Craig Harris v. State of Arkansas

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ar05-289

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

CRAIG HARRIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-289

April 5, 2006

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. CR 2003-466]

HON. GARY RAY COTTRELL,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Craig Harris was convicted in a Crawford County jury trial of possession of methamphetamine with intent to deliver and possession of drug paraphernalia with intent to manufacture methamphetamine. He was sentenced to concurrent terms of 300 and 60 months, respectively, in the Arkansas Department of Correction. He argues that the search warrant in his case was invalid because the affidavit on which it was issued failed to make a sufficient showing of probable cause. We are unable to reach this issue, however, because it is not preserved for our review.

Prior to trial, Harris's trial counsel filed and then withdrew a suppression motion. In a pretrial conference, Harris's trial counsel explained his reason for withdrawing his motion. He stated that he had filed the suppression motion because he had noticed that the State had failed to file an affidavit with the search warrant. He was subsequently provided a copy of the affidavit, and he decided that this "small technicality" was "of no consequence." Furthermore, while he also believed that there were "parts" of the affidavit that "could be subject to some attack," he concluded that the affidavit "complied with the requirements for the court issuing the constitutional search," and he did not believe that challenging the warrant would be fruitful.

In the course of the State's case-in-chief, contraband seized pursuant to the search warrant was admitted into evidence without objection. These items were sponsored by Twelfth and Twenty-First Judicial District Drug Task Force investigator Will Dawson, who testified that he seized the contraband when he and fellow task-force officers executed the search warrant for which he was the "affiant."

Despite the fact that the suppression motion was unequivocally withdrawn before the start of the trial, at the close of the State's case, Harris's trial counsel moved for a directed verdict because the police misled the court to obtain the search warrant because the affiant, Investigator Dawson, had "no independent knowledge of the reliability of the confidential informant who provided the information constituting probable cause." The trial court denied the motion.

On appeal, Harris argues that the search warrant in his case was invalid because the affidavit on which it was issued failed to make a sufficient showing of probable cause. As we noted above, we are unable to reach this issue because it is not preserved for our review. We believe two of our cases are analogous to the case at bar. In Holt v. State, 15 Ark. App. 269, 692 S.W.2d 265 (1985), we held that a similar argument was not preserved where the defendant did not file a pretrial motion to suppress and did not object or make a motion to exclude the evidence until his motion to dismiss at the close of all of the evidence. As noted above, Harris did not have a motion to suppress pending before the court because his trial counsel withdrew the motion, and he did not object to any of the evidence seized pursuant to the warrant that he now purports to challenge. Cf. Hilton v. State, 80 Ark. App. 401, 96 S.W.3d 757(2003) (holding that a contemporaneous objection to disputed evidence preserved the issue for our review even where there was no record of the trial court's ruling on the pre-trial suppression motion). Similarly, in Cole v. State, 68 Ark. App. 294, 6 S.W.3d 805 (1999), we held that an argument concerning the trial court's alleged error in failing to suppress evidence was not preserved. In Cole, the defendant had filed a motion to suppress prior to trial, which was not ruled upon and not renewed at the beginning of the trial, and the defendant did not object when the contested evidence was offered for admission. There, as in the case at bar, it was not until the State had rested its case that the defendant made an oral motion to suppress the evidence concomitantly with his directed-verdict motion. Furthermore, in the instant case, as in Cole, Harris failed to object to any of the evidence as it was admitted at trial. Accordingly, based on these precedents, we hold that Harris's argument is not preserved for our review, and therefore, we affirm.

Affirmed.

Robbins and Glover, JJ., agree.