Ricky Moore v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

RICKY MOORE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-589

APRIL 7, 2004

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT

[NO. CR 2002-205(B)]

HON. CHARLES DAVID BURNETT,

JUDGE

AFFIRMED

Terry Crabtree, Judge

A jury sitting in the Mississippi County Circuit Court convicted the appellant, Ricky Moore, of possession of methamphetamine with intent to deliver, possession of drug paraphernalia with intent to use, simultaneous possession of drugs and firearms, and theft by receiving, for which he was sentenced to a total of 192 months' imprisonment and a $15,000 fine. On appeal, he claims that the trial court committed reversible error by denying his motion to suppress evidence seized from his home pursuant to a search warrant. Specifically, appellant alleges that the affidavit of probable cause for the issuance of the warrant was insufficient because it did not specify the state, county, and town in which the house to be searched was located, and because it does not contain a reference to the time in which the informant observed the criminal activity. We affirm.

On June 25, 2002, police officers spoke with an informant, Keith Atterberry, who advised them that appellant was in possession of a large quantity of methamphetamine and that he had been selling the drug out of his residence. A search warrant was issued based upon a tape-recorded affidavit of Atterberry and an affidavit signed by him. The taped affidavit was only partially recorded because the recorder stopped working during Atterberry's testimony.

The search warrant was executed on June 26, 2002. When appellant's residence was searched, police discovered and collected various items of property, drugs, and firearms. Following the initial search, appellant consented to another search of the residence to identify certain items of stolen property.

Pursuant to appellant's motion, the circuit judge held a suppression hearing on February 10, 2003. Appellant sought to exclude items of evidence seized during the searches of his residence and statements he made to police. The trial court denied the motion. When reviewing the circuit court's ruling on a motion to suppress evidence from a search, "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) (citing Ornelas v. United States, 517 U.S. 690 (1996)).

On appeal, appellant claims that the informant's affidavit did not meet the requirements contained in Arkansas Criminal Procedure Rule 13.1(b) (2003), which provides, in pertinent part, that "[t]he application for a search warrant shall describe with particularity the person or places to be searched and the persons or things to be seized." Particularity is required to avoid the risk that the police will search the wrong property, and "the test for determining the adequacy of the description of the place to be searched under

a warrant is whether it enables the executing officer to locate and identify the premises with reasonable effort and whether there is any likelihood that another place might be mistakenly searched." Beshears v. State, 320 Ark. 573, 579-80, 898 S.W.2d 49, 52 (1995). Courts applying this test must use common sense and not subject the description to hypercritical review, id., and highly technical attacks are not favored because their success could discourage law-enforcement officers from utilizing search warrants. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). Moreover, technical error in a search warrant is minimized when the affiant is also the searching officer. Id.

The description of the location of appellant's house, as it appears in the affidavit of probable cause, is as follows:

The [affiant] has reason to believe that the residence occupied by Ricky Moore, located on County Road 967, and further being described as a single story wood frame dwelling, light green in color with a light colored roof, located on the west side of County Road 967 with the front door facing east. This residence would be approached by traveling east on State Highway 137 from its intersection with State Highway 312. Travel over and along State Highway 137, in an easterly direction, to its intersection with county road 967. Turn right on County Road 967 and travel over and along County Road 967 in a southern direction for approximately 1 and ½ miles to the railroad tracks. The residence would be considered the first residence on the right (west) side of county road 967 after crossing the railroad tracks.

The affidavit gives a detailed description of the location and appearance of appellant's house. The likelihood that the magistrate would erroneously conclude that the house was not located in Mississippi County, Arkansas, and that an officer would confuse appellant's house for another, would depend on a similarly colored house being located after the railroad tracks on County Road 967, and that road being accessible by State Highway 312 in another state or county. In making its ruling, the trial court stated:

It's obvious [to] anybody with a drop of sense that the officers were asking to search a location in Mississippi County, and it's rather clear. Certainly the search warrant that [Judge Langston] signed indicates that she knew and understood it to be located in Mississippi County. . . [A] little bit of recording that we're fortunate to have indicates that it's across from Maverick Tool, which is located out east of town.

We distinguish the case at hand from Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978), where our state supreme court reversed and remanded when they found cumulative errors, omissions, and deficiencies in the search warrant and affidavit. First, the warrant issued by the Sherwood Municipal Court did not specify the place to be searched with particularity as required by Arkansas Rule of Criminal Procedure Rule 13.1(b) (1976). It only stated a residence located at 10002 Republic Lane was to be searched, with no mention of the city or other place where this residence was located. Ironically, the address was identical to one occupied by Harris in southwest Little Rock. In spite of this, the supreme court stated that, "[s]uch an error alone might not require reversal because we are quite tolerant of discrepancies regarding the description of property." Id. at 392, 572 S.W.2d at 393; see Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977). Here, the affidavit included a detailed description of the appearance of appellant's home along with explicit directions to the residence. Second, in Harris, supra, the judicial officer issuing the search warrant made no finding that the warrant could be served day or night. However, there was evidence that the officer arrived at Harris' residence before six a.m. Third, Harris was not given a receipt for the items seized as required by Arkansas Rule of Criminal Procedure 13.3(d) (1976).

In the case at bar, the affidavit was prepared and witnessed by Detective Robert Ephlin of the Mississippi County Sheriff's Office, and he applied for the warrant in Blytheville, Arkansas. The informant, Atterberry, also specified that appellant's house was across from Maverick Tool. Considering that Detective Ephlin also executed the warrant, thereby further minimizing the likelihood of misidentification, the trial court did not err by concluding that the affidavit adequately described appellant's house as the place to be searched.

While informant Atterberry did not specify the month and day on which he observed the drugs and guns at appellant's home, a time frame may be reasonably inferred from his recorded testimony. An affidavit's failure to refer to the time at which criminal activity was observed does not automatically render the subsequent warrant defective. Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985). Rather, a time reference may be inferred from the information in the affidavit itself. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). At the suppression hearing, Detective Ephlin testified that he applied for the search warrant on June 25, 2002, and that he, Detective Rounsaville, and informant Atterberry met with Judge Langston that day. During Atterberry's recorded testimony, Detective Ephlin asked him to tell Judge Langston what he saw at appellant's house "last night," whereupon Atterberry corrected him by saying he saw the items "Sunday," and he further testified that he was at appellant's house at approximately 3:30 or 4:00 Sunday afternoon. From this testimony, Judge Langston could reasonably infer that Atterberry saw the guns and drugs at appellant's home on Sunday, June 23, 2002. Thus, because the date the informant observed the criminal activity can be reasonably inferred from his recorded testimony, we find no error.

Furthermore, we reject appellant's cumulative-error argument. A reversal based on cumulative error cannot be obtained where there is no error to accumulate, Walley, supra, and we hold that there were no deficiencies in the affidavit.

Affirmed.

Stroud, C.J., and Baker, J., agree.