Thompson v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: ROGERS; JENNINGS, C.J., and COOPER
• Citation: Thompson v. State, 856 S.W.2d 319, 42 Ark.App. 254 (Ark. App. 1993)
• Decision Date: 30 June 1993
• Docket Number: No. CA,CA
• Parties: Robert Timothy THOMPSON, Appellant, v. STATE of Arkansas, Appellee. CR 92-603.

Page 319

856 S.W.2d 319

42 Ark.App. 254

Robert Timothy THOMPSON, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 92-603.

Court of Appeals of Arkansas Division I.

June 30, 1993.

A. Wayne Davis, Little Rock, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

ROGERS, Judge.

Pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure, the appellant, Robert Timothy Thompson, entered conditional pleas of guilt to charges of possession of a controlled substance (methamphetamine) with intent to deliver and possession of a controlled substance (marijuana). As a result, appellant was sentenced to a total of five years in prison. On appeal, appellant contends that the trial court erred in denying his motion to suppress evidence allegedly seized in an unauthorized nighttime search. Because we agree that the affidavit upon which the warrant was issued contained insufficient facts to support a search at night, we reverse the judgment of conviction.

The search warrant in this case was issued upon the affidavit of Officer Robert Scott of the North Little Rock Police Department. In the affidavit, dated February 5, 1991, Officer Scott described in general terms the location of appellant's residence in an apartment complex called the Bradford Oaks Apartments on Camp Robinson Road. The affidavit also recounted the details of three controlled drug purchases made by a confidential informant which were said to have occurred on January 21, 1991, January 22nd and February 5th. The affidavit recited that on each occasion the informant and his or her vehicle were first searched for contraband; that the informant was provided funds with which to purchase drugs; that the informant was observed entering the apartment; and that upon exiting the apartment the informant met with officers at a pre-designated location where the contraband was turned over to the authorities. The affidavit further recited that the informant named appellant as the person from whom the controlled substances were purchased. The affidavit concluded with the following computer-generated paragraph:

Affiant Scott states that because the location of the residence is such that officers approaching the residence could be easily observed and the substance located therein could be destroyed or disposed of before officers could secure said residence and that information has been received that the above described controlled substance is being sold from the residence at any time of the day or night, the warrant should be executed at any time of the day or night.

Based upon this information, a search warrant was issued which authorized the search of appellant's residence at night. The warrant was executed on February 5, 1991, at 8:02 p.m. Various items, including controlled substances, were seized during the search.

In this appeal, appellant attacks the validity of the search on the ground that the statements in the affidavit were conclusory and that there was an insufficient factual basis to support a search at night. In reviewing a trial court's ruling on a motion to suppress because of an alleged insufficiency of the affidavit, we make an independent determination based upon the totality of the circumstances and reverse the trial court's ruling only if it is clearly against the preponderance of the evidence. Holmes v. State, 39 Ark.App. 94, 839 S.W.2d 226 (1992).

Rule 13.2 of the Arkansas Rules of Criminal Procedure sets out three bases for the issuance of a nighttime search warrant. The rule provides:

(c) Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:

(i) the place to be searched is difficult of easy access; or

(ii) the objects to be seized are in danger of imminent removal; or

(iii) the warrant can only be safely or successfully executed at nighttime under circumstances the occurrence of which is difficult to predict with accuracy;

the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.

It has consistently been held that the affidavit must set out facts showing reasonable cause to believe that circumstances exist which justify a nighttime search. Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). It has further been held that conclusory statements do not suffice to establish the requisite factual basis for reasonable cause. Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991). As was said by the supreme court in State v. Broadway, supra :

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.

Id. 269 Ark. at 218, 599 S.W.2d at 723.

In support of his argument, appellant relies heavily on the supreme court's decision in Garner v. State, supra. There, the affidavit included a printed form with places for check marks to be made beside any of three phrases which, incidentally, mirrored the wording of Ark.R.Crim.P. 13.2(c). To justify the nighttime search, check marks had been placed next to two of the phrases. The court found error in the denial of the appellant's motion to suppress, holding that the statements that...