Jimmy Housley v. State of Arkansas

ar01-542

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

JIMMY HOUSLEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-542

May 8, 2002

APPEAL FROM THE MARION

COUNTY CIRCUIT COURT

[CR 2000-38]

HONORABLE ROBERT

McCORKINDALE, II, CIRCUIT

JUDGE

AFFIRMED

Appellant, Jimmy Housley, was tried by a jury and found guilty of the offenses of delivery of methamphetamine, simultaneous possession of drugs and firearms, and possession of drug paraphernalia. He raises two primary points of appeal: 1) that his "arrest and search violated the fourth amendment and Arkansas Constitution, Article 2, Section 15 or both," and 2) that "the trial court abused its discretion when it permitted appellant to play [Linda] Uchtman's video taped statement but would not permit him to cross-examine her about it and then permitted the State to call rebuttal witnesses to bolster the witness in violation of his sixth amendment right to confrontation." We disagree and affirm.

In reviewing a trial judge's ruling on a motion to suppress, this court makes an independent determination based upon the totality of the circumstances and reverses only

if the ruling is clearly against the preponderance of the evidence. McDaniel v. State, 337 Ark. 431, 990 S.W.2d 515 (1999).

Here, a woman named Linda Uchtman aided the police in making a controlled buy from appellant on May 3, 2000. Ms. Uchtman had been arrested on May 1, 2000, for possession of a controlled substance. The Baxter County Sheriff's Office received a 911 call late on the evening of May 1, reporting that a suspicious car was parked in a driveway where it did not belong. An officer responded to the call and found the car running with Ms. Uchtman in the driver's seat. He reported that she was acting as if she were intoxicated and that she could not answer questions directly. He conducted a pat-down search for his safety prior to placing her in his patrol car because she was in no condition to drive. In doing so, he saw a small, plastic bag sticking out of the watch pocket of her jean shorts, which appeared to contain a controlled substance, methamphetamine. The officer therefore continued his search and found another baggie and a box in her lower pocket on the same side, which appeared to contain more controlled substances. Ms. Uchtman was then arrested and transported to the police station.

At appellant's suppression hearing, Officer David Small testified that he is employed by the Fourteenth Judicial Drug Task Force to investigate narcotic activity. He stated that he was involved in a controlled buy of narcotics that took place on May 3, 2000, which involved appellant Jimmy Housley and Ms. Uchtman. He stated that he was contacted by the Baxter County Sheriff's Office in regard to Linda Uchtman following her arrest on May 1, 2000, and that he, Lt. Alman and Sgt. Scott interviewed her. He said that she told them appellant had "fronted" her with one-half ounce of methamphetamine on April 28, and thatshe still owed him $1000 for it. She agreed to cooperate with law enforcement in making a controlled buy. Small said that the controlled buy entailed using Drug Task Force funds to pay for the methamphetamine; that Ms. Uchtman was wired with a body microphone; that her vehicle was searched prior to the buy; and that she was surveilled and followed to appellant's residence. He said that he did not monitor the wired conversation between appellant and Uchtman, but that other officers did. He said that he was located just down the road from the entrance to appellant's residence, waiting for Lt. Moffet to advise him that the deal was complete. Small testified that, when he was so advised, he and other officers went to appellant's residence. There, the officers arrested appellant in his yard near a plastic bucket. Small said that he observed the bucket on the ground with water in it, and that it contained plastic baggies floating on the surface. He photographed the bucket and retrieved the baggies and put them into an evidence bag. He said that appellant was placed in a patrol unit and that no searching was done until Small got word that there was a search warrant. Small testified that the controlled buy took place between 7:30 and 8:00 p.m., and that shortly thereafter the search warrant was executed. He said that between twenty and thirty minutes passed from the time appellant was arrested until the search pursuant to a warrant was started. He stated that the search began at approximately 7:50 p.m. He explained that appellant's arrest was based upon Uchtman paying appellant for the drugs that she had previously received from him and being fronted another half ounce of methamphetamine.

The affidavit for the search warrant was signed by Officers James Moffet and Dwayne McFarland as affiants. The affidavit provided in pertinent part:

The facts establishing probable cause . . . for issuance of this search warrant are as follows: That on January 19, 2000, Lt. Dwayne McFarland of the Marion County Sheriff's Office traveled to the Jimmy Housley residence to serve court papers on Housley. Housley stated to McFarland that he was concerned that Vickie Fischer was trying to set him up as a methamphetamine dealer and a manufacturer. Housley stated that he had located on his property several lithium battery casings in a burn pile. Housley stated that he also located a plastic milk jug buried about halfway in the ground with a rubber hose coming out of the top. Housley stated that he believed that the milk jug contained salt and some other chemicals, and that it was an HCL generator. Housley went on to advise McFarland that Vickie Fischer [had] a scuba tank filled with anhydrous ammonia at her residence on Marion County Road 502.

On January 22, 2000, Housley met with McFarland at the MCSO. Housley requested that McFarland take a ride with him to provide McFarland with information. During the drive, Housley stated that Fischer was going to West Plains, Mo. and/or Batesville, Ark. to purchase pills and that she was buying two or three cases at a time. Housley drove to Fischer's residence and advised that approximately two weeks earlier he located at her residence in an outbuilding a clear plastic jug with plastic under the cap, containing a clear liquid. Housley stated that in her utility room was a converted scuba tank filled with anhydrous ammonia. Housley stated that he has seen firearms at her residence.

On January 24, 2000, Housley contacted McFarland and requested to meet with McFarland at the MCSO. Prior to his arrival, McFarland met with Lt. Moffet and advised him of the meeting. Moffett requested McFarland wear [a] body transmitter to record the conversation between him and Housley. Housley arrived at the MCSO and met with McFarland, and the conversation was recorded. Housley handed McFarland a plastic bag that contained approximately one gram of suspected methamphetamine. Housley stated that he purchased it from Fischer for $100. Moffet field tested it, and it tested positive.

During the past four months, McFarland has seen Housley and Fischer together several times. Housley told McFarland approximately one month ago that he and Fischer were engaged to be married and worked out their differences.

On May 1, 2000, Inv. David Small of the 14th Judicial District Drug Task Force and Lt. Robert Alman of the Baxter County Sheriff's Office interviewed a cooperating individual. The CI stated that he/she believes that Housley and Fischer were married approximately two weeks ago and the two are living together. The CI stated that he/she had been dealing with Housley approximately six months and that Housley always fronts him/her the methamphetamine. The CI stated that he/she makes a phone call to Housley when he/she needs to pick-up more methamphetamine and/or pay for fronted methamphetamine, and that Housley always meets him/her at his residence by the racetrack. The CI stated that most of the time Housley has methamphetamine on him, but sometimes he has to go get it. The CI stated that he/she had obtained approximately ½ oz to 1 oz. of methamphetamine from Jimmy Housley on several occasions. The CI stated that on Friday, April 28, 2000 he/she was fronted ½ oz of methamphetamine by Housley and that he/she was to pay Housley for the methamphetamine this week. The CI stated that he/she was to pay $1000 for the methamphetamine. On May 3, 2000, the CI placed a phone call to Housley. The CI stated that he/she and Housley never discuss the sale and distribution of narcotics on the phone, that Housley knows when the CI calls that he/she has sold the narcotics and is returning the money from the sale or needs more narcotics. On May 3, 2000 the CI placed a telephone call to Housley to pay the $1000 for the methamphetamine that was fronted April 28, 2000. Housley advised the CI that he could get in touch with her later to determine a time for the CI to come over to his residence. On May 3, 2000 Housley called the CI at his/her residence and advised the CI to come to his residence.

During the past six months, McFarland and Bull Shoals Police Chief Bob Chapman have seized two handguns from Jimmy Housley that he was carrying on his person. During the past two months, both weapons were released back to Housley by the authority of the deputy prosecuting attorney.

The facts establishing probable cause to search other buildings, vehicles or the premises as a whole area are as follows: It is affiants['] experience and training that people involved in the manufacture, sale and usage of controlled substances often hide narcotics in places such as outbuildings and vehicles.

Officer Moffett testified that he presented the affidavit for a search warrant to Judge Judith Bearden; that the warrant was signed at 7:44 p.m. on May 3, 2000; and that he then called Officer Small, told him that he had the signed warrant in hand, and to begin the search. Moffett at first testified that Officer McFarland went with him to get the judge'ssignature. On cross, he stated that McFarland did not go with him, but he then later recalled that Officer McFarland met him at Ralph, Arkansas, to sign the affidavit in front of the judge. He explained that the reason Uchtman seemed reliable to him was because she told him things that were against her interest.

During his testimony, Officer McFarland reviewed the affidavit for search warrant and testified that the events contained therein actually occurred. Although he at first testified that he did not go before the judge, he later testified that he was in front of Judge Bearden when the affidavit was signed.

Appellant testified that the conversations Officer McFarland allegedly had with him in January 2000, which were recounted in the affidavit for search warrant, never happened. He also explained that he was a truck driver and that he kept large sums of cash on hand to buy fuel and pay other expenses. He said that he had $1120 on him at the time of the search and $520 in a drawer in the house. He testified about other items that were confiscated during the search and stated that his house was "tore all to pieces."

Judge Bearden testified that she had no specific recollection of who appeared before her to give information for the search warrant; that she presumes she administered the oath because she always does; that it is her practice to have affiants "swear, sign, and initial" the affidavit; and that she recognized the three sets of initials on the affidavit as those of herself, Mike Moffett, and Dwayne McFarland.

Officer Jim Scott testified that he accompanied Officer Moffett to Ralph, Arkansas, to give the affidavit to Judge Bearden and that Officer McFarland showed up about a minute later. He saw them sign the affidavit in front of the judge.

In support of his first point of appeal, contending that his arrest and search violated the Fourth Amendment and the Arkansas Constitution, appellant raises several subpoints. First, he contends that the evidence obtained pursuant to the search warrant should have been suppressed because the affidavit for the warrant failed to show probable cause to believe that drugs were on the premises at the time of the search. We disagree.

In Sanders v. State, 76 Ark. App. 104, 61 S.W.3d 871 (2001), we explained that Rule 13.1 of the Rules of Criminal Procedure sets out the requirements for the issuance of a search warrant. The rule requires the affidavit to recite facts and circumstances tending to show that such persons or things are in the places to be searched. Id. The task of the magistrate who issues the warrant is simply to make a practical, common-sense decision whether, given all of 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. Id. We 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, probable cause for a search warrant does not require an affiant to assert facts which establish conclusively or beyond a reasonable doubt that a violation of the law exists at the place to be searched. Hawk v. State, 38 Ark. App. 1, 826 S.W.2d 824 (1992).

Here, the affidavit stated that the cooperating individual, Uchtman, had been "fronted" one-half ounce of methamphetamine from appellant on April 28, 2000, and that on May 3, 2000, she called him, without mentioning narcotics, as was their practice, and that he returned the call, telling her that he would get in touch with her later to tell her when to come to his residence. He again called on May 3 and told her to come. We hold that these facts and circumstances provided the magistrate with a substantial basis for concluding that probable cause existed to issue the search warrant in the instant case.

For his second subpoint, appellant contends that "the affidavit for the search violated Franks and failed to show probable cause because the police omitted the facts that: (a) appellant stated there were no drugs on the premises, (b) the informant had been arrested herself and had become a snitch, and (c) she was wacked out on drugs when she made her alleged statement against appellant which was never recorded." We find no such violation.

Franks v. Delaware, 438 U.S. 154 (1978), contains the proper analysis for determining whether false material, misleading information, or omissions render an affidavit in support of a search warrant fatally defective. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999). With respect to omissions in an affidavit, 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. State v. Rufus, 338 Ark. at 314-15, 993 S.W.2d at 495-96. Even with omissions there must be a knowing intentto deceive, or a reckless disregard of truth. Wilson v. State, 317 Ark. 548, 878 S.W.2d 755 (1994), rev'd on other grounds, 514 U.S. 927, 930 (1995). Furthermore, omissions must involve material circumstances which contradict or dispel the incriminating factors in the affidavit. Id.

Here, as noted by the trial court, appellant's statement that he did not keep drugs at his house anymore was self-serving and even if it had been included in the affidavit, it would not have prevented the search warrant from being issued. Moreover, in Wilson v. State, 317 Ark. at 552-53, 878 S.W.2d at 758 (1994), rev'd on other grounds, 514 U.S. 927, 930 (1995), our supreme court rejected the argument that the affidavit in that case omitted exculpatory information by failing to disclose that the informant and her husband had been arrested and had agreed to cooperate in order to help themselves. The supreme court explained that such an omission concerning the informant's motive for cooperating with the police is not the type of information that dispels or contradicts incriminating factors in an affidavit. Finally, appellant has not made a convincing argument for his position that the omission of Utchman's mental state at the time of her taped interview, if supplemented in the affidavit, would have rendered the affidavit insufficient to establish probable cause. Moreover, Uchtman did not mention or incriminate appellant in the videotape, and appellant has not established that she was "wacked out" when she incriminated appellant in a statement given the next day.

For his third subpoint, appellant contends that "the affidavit fails to satisfy Arkansas Rules of Criminal Procedure 13.1(b) that an affidavit `establish the veracity' of the informant." We disagree.

Rule 13.1(b) provides:

(b) The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness 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. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony 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.

(Emphasis added.)

In Owens v. State, 325 Ark. 110, 120, 926 S.W.2d 650, 655-56 (1996), our supreme court discussed the sufficiency of an affidavit with respect to establishing an informant's veracity:

When an affidavit in a search warrant is based, in whole or in part, on hearsay, the affiant must 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. Ark. R. Crim. P. 13.1(b). In deciding whether to issue the warrant, the magistrate should make a practical, commonsense determination based on the totality of the circumstances set forth in the affidavit. Steve Brown's affidavit noted that the informants' statements tended to incriminate them, that their statements were based on personal observations of recent criminal activity, and that, in the case of Gary King, his statement could be corroborated. These are all factors which indicatereliability. Regarding the information provided by Sheriff Ross, it was not necessary for the affidavit to establish the reliability of a public official. We hold that the affidavit in this case met the requirements of Rule 13.1(b).

(Citations omitted.)

Here, Uchtman's statements similarly tended to incriminate her, her statements were based on her personal involvement in criminal activity with appellant, and her statements were then corroborated by the officers' observation of the two in the set-up of the controlled buy. We find that the affidavit in the instant case satisfied the requirements of Rule 13.1(b) in this regard.

For his fourth subpoint under Point I, appellant contends that "the good faith exception does not apply to this search under the search warrant." We find it unnecessary to address this point in light of our conclusion that the affidavit was sufficient to establish probable cause for the issuance of the search warrant.

For his second primary point of appeal, appellant contends that "the trial court abused its discretion when it permitted Housley to play Uchtman's video taped statement but would not permit him to cross-examine her about it and then permitted the State to call rebuttal witnesses to bolster the witness in violation of his sixth amendment right to confrontation." We do not address this final point of appeal because it was not preserved for our review.

During the testimony of Officer Jim Scott, he revealed that Ms. Utchman was videotaped during her first interview with the officers on the night that she was arrested. Defense counsel informed the trial court that it had asked for, and that the State had agreed to provide, the videotape that defense counsel learned about during the trial. Arrangementswere made to bring the tape, and the trial proceeded. After the State and the defense had rested, defense counsel stated that his resting was with the understanding that he could re-open if the tape revealed anything of importance to the case. The court allowed the tape to be viewed by counsel, and then reopened the case to allow defense counsel to show the tape of Utchman. The State then presented its rebuttal witnesses.

We find no further discussion in the abstract regarding defense counsel requesting the opportunity to call Utchman again to cross-examine her in light of the contents of the videotape, much less a ruling by the court that denies defense counsel the opportunity to do so. Consequently, the argument has not been preserved for our review. Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001).

Affirmed.

Pittman and Roaf, JJ., agree.