Edward K. Loveless v. State of Arkansas

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ar04-525

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

EDWARD K. LOVELESS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-525

March 2, 2005

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[CR-2002-658]

HON. DENNIS C. SUTTERFIELD, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

A jury convicted appellant, Edward Loveless, of possession of drug paraphernalia with intent to manufacture methamphetamine and manufacturing methamphetamine. He was sentenced to ten years' imprisonment with a $5000 fine on the possession charge and twenty years' imprisonment with a $5000 fine on the manufacturing charge, with the sentences to run concurrently. Loveless now appeals the denial of his motion to suppress and argues that the affidavit used to secure the search warrants failed to include information regarding the reliability of the informant. We find no error and affirm.

Two search warrants are at issue in this case, one to search a mobile home on Loveless's property and one to search a house on his property. The affidavits for both warrants were almost identical and were both sworn to by Officer Shawn Armstrong. In his affidavits, Armstrong stated that he had over seven years' experience as a law-enforcement officer, with a year and a half of that experience on the Drug Task Force. He stated that on November 15, 2002, he was contacted by Diane Stokes. She declared that she had just left the home of appellant, who had given her several bags of methamphetamine, each worth $100. She stated that Loveless also gave her several stolen items. Stokes claimed that, while at Loveless's house, she saw several items that indicated he was actively manufacturing and distributing methamphetamine, including tubes and jars containing yellow and brown liquid, a half-gallon jar of red pills, and digital scales.

Regarding Stokes's reliability, Armstrong stated that she had come to him voluntarily, turned over the items she received from Loveless, and stated that she came forward because she did not want Loveless to sell drugs to young girls. The information that Stokes provided was consistent with information that law enforcement officers had previously obtained regarding Loveless, and Armstrong noted this in the affidavits.

In fact, Loveless had been arrested on November 8, 2002, after an undercover investigator with the Arkansas State Police tape-recorded his conversation with Loveless regarding the swapping of a one-gallon drum of ammonia for methamphetamine. During this recorded conversation, Loveless admits to being a "meth cook."

At the hearing on the motion to suppress, Officer Armstrong testified that he did not tell the issuing judge any additional information other than that contained in the affidavit. Armstrong stated that he was not familiar with Diane Stokes before November 15, 2002, and that he was not aware that she had a long criminal-history record and was, at the time of the incident, on parole. He stated that he did not test the substance she produced in the bags to determine that it was in fact methamphetamine. He stated, however, that he was aware that Loveless had been arrested a few days before on separate drug charges.

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 contraband or 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.

Normally, "[a] search warrant is flawed if there is 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). However, no additional support for the reliability of a witness is required where that witness volunteered the information as a good citizen and not as a confidential informant whose identity is to be protected. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996); see also State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999); Haynes v. State, 83 Ark. App. 314, 128 S.W.3d 33 (2003). Additionally, if the affidavit when viewed as a whole provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure may be found in a particular location, the failure to establish the veracity of the informant is not fatal. Abshure, 79 Ark. App. at 325, 87 S.W.3d at 828.

In this case, the motion to suppress was properly denied because the State did not have to prove the informant's reliability in the affidavits. Officer Armstrong could have strengthened his affidavits by including information about Loveless's previous meth-related arrest and bolstering Stokes's credibility by field-testing the substance in the bags. However, because an affidavit need not include independent facts to support a witness's reliability when that witness volunteers information-versus being a confidential informant-the motion to suppress was properly denied. The affidavits presented statements from Stokes, a volunteer witness, that she received drugs from Loveless and saw drug-making equipment at his home. With no requirement to independently prove her veracity, the magistrate could have found that there was a substantial basis on which to decide that probable cause existed. The State alternatively argues that the good-faith exception to an invalid warrant is applicable. However, we need not address that argument in light of our holding that the search warrant was valid.

Affirmed.

Pittman, C.J., and Gladwin, J., agree.