State v. Broadway, CR
| Decision Date | 09 June 1980 |
| Docket Number | No. CR,CR |
| Parties | STATE of Arkansas, Appellant, v. Arthur Jerome BROADWAY, Appellee. 80-16. |
| Court | Arkansas Supreme Court |
Steve Clark, Atty. Gen., by James F. Dowden, Asst. Atty. Gen., Little Rock, for appellant.
McArthur & Lassiter, P.A., Little Rock, for appellee.
The state brings this interlocutory appeal from the trial court's granting of the appellee's motion to suppress certain evidence. Ark. Rules of Crim.Pro., Rules 36.10 and 16.2(d) (1977). The sole issue presented is whether the trial court erred in ruling that the evidence, marijuana, be suppressed due to an invalid nighttime search warrant.
The facts and circumstances surrounding the issuance of the search warrant are not in dispute. The facts constituting probable cause in support of the affidavit state that, based on police file reports of appellee's activities and information received about a purchase in appellee's home the day before the search from a proven confidential informer, police officers arranged a "controlled buy" at appellee's home. This informant purchased a quantity of marijuana from the appellee between 5 and 7 p. m. Shortly thereafter, two police officers, who observed the informant enter the premises and leave, typed an affidavit and filled in the blanks of a search warrant authorizing a search of appellee's home. They took the completed instruments to a judicial officer's residence for his approval. After the police officers were sworn by him, they signed the affidavit and the judge signed the search warrant.
The affidavit, after enumerating the above asserted facts surrounding the "controlled buy," ended with this conclusory statement:
Having found reasonable cause to believe that the substance described herein could be removed unless the search is conducted immediately, you are hereby commanded to search the above described premises of property at anytime of the day or night.
The search warrant, a printed form, contained this identical language as a standard paragraph, except it used the word "probable" rather than "reasonable." The warrant was issued based solely on the affidavit. The search was conducted at 9:15 p. m. that evening. Five individuals, including the appellee, who were engaged in a dice game, attempted to leave the room or premises. Marijuana was seized, which was concealed on appellee's person and in his bedroom. There was no evidence of the use or sale of the marijuana.
A motion to suppress shall be granted only if the court finds that a violation is substantial or contrary to the federal Fourth Amendment or Art. 2, § 15, of our state constitution. Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977); and Rules of Crim.Proc., Rule 16.2 (1977). Even so, penal statutes or rules are to be strictly construed in favor of the individual. Austin v. State, 259 Ark. 802, 536 S.W.2d 699 (1976). Stated in another way, the constitutional guarantee against unlawful search and seizure must be construed in favor of the individual. Lowery v. United States, 128 F.2d 477 (8 Cir. 1942). In Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978), we said:
Good cause must exist and be found by the issuing judicial officer to exist to authorize entry into a citizen's privacy in the night time. This is a safeguard justified by centuries of abuse. . . .
The forms and procedure are quite elementary, the adherence to which will save everyone concerned a good deal of time, money, and, sometimes, anguish.
The state, in support of its position, cites numerous federal cases to justify nighttime searches in drug related cases pursuant to a federal statute or rule. Here, however, we are interpreting our own recent rules on this subject. Rules of Crim.Proc., Rule 13.1(d)(1977), authorizes the judicial officer to issue a search warrant when he believes reasonable cause exists for the issuance based upon the proceedings before him. Rule 13.2(c) provides, however, that a search warrant shall be executed between the hours of 6 a. m. and 8 p. m. or in the daytime. There are only three exceptions to this restriction. The pertinent one here is that "the objects to be seized are in danger of imminent removal."
The affiants, and not the court, "found reasonable cause" existed for an immediate search since the substance "could be removed." They then "commanded" themselves to make the search at anytime during the day or night. There is no factual basis in the affidavit to support a nighttime search except this conclusory finding and self-command. An affidavit should speak in factual and not mere conclusory language. It is the function of the judicial officer, before whom the proceedings are held, to make an independent and neutral determination based upon facts, not conclusions, justifying an intrusion into one's home. At the suppression hearing, the state properly took the view that the conclusory language in the affidavit was a mistake and neither added nor detracted from it. Admittedly, this clause should appear only in the search warrant. It is undisputed that except for the judicial officer's signature, address, and date, the warrant was completely filled in by the affiants when it was submitted to the judge for his signature. The record reflects no testimony before the judicial officer to support the nighttime search. The affidavit itself reflects the existence of marijuana in appellee's house during the preceding day. Further, the affiants' conclusory language is vastly different from the sworn testimony in Harris v. State, 262 Ark. at 509, 558 S.W.2d 143, supra, that "evidence (murder weapon) . . . might be disposed of . . . " We cannot construe "could be removed" to convey the meaning that the controlled substance was in "danger of imminent removal," which is required to justify a nighttime search.
In the circumstances, we must agree with the trial court that there was insubstantial compliance with the legal requirements for a nighttime search of appellee's home.
Affirmed.
I thoroughly disagree with the majority and the trial judge on the suppression of the marijuana in this case. We should approach this question, as well as all other questions pertaining to the suppression of evidence seized as the result of a search, recognizing that it is only unreasonable searches that are prohibited by Amendment Four to the United States Constitution. Wickliffe v. State, 258 Ark. 544, 527 S.W.2d 640. We should also never lose sight of the fact that the United States Supreme Court has consistently maintained its position that the primary, if not sole, purpose of the exclusionary rule is to deter illegal police activity. From the inception of the rule in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, LRA 1915 B 834, Ann.Cas. C 1915, 1177 (1914), the court has abided by this reasoning. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
Because of the decided preference for officers to act pursuant to a warrant issued by a magistrate, rather than upon their own determinations of probable cause, the courts should not discourage police officers from submitting the question to a judicial officer by acting from a hypertechnical viewpoint rather than a realistic and common sense one. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). See also, State v. Lechner, 262 Ark. 401, 557 S.W.2d 195; Baxter v. State, 262 Ark. 303, 556 S.W.2d 428. The preference is so strong that less persuasive evidence than would support a warrantless search will justify the issuance of a search warrant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). When a search is based upon a warrant issued by a magistrate, reviewing courts should accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant, unless the magistrate acted only as a rubber stamp for the police. Aguilar v. Texas, supra. We should always remember that the burden is upon one moving to suppress evidence to establish that his Fourth Amendment rights were violated by a search and seizure. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83. Although this burden is easily met by the mere showing that the search was made without a warrant, it remains upon the attacker when it is based upon a search pursuant to a warrant. Prichard v. State, 258 Ark. 151, 523 S.W.2d 194; Albright v. Karston, 206 Ark. 307, 176 S.W.2d 421.
We have adopted a common sense approach to suppression of evidence in Rule 16.2, Arkansas Rules of Criminal Procedure, Vol. 4A, Ark.Stat.Ann. (Repl. 1977). A motion to suppress is to be granted only if the court finds the violation upon which it is based is substantial, or if otherwise constitutionally required. Lipovich v. State, 265 Ark. 55, 576 S.W.2d 720; Pridgeon v. State, 262 Ark. 428, 559 S.W.2d 4; Brothers v. State, 261 Ark. 64, 546 S.W.2d 715. On the question of nighttime search pursuant to a warrant, the violation must be substantial, for there is no constitutional mandate for the exclusion of evidence seized pursuant to a warrant commanding a nighttime search. In determining whether a violation is substantial, the court must consider all the circumstances, including:
(i) the importance of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful (iv) the extent to which privacy was invaded;
(v) the extent to which exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, the things seized would have been...
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