Gerald Pate v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION I

GERALD PATE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-735

May 23, 2001

APPEAL FROM THE FAULKNER

COUNTY CIRCUIT COURT

[E90-516]

HONORABLE KAREN R.

BAKER, CIRCUIT/CHANCERY

JUDGE

AFFIRMED

Appellant, Gerald Pate, entered a conditional plea of nolo contendere to the offenses of attempted manufacture of a controlled substance, possession of a controlled substance, possession of drug paraphernalia, and possession of firearms by certain persons. He was sentenced to 120 months in the Arkansas Department of Correction on each offense, to be served concurrently. He appeals the denial of his motion to suppress pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure. For his sole point of appeal, appellant contends that the trial court erred in denying his motion to suppress because the search warrant was not supported by probable cause. We disagree and affirm.

The facts of this case have previously been before this court in the case of Stephenson v. State, 71 Ark. App. 254, 29 S.W.3d 744 (2000). Terry-Lynn Stephenson lived in the samehouse as appellant and was arrested along with appellant on November 11, 1997. As we explained in Stephenson, when reviewing a trial court's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, viewing the evidence in the light most favorable to the appellee and reversing only if the ruling is clearly erroneous or against the preponderance of the evidence. We also apply the totality-of-the-circumstances test in determining whether the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant. Id.

Moreover, in determining whether false material, misleading information, or omissions render an affidavit in support of a search warrant fatally defective, we use the following analysis based upon Franks v. Delaware, 438 U.S. 154 (1978): a warrant should be invalidated if a defendant shows by a preponderance of evidence that 1) the affiant made a false statement knowingly and intentionally, or with reckless disregard for the truth, and 2) with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause. Stephenson, 71 Ark. App. at 257, 29 S.W.3d at 746. Similarly, when an officer omits facts from an affidavit, the evidence will be suppressed if the defendant establishes by a preponderance of the evidence that 1) the officer omitted facts knowingly and intentionally, or with reckless disregard, and 2) the affidavit, if supplemented with the omitted information, is insufficient to establish probable cause. Id.

Officer Jeff Anderson of the Conway Police Department prepared the affidavit for search warrant. It provided in pertinent part:

That the facts establishing probable cause and grounds for issuance of Search Warrant are as follows:

I am Investigator Jeff Anderson and I am a commissioned Police Officer of the Conway Police Department, Conway, Arkansas, and have been since December 1992. As of March 17, 1997, I have been assigned to the Conway Regional Drug Task Force. I have been a member of the Conway Police Department SWAT Team for two years and have participated in numerous narcotic Search Warrants. As of July, 1997, I have been assigned to the Drug Enforcement Administration as a Task Force Officer, and have been to a Clandestine Methamphetamine Laboratory Certification School.

FACT 1: On October 23, 1997, Faulkner County Detective Jim Wooley contacted the Conway Regional Drug Task Force with information of a female by the name of Terri Lynn Stephenson, aka Terri Lynn Bradberry, who is associated with a Gerald Pate who resides at 89 Gap View Road, Conway, Arkansas. According to individuals at John Deere in Damascus, Arkansas, Stephenson had come into the business and bought all the ether they had, which was sixteen (16) cans of starting fluid. A photograph of Stephenson was shown to the employees at John Deere in Damascus, Arkansas, and they positively identified Stephenson as the person who made the purchase of the starting fluid. Stephenson was driving a blue Chevrolet Camaro, displaying license plate number 964 ATW, which returns to Gerald Pate.

FACT 2: On or about October 25, 1997, a white female, later identified as Terri Lynn Stephenson, entered the Duncan Outdoor, Conway, Arkansas, and purchased twenty-four (24) cans of starting fluid.

FACT 3: On November 8, 1997, Terri Lynn Stephenson entered the Duncan Outdoor, Conway, Arkansas, and purchased thirty-six (36) cans of starting fluid. Stephenson made a comment to an employee that she likes the John Deere starting fluid because it is 80% ether. On that day, Terri Stephenson was driving a gray Buick Skylark, displaying license plate number 283 BMY, which returns to Terri Lynn Stephenson. A photograph of Stephenson was showed to the employees of Duncan Outdoor and they positively identified her as the person purchasing the starting fluid.

FACT 4: On November 11, 1997, Investigator Travis Thorn and I went to the residence of 89 Gap View Road, Conway, Arkansas, and could smell a very strong odor of chemicals. At the residence was the above mentioned vehicles.

FACT 5: Gerald Pate was convicted of first degree murder in 1959, and served twenty-six years. Pate also has priors to theft and burglary and also car theft.

FACT 6: Terri Lynn Stephenson has prior for the Uniform Controlled Substance Act in Conway, Arkansas and Perry County. Also has prior for theft of property.

FACT 7: Due to my experience and training, these chemicals are used to manufacture methamphetamines.

Based on the facts above, I respectfully request that a Search Warrant be issued for the residence described above to include any and all out-buildings, vehicles, and surrounding curtilage. It has been my experience that suspects frequently conceal evidence in vehicles and out-buildings.

In Stephenson, appellant Terry-Lynn Stephenson argued that the last four facts set forth in Officer Anderson's affidavit were either wholly false or intentionally misleading, and that exculpatory facts known to Officer Anderson before he submitted the affidavit were omitted from it. We found that Officer Anderson's reference to "chemicals," coupled with his later testimony that he meant only ether and starting fluid did not establish that he made a false statement knowingly and intentionally, or with reckless disregard for the truth. On the other hand, we found "that the affiant's use of the term `prior,' without clarification that the references were only to arrests and that the charges were later dropped, was on its own a false statement made with reckless disregard for the truth, or that omission of the clarifying information amounted to reckless disregard," and consequently those parts of the affidavit were discarded. To the extent that those arguments are raised by appellant in the instant appeal, our decision in Stephenson controls.

Appellant contends that the difference between the Stephenson case and the present case is that in the instant case he additionally challenges the allegations in the affidavit that Stephenson was the person who purchased the starter fluid. Appellant's actual argumentwith respect to the identification of Ms. Stephenson is limited to Fact Number 1, which involves the purchase of sixteen cans of starting fluid from John Deere in Damascus by a female driving a car identified as belonging to appellant. At the suppression hearing, Officer Anderson testified about how he developed the information that was contained in Fact Number 1. He said that he received a letter from Rural Equipment Company in Damascus that described the purchaser of the starting fluid, "[a] young woman, approximately twenty-five to thirty years old, brown hair, weight approximately 130 pounds, height approximately 5'8" tall." He stated that "this alone is not the basis of Fact Number 1 in my witness affidavit." He then stated that according to his rap sheet Ms. Stephenson was born in 1963, which would have made her approximately thirty-four years of age in 1997 (compared to twenty-five to thirty, as described in the letter); and that her arrest disposition report listed her as five-foot-four (compared to 5'8," as described in the letter). He also testified that "I got that item of evidence, I ran the tag number, I tried to cross reference addresses, and I did a little surveillance. And that tag does not come back to Terry Lynn Stephenson. It comes back to Gerald Pate." He also stated that "[t]he truth of the matter be known, it's that a photograph was shown to a confidential informant who picked Ms. Stephenson out. There was one photograph shown." Appellant notes that this testimony is in direct conflict with what was set forth in Fact Number 1, which states that the photo was shown to employees.

Tying the female purchaser to appellant's car may well be enough to support her identification as Terry-Lynn Stephenson in Fact Number 1. However, even if we were to determine that it was necessary to exclude the information included in Fact Number 1, wewould still find that the search warrant was supported by probable cause. Appellant does not specifically challenge Fact Numbers 2 and 3. The information contained in those paragraphs involve another business establishment entirely and also assert that the white female purchaser was later identified as Terry-Lynn Stephenson; that she purchased twenty-four cans of starting fluid on October 25, 1997, and thirty-six cans on November 8, 1997; that she commented to an employee on November 8 that she liked John Deere starting fluid because it is eighty percent ether; and that she was driving a gray Buick Skylark on November 8, with license number 283 BMY, which "returns to Terry-Lynn Stephenson." Additionally, Fact Number 3 provides that "a photograph of Stephenson was showed to the employees of Duncan Outdoor and they positively identified her as the person purchasing the starting fluid."

In short, the facts concerning "priors" would be excluded and the facts concerning "chemicals" would be retained in light of our previous decision in Stephenson. Moreover, even if we were to discard the identification of Ms. Stephenson in Fact Number 1, under the second prong of the Franks test the affidavit's remaining content would be sufficient to establish probable cause.

Affirmed.

Hart and Crabtree, JJ., agree.