Jerry Williams v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION III

JERRY WILLIAMS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-683

February 21, 2001

APPEAL FROM THE YELL COUNTY CIRCUIT COURT

[NO. CR-99-17]

HONORABLE PAUL EDWARD DANIELSON, CIRCUIT JUDGE

AFFIRMED

Appellant, Jerry Williams, pleaded guilty to the crimes of possession of marijuana with the intent to deliver and possession of drug paraphernalia, reserving his right to appeal the trial court's denial of his motion to suppress, and was sentenced to five years' imprisonment to be followed by five years' suspended imposition of sentence. On appeal, he argues that the trial court erred in denying his motion to suppress items seized during a search of his residence because the affidavit supporting the search warrant failed to meet the requirements of Rule 13.1(b) of the Arkansas Rules of Criminal Procedure. He asserts that the affiant stated only conclusions and not particular facts bearing on and establishing the confidential informants' reliability. We affirm.

The search-warrant affidavit, executed by Detective Gary Morrison of the Yell County Sheriff's Office, provided as follows:

Det. Gary Morrison has received information from two Confidential

Informants. Within the past 5 days a Confidential Informant (CI1) entered the residence while at the residence the CI1 saw approximately an 1 oz[.] of green leafy substance that was represented to him to be marijuana, and he believed it to be marijuana. CI1 then attempted to purchase of the marijuana but Jerry Williams told him that the marijuana he had at that time was for his own use. Mr. Williams also told CI1 to come back on Friday and he would have some marijuana to sell him. CI1 was unable to makecontact with Mr. Williams on Friday due to Mr. Williams not returning home until approximately 11:15 P.M. Friday Night. Within the last 12 hours, CI1 was in the residence and saw a green leafy substance that he believed to be marijuana.

Also within the last week another Confidential Informant (CI2) has told Det. Morrison that Jerry Williams has been selling marijuana in the Plainview area. And that he has purchased marijuana and LSD from Mr. Williams in the past.

The reliability of said informants has been previously established by:

CI1 has provided information that has proved to be reliable to the officer in the past. And CI1 has been used to make a controlled purchase in the past.

CI2 has provided information that has proved to be reliable to the officer in the past. And CI2 has been used to make controlled purchases in the past. Some of CI2's information has led to the arrest of some of individuals.

Det. Morrison has also performed surveillance on the above described residence. In the course of his surveillance he has noticed a high amount of traffic to the house. Based on Det. Morrison's experiences, the manner of the visits to the house are consistent with drug purchases.

Based on the affidavit for search warrant, a judge found reasonable cause to issue a search warrant permitting law enforcement officials to search appellant's residence. Items found during the search led to charges being filed against appellant.

Rule 13.1(b) of the Arkansas Rules of Criminal Procedure provides in part that "[i]f an affidavit . . . is based in whole or in part on hearsay, the affiant . . . shall set forth particular facts bearing on the informant's reliability and shall disclose, as far as practicable, the means by which the information was obtained." Further, under Rule 13.1(b), "[f]ailure of the affidavit . . . to establish the veracity and bases of knowledge" of the confidential informants is not a fatal defect if the affidavit, "viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place." In reviewing a trial court's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, reversing only if the ruling is clearly erroneous or against the preponderance of the evidence. See Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998).

Here, the affidavit, viewed as a whole, provided a substantial basis to believe that drugs and other contraband would be found at appellant's residence. Detective Morrison stated that both confidentialinformants had assisted him in controlled buys and that one of the informant's information had led to arrests. Moreover, both informants provided information against their penal interests by admitting the purchase of or attempts to purchase illegal drugs. Each informant's information tended to corroborate the other's information regarding appellant's involvement in marijuana sales, and their information was corroborated by Morrison's own observations that the volume of traffic and the manner of the visits to the house were consistent with drug purchases. Furthermore, CI1 saw marijuana in the residence within the past twelve hours. Thus, we conclude that the affidavit, when viewed as a whole, provided a substantial basis for cause to believe that items subject to seizure would be found at the residence. See Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996)(noting that corroboration, statements against penal interest, and statements based on personal observations of criminal activity are factors that indicate reliability); Hawk v. State, 38 Ark. App. 1, 826 S.W.2d 824 (1992)(finding indicia of reliability where informants corroborated one another, police observations verified the information, statements were made against penal interest, and an informant's information had led to other arrests); Brannon v. State, 26 Ark. App. 149, 761 S.W.2d 947 (1988)(finding as indicia of reliability corroboration by other informants and by officers' observations).

Affirmed.

Jennings and Crabtree, JJ., agree.