Moya v. State

• Decision Date: 19 November 1998
• Docket Number: No. CR,CR
• Citation: 981 S.W.2d 521,335 Ark. 193
• Parties: Anthony Easton MOYA, Appellant, v. STATE of Arkansas, Appellee. 8-529.
• Court: Arkansas Supreme Court

Page 521

981 S.W.2d 521

335 Ark. 193

Anthony Easton MOYA, Appellant, v. STATE of Arkansas, Appellee.

No. CR 8-529.

Supreme Court of Arkansas.

Nov. 19, 1998.

John Wesley Hall, Jr., Little Rock, for Appellant.

Winston Bryant, Atty. Gen., C. Joseph Cordi, Jr., Asst. Atty. Gen., Little Rock, for Appellee.

DONALD L. CORBIN, Justice.

This case involves the validity of a search warrant. Appellant Anthony Easton Moya appeals the judgment of the Miller County Circuit Court denying his motion to suppress evidence obtained with the search warrant. Appellant argues on appeal that the trial court erred in denying his motion to suppress, because the affidavit and warrant did not describe with particularity the place to be searched. He also argues that the State is barred from raising a good-faith defense to the search warrant on appeal, because it failed to give notice of such defense to Appellant during the proceedings below. This appeal was certified to us from the Arkansas Court of Appeals, as it presents issues requiring further development of the law and this court's rules of criminal procedure. Our jurisdiction is thus pursuant to Ark. Sup.Ct. R. 1-2(d). We affirm.

The record reveals that on September 26, 1995, a United Parcel Service (UPS) package was shipped from Bakersfield, California, to Apartment 50 at the Smith-Keys Apartments in Texarkana. Prior to that date, UPS personnel in California noticed that the package was leaking, and they opened it. Inside the package was cocaine and a gun. This information was reported to the Bakersfield Police Department, who, in turn, reported to the Bi-State Narcotics Task Force in Texarkana. The task force then decided to make a controlled delivery of the package to the Smith-Keys Apartments, Apartment 50, with an undercover officer posing as the UPS deliveryman. The delivery occurred at approximately 11:30 a.m. The task force also decided to prepare a search warrant and supporting affidavit for Apartment 50 ahead of time so that it could be served simultaneously with the delivery of the package. Officers were positioned around the apartment complex to observe the delivery. Investigator Rick Hawkins of the Texarkana Police Department was the officer responsible for obtaining the search warrant.

Investigator Hawkins presented Circuit Judge Jim Hudson with the affidavit for the search warrant. Hawkins swore to the truth of the facts in the affidavit before Judge Hudson. The delivery of the package to Apartment 50 occurred at the same time that Hawkins was obtaining the search warrant for Apartment 50. After Judge Hudson signed the warrant, as Hawkins was leaving the judge's office, a surveillance officer informed Hawkins via radio that the package had been moved to Apartment 51. According to Hawkins, he returned to Judge Hudson's office and explained to him that the package had been moved to Apartment 51. After hearing Hawkins's explanation, either Judge Hudson or Hawkins changed all but one of the references to Apartment "50" in the search warrant and affidavit to Apartment "51." ¹ Both Hawkins and Judge Hudson initialed the changes. No recorded testimony was taken from Hawkins, nor was any additional information written on the affidavit noting the change in circumstances. Hawkins then radioed to the officers on the scene that the warrant had been signed, thus authorizing a search of Apartment 51. The officers then searched Apartment 51, seizing the narcotics and the gun and arresting Appellant and another person.

Appellant filed a motion to suppress the evidence seized during the search of Apartment 51, and a hearing was held on February 2, 1998. The trial court denied the motion. Appellant then entered a conditional plea of guilty, pursuant to A.R.Cr.P. Rule 24.3, to the charge of possession of cocaine with intent to deliver and was sentenced to ten years in the Arkansas Department of Correction. He appeals the trial court's ruling on the suppression motion. When we review a trial court's denial of a motion to suppress evidence, we make an independent determination based on the totality of the circumstances, viewing the evidence in the light most favorable to the State, and reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998).

I. Validity of the Affidavit and Search Warrant

Appellant first argues that by changing the apartment numbers in the affidavit and warrant, the State thereby made the affidavit untrue and nullified the probable cause shown therein, in violation of the Fourth Amendment to the United States Constitution. He submits that the affidavit was originally written to reflect the correct information that the controlled delivery of the package would occur at Apartment 50, and that Ingrid Brown resided at Apartment 50. He contends that when the package was moved from Apartment 50 to 51, and the number "50" in the affidavit and warrant was changed to "51," this created a false statement that the controlled delivery occurred at Apartment 51 and that Ingrid Brown was the resident of Apartment 51. He contends further that the failure to make a written record of the reasons for making the changes in the affidavit and warrant constituted a substantial violation of A.R.Cr.P. Rule 13.1(c), and that, as such, the trial court should not have permitted any testimony during the suppression hearing about the change in circumstances.

The State contends that the search is valid because the executing officers acted with an objective good-faith reliance upon Judge Hudson's having issued the warrant, pursuant to the holding in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Appellant argues that the officers' actions cannot be upheld under the Leon good-faith standard, and that, in any event, the State is procedurally barred from benefitting from this defense, as the prosecutor failed to give Appellant prior notice that the State would rely on that defense.

Appellant is correct in his assertion that Rule 13.1(c) requires the recordation of oral, sworn testimony given in support of an affidavit for search warrant. In Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987), this court was faced with a situation wherein a confidential informant gave sworn, recorded testimony to the magistrate in support of a search warrant, but the State refused to disclose the testimony because the prosecutor did not want to reveal the informant's identity. Holding that the sufficiency of the application for search warrant must be decided solely on the information contained in the written affidavit, this court explained:

A.R.Cr.P. Rule 13.1(c) requires recordation of such oral testimony. The purposes of such a rule are to facilitate subsequent review for the existence of probable cause and to avoid the possibility of justification for a search becoming based upon facts or evidence discovered in the course of execution of the warrant, and, in the event the probable cause is based upon hearsay, explaining the reliability of the informant. These considerations are particularly appropriate for the review of ex parte proceedings involving the valued right of privacy. They also serve to minimize the necessity of calling issuing magistrates to prove what can easily be documented. State v. Russell, 293 Or. 469, 650 P.2d 79 (1982); 2 W. LaFave, Search and Seizure 4.3(b) (1978). Because the state refused to disclose the recorded oral testimony, the very purposes of the rule were defeated, and we will not consider that testimony in deciding this case.

Id. at 99-100, 722 S.W.2d at 832. Similarly, in Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990), this court held that because Rule 13.1(c) requires the recordation of oral testimony, this court does not consider unrecorded testimony.

In Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977), this court held that it was the State's burden to establish that a search warrant relied upon by its officers was issued in compliance with the law by producing the required written evidence relied upon by the issuing magistrate as establishing probable cause. See also Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987). This court went on to state:

Since the state did not produce sufficient evidence to show that there was probable cause for the issuance of the warrant, the motion to suppress should have been granted. We consider the failure to record the testimony on which a search warrant is issued to be a substantial violation of proper safeguards in procedures for obtaining a search warrant.

Lunsford, 262 Ark. at 3, 552 S.W.2d at 647 (emphasis added). See also State v. Anderson, 286 Ark. 58, 688 S.W.2d 947 (1985), overruled on other grounds, Jackson, 291 Ark. 98, 722 S.W.2d 831. Appellant relies on this language from Lunsford in support of his argument that the failure to record Hawkins's oral testimony, given after the warrant had been signed by Judge Hudson, is a substantial violation of our rules of criminal procedure as provided in A.R.Cr.P. Rule 16.2(e), and requires suppression of the evidence obtained in the search. Appellant's assertion does not, however, resolve the issue on appeal regarding the officers' good-faith reliance on the search warrant.

In Jackson, 291 Ark. 98, 722 S.W.2d 831, this court concluded that the written affidavit was deficient in that it did not provide the issuing magistrate any particular facts bearing on the informant's reliability pursuant to Rule 13.1(b). Having already concluded that the sworn, oral testimony given by the informant to the magistrate was not to be considered, this court nonetheless upheld the search on the basis that the officers had acted with an objective good-faith reliance on the validity of the search warrant. This court held that because there was a written affidavit in support of the search warrant, the good-faith...