State v. Anderson, CR

• Decision Date: 13 May 1985
• Docket Number: No. CR,CR
• Citation: 286 Ark. 58,688 S.W.2d 947
• Parties: , 53 USLW 2602 STATE of Arkansas, Petitioner, v. Charles Ray ANDERSON, Jr., Respondent. 84-215.
• Court: Arkansas Supreme Court

Page 947

688 S.W.2d 947

286 Ark. 58, 53 USLW 2602

STATE of Arkansas, Petitioner, v.Charles Ray ANDERSON, Jr., Respondent.

No. CR 84-215.

Supreme Court of Arkansas.

May 13, 1985.

Steve Clark, Atty. Gen. by Velda West Vanderbilt, Asst. Atty. Gen., Little Rock, for petitioner.

William C. McArthur, Little Rock, for respondent.

HAYS, Justice.

This case comes to us on a petition to review a decision of the Court of Appeals because a legal principle of major importance, the changing law of search and seizure, is involved.The Court of Appeals reversed the trial court and the state petitioned for review.We affirm the Court of Appeals.

Officer Jerry Ridgell, Stuttgart Police Department, appeared before the circuit judge at approximately 2:00 a.m. on the morning of April 13, 1983 to obtain a warrant to search the home of Charles Ray Anderson, Jr., the respondent here, where Ridgell had observed a drug sale the afternoon of April 12.Oral testimony was taken and a warrant issued for the residence.At 2:30 a.m. officers arrested Anderson, searched his home and vehicle, and seized marijuana and other items.Anderson admitted the marijuana was his.He was charged with several crimes but all were subsequently dismissed except for possession of marijuana with intent to deliver.Anderson filed a motion to suppress and the state agreed to suppress evidence seized from the vehicle and the motion to suppress the items seized from the house was denied.Anderson was tried and the jury returned a verdict of guilty for possession of marijuana, a misdemeanor, and imposed a sentence of one year in jail and a $1,000 fine.

Two assignments of error were argued to the Court of Appeals, first, the drug paraphernalia should not have been admitted over an objection to its relevance.The Court of Appeals rejected this contention and we are in agreement.The items introduced included a medicine kit with syringes, scalpel trays, pipes, glass tubes, hemostats, scales and similar items.The Court of Appeals said:

The record reflects, however, that the items in question were relevant to the crime with which appellant was charged and therefore admissible under Unif.R.Evid. 402.Whether evidence is relevant is a matter addressed to the sound discretion of the trial court, and, absent an abuse of that discretion by the lower court, the Court of Appeals will not disturb its ruling.(Cite omitted).We find no abuse of discretion here.A police officer, who had established his familiarity with the subject matter explained the use of each article of paraphernalia as it was introduced into evidence.Such testimony concerning the items enabled the trial court to view the paraphernalia as relevant within the terms of Rule 401.Anderson v. State, 13 Ark.App. 68, 679 S.W.2d 806(1984).

Second, Anderson contends the warrant was improperly and illegally authorized.Anderson makes three points in challenging the legality of the search warrant, including the lack of an affidavit or recorded testimony in support of the warrant.A.R.Cr.P. 13.1(b) requires one or more affidavits or recorded testimony under oath before a search warrant may be issued.When Officer Ridgell appeared before the circuit judge to secure the warrant, his testimony was not recorded and there was no affidavit.Citing Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646(1977), the Court of Appeals reversed because of this omission.In Lunsford, the court found the lack of an affidavit or recorded testimony under oath as required by Rule 13.1(b) to be fatal to the sufficiency of the warrant.On this issue we granted a petition for review to consider the decision in light of two recent United States Supreme Court holdings involving search and seizure questions, U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677(1984)andMassachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737(1984).

Leon holds "objective good faith reliance" by a police officer upon the acceptance of his affidavit by a detached, neutral magistrate will avoid application of the exclusionary rule in the event the magistrate's assessment is found to be in error.Under this rationale the exclusionary rule is designed to deter misconduct on the part of the police rather than to punish errors of judges and magistrates, and admitting evidence seized pursuant to a defective warrant will not reduce incentives on the part of judicial officers to comply with the dictates of the Fourth Amendment.468 U.S. 897, 104 S.Ct. 3418.Massachusetts v. Sheppard, supra, a companion case to Leon, applied the Leon rule to technical deficiencies in the warrant and found the officers had acted in objectively reasonable reliance on a warrant which was technically inadequate.

In Leon, the warrant was constitutionally infirm to support probable cause, but sufficient to cause disagreement among thoughtful and competent judges, and a reasonable, well-trained police officer could have believed probable cause existed, i.e. objectively reasonable good faith.

How far below the standard of probable cause or a constitutionally valid warrant the Supreme Court is willing to go and still find good faith on the part of the police, has been left open.Several states have not been ready to go beyond the narrow fact situation set out in Leon.SeeAdkins v. Texas, 675 S.W.2d 604(Tex.App.1984);Collins v. Florida, 465 So.2d 1266(Fla.App.1985);People v. Deitchman, 695 P.2d 1146(Co.1985).Nor have we in two cases citing Leon dealt with deficiencies of constitutional or substantial proportions.McFarland & Soest v. State, 284 Ark. 533, 684 S.W.2d 233(1985);Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166(1985).To date we have not read Leon any more broadly than finding its utility in easing the burden of the prosecution from technicalities or form which heretofore might have invalidated an otherwise constitutionally sufficient warrant and which was insufficient despite all reasonable efforts and reliance on the part of the police.How far beyond that we will apply Leon we have not said, nor is this the appropriate case.

The issue is whether the omission of a fundamental requirement in the procedures for a search warrant involved error of constitutional dimension or of a substantial nature under our own Rules of Criminal...