Yancey & Cloud v State

• Decision Date: 25 October 2000
• Docket Number: 99-1360
• Citation: 30 S.W.3d 117
• Parties: Curtis Hoyt YANCEY and Lee Roy Cloud v. STATE of Arkansas CA CR 99-1360 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Curtis Hoyt YANCEY and Lee Roy Cloud v STATE of Arkansas

CA CR 99-1360 ___ S.W.3d ___

Opinion delivered October 25, 2000

Court of Appeals of Arkansas

Divisions III and IV

Appeal from Arkansas Circuit Court; Russell Rogers, Judge; affirmed.

1. Evidence -- review of trial court's denial of motion to suppress. -- When reviewing a trial court's denial of a motion to suppress, the appellate court makes an independent determination based upon the totality of the circumstances and reverses only if the trial court's ruling is clearly against the preponderance of the evidence.

2. Search & seizure -- affidavit not merely conclusory --personal observations supported issuance of warrant. -- An affidavit that merely gives the conclusion of an unidentified informant is not a sufficient basis for a magistrate's finding probable cause for the issuance of a search warrant under federal constitutional standards; it is necessary that some of the underlying circumstances from which the informant arrived at his conclusion be included; here the game and fish officer's affidavit did not state a "mere conclusion"; rather, it included a recitation of what he personally observed, as well as information gathered by law enforcement agencies.

3. Search & seizure -- task of magistrate issuing of warrant --duty of appellate court. -- The task of the magistrate who issues a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place; the appellate court's duty as a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

4. Search & seizure -- search of premises -- direct evidence not required to establish "reasonable nexus" between objects to be seized & premises searched. -- A "reasonable nexus" does not require direct evidence that the items listed as objects of the search are on the premises to be searched; the magistrate must only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit; a magistrate may draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense, and the magistrate may also rely on the conclusions of experienced law-enforcement officers regarding where evidence of a crime is likely to be found; in the case of drug dealers, evidence is likely to be found where the dealers live.

5. Search & seizure -- probable cause to search. -- In finding probable cause to search a house, it has been determined that probable cause deals in probabilities that are the factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act.

6. Search & seizure -- warrant properly issued -- judge had substantial basis to conclude that probable cause existed. -- Where the magistrate considered the affidavit's recitation of events surrounding the game & fish officer's observation and questioning of appellants, and the statement that the investigation by law-enforcement agencies indicated that both appellants had been and continued to be involved in the propagation, preparation, consumption, and delivery of marijuana, the appellate court, upon applying a practical, common-sense assessment, believed that the judge who issued the search warrant had a substantial basis to conclude that probable cause existed and that marijuana would likely be found where appellants lived.

7. Search & seizure -- evidence obtained by officer's acting in reasonable reliance on probable-cause determination -- good-faith exception to exclusionary rule. -- In United States v. Leon, 468 U.S. 897 (1984), the United States Supreme Court held that the Fourth Amendment exclusionary rule should not bar the use of evidence obtained by officers acting in reasonable reliance upon a search warrant issued by a detached and neutral magistrate that is later determined to be invalid; it is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment; in the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient; once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.

8. Search & seizure -- finding of probable cause clearly erroneous -- Leon exception applicable. -- Even if the finding of probable cause for the issuance of the search warrant had been clearly erroneous, the appellate court would still have upheld the search under the good-faith exception found in United States v. Leon, 468 U.S. 897 (1984); here, the judge determined that there was probable cause based upon the Game and Fish officer's affidavit and his questioning of the officer; the police acted in reasonable reliance upon the warrants issued.

9. Search & seizure -- when omission from affidavit for search warrant justifies warrant's invalidation. -- For an omission from an affidavit to justify invalidation of a search warrant, the party challenging the validity of the search warrant must show that the affiant knowingly and intentionally, or with reckless disregard, omitted facts, and that if supplemented with the omitted information, the warrant would be insufficient to establish probable cause.

10. Search & seizure -- warrant valid -- no fatal omission found. -- It was obvious upon reading the affidavit that no marijuana was found in the car because the affiant stated that he found only empty plastic jugs, some partially filled plastic jugs, and a five-gallon metal can; had the Game and Fish officer found marijuana in the vehicle, that fact would surely have been included in the affidavit, as it would have made an even stronger case for issuing the warrants.

11. Appeal & error -- argument not preserved for review. -- Where appellants did not preserve the argument for review, the argument was not reached; the appellate court does not address arguments raised for the first time on appeal.

12. Search & seizure -- affidavit for warrant -- time can be inferred. -- While some mention of time must be included in the affidavit for a search warrant, it can also be inferred from information in the affidavit.

13. Search & seizure -- affidavit for warrant -- warrant indicated time frame -- The search warrant did indicate a time frame where the marijuana was first observed on June 17, 1998, and the warrant was applied for on June 22; the affidavit included dates when the officer first saw the marijuana and when he and the other officers removed the marijuana plants.

14. Search & seizure -- addresses in warrant -- incorrect address not fatal defect. -- An incorrect address in a warrant is not a fatal defect; here, the search warrants identified with particularity the places to be searched; there was no argument that officers searched the wrong residences when executing the search warrants; therefore, if the addresses were incorrect, it was de minimis.

15. Search & seizure -- denial of motion to suppress not clearly erroneous -- affirmed. -- The trial judge's denial of appellants' motions to suppress the evidence found as a result of the execution of the search warrants was not clearly erroneous; therefore, the trial judge was affirmed. [cme]

Sam T. Heuer, for appellants.

Mark Pryor, Att'y Gen., by: Jeffrey Weber, Ass't Att'y Gen., for appellee.

Margaret Meads, Judge.

Appellants, Curtis Yancey and Lee Cloud, each appeal from their conditional pleas of guilty to one count of possession of a controlled substance (marijuana) with intent to deliver, a Class C felony, for which each received four months in a regional punishment facility followed by four years' probation and a $2,000 fine. By agreement of the parties, these cases were consolidated for trial purposes. On appeal, appellants argue that the trial judge erred in refusing to grant their motions to suppress evidence found at their residences. We affirm. When reviewing a trial court's denial of a motion to suppress, the appellate courts make an independent determination based upon the totality of the circumstances and reverse only if the trial court's ruling is clearly against the preponderance of the evidence. Embry v. State, 70 Ark. App. 122, 15 S.W.3d 368 (2000).

At the suppression hearing, Arkansas Game and Fish Officer David Evans testified that on June 17, 1998, at approximately 9:30 p.m., he observed a Jeep going down a road into the woods in Monroe County. He followed the vehicle, and using night-vision equipment, he observed two persons he identified as appellants get out of the vehicle and begin to water some marijuana plants. He followed appellants back out to the highway and stopped the vehicle in front of Cloud's residence in Arkansas County. When he asked them what

they were doing, appellants told Evans that they had been frogging, but they had not caught any frogs. Evans asked to look in the vehicle, and appellants consented. As he shone his flashlight into the Jeep, he saw gallon jugs and five-gallon cans, but he saw no frog-gigging equipment. Additionally, Evans noticed that appellant Cloud was wearing hip boots, but instead of being wet from frogging, the boots had dry dust on them. Finding nothing further, Officer Evans left.

The next day, Evans called the Monroe County Sheriff's department to report what he had found. When he did not hear back from them, he contacted Wendall Jines, a CID investigator with the Arkansas State Police, and took him to the marijuana patch on June 19. Jines and another deputy maintained surveillance of the patch, and when no one appeared, they harvested three of the plants. They removed the...