Dewayne DeFoure v. State of Arkansas

Annotate this Case
ar03-679

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

DEWAYNE DeFOURE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-679

June 23, 2004

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[NO. CR 2002-509 & 2002-607]

HON. ROBERT EDWARDS,

JUDGE

AFFIRMED

                                                                                                      Robert J. Gladwin, Judge

Dewayne DeFoure entered a conditional plea of nolo contendere to possession of a firearm by certain persons and fraudulent insurance acts. The White County Circuit Court sentenced him to eight years' imprisonment. Appellant argues that the trial court erred in denying his motion to suppress. We affirm.

Detective Tom McGee of the Searcy Police Department applied for warrants to search appellant's residence in Bald Knob and a restaurant appellant owned called Catfish Plus in Searcy. Detective McGee set forth the following facts in both affidavits:

I. My name is Tom McGee. I am a certified police officer in the State of Arkansas for the City of Searcy. I have been so employed since August of 1998. In May of 1999 I was assigned to the Searcy Criminal Investigation Division as an investigator. During that assignment I was responsible for investigating many cases which involved the theft of vehicles, credit card frauds, and possession of firearms by certain persons.

II. On June 14, 2002 at approximately 11:55 p.m. Dewayne Defoure reported his 1998 GMC extended cab truck stolen from the Wal-Mart parking lot valued at $30,000.00 Dewayne Defoure said that inside the truck was a bank bag containing $1,100.00 cash and a cell phone valued at $200.00 for a total loss of $31,300.00.

III. On June 15, 2002 the Newport Police Department contacted the Searcy Police Department and advised that they had recovered the vehicle in the White River, and was towed by Reynolds Wrecker Service.

IV. On June 17, 2002 Det. Sgt. Inman and Det. Myers of the Searcy Police Department Criminal Investigation Division went to Newport and met with Mr. Reynolds. While processing the vehicle, Det. Sgt. Inman noted that the vehicle contained no documents or other personal items.

V. On July 23, 2002, Rebecca Payne, Dewayne Defoure's ex-wife, was interviewed. Rebecca Payne stated that she had been married to Dewayne Defoure between July 1995 and May 1996. During their marriage, she followed Dewayne in her car to an unknown field, where Dewayne drove his 1991 Chevy truck off a cliff. Rebecca Payne also said that Dewayne Defoure had acquired many credit cards in her name without her permission.

VI. On July 29, 2002, Mansford Danny Robinson Jr. was interviewed. Mr. Robinson said that when on June 16, 2002, while at work, he jokingly said to Dewayne that he needed to have his car stolen. Mr. Robinson said that Dewayne said "I can give you two numbers and it will be gone in less than an hour". Mr. Robinson also said that Dewayne Defoure had three cellular phones and they were stolen when the truck was stolen. One of the phones in the vehicle when it was stolen looks a lot like a telephone which is on the refrigerator at the restaurant, Catfish Plus. Mr. Robinson said that he saw Dewayne Defoure in possession of a black leather briefcase and a two-toned green and black cloth briefcase at Catfish Plus. The black briefcase was reported stolen when the truck was stolen.

VII. On July 30, 2002, Marilyn Defoure, Dewayne Defoure's estranged wife, was interviewed. Mrs. Defoure said that she was married to Dewayne and had driven and rode in the 1998 GMC truck and was familiar with the "Dale Earnhart" [sic] memorabilia and ownership papers inside the truck. Mrs. Defoure said that she saw the black briefcase and the mahogany brown briefcase in the truck. Mrs. Defoure said that on June 22, 2002 she went to Dewayne's house to wash clothes. While there, she noticed that Dewayne had bought a china hutch. Mrs. Defoure said that she observed three plastic Wal-Mart bags inside the china hutch. The bags contained a black Maglight flashlight, insurance papers, owners manual for the truck, and a plastic see-through envelope with the name "Dale Earnhart" on it. Mrs. Defoure also saw a "Dale Earnhart" coffee cup that never came out of Dewayne's 1998 GMC truck. Mrs. Defoure also noticed the brown briefcase that Dewayne always kept in the truck, and inside the briefcase, she saw several wallets containing various credit cards. She noticed one credit card bearing the name Becky Defoure. Mrs. Defoure also said that Dewayne has a revolver pistol that he keeps in a brown leather coat. He also has a silver automatic pistol and a small black pistol. Mrs. Defoure also said that she saw Dewayne get a bracelet pendant of "Dale Earnhart" memorabilia out of his jewelry box on June 22, 2002.

At the suppression hearing, Detective McGee testified that he did not interview Marilyn DeFoure or Mansford Danny Robinson. Instead, he prepared the affidavit based on their statements following interviews with Detective Sergeant Stephanie Inman. In his testimony, Detective McGee conceded that there were discrepancies within the affidavit he prepared. He stated, however, that Detective Inman had provided information to him that was not contained in the witnesses' written statements.

Detective Sergeant Stephanie Inman testified that Robinson told her about the phone on the refrigerator, and she relayed that information to Detective McGee. Detective Inman stated that Marilyn had provided two pieces of information that had been proven to be accurate and that she had no reason to believe that the information Marilyn provided in her statements was not accurate as well. The trial judge then asked Detective Inman whether Robinson had told her that appellant said there were three phones stolen when his truck was stolen, to which she responded, "As I recollect, Mr. Robinson said there was a phone in the vehicle. And I think he had said he had seen two other phones, one maybe at the restaurant and one that he still had working. So, I guess there was three."

Mansford Danny Robinson testified that he told Detective Inman that the cell phone on the refrigerator could have been the cell phone that was in the truck at the time it was allegedly stolen but that he did not know for sure if it was. Robinson denied telling anyone that there were three cell phones that were stolen when the truck was stolen.

Marilyn DeFoure, who was divorced from appellant by the time of the suppression hearing, testified that, although her written statement was an accurate reflection of what she told Detective Inman, she lied to Detective Inman about drugs and a weapon that she said were "planted" by her and Robinson out of anger and revenge. In an affidavit introduced into evidence, Marilyn also stated that she "was aware of all credit cards which [she] approved."

Robinson's statement was introduced into evidence and consisted of the following:

Friday 06-14-02 I went to work at Catfish Plus in Searcy between 10-10:15 am. Dwayne Defoure [sic] told me his truck was stolen. Mr. Defore said that it would be probably found at Newport in the river. He also said since it was in the river the fingerprints would be washed away. I also was told by Mr. Defore that both sets of his keys were stolen when the truck was stolen from Walmart parking lot. I have seen the second set of keys (business.) in his possession since the theft. I also have seen in Mr. Defore's possession at the restaurant, a black leather briefcase and a two-tone green and black cloth briefcase. Mr. Defore reported his black briefcase stolen the night the vehicle was stolen. I saw the keys and the briefcase on Sat 7/27/02. I also saw at the restaurant a scanner and a cell phone on 7/27/02 that may have possibly been the same ones he reported stolen. I also know that Danny Free, co-owner, is the only one who does the bank drops. Dwayne Defore also told me around 6/29/02 I wish I knew who was coming up to the police department causing me trouble. He told me he had enough money to run if he needed to. This is a true statement given by me to Sgt. Inman.

Following the suppression hearing, the trial court denied appellant's motion to suppress. The court found that the officers were acting within the scope of their lawful authority when they executed the search warrant. The court further found that the magistrate had probable cause to issue the warrant based on the affidavit. In addressing the Franks issue raised by appellant and the subsequent recantation by Marilyn Defoure, the court found that the officers were acting reasonably when they presented Marilyn's initial assertions to the magistrate and that they were not acting with reckless disregard of the truth. The court further found that the officers had no reason to believe that Marilyn's statements were not true, if in fact they were not true. The court also found that under Franks there was no requirement to excise Marilyn's statements as contained within the affidavits. While the court found that there were "some minor discrepancies" between the affidavit and the statements of both Marilyn and Robinson, they were not material misrepresentations that rendered the affidavits invalid or improper.

For review of a suppression challenge, the appellate court must 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, 94 S.W.3d 892 (2003).

Appellant argues that Detective McGee provided misleading, inaccurate, and false information to the magistrate. He contends that the facts that were developed at the suppression hearing established that Detective McGee acted at least recklessly. Appellant maintains that Detective McGee implied that he had personal knowledge when referencing hearsay statements of Robinson and Marilyn when he had not interviewed them himself, but rather had only read their statements. Appellant maintains that when the inaccurate portions of the affidavit that were attributed to Robinson are excised, the remaining assertions of fact are insufficient to support a finding of probable cause. He states further that neither a time frame nor any foundation for the assertions was provided.

The United States Supreme Court in Franks v. Delaware, 438 U.S. 154 (1978), held that a search warrant should be invalidated if a defendant shows by a preponderance of the evidence that the affiant made a false statement knowingly and intentionally or with reckless disregard for the truth, and that, with the false material set to one side, the remaining content is insufficient to establish probable cause. See Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). The burden of showing that an affiant knowingly and recklessly included a false statement is upon the challenger of the affidavit. Id. Appellant has failed to meet his burden of showing that Detective McGee knowingly, intentionally, or recklessly provided misleading information to the magistrate. Although Detective Inman may have been mistaken in certain deductions she made, Detective McGee did not act recklessly by inserting in the affidavits the information Detective Inman told him Robinson said. See Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), cert. denied, 510 U.S. 1197,(1994) (holding that, although it was shown that a false statement was made, defendant failed to show that the affiant made a deliberate or reckless misstatement when he relied on another officer). It is the uniform rule that some mention of time must be included in the affidavit for a search warrant, and the only softening of this position occurs when time can be inferred from the information in the affidavit. See Hartsfield v. State, 76 Ark. App. 18, 61 S.W.3d 190 (2001) (citing Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983)). Here it can reasonably be inferred that Robinson observed the cell phone on the refrigerator and the black briefcase at some point subsequent to appellant's report that his truck was stolen.

Citing Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001), appellant argues that the paragraph attributed to Rebecca Payne should be entitled to no weight. We agree. Payne's statements can fairly be characterized as a "bald and unilluminating assertion of suspicion" that was insufficient to support a finding of reasonable cause for issuance of the warrant. See Yancey, supra (citing Spinelli v. United States, 393 U.S. 410 (1969)). However this does not mandate reversal because, from the trial court's ruling, it does not appear that it gave any credence to statements attributed to Payne in arriving at its conclusion that probable cause existed.

As for the information attributed to Marilyn, appellant points out that there is no time frame as to when Marilyn observed the items that she believed had been in his truck and that the items are not even contraband. Appellant also argues that Marilyn admitted that she "planted" a gun at his residence and points out that there is no factual statement within the affidavits that he is a felon who may not possess a gun.

We note that appellant does not argue that Marilyn's statements implicate a Franks issue. Regarding the time frame, it can be inferred, at least with regard to the brown briefcase, that it was "always" in appellant's 1998 truck and that Marilyn saw it in his house on June 22, 2002. Further, the items Marilyn observed were contraband to the extent that they were evidence that appellant was perpetrating fraud by having removed the Dale Earnhardt memorabilia prior to reporting that his truck was stolen.

In any event, the officers here acted in good faith. Although we may not look to facts outside of an affidavit to determine probable cause, when assessing good faith, we can and must look to the totality of the circumstances, including what the affiant knew, but did not include in his affidavit. Moya v. State, 335 Ark. 193, 981 S.W.2d 521 (1998) (citing United States v. Martin, 833 F.2d 752 (8th Cir. 1987)). Here, Detective McGee must have known by reading Robinson's statement that it provided information that further implicated appellant. Moreover, an examination of the record reveals that in her statement Marilyn referred to appellant's status as a felon.

Affirmed.

Stroud, C.J., and Robbins, J., agree.