Safley v. State

• Decision Date: 24 October 1990
• Docket Number: No. CA,CA
• Citation: 797 S.W.2d 468,32 Ark.App. 111
• Parties: Dana SAFLEY, Appellant, v. STATE of Arkansas, Appellee. CR 90-14.
• Court: Arkansas Court of Appeals

Page 468

797 S.W.2d 468

32 Ark.App. 111

Dana SAFLEY, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 90-14.

Court of Appeals of Arkansas,

Division II.

Oct. 24, 1990.

Arthur L. Allen, Little Rock, for appellant.

R.B. Friedlander, Sol. Gen., Little Rock, for appellee.

MAYFIELD, Judge.

Appellant was charged with two counts of possession of a controlled substance with intent to deliver (cocaine and marijuana), but the jury found her guilty of two counts of the lesser offense of possession of a controlled substance. She was sentenced to serve ten years in the Arkansas Department of Correction.

On August 10, 1988, Little Rock Police Department Detective Patti Watson obtained a warrant to search a residence located at 1605 South Pierce Street being occupied by Dana Safley. The affidavit for the warrant stated it was based on "information from a reliable confidential informant" that appellant was in possession of and selling cocaine from this residence. The affidavit also stated:

[O]n 08-10-88, the same said reliable confidential informant was searched by a Little Rock Police Officer for any concealed money and/or contraband with negative results and at that time the same said reliable confidential informant was supplied with a quantity of money for the purpose of purchasing cocaine from Dana Safley. The same said reliable confidential informant was then observed going to and entering the residence located at 1605 South Pierce Street, Little Rock, Pulaski County, Arkansas. After approximately ten (10) minutes the same said reliable confidential informant was observed leaving the residence and then he/she returned to the affiant and handed the affiant one clear plastic bag containing white powder. The same said reliable confidential informant stated that he/she had purchased the clear plastic bag containing white powder from Dana Safley and Dana Safley had represented the white powder as cocaine. A portion of the white powder was then field tested by the affiant and the field test reacted positive for cocaine.

After the warrant was obtained, Detective Watson and several other officers went to the residence and executed the warrant. During the search the officers found a brown paper sack containing 3 plastic bags of green vegetable matter; 12 plastic bags containing white powder which later proved to be cocaine; a set of hand-held scales and a box of sandwich bags; a black heart-shaped object containing green vegetable matter; a bottle of inositol powder (a substance the evidence showed is frequently used as a "cutting agent" for cocaine); a sack of drug paraphernalia; and a tray with cigarette papers and green vegetable matter.

Because appellant's third point for reversal challenges the sufficiency of the evidence, we address it first. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In that point, appellant contends the trial court erred in denying her motion for directed verdict because the evidence was insufficient to sustain her conviction. Appellant argues the state presented no evidence to support its argument that she was responsible for the drugs being in the house where they were found.

In reviewing the question of the sufficiency of the evidence in a criminal case, this court views the evidence in the light most favorable to the appellee and affirms the judgment if there is substantial evidence to support the findings of the trier of fact. Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986); Harris v. State, 15 Ark.App. 58, 689 S.W.2d 353 (1985). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). The fact that evidence is circumstantial does not render it insubstantial. Small v. State, 5 Ark.App. 87, 632 S.W.2d 448 (1982). And in Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982), the court explained:

We have said that possession need not be actual, physical possession, but may be constructive, when one controls a substance or has the right to control it. Constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control, or to the joint control of the accused and another, but neither actual nor exclusive possession of the contraband is necessary to sustain a charge of possession.... However, we have also held that joint occupancy of premises alone will not be sufficient to establish possession or joint possession unless there are additional factors from which the jury can infer possession.

278 Ark. at 50, 643 S.W.2d 251 (citations omitted).

Here, there is evidence that appellant had lived in the house; that she moved to Hot Springs sometime between June and August 1988; that on August 9 she came back to Little Rock to gather her clothes and belongings from the house; that she slept in the house; and that she was alone in the house when the police officers arrived. In the bedroom, the officers found marijuana in appellant's purse and also in a bag near an open suitcase containing women's clothing. In the same bedroom the officers found the 12 plastic bags of cocaine, the scales, and the box of sandwich bags in the dresser on top of which were some toiletries and mascara. A bottle of inositol powder was found in appellant's purse. There was also evidence that the confidential informant had purchased cocaine from the appellant on the very day the search warrant was executed. We think these circumstances are enough to permit the jury to find appellant guilty of possession of a controlled substance.

Appellant's first point for reversal is that the trial court erred in denying her motion to suppress the evidence because the evidence was seized upon the authority of a search warrant issued without probable cause to support the informant's reliability and without probable cause to believe appellant was in possession of the items to be seized.

In Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987), the court said:

In Illinois v. Gates, 462 U.S. 213 [103 S.Ct. 2317, 76 L.Ed.2d 527] (1983), the two-pronged test of Aguilar [v. State, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ] and Spinelli [v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ] was replaced by a different test--"a practical, common sense decision," based on all the circumstances, including the veracity and basis for knowledge of persons supplying information. It is sufficient if "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Under Gates it is the duty of the reviewing court simply to insure that the magistrate issuing the warrant had a substantial basis for concluding that probable cause existed.

291 Ark. 363, 724 S.W.2d 478.

The Gates "totality of the circumstances" test has been used in Arkansas ever since it was adopted in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983). Applying that test here, we think a practical reading of the affidavit upon which the warrant was issued reveals that Detective Watson had reasonable cause to believe that cocaine was being concealed in the residence at 1605 South Pierce Street, being occupied by appellant. The affidavit states that Watson received information from a reliable confidential informant that appellant was in possession of and selling cocaine from the residence. The affidavit establishes the reliability of the confidential informant by stating that the confidential informant had in the past provided information pertaining to narcotics trafficking in the Little Rock area on at least seven occasions which had proved correct. The affidavit details a controlled buy from the appellant at the residence on South Pierce Street and states the Little Rock Police Department had on file three reports stating cocaine was being trafficked from the residence and three reports stating appellant was involved in narcotics trafficking in the Little Rock area. Therefore, we find there was probable cause for the issuance of the search warrant under which the evidence was seized.

Under her first point, the appellant also contends the search warrant was defective because the return of service was not timely filed. Appellant says the warrant was issued and executed on August 10, 1988, but the return of service was not filed until December 15, 1988.

Arkansas Rule of Criminal Procedure 13.4(b) provides:

An officer who has executed a search warrant ... shall, as soon as possible and not later than the date specified in the warrant, return the warrant to the issuing judicial officer together with a verified report of the facts and circumstances of execution, including a list of things seized.

At the hearing on the motion to suppress, Detective Watson testified that when the original return was filled out it was mistakenly stated that the warrant was executed on "8-8 of '88 at 1710 hours," and during preparation of the case file, Detective Stephens noticed the error and made an amended return correcting the date to "8-10 of '88." He testified that all the items contained on the original return are the same as mentioned in the amended return and that the original misdated return was filed on "8-12 of '88." In denying the motion to suppress, the trial judge stated that although the wrong date was put on the return originally, an amended return was filed on which the date was corrected; therefore, we cannot agree that the return was untimely filed. But, even if the return was not timely filed, there is no...