Danny Wilker v. State of Arkansas

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ar04-055

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

DANNY WILKER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR004-55

December 8, 2004

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[CR-03-60]

HON. DENNIS C. SUTTERFIELD, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Danny Wilker was convicted of simultaneous possession of a controlled substance and firearms; possession of marijuana with intent to deliver; and possession of drug paraphernalia. He was sentenced to ten years in prison. On appeal, Wilker maintains the trial court erred in denying his motion to suppress evidence obtained during a search of his home and in denying his motion to suppress his statements made to police. We disagree and affirm.

On January 13, 2003, local police officers and officers from the Fifth Judicial District Drug Task Force met with a confidential informant who claimed to have purchased marijuana from Wilker on several occasions and arranged for the informant to attempt to purchase marijuana from Wilker. The informant went to Wilker's home on January 15, 2003, and tried to purchase drugs, but was unable to do so. While there, Wilker showed the informant a small bag of marijuana and stated "as far as I know that's all there is in the universe."

On that same day, the officers sought and received a search warrant for Wilker's home. The affidavit for the warrant recounted previous investigations of Wilker's suspected drug activity, some of which occurred nearly a decade before. None of those previous investigations resulted in an arrest or conviction. The affidavit also included information regarding the informant's allegations about Wilker's drug dealing, as well as a narrative of what occurred earlier that day when the informant attempted to purchase drugs from Wilker. The affidavit also stated the informant had assisted police on several prior investigations that had resulted in arrests and convictions and had provided information that had proved to be true and correct. The search warrant authorized a search and seizure of marijuana, paraphernalia used in the distribution and consumption of marijuana, monies from the sale of marijuana, and other controlled substances. During the search, the officers seized approximately two pounds of marijuana, firearms, scales, rolling papers, and other drug paraphernalia. While in police custody, Wilker gave a taped statement amounting to a confession. Wilker signed a release before giving the statement.

At the time he confessed, Wilker was on prescription drugs for pain resulting from recent dental surgery. At the hearing on the motion to suppress the statement, the State presented testimony from two police officers that were at Wilker's residence during the search and prior to Wilker's arrest. Both officers stated Wilker appeared normal that day and not intoxicated. In contrast, Wilker testified that he had taken some aspirin and several pain pills that day and that he had smoked "some marijuana" as well. Wilker's family doctor, Dr. Jerry Hodges, testified on his behalf and stated that Wilker was too intoxicated at the time of his arrest to have understood and intelligently waived his rights. He stated he did not believe Wilker had been hallucinating, but he had been delusional due to the intoxication.

Wilker argues three assignments of error with respect to the trial court's denial of his motion to suppress items seized during the search of his premises: (1) the affidavit did not contain a sufficient basis upon which to base a probable cause determination; (2) the affidavit did not adequately establish the informant as reliable; (3) the search warrant contained overly broad language. As a preliminary matter, the State challenges Wilker's argument with regard to the search claiming it was not preserved for appellate review. The State argues that, at a hearing on Wilker's motion to suppress the evidence, Wilker argued all of the above issues, and additionally that the warrant was fatally flawed because it did not contain a sufficient description of the place to be searched. The judge did not immediately rule on the matter, but took it under advisement. The judge later issued a written order, and the State argues the judge's order only specifically referred to Wilker's claim regarding the insufficient description. The State contends the judge did not address Wilker's additional points, and based on precedent from this jurisdiction, Wilker was obligated to obtain a ruling on his additional points to preserve them for appeal. However, the judge's order included the following language:

The Motion to Suppress filed by [Wilker] ... is denied in its entirety. The court finds that the State ... has met its burden of proof in regard to this matter. The court's decision is based in part, but not entirely, upon the specific findings set forth herein below. The court's decision on this [sic] issues was made after taking into consideration the totality of the circumstances established by the evidence viewed in their entirety after determination of credibility.

Although later in the order the judge refers to the insufficient description argument specifically, this earlier statement amounts to a complete denial of all of Wilker's arguments and preserves them for appeal.

In reviewing the denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error, determining whether those facts give rise to reasonable suspicion or probable cause, and giving due weight to inferences drawn by the trial court and proper deference to the trial court's findings. Romes v. State, 356 Ark. 26, 43, 144 S.W.3d 750, 761 (2004). We defer to the trial court in assessing witness credibility. Brazwell v. State, 354 Ark. 281, 284, 119 S.W.3d 499, 501 (2003).

In determining whether to issue a warrant, the judge must make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. Sanders v. State, 76 Ark. App. 104, 112-13, 61 S.W.3d 871, 877 (2001). On appeal, we determine whether, under the totality of the circumstances, the judge had a substantial basis upon which to decide its probable cause determination. Id. at 113, 61 S.W.3d at 877. We reverse the trial court's ruling only if it is clearly against the preponderance of the evidence. Owens v. State, 325 Ark. 110, 116, 926 S.W.2d 650, 653-54 (1996).

An affidavit for a search warrant must set forth facts and circumstances establishing probable cause to believe that items subject to seizure will be found in the place to be searched. Berta v. State, 84 Ark. App. 335, 339, 140 S.W.3d 487, 490 (2003). Because the judge must know when issuing the warrant that there is criminal activity or contraband where the search is to be conducted, a time reference must be included in the affidavit, and it is critical that the time be the one during which the criminal activity or contraband was observed. Id., 140 S.W.3d at 490.

In cases where an informant is used, a search warrant is flawed if there are no indicia of the reliability of the confidential informant. Abshure v. State, 79 Ark. App. 317, 324-25, 87 S.W.3d 822, 828 (2002). The plain statement that an informant is reliable is not sufficient to satisfy the indicia requirement. Id., 87 S.W.3d at 828. However, a statement that an informant has provided reliable information in past investigations has been held to be sufficient. Heard v. State, 316 Ark. 731, 736, 876 S.W.2d 231, 233-34 (1994). Additionally, corroboration of an informant's information through police investigation can also be sufficient to establish reliability. Abshure, 79 Ark. App. at 326-26, 87 S.W.3d at 828.

In considering the totality of the circumstances, the time that was critical was earlier that day, on January 15, when the informant attempted to purchase the drugs, and Wilker showed him a small bag of marijuana. Wilker argues that displaying a small bag of marijuana does not establish that he was selling drugs from his home. However, in looking at the totality of the circumstances, because the affidavit stated the informant had been reliable in previous cases, and his information had been corroborated by prior police investigations, the judge could find him a reliable witness. Once the judge determined the reliability of the informant, the informant's statement that he had bought drugs from Wilker on previous occasions and had seen Wilker with a bag of marijuana on the day in question was sufficient evidence to support the judge's decision to issue a warrant. Although Wilker also argues that the warrant language was overly broad in that it allowed police to search not only for marijuana, but also for paraphernalia associated with the selling of marijuana, we cannot say the trial court clearly erred in finding the affidavit contained sufficient probable cause to establish that drugs and evidence relating to the sale of drugs would be found in the home. Because the affidavit contained sufficient evidence to establish the reliability of the informant and maintain a probable-cause determination, we cannot say that the trial court's decision to deny the motion to suppress is clearly against the preponderance of the evidence.

Wilker also challenges the trial court's denial of his motion to suppress a statement he made to police while in custody. In reviewing a denial of a motion to suppress a confession, we must make an independent determination based upon the totality of the circumstances. Grillot v. State, 353 Ark. 294, 310, 107 S.W.3d 136, 145 (2003). A statement made while in custody is presumed involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and knowingly and intelligently made. Id. at 310-11, 107 S.W.3d at 145. The trial court's ruling will only be reversed if it is clearly against the preponderance of the evidence. Id. at 309, 107 S.W.3d at 144. Any conflict in the testimony of different witnesses is for the trial court to resolve. Id., 107 S.W.3d at 144. In order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id. at 311, 107 S.W.3d at 146.

When the claim is one that the confession was rendered involuntary because of intoxication at the time of waiving the right or making a statement, the level of appellant's comprehension is a factual matter to be resolved by the trial court. Id., 107 S.W.3d at 146. We determine "whether the individual was of sufficient mental capacity to know what he was saying-capable of realizing the meaning of his statement-and that he was not suffering form any hallucinations or delusions." Id. at 311-12, 107 S.W.3d at 146.

Here it is undisputed that Wilker was in police custody at the time he gave his statement. The trial court found that, at the time he confessed, Wilker was not so intoxicated as to make his confession involuntary. In ruling on the motion, the trial court stated that its decision was based on "the totality of the circumstances established by the evidence viewed in their entirety after determinations of credibility." The trial court judge considered Wilker's in-court testimony, listened to his taped confession, and was unpersuaded by Dr. Hodges's testimony.

The trial judge had conflicting testimony to weigh and resolved that conflict by making findings of credibility. The trial judge obviously believed the State's presentation, not Wilker's defense. Because we defer to the trial court's findings of credibility, its decision to deny the motion to suppress the confession is not clearly against the preponderance of the evidence.

Affirmed.

Pittman and Neal, JJ., agree.