State v. Arculeo, 82,636, 82,637.

• Decision Date: 30 November 2001
• Docket Number: No. 82,636, 82,637.,82,636, 82,637.
• Citation: 36 P.3d 305,29 Kan. App.2d 962
• Parties: STATE OF KANSAS, Appellee, v. SCOTT M. ARCULEO, Appellant.
• Court: Kansas Court of Appeals

29 Kan. App.2d 962

36 P.3d 305

STATE OF KANSAS, Appellee, v. SCOTT M. ARCULEO, Appellant.

No. 82,636, 82,637.

Court of Appeals of Kansas.

Opinion filed November 30, 2001.

Patrick H. Dunn, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for the appellant.

No appearance for the appellee.

Before PIERRON, P.J., MARQUARDT and BEIER, JJ.

PIERRON, J.:

Scott M. Arculeo appeals his convictions in two Lyon County cases. In 97CR350, he was convicted by a jury of one count of rape, two counts of aggravated criminal sodomy, and two counts of aggravated indecent liberties with a child. In 97CR180, he was convicted on stipulated facts to the court of three counts of aggravated criminal sodomy, four counts of sexual exploitation of a child, and one count of criminal possession of a firearm. The cases were consolidated on appeal.

On May 20, 1997, Officer Mark Senn of the Emporia Police Department responded to a report of a domestic dispute at Arculeo's apartment. When he arrived on the scene, Officer Senn found Darlene Murdock, Arculeo's common-law wife, lying in the street and emotionally upset. Murdock told Officer Senn she had been thrown out of her house, had no money, and knew no one in town. Officer Senn stated Murdock had suicidal ideation and pursuant to department policy, he took her to the hospital for a mental evaluation. During the 2½ hours the two sat in the hospital waiting room, Murdock made statements which formed the basis of the affidavit for the search of Arculeo's apartment.

Murdock told Officer Senn that within the last 2 weeks Arculeo had allowed two females to live with them. She said Arculeo gave one of the females $250 to buy some illegal drugs. Murdock admitted to using some of the drugs after the female returned to the apartment. Murdock told Officer Senn the female had the drugs in a briefcase. She said they did not use all the drugs and the remainder was being stored in Arculeo's personal safe in his bedroom or in the briefcase. Murdock also said Arculeo liked to use a video camera and that he may have videotaped some of the drug use incidents.

Officer Senn obtained a search warrant based on the information received from Murdock. During execution of the search warrant and a search of Arculeo's personal safe, officers discovered several videotapes, photographs of nude or semi-nude young boys, and rolls of 35 mm film and instamatic film. The officers also found a briefcase with a zip lock bag inside containing a white powdery substance, several smoking pipes, rolling papers, a plastic bag containing vegetation, and a gun under Arculeo's bed. Upon viewing the videotapes, officers discovered pornographic material of young boys involved in sexual activity, including sexual activity with Arculeo and with both Arculeo and Murdock.

On May 27, 1997, Arculeo was arrested and charged in Case No. 97CR180 with multiple counts of aggravated criminal sodomy, aggravated indecent liberties with a child, sexual exploitation, sexual exploitation of a child, and criminal possession of a firearm. The children involved in 97CR180 were P.G., D.R., D.G., and M.M. As information of the case became public, other victims came forward. On August 27, 1997, Arculeo was charged in Case No. 97CR350 with rape of a child under 14 years, two counts of aggravated criminal sodomy, and two counts of aggravated indecent liberties. The children involved in 97CR350 were A.G., M.M., M.W., and K.G.

Although 97CR180 was scheduled for trial before 97CR350, due to repeated continuances of 97CR180, a jury trial in 97CR350 occurred first. Each of the four victims, A.G., M.M., M.W., and K.G., testified to the sordid details of Arculeo's sexual abuse when they would spend the night at his house. The jury found Arculeo guilty on all counts. The trial court granted the State's request for an upward departure based on the following factors:

"(1) Defendant's acts were part of a comprehensive scheme to sexually abuse and record the abuse of minor children perpetrated over a significant period of time as opposed to isolated acts; (2) Defendant's acts involved the intentional cultivation of intense personal relationships designed to promote defendant's access to minor children; (3) Defendant manipulated parents of children in order to gain access to children to satisfy his deviant sexual appetite."

On August 25, 1998, the trial court sentenced Arculeo to consecutive sentences of 231 months' incarceration for rape, 115 months' incarceration for each of the aggravated criminal sodomy convictions, and 76 months' incarceration for each of the aggravated indecent liberties convictions. However, the trial court reduced the entire sentence to a total period of incarceration of 462 months in order to conform to the limits set by the Kansas Sentencing Guidelines Act. See K.S.A. 2000 Supp. 21-4720(c)(3).

The same day he was convicted in 97CR350 (August, 25, 1998), Arculeo filed a request for a bench trial on stipulated facts in 97CR180. The trial court granted the request and ultimately found Arculeo guilty on 8 of the 13 charges. Arculeo requested a downward durational departure, arguing that since the proceedings in 97CR180 and 97CR350 were tried separately, his criminal history score was now the highest possible category ("A"), when it would have been substantially less had the cases been joined. The court denied Arculeo's departure motion and sentenced him to the presumptive sentences for the crimes in 97CR180. The court sentenced Arculeo to consecutive sentences as follows: aggravated criminal sodomy, 308 months; 34 months on each of the four convictions for sexual exploitation; 77 months on each of the remaining two convictions for aggravated criminal sodomy; and 9 months for criminal possession of a firearm. The trial court sentenced Arculeo to a total period of incarceration of 505 months. The sentence was ordered to run consecutive to the 462 months imposed in 97CR350 and to the sentences in a long list of other cases where he was on probation for burglaries and thefts. The total sentence appears to be something in the area of 100 years.

Arculeo appeals his convictions in both 97CR180 and 97CR350. The cases were consolidated on appeal.

Omissions from the Search Warrant Affidavit

Arculeo first argues evidence seized from his house was illegally obtained because the affidavit supporting the original search warrant deliberately omitted material facts concerning the reliability of the informant. He points out the affidavit for the search warrant omitted evidence that Officer Senn: (1) found Murdock lying in the middle of the street when he responded to the domestic call and that she had suicidal ideation; (2) was aware of Murdock's mental and intellectual handicap and Murdock gave the incriminating statements while she was waiting for a mental health center evaluation at a hospital emergency room; (3) noticed Murdock had subpar intelligence and she appeared easily persuaded; and (4) was aware the Women's Resource Center assisted Murdock with her finances. Arculeo argues if this additional information had been included in the affidavit, a judge could not have found sufficient probable cause for the issuance of the search warrant due to the serious questions as to Murdock's reliability.

At the hearing on Arculeo's motion to suppress, Officer Senn admitted he knew the omitted information when he requested the affidavit, but he did not put it in his application because he felt the information did not have any bearing on the search warrant. The State argued the omission of those facts would not have prevented the magistrate from finding probable cause to issue the search warrant.

In denying Arculeo's suppression motion, the trial court found there was no evidence any of the information in the application was incorrect. The court also found the informant was the common-law wife of the defendant and her statements of personal drug use with the defendant provided corroboration for her statements and added veracity to their reliability. The court concluded the totality of the circumstances provided probable cause for issuance of the search warrant and the evidence would cause a reasonable person to believe criminal activity was occurring in the defendant's apartment. We agree.

K.S.A. 22-2502 provides that a search warrant shall be issued upon oral or written application "which states facts sufficient to show probable cause that a crime has been or is being committed." Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. It does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt. State v. Abu-Isba, 235 Kan. 851, 853-54, 685 P.2d 856 (1984).

While generally a defendant may not dispute allegations supporting a search warrant, a hearing under Franks v. Delaware, 438 U.S. 154, 57 L. Ed.2d 667, 98 S. Ct. 2674 (1978), is required if a defendant makes a showing supported by sworn allegations that the application for the search warrant contained material statements of deliberate falsehood or of reckless disregard for the truth which were necessary to the finding of probable cause. State v. Jensen, 259 Kan. 781, 787, 789, 915 P.2d 109, cert. denied 519 U.S. 948 (1996). The same rule applies to a deliberate omission of material information. State v. Lockett, 232 Kan. 317, 319, 654 P.2d 433 (1982). While Arculeo never specifically requested a Franks hearing, the motion to suppress was, in effect, a Franks hearing. A Franks hearing is simply an evidentiary hearing on a motion to suppress evidence based on a challenge to the facts included or omitted from a search warrant. See State v. Jacques, 225 Kan. 38, 44, 587 P.2d 861 (1978).

Where, as here, information is omitted from an application for a search warrant, it should be determined whether the omission was material and whether...