John Earl Dye v. State of Arkansas

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ar03-302

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JOHN EARL DYE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-302

February 4, 2004

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR-02-98-G]

HON. J. MICHAEL FITZHUGH,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

The circuit court found appellant, John Earl Dye, guilty of the crime of possession of drug paraphernalia with the intent to manufacture methamphetamine and sentenced him to ten years' imprisonment to be followed by a ten-year suspended imposition of sentence. On appeal, appellant challenges the circuit court's denial of his motion to suppress evidence seized when police officers executed a search warrant at his residence. Particularly, appellant argues that the affidavit supporting the issuance of the search warrant was defective because it (1) failed to establish the credibility of the confidential informant; and (2) contained a faulty description of the premises to be searched. We affirm.

In an affidavit for a search warrant, Douglas Mitchell, an investigator with the Twelfth Judicial Drug Task Force, averred in part that he had worked with a confidential informant1 who had "provided me with information, which I have been able to check through different means and found to be true and correct." The informant told Mitchell that he was familiar with and

had been involved in manufacturing methamphetamine and could recognize methamphetamine and the chemicals and cookware needed to manufacture it.

According to Mitchell's affidavit, the informant stated that appellant and his wife were manufacturing methamphetamine and possessed methamphetamine in their residence. The address for the residence was stated to be 3727 Witcherville Road in Greenwood, Arkansas, and Mitchell noted that "[a]ll prior arrest records for the occupants at this address reflect 3727 Witcherville [Road]." Mitchell described the residence as a one-story home with a sliding glass front door and a no trespassing sign in front of the home. He also noted that the home was the first home on the left on a small dirt driveway or private lane. The informant further stated that in the past he had "made transactions out of the residence" from appellant and his wife.

Mitchell further averred that within the past seven days the informant agreed to make a "controlled transaction" from the residence. According to the affidavit, prior to the informant entering the residence, he was searched to ensure that he did not possess a controlled substance, and none was found. Mitchell averred that his unit conducted surveillance on the informant and observed him enter the residence and exit a short time later. After the informant left the residence, he turned over a quantity of an off-white powder that he received from appellant's wife. The substance was field tested and was identified as methamphetamine. The informant also stated that while inside the residence, he observed additional quantities of the powder for sale and also saw items associated with the manufacture of methamphetamine, including acetone, red phosphorus in a jar, Heet, peroxide, iodine, and two containers of a bi-layered liquid.

Mitchell also averred that within the past twenty-four hours the informant agreed to again cooperate by visiting the home. At the residence, the informant observed a quantity of off-white powder that was represented to be methamphetamine, along with Mason jars, Coleman camper fuel, and coffee filters that had been used in the finishing phase of manufacturing methamphetamine. He also saw a police scanner, two rifles, a camera surveillance system, and two aggressive pit bull dogs. He further saw appellant removing from the home items used in the manufacture of methamphetamine and placing them in a nearby storage building.

A search warrant was issued based on the affidavit, and when officers executed the warrant, various items were seized from appellant's residence. On appeal, appellant first argues that because the informant was not credible, the circuit court erred in refusing to suppress the items seized from his residence.

When reviewing the circuit court's ruling on a motion to suppress evidence, "we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court." Davis v. State, 351 Ark. 406, 413, 94 S.W.3d 892, 896 (2003). When the reliability of an informant is questioned on appeal, our standard is as follows:

When an affidavit for 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. Rule Crim. P. 13.1(b). A search warrant is flawed if there are no indicia of the reliability of the confidential informant. Fouse v. State, 73 Ark. App. 134, 43 S.W.3d 158 (2001). Furthermore, the conclusory statement, "reliable informant," is not sufficient to satisfy the indicia requirement. Id. There is no fixed formula for determining an informant's reliability. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). Factors to be considered in making such a determination include whether the informant's statements are (1) incriminating; (2) based on personal observations of recent criminal activity; and (3) corroborated by other information. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). Additionally, facts showing that the informant has provided reliable information to law enforcement in the past may be considered in determining the informant's reliability in the present case. See Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998); Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Failure to establish the veracity and bases of knowledge of the informant, however, 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." Ark. R. Crim. P. 13.1(b).

Heaslet v. State, 77 Ark. App. 333, 345-46, 74 S.W.3d 242, 249 (2002).

Here, the informant admitted that he had made transactions with appellant and his wife in the past. The self-incriminating nature of this statement is indicative of the informant's reliability. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). Also, the information provided was based on the informant's personal observations of recent criminal activity, again indicating the informant's reliability. Id. Furthermore, the informant's activities at appellant's residence were corroborated in part by police observations, further indicating that the informant was reliable. See Boyd v. State, 13 Ark. App. 132, 680 S.W.2d 911 (1984); see also Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998). Consequently, we conclude that the affidavit established the reliability of the informant.

Next, appellant argues that the circuit court erred in denying his motion to suppress because the affidavit described the premises to be searched as 3727 Witcherville Road while the actual address of the residence was 3735 Witcherville Road. When faced with a similar issue, our court has stated as follows:

Arkansas Rule of Criminal Procedure Rule 16.2(e) provides that a motion to suppress shall be granted only if the court finds that a violation is substantial or it is otherwise required by the United States or Arkansas Constitutions. Highly technical attacks on search warrants are not favored. Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987). All warrants are to describe with particularity the location and designation of the place to be searched in order to avoid the risk of the wrong property being searched or seized. Id.; Jones v. State, 45 Ark. App. 28[, 871] S.W.2d [403] (1994). The test for determining the sufficiency of the description is whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched. Pike v. State, 30 Ark. App. 107, 110, 783 S.W.2d 70, 72 (1990) (quoting Lyons v. Robinson, 783 F.2d 737 (8th Cir. 1985)).

Brown v. State, 55 Ark. App. 107, 112, 932 S.W.2d 777, 780 (1996). Further, a technical error in a search warrant is minimized when the affiant is also the searching officer. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003).

At the suppression hearing, the affiant, Mitchell, testified that the residence he searched was the residence he saw the confidential informant twice enter and exit. Given that Mitchell was both the affiant and the officer who executed the warrant, a mistaken search was unlikely even if the address provided in the affidavit was erroneous. We affirm the circuit court's denial of appellant's motion to suppress.

Stroud, C.J., and Gladwin, J., agree.

1 Though the affidavit did not indicate whether the informant was a man or woman, in our discussion we use a masculine pronoun to describe the informant.