ryals that appellants were selling drugs illegally at their residence, and that the confidential informant had purchased marijuana from them within the last seventy-two hours.An affidavit and a search warrant were prepared by a deputy sheriff.Officer Ryals and another deputy took the informant to the municipal judge's home at 11:00 p.m.The judge swore the informant to tell the truth.Her testimony was not recorded.She made two written corrections in the typed affidavit and signed it.Officer Ryals made some statements to the judge, but he apparently was not sworn.His statements are not recorded.There is nothing in the affidavit to indicate that a nighttime search was necessary.The judge signed the warrant and made a handwritten notation on the margin that it could be served anytime day or night.Officer Ryals and other members of the sheriff's department executed the warrant at appellants' home between 1:00 a.m. and 3:00 a.m. that same night.They seized evidence and gave the appellants a copy of the affidavit, which was signed by the confidential informant, and gave them a copy of the warrant.The next day officer Ryals took the affidavit back, and eradicated the affiant's name.
Appellants filed their motions to suppress.The trial judge acknowledged that the affidavit and warrant did not give reasons for a nighttime search, but, considering all of the circumstances, held that a good faith exception should be applied.Thus, the motion to suppress was denied.
A.R.Cr.P. Rule 13.1(c) requires the recordation of oral testimony.When testimony is not recorded we do not consider it.Jackson v. State, 291 Ark. 98, 722 S.W.2d 831(1987);see alsoLunsford v. State, 262 Ark. 1, 552 S.W.2d 646(1977).The considerations for such a rule Jackson v. State, supra.Thus, we only consider the information contained in the affidavit.
The affidavit recited that illegal drugs were at the appellants' residence and that the confidential informant had purchased marijuana there within the last seventy-two hours.
We have consistently held that the affidavit must set out facts showing reasonable cause to believe that circumstances exist which justify a nighttime search.State v. Broadway, 269 Ark. 215, 599 S.W.2d 721(1980);Harris v. State, 262 Ark. 506, 558 S.W.2d 143(1977).Our rules provide that, before a nighttime warrant is issued, the issuing judicial officer must have reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy.
The affidavit in this case does not set out probable cause for the issuing magistrate to find any of the three circumstances set out above.It simply provides that illegal drugs are located at the residence and that the informant purchased marijuana there within the last three days.There is nothing to give reasonable cause to believe the drugs would be disposed of, removed, or hidden before the next morning.Thus, the issuance of the nighttime search warrant was in error....
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...with Iowa that all evidence supporting a warrant must be recorded as part of the warrant application. See, e.g., Hall v. State, 302 Ark. 341, 789 S.W.2d 456, 458 (1990) (reasoning that a record is required to allow for review of ex parte proceedings and "to minimize the necessity of calling......
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Stevens v. State
...(1993); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); Dodson v. State, 88 Ark.App. 380, 199 S.W.3d 115 (2004); Heaslet v. State, 77 Ark.App. 333, 74 S.W.3d 242 (2002); Langley......
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Kelley v. State, CR 07-353.
...Leon, supra, our court considered whether the Leon good-faith exception could be applied to save a deficient warrant in Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990). In that case, the affidavit did not contain any facts supporting a nighttime search, and, although the affiant gave tes......
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Davis v. State
...the circuit court found that the affidavit lacked sufficient factual information to support a nighttime warrant. See Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990). Rule 13.2(c) provides that the issuing judicial officer may authorize a search at any time, day or night, if there is reas......
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08 17 MOTION TO SUPPRESS EVIDENCE, SEARCH WITHOUT A WARRANT (EXAMPLE: Vehicle Search)
...faith exception (United States v. Leon, 468 U.S. 897, 914-15 (1984)) generally are: (a) violation of nighttime search rule; Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); (b) knowing or reckless falsity in affidavit on a fact material to the probable cause finding; Franks v. Delaware, ......