Heaslet v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: Sam Bird
• Citation: Heaslet v. State, 77 Ark. App. 333, 74 S.W.3d 242 (Ark. App. 2002)
• Decision Date: 15 May 2002
• Docket Number: No. CA CR 01-230.,CA CR 01-230.
• Parties: Charles HEASLET v. STATE of Arkansas.

74 S.W.3d 242

77 Ark. App. 333

Charles HEASLET v. STATE of Arkansas.

No. CA CR 01-230.

Court of Appeals of Arkansas, Division II.

May 15, 2002.

William Owen James and Clay T. Buchanan, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: Katherine Adams, Ass't Att'y Gen., Little Rock, for appellee.

SAM BIRD, Judge.

Pursuant to Ark. R.Crim. P. 24.3(b), Charles Heaslet entered conditional guilty pleas in Lonoke County Circuit Court to charges of possession of methamphetamine, possession of drug paraphernalia, and conspiracy to manufacture methamphetamine in case number CR 99-543 and second-degree forgery in case number CR 99-554, after the trial court denied his motions to suppress the evidence found during the execution of two search warrants at his mobile home. On appeal, Heaslet argues that the trial court erred in: (1) denying his motion to suppress the evidence seized in CR 99-543 because the affidavit in support of the search warrant failed to provide a factual basis for authorizing a nighttime search; (2) denying his motion to suppress evidence seized in CR 99-543 because the trial court took improper judicial notice of the location and surroundings of his residence and violated the requirements of Ark. R.Crim. P. 13.2; (3) denying his motion to suppress evidence seized in CR 99-554 because the affidavit in support of the search warrant failed to provide sufficient facts to find probable cause. We agree that the trial court erred in refusing to suppress the evidence, and we reverse and remand.

On October 12, 1999, Deputy Steve Rich of the Lonoke County Sheriff's Office swore out an affidavit for a search warrant of Charles Heaslet's residence. The warrant authorized a nighttime search, and the search was conducted on the same date the warrant was approved. As a result of the search, Heaslet was charged in CR 99-554-543 with conspiracy to manufacture a controlled substance, possession of drug paraphernalia, and possession of a controlled substance.

On November 10, 1999, Chief Brent Cole of the Carlisle Police Department swore out an affidavit for a second search warrant of Heaslet's residence. After the warrant was issued and the search conducted, Heaslet was charged in CR 99-554-554, as a habitual offender, with five counts of forgery in the second degree.

I. CR 99-543

A. Nighttime Search

When this court reviews a trial court's denial of a motion to suppress evidence, it makes an independent determination based on the totality of the circumstances, but will only reverse if the trial court's decision was clearly against the preponderance of the evidence. Simmons v. State, 72 Ark.App. 238, 34 S.W.3d 768 (2000).

As a prerequisite to the issuance of a warrant for a nighttime search, the affidavit or other evidence presented in support thereof must set forth a factual basis that justifies a nighttime search. Langley v. State, 66 Ark.App. 311, 990 S.W.2d 575 (1999). Arkansas Rule of Criminal Procedure 13.2(c) provides that before a warrant authorizing a nighttime search 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.

Our supreme court has invalidated nighttime search warrants when the evidence presented in support of the nighttime search lacked facts supporting one or more of these exigent circumstances. See, e.g., Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (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); State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). In Richardson v. State, supra, the supreme court stated:

We have consistently held that a factual basis supporting a nighttime search is required as a prerequisite to the issuance of a warrant authorizing a nighttime search.... We have held conclusory language ... unsupported by facts is insufficient to justify a nighttime search.... Given that there was nothing to give reasonable cause to believe the items specified in the search warrant would be disposed of, removed, or hidden before the next morning, issuance of the nighttime search warrant was in error.

Id. at 518-19, 863 S.W.2d at 576. In State v. Broadway, 269 Ark. 215, 218, 599 S.W.2d 721, 723 (1980), the supreme court held that "[a]n affidavit should speak in factual and not mere conclusory language. It is the function of the judicial officer, before whom the proceedings are held, to make an independent and neutral determination based upon facts, not conclusions, justifying an intrusion into one's home."

In this case, the officers merely checked off the conclusory statements to establish reasonable cause. It is obvious that the affidavit form was drafted to reflect the requirements for reasonable cause as set out in Rule 13.2 because the language is basically the same. However, there were no specific facts presented to show that the place to be searched was difficult of speedy access, that the objects to be seized were in danger of imminent removal, or that the warrant could only be safely or successfully executed at nighttime. The affidavit only contained three statements in addition to the three checked conclusory statements. These statements provided merely that confidential informants had stated that Heaslet was making methamphetamine.

In Garner v. State, supra, the judge issued a nighttime search warrant and checked two boxes on the warrant that stated: "the place to be searched is difficult of speedy access" and "the warrant can only be safely or successfully executed at night time or under circumstances the occurrence of which is difficult to predict with accuracy." In reversing the trial court's denial of appellant's motion to suppress, the Garner court stated:

[C]onclusory statements [do] not suffice to establish the requisite factual basis for reasonable cause.... We, therefore, hold that the two statements "checked" were conclusory and unsupported by sufficient facts and, accordingly, did not establish reasonable cause for a nighttime search. Without sufficient factual premises, it was impossible for the municipal judge to make an intelligent finding of reasonable cause to justify a nighttime search. Id. at 357-58, 820 S.W.2d at 449.

It is our duty as a reviewing court to ensure that the magistrate had a substantial basis for concluding that probable cause existed. U.S. Const. amend. IV; Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001). We hold that not only was the search warrant deficient under Ark. R.Crim. P. 13.2(c), but that probable cause was lacking to justify a nighttime search.

B. Good-Faith Exception

We now address the question of whether the police officers acted in good faith in executing this search warrant under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the Court held that the Fourth Amendment exclusionary rule should not be applied to exclude evidence obtained by police officers acting in reasonable reliance on a search warrant that is ultimately found to be invalid. We have held that an objective standard of good faith is not met when a police officer only presents suspicions regarding removal of contraband and the municipal judge only repeats the boilerplate language from Rule 13.2(c). See Richardson v. State, supra; Garner v. State, supra. We hold that, under the objective standard, a reasonably well-trained police officer would not have believed that probable cause existed to conduct a nighttime search based on the facts presented in the affidavit.

C. Judicial Notice

In denying the motion to suppress evidence, the trial court judge stated that he could not look to the testimony of Chief Cole as a basis for his ruling; instead, he could only look at those facts that appeared on the face of the affidavit. The judge then stated that the court took judicial notice that the location of Heaslet's house was such that daytime access may be unsuccessful, unsafe, and that evidence may be destroyed. Arkansas Rule of Evidence 201(b) provides that "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resert [resort] to sources whose accuracy cannot reasonably be questioned."

A court may take judicial notice of adjudicative facts in a criminal case, whether requested or not. Ark. R. Evid. 201(c). However, "[c]are should be taken by the court to identify the fact it is noticing, and its justification for doing so." Colonial Leasing Co. of New England v. Logistics Control Group Int'l, 762 F.2d 454, 459 (5th Cir.1985). The reasons the location of Heaslet's house would call for a nighttime search were not appropriate to be judicially noticed in that it was not deducible from the record whether the facts were "generally known" or "capable of accurate and ready determination." See Ark. R. Evid. 201(b). The judge merely stated that "the location of the farm is such that there might be a clear view ... and therefore, a daytime approach might be unsuccessful ... some of the evidence might be destroyed ..." (emphasis added). In order that a matter may properly be a subject of judicial notice, it must be "known", that is, well established and authoritatively settled, and uncertainty or difference of belief in respect to the matter in question will preclude judicial notice thereof. Taylor v. City of Pine Bluff, 226 Ark. 749, 294 S.W.2d 341 (1956). If a court takes judicial notice of any fact, it must be so notoriously true as not to be subject to...