Wagner v. State

• Court: Arkansas Supreme Court
• Writing for the Court: JIM GUNTER
• Citation: Wagner v. State, 2010 Ark. 389, 368 S.W.3d 914 (Ark. 2010)
• Decision Date: 02 December 2010
• Docket Number: No. CR 10–372.,CR 10–372.
• Parties: John WAGNER, Appellant, v. STATE of Arkansas, Appellee.

2010 Ark. 389

368 S.W.3d 914

John WAGNER, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 10–372.

Supreme Court of Arkansas.

Oct. 21, 2010.

Rehearing Denied Dec. 2, 2010.

Daniel G. Ritchey, Blytheville, for appellant.

Dustin McDaniel, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

JIM GUNTER, Justice.

Appellant John Wagner appeals to this court following the entry of a conditional plea of guilty. We granted the State's motion to certify this case because the case presents an issue of first impression concerning statutory and rule interpretation and possibly requires the overruling of precedent. Therefore, our jurisdiction is pursuant to Rule 1–2(b)(1), (5), (6) of the Rules of the Arkansas Supreme Court.

On appeal, appellant contends (1) that the circuit court erred in denying his motion to suppress because the affidavit used to secure a search warrant of appellant's home lacked sufficient proof of probable cause; (2) that the circuit court erred in denying his motion to suppress because the district court judge who issued the search warrant was without jurisdiction to do so; and (3) that the circuit court erred in denying his motion to compel the State to reveal the identities of two confidential informants who provided information in the affidavit to secure the search warrant. We affirm the circuit court's denial of appellant's motion to suppress and dismiss the appeal from the circuit court's denial of appellant's motion to compel as not proper under Rule 24.3(b) of the Arkansas Rules of Criminal Procedure.

On January 7, 2009, Sergeant Robert Ephlin presented an affidavit for a search warrant to District Judge Mike Gibson of the Mississippi County Osceola District Court. The affidavit stated, in pertinent part:

The undersigned affiant and Lt. Robb Rounsavall have been receiving information relating that John A. Wagner, AKA “Waco[,]” is involved in the distribution of cocaine, marijuana, and methamphetamine. The information has been received from several different sources including confidential informants, police officers, and Gosnell Public Safety Director Bobby Trump. The information has been received over the past two years.

During January 2008[,] I, along with Lt. Robb Rounsavall, met with a confidential informant who related that he/she could purchase methamphetamine from a subject he/she knows as “Waco” while inside his residence located in Gosnell. The informant stated that he/she has purchased methamphetamine from “Waco” on numerous occasions.

I am aware that “Waco” is John A. Wagner and that Wagner resides at 1011 South Airbase Highway in Gosnell. I am also aware that Wagner has a previous arrest for possession of a controlled substance with the intent to deliverout of Crittenden County Circuit Court, to the charge of possession of a controlled substance with the intent to deliver on January 29, 2007[,] and received 60 months probation. A copy of the judgment and disposition order has been made a part of this affidavit in Attachment B.

On February 8, 2008[,] I spoke with the confidential informant and arranged to meet and make a controlled purchase of methamphetamine from John Wagner (“Waco”) while inside his residence. A plan was devised to purchase one ounce of methamphetamine from Wagner for one thousand two hundred dollars. The informant and his/her vehicle were searched for money and or drugs with negative results. The informant was provided with one thousand two hundred dollars in DTF buy money. The serial numbers of the buy money had been previously recorded. The informant was instructed on the procedure for making the purchase. The informant was equipped with a covert audio transmitter that allowed officers to monitor the conversation between the informant and “Waco.” Officers conducted visual surveillance of “Waco[']s” residence and observed the informant arrive. Visual surveillance officers observed the informant speaking with “Waco” in the driveway while the conversation was monitored using the covert audio transmitter. Officer heard “Waco” tell the informant that he needed eight hundred dollars of the money up front and that he would then go get the methamphetamine and call the informant and tell him/her when it could be picked up. The informant had been told not to give the DTF buy money to “Waco” unless “Waco” supplied the methamphetamine at the same time. The informant told “Waco” he/she couldn't do that and left the residence. Officers debriefed the informant and learned that this was not an unusual occurrence. The informant stated “Waco” is a very careful individual and often changes his routine. The informant also related the security door installed on the front of “Waco's” residence is always locked. The informant related that it is a heavy steel security door.

During December 2008[,] Lt. Robb Rounsavall spoke with a reliable confidential informant who related that “Waco” is involved in the distribution of methamphetamine and cocaine from his residence located on South Airbase Highway in Gosnell. The informant stated he/she has been present inside the residence and observed large amounts of cocaine and methamphetamine being packaged for sale. The informant stated “Waco” hides the packages in flower pots and other containers around the inside and outside of his residence. The informant stated “Waco” also routinely changes his method of dealing with customers. The informant also related “Waco” stores some amounts of the drugs at the residence next door. The informant stated the residence is occupied by Jeremiah Knott and that “Waco” pays Knott to store and sometimes deliver the drugs. The informant stated Knott drives a green, extended cab, Chevrolet Pickup. The informant related that he/she has been inside both residences within the last week and observed amounts of cocaine and methamphetamine. The informant also stated he/she has witnessed “Waco” engage in several drug transactions while inside both residences during that time. This informant has provided information to me and Lt. Rounsavall over the [past] two years and that informant has resulted in the arrest and prosecution of more than five individuals.

On January 5, 2009[,] Lt. Robb Rounsavall received a call from an anonymous source relating that “Waco” and Jeremiah Knott are involved in the distributing of cocaine and methamphetamine from their residences located on Airbase Highway in Gosnell. The caller stated that Knott transports and stores the drugs for “Waco.” The caller stated that Knott lives next door to “Waco” and stores most of “Waco's” drugs in and around his residence. The caller stated “Waco” stores the money from the sale of the drugs inside his residence and that it is hid in several places throughout the residence.

Based on the contents of the affidavit, Judge Gibson issued a search warrant for appellant's home located in the Chickasawba District of Mississippi County. The warrant was executed and contraband and controlled substances were found. On February 25, 2009, the State filed a criminal information against appellant charging him with possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, possession of MDMA, possession of drug paraphernalia, simultaneous possession of drugs and a firearm, and felon in possession of a firearm.

Appellant filed a motion to suppress the evidence found during the search, arguing that the affidavit upon which the warrant was issued failed to establish probable cause for the search. Appellant also filed a motion to compel the State to reveal the identity of the confidential informants named in the affidavit. Appellant next filed a supplemental motion to suppress asserting that the affidavit for the search warrant failed to provide sufficient timely facts from which a neutral magistrate could make a finding of probable cause. Appellant also alleged that Judge Gibson was without jurisdiction to issue the search warrant based on his status as a district judge in one district entering a search warrant for a residence in another district.

A hearing was held on the motions on November 9, 2009. Sergeant Ephlin testified that prior to securing the search warrant, he was aware that appellant was on probation. Sergeant Ephlin stated that he had hoped to approach appellant outside his residence and request a search of the house. However, before that opportunity had presented itself, Sergeant Ephlin felt he had compiled enough information to obtain a search warrant. Sergeant Ephlin testified that his affidavit referenced several different sources, including two confidential informants, an anonymous caller, police officers, and the city public safety director. Sergeant Ephlin admitted that the affidavit did not specifically identify the dates and times when the confidential informants saw drugs at appellant's residence. Sergeant Ephlin testified that despite that, he believed he had enough to procure a warrant. Lieutenant Robb Rounsavall also testified, and his testimony was consistent with that of Sergeant Ephlin. In addition, Bobby Trump testified that he spoke with both Sergeant Ephlin and Lieutenant Rounsavall in January 2009 regarding two separate anonymous tips that Trump's office had received on its telephone hotline regarding drugs being sold from appellant's residence.

On November 16, 2009, the circuit court entered an order denying appellant's motion to reveal the informants' identities and denying appellant's motion to suppress on both the jurisdictional issue and the sufficiency issue. Thereafter, appellant entered a conditional plea of guilty and filed a timely notice of appeal for this court's review.

I. Whether the Circuit Court Erred in Denying Appellant's Motion to Suppress

Appellant's first argument on appeal is that the circuit court erred in denying his motion to suppress evidence found during a search of appellant's home because the affidavit used to secure the search...