Pyle v. State

• Decision Date: 20 September 1993
• Docket Number: No. CR,CR
• Citation: 314 Ark. 165,862 S.W.2d 823
• Parties: Jim PYLE, Appellant, v. STATE of Arkansas, Appellee. 92-777.
• Court: Arkansas Supreme Court

Page 823

862 S.W.2d 823

314 Ark. 165

Jim PYLE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 92-777.

Supreme Court of Arkansas.

Sept. 20, 1993.

Bobby McDaniel, Jonesboro, for appellant.

Clementine Infante, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

This is an appeal by Jim Pyle from a judgment of conviction on counts of possession and delivery of a controlled substance and possession of drug paraphernalia. Cumulative sentences of eighty years imprisonment were imposed. Our jurisdiction attaches pursuant to Rule 29(1)(b).

On June 1, 1990, Pyle's residence at 803 Lawrence Drive in Jonesboro was searched pursuant to a search warrant executed on May 31. Cocaine, marijuana, cash, and drug paraphernalia were seized. The events leading to the application for the warrant began on May 24 when Donna Bogard, a Drug Task Force Officer, and a confidential informant met with a man named Robert Atkerson to buy drugs. They met near Pyle's home. Bogard and the informant wore concealed microphones. When Bogard gave Atkerson money to buy the drugs, she asked who the dealer was. When Atkerson refused to say, the informant suggested, "We'll just say J.P." Atkerson said, "That'll work. The Boss. Sometimes I call him Bruce." Bogard watched Atkerson drive in the direction of Pyle's home and turn into a driveway at the end of the street. The residence is at the west end of a dead end street. Bogard did not see whether Atkerson actually went into the Pyle residence but did see him turn into the driveway. Atkerson later returned with drugs, which Bogard bought. No attempt was made to get a search warrant at this time.

On May 30 and 31 the confidential informant made three phone calls to Pyle. Police officers were in the room with the informant and recorded the calls. The informant told Pyle he needed "that product." There was no agreement made to sell anything, only a discussion in which Pyle discouraged the informant from coming to his house. Pyle indicated the informant should call back later to see if Atkerson had returned.

At 5:10 p.m. on May 31 Bogard again purchased cocaine from Atkerson. After she gave Atkerson the money, he said he had to hurry and get the money back to his source. Three minutes later, two other police officers, Officer Thomas and Officer Grigsby, who were conducting a surveillance near Pyle's house, saw Atkerson approach the house and enter through the garage. The officers took pictures of Atkerson and another man outside the house.

On May 31 Officer Thomas applied for a search warrant. His affidavit generally recounted these events, stating that Atkerson had sold drugs to Bogard on May 24 and 31, had identified his source as "J.P." both times, and that the informant knew "J.P." to be Jim Pyle, Jr. Further, that Bogard was able to determine that Atkerson went to Pyle's house on the 24th and that Thomas and Grigsby saw him enter the house soon after he sold the drugs to Bogard on the 31st. It stated the officers had observed Atkerson speaking to a "person known to be Jim Pyle" in front of Pyle's house.

Officer Thomas testified at the probable cause hearing that Atkerson had said on the 24th that he was "going to J.P.'s house." He testified that Atkerson told Bogard on the 31st that he was taking the drug money "back to J.P." Bogard also testified that Atkerson had referred to his source as "J.P."

Jim Pyle moved to suppress the evidence seized under the warrant. He alleged the affidavit and testimony before the magistrate contained false statements and material omissions. His motion was denied, the evidence was admitted and at trial the jury convicted Pyle on all counts. On appeal, he brings six points for reversal.

I

Jim Pyle argues the search warrant was obtained by an affidavit and testimony containing "knowing and reckless false, material statements and structured, material omissions." He contends his Fourth Amendment rights were violated and the evidence seized pursuant to the warrant should be suppressed.

The established standard of review in such cases requires that we consider the totality of the circumstances to determine if the trial court's decision was clearly against the preponderance of the evidence. Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992); State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991). We consider the facts in the light most favorable to the appellee. Ryan v. State, 303 Ark. 595, 601, 798 S.W.2d 679, 683 (1990).

The general rule for the application of the Fourth Amendment exclusionary rule to evidence seized under an invalid warrant is set out in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the Court fashioned a good faith exception to the requirement of a valid warrant, that suppression of evidence would not be appropriate when a law enforcement officer acted in good faith reliance on a facially valid warrant. Id. at 922, 104 S.Ct. at 3420. The Court also stated that the good faith exception would not apply when the issuing magistrate is misled by an affiant who either knows the information given is false or has acted in reckless disregard of its truth or falsity. Id. at 923, 104 S.Ct. at 3420-21.

Franks v. Delaware provides the test for determining whether a warrant alleged to have such defects falls outside the Leon good faith exception. 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Under Franks, a warrant should be invalidated if a defendant shows by a preponderance of the evidence that: (1) the affidavit contained a false statement which was made knowingly, intentionally, or recklessly by the affiant and (2) the false statement was necessary to a finding of probable cause. Id. at 155-56, 98 S.Ct. at 2676-77. If those findings are made, the false material is excised and the remainder of the affidavit is examined to determine if probable cause exists. If the truthful portion of the affidavit makes a sufficient showing of probable cause, the warrant will not be invalidated. Id. We examine Pyle's arguments in light of Franks.

First, Pyle argues that Officer Thomas falsely stated at the probable cause hearing that at the first drug transaction on May 24 Atkerson identified his source as "J.P.," when in fact it was the confidential informant who used the term "J.P." in referring to the source. Thomas conceded at the suppression hearing that Atkerson had not directly referred to his source as "J.P." and had merely confirmed the reference by responding, "That'll work." Even so, we find no basis for a conclusion that Thomas had any intent to mislead the magistrate. Whether it was the informant or Atkerson who first referred to the source as "J.P." matters little, so long as Atkerson, the go-between, agreed that "J.P." was an appropriate reference. It was Atkerson who knew the identity of his supplier and by confirming that cognomen, he effectively identified his source as "J.P.". We find no indication that Thomas doubted the essential accuracy of his statements to the magistrate. In Franks v. Delaware, the United States Supreme Court stated that "every fact in an affidavit [need not necessarily be] correct ... [but must be] truthful in the sense that the information put forth is believed or appropriately accepted by the affiant as true." 438 U.S. at 165-66, 98 S.Ct. at 2681.

Pyle also complains that Thomas told the magistrate that Atkerson again named his source as "J.P." at the second transaction on May 31. Before the magistrate Thomas testified that Atkerson advised Investigator Bogard that "he had to take the money back to 'J.P.,' ", when in fact Atkerson said only that he had to take the money back to "his source". But we are not persuaded that this inaccuracy rises to the level of a knowing or reckless falsehood as defined in Franks and Leon. The trial court, viewing these events as a whole, could accept Thomas's statement as a reasonable inference. Atkerson had agreed on May 24 that his source could be called "J.P." and told Bogard on May 31 that he had to take the money back to his source. There were circumstances indicating the same supplier was involved in both transactions and on both occasions Atkerson was observed going toward or into Pyle's house. Also, the record shows that Bogard had been privy to some undercover phone calls to Pyle which connected Pyle with Atkerson. In light of these circumstances, Thomas's perception of these events was not unreasonable, and the trial court concluded that his statement, although technically inaccurate, was not made with an intent to deceive.

Officer Thomas also told the magistrate that the informant knew "J.P." to be Jim Pyle. Pyle asserts there is no specific statement or testimony in the record where the confidential informant directly states that "J.P." means appellant Jim Pyle. The state cites a conversation between the informant and Investigator Bogard where the informant refers to J.P., and then gives Bogard directions to Pyle's residence. The state also refers to a taped conversation between the informant and Pyle. Again, the trial court could reasonably infer that Thomas's testimony was based on his knowledge of these transactions, and not the result of an intent to deceive the magistrate.

Next, Pyle labels as false Officer Thomas's statements that he saw Pyle talking to Atkerson at the Pyle residence after the drug transaction on May 31 and took photographs of the two. At the suppression hearing Thomas acknowledged this mistake, explaining that when he identified Pyle he was relying on the knowledge of Officer Grigsby, who was conducting the surveillance with him on May 31. The state argues that "this is the type of hearsay contemplated by Franks v. Delaware." The Court recognized in Franks that an affidavit may be based upon hearsay and reiterated its reluctance to extend the rule of exclusion beyond "those instances of deliberate misstatements and those of reckless disregard." 438 U.S. at 167, 170, 98 S.Ct. at 2682, 2683...