Summary
In Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977), this court held that it was the State's burden to establish that a search warrant relied upon by its officers was issued in compliance with the law by producing the required written evidence relied upon by the issuing magistrate as establishing probable cause.
Summary of this case from Moya v. StateOpinion
No. CR 77-36
Opinion delivered July 5, 1977
1. CRIMINAL LAW — SEARCH WARRANT — AFFIDAVIT STATING CONCLUSION INSUFFICIENT. — An affidavit which states a mere conclusion of an unidentified informant is not sufficient basis for a magistrate's finding probable cause for the issuance of a search warrant, under federal constitutional standards, and it is necessary that some of the underlying circumstances from which the informant arrived at his conclusion be recorded under oath. [Rule 13.1(b), Rules of Crim. Proc.] 2. CRIMINAL LAW — SEARCH WARRANT — SUFFICIENCY OF AFFIDAVIT, WHAT CONSTITUTES. — The testimony of an officer at trial that he had related to the judge who issued a search warrant for appellant's house trailer that a reliable informant had seen marijuana in a bowl on the kitchen table of the trailer was not "recorded testimony under oath" as required by Rule 13.1(b), Rules of Criminal Procedure. 3. CRIMINAL LAW — MOTION TO SUPPRESS AS OBJECTION — SUFFICIENCY. Where appellant made a motion to suppress the evidence obtained in his house trailer as a result of a search conducted pursuant to a warrant issued upon an insufficient affidavit, this was a sufficient objection, and it was not necessary for him to object to the state's failure to produce the record of the testimony of the officer to the judge who issued the warrant, or to object to the officer's testimony at trial. 4. CRIMINAL LAW — SEARCH WARRANT, PROBABLE CAUSE FOR ISSUING — PRODUCTION BY STATE OF WRITTEN EVIDENCE REQUIRED. — The state bore the burden of establishing that a search warrant relied upon by it was issued in compliance with the law by producing the required written evidence relied upon by the issuing magistrate as establishing probable cause. 5. CRIMINAL LAW — PROBABLE CAUSE FOR ISSUANCE OF WARRANT — EVIDENCE, INSUFFICIENCY OF. — Since the state did not produce sufficient evidence to show that there was probable cause for the issuance of a warrant, the motion to suppress should have been granted. 6. CRIMINAL LAW — SEARCH WARRANT — RECORDING OF TESTIMONY AS SAFEGUARD. — The failure to record the testimony on which a search warrant is issued is a substantial violation of proper safeguards in procedures for obtaining a search warrant.
Appeal from Polk Circuit Court, Bobby Steel, Judge; reversed and remanded.
Acchione King, for appellant.
Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
Benny Lunsford was found guilty of possession of marijuana with intent to deliver. A motion to suppress the evidence seized under the authority of a search warrant was denied. The motion was based, in part, upon the failure of the search warrant to inform the issuing municipal judge of the underlying facts and circumstances from which the informant concluded that marijuana was where he claimed it was. We find error in the denial of the motion to suppress and reverse.
An affidavit for the search warrant was made by Sheriff A. C. Hadaway. He stated that his reason to believe that marijuana was concealed in a mobile home occupied by Benny Lunsford on the Delton Lunsford property was based upon information from an unnamed reliable informant that Benny Lunsford had a quantity of marijuana upon the premises for sale and delivery. The affidavit contained a statement of sufficient reason for believing the informant to he reliable, but there was no statement of any fact to show how the informant knew marijuana was in the mobile home. The state attempted to supply this deficiency by the testimony of Sheriff Hadaway, who testified that he had related to the municipal judge the fact that the informant said that he had seen marijuana in a large square plastic bowl on the kitchen table in the house trailer that was the residence of Benny Lunsford. There was no indication that this statement was made to the judge under oath or that it was recorded.
We have long since recognized that an affidavit which states a mere conclusion of an unidentified informant is not sufficient basis for a magistrate's finding probable cause for the issuance of a search warrant, under federal constitutional standards, and that it is necessary that some of the underlying circumstances from which the informant arrived at his conclusion be included. Walton Fuller v. State, 245 Ark. 84, 431 S.W.2d 462. It is no longer necessary, however, that all the information that furnishes the basis for probable cause be stated in an affidavit or that, if an affidavit is made, it contain all the information relied upon to show probable cause. It is necessary that it be given under oath. Rule 13.1(b), Rules of Criminal Procedure. That rule requires an application for a search warrant to be based upon one or more affidavits or recorded testimony.
The state admits that the affidavit was deficient but relies upon the silence of the record on the question whether the facts related by Sheriff Hadaway to the municipal judge were "recorded testimony under oath" as required by Rule 11.1(b), and that appellant failed to object to the state's failure to produce the record of the testimony, or to the sheriffs testifying what he had orally told the municipal judge.
Appellant's motion to suppress was a sufficient objection in this instance. The state errs as to the burden of proof. It bore the burden of establishing that a search warrant relied upon by it was issued in compliance with the law by producing the required written evidence relied upon by the issuing magistrate as establishing probable cause. Russ v. City of Camden, 256 Ark. 214, 506 S.W.2d 529. Since the state did not produce sufficient evidence to show that there was probable cause for the issuance of the warrant, the motion to suppress should have been granted. We consider the failure to record the testimony on which a search warrant is issued to be a substantial violation of proper safeguards in procedures for obtaining a search warrant.
Appellant urges us to dismiss the case but we cannot say with assurance that the state cannot produce other evidence of his built on retrial.
The judgment is reversed and the cause remanded.
We agree. HARRIS, C.J., and BYRD and HICKMAN, JJ.