Summary
finding items, including a set of triple-beam scales and large quantities of plastic bags seized from the appellant, to be sufficient evidence of operating a drug premises
Summary of this case from Hicks v. StateOpinion
[42 Ark.App. 253-A] Gene E. McKissic, Pine Bluff, for appellant.
[42 Ark.App. 253-B] Clementine Infante, Asst. Atty. Gen., Little Rock, for appellee.
ROBBINS, Judge.
The State has filed a petition for rehearing and motion for clarification following our decision to reverse appellant's convictions in the trial court, 42 Ark.App. 242, 857 S.W.2d 828. We held that a search warrant involved in this case was invalid because it was not supported by any proof justifying a nighttime search. The central argument made by the State in support of its petition for rehearing is that neither the parties, nor the trial court, addressed the nighttime search validity of the search warrant. The State also argues that if appellant had raised this issue in the trial court it would have offered into evidence a tape recording made when the warrant was issued which "clearly sets out particularized facts" and established probable cause for a nighttime search.
The record on appeal included a motion filed by the appellant to quash search warrant and to suppress evidence. This motion contained the following paragraph:
15. That such search warrant was issued and executed after 8:00 o'clock p.m. with a finding by the court that contraband which was the object of the search was in danger of being removed, but the affidavits recites no facts in support of these findings, that such finding is in violation of Rule 13.2(c) and subsections of the Arkansas Rules of Criminal Procedure.
This motion bears a certificate by appellant's attorney certifying that a copy was mailed to a deputy prosecutor on August 29, 1991. The State filed a response to the motion on September 23, 1991, and a suppression hearing was held on October 16, 1991. The State was represented at this hearing by two deputy prosecuting attorneys, one of whom was the deputy who signed the response to appellant's motion to quash and suppress.
At the suppression hearing the State played a cassette tape into the record and introduced the tape as an exhibit. This tape contained the testimony of Officers Linda Law and Sylvester Smith which was given before the judge who issued the nighttime search warrant. Officer Linda Law also testified at the suppression hearing and was cross-examined by appellant's counsel about why it was necessary to have a nighttime search. The trial judge commented at the conclusion of the hearing that the hearing had been held for the purpose of determining whether the evidence that was seized "should be suppressed in accordance with the defendant's motion to suppress." The trial court then ruled that the motion to suppress would be denied.
The State's representation that appellant never raised the issue of the nighttime search aspect of the search warrant is not correct. The State's representations that it was not given notice of this issue, nor did it have the opportunity to make a timely record of the tape recording, which was made when the search warrant was issued, are not correct. The State's representation that it did not offer into evidence this tape recording is not correct. The State's representation that the trial court never ruled on this issue is not correct. The State owes the court a duty to not misstate the facts, even when it is disappointed by a decision of this court.
We are not persuaded that a rehearing is warranted and deny the State's petition for rehearing.
As to the State's motion for clarification, we affirmed the trial court's determination that there was sufficient evidence to support appellant's convictions, but we found error in the court's denial of appellant's motion to suppress. Consequently, we reversed all of these convictions. This clarification should remove any uncertainty about our decision on this appeal.