Steve Bates v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

STEVE BATES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 05-607

February 8, 2006

APPEAL FROM THE CIRCUIT COURT OF POPE COUNTY

[NO. CR-04-253]

HONORABLE JOHN S. PATTERSON,

JUDGE

AFFIRMED

Terry Crabtree, Judge

A jury in Pope County found appellant Steve Bates guilty of possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, and possession of drug paraphernalia. As a consequence, he was sentenced to cumulative sentences of twenty years in prison. Appellant raises two issues for our consideration. He contends that the trial court erred in denying his motion to suppress evidence found when a search warrant was executed at his home, and he argues that the trial court erred in permitting the introduction of the methamphetamine because the chain of custody was not established. We find no merit in either argument and affirm.

As disclosed at the suppression hearing and in the affidavit for the search warrant, Shane Lee Horn, a citizen informant, came to the Russellville Police Department on May 20, 2004, to register a complaint against appellant. He spoke with Sergeant John Waid. Horn advised that he had been at appellant's home to retrieve a trailer. When he entered the home, he saw appellant conceal a large plastic bag containing marijuana. Horn reported that he and appellant got into an argument about the trailer, during which appellant drew a black semi-automatic handgun from his pocket and pointed it at Horn. Sergeant Waid relayed this information to Officer Glen Daniel, a narcotics agent with the local drug task force. Daniel helped Waid prepare the affidavit and search warrant, which was signed by Judge Don Bourne. Because appellant was said to be armed, the special response team executed the warrant, although Officers Waid and Daniel were present. The search of appellant's residence yielded 578.1 grams of marijuana, 14.3918 grams of methamphetamine, and various items of paraphernalia.

Appellant focused on two alleged defects in the affidavit and warrant in support of his suppression motion. First, appellant lived at 812 North El Paso in Russellville. The affidavit listed that address, but it also referred to 812 South El Paso. The warrant also contained this error. Both the affidavit and the warrant, however, further described the residence as an "orange brick with tan trim, single story, single family dwelling." Officers Waid and Daniel testified at the hearing that there was no South El Paso Street and that they were familiar with appellant and his residence from past dealings with him. Officer Daniel added that, when he was a patrol officer, he drove by appellant's house on a daily basis. The officers explained that the mistake was a typographical error and that there was no doubt as to which house they were to search.

The second defect was in the warrant. Although the warrant stated that the contraband was located in the described residence, it concluded with the statement "YOU ARE HEREBY COMMANDED to search forthwith the above described vehicle and the above described bags for the property specified herein." The officers testified that they did not read the warrant carefully and that the reason the warrant authorized a search of a vehicle, as opposed to the residence, was because they had "cut and pasted" using an older warrant as a template.

Although appellant claimed at the hearing that the use of the incorrect address rendered the warrant invalid,1 on appeal appellant contends only that the warrant was fatally defective because it authorized a search of a vehicle, not his residence. We disagree.

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 the findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due deference to inferences drawn by the trial court. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). Rule 13.2(b)(iii) of the Arkansas Rules of Criminal Procedure provides that warrants shall describe with particularity the identity of the location and designation of the places to be searched. The test for determining the sufficiency of the description of the place to be searched is whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort. Watson v. State, 291 Ark. 358, 724 S.W.3d 478 (1987). The requirement of particularity is to avoid the risk of the wrong property being searched or seized. Id. It has been observed that the likelihood of misidentification is minimized when the officer who requests the warrant also takes part in its execution. See Walley v. State, supra; Costner v. State, 318 Ark. 806, 887 S.W.2d 533 (1994).

Highly technical attacks on search warrants are not favored, lest police officers are discouraged from obtaining them. Watson v. State, supra. In this respect, the language from United States v. Ventresca, 380 U.S. 102, 108 (1964), is pertinent:

These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

In Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996), contraband was seized from a camper trailer located on the appellant's property. Even though the affidavit requested the search to include the "property, as well as all buildings, trailers, outbuildings and vehicles," the warrant authorized a search of only the residence. The supreme court upheld the validity of the search, noting that hypertechnical attacks on warrants are not favored and the rule that suppression is only granted when the violation is substantial. The court accepted, as reasonable, the explanation for the discrepancy offered by the officer, who said that he thought the warrant incorporated the affidavit and that someone else typed the warrant from his dictation.

The case of Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995), presented a similar problem. There, methamphetamine was seized from an office building and a pickup truck located on the appellant's property, whereas the warrant limited the search to the appellant's residence. The court on appeal affirmed the denial of the motion to suppress, holding that the likelihood of misidentification was unlikely because the officer who swore out the warrant also participated in its execution.

In the case at bar, we accept as reasonable the officers' explanation that the mistake was owing to a typographical error. It is clear from the affidavit, as well as the body of the warrant itself, that the intended object of the search was appellant's residence. We are also persuaded by the fact that the officers who prepared the warrant were familiar with appellant's house, and they participated in the search. Thus the likelihood that the wrong property could have been searched by mistake was low. We are decidedly unimpressed with the officers' carelessness in preparing the warrant, as well as the district judge's apparent failure to carefully read what he signed. It is nevertheless our conclusion that the defect was not fatal, and thus we cannot say that the trial court's decision is clearly against the preponderance of the evidence.

Appellant next argues that the methamphetamine should not have been introduced into evidence because the chain of custody was not established. Appellant contends that the integrity of the evidence was compromised based on discrepancies between the testimony of Officer Daniel and that of Veronica Norris, a chemist at the crime lab. Officer Daniel testified that the methamphetamine was inside a glass container that was placed and sealed inside a "Winnie the Pooh" plastic container. He also identified two other plastic bags that contained residue. Norris testified that the "Winnie the Pooh" container contained a glass container of methamphetamine, a plastic bag and a smaller one that both contained methamphetamine, and two small plastic bags with residue inside.

The methamphetamine that was purportedly confiscated by the officers and tested by the crime lab was introduced into evidence as State's exhibit number 25. When the exhibit was introduced during the testimony of Officer Daniel, appellant raised the following objection:

I object to that, Your Honor, on the same motion - motion or the chain of custody. It's not marked E-2(g) in the crime lab. It's marked as something different. It's not marked the same on the evidence submission sheet as it is on their own evidence log that they prepared.

As is evident, appellant's objection highlighted perceived discrepancies between the crime lab report, the evidence submission sheet, and the evidence log. Appellant's objection did not concern variances between the testimonies of Officer Daniel and Ms. Norris, who had yet to testify when the exhibit was admitted into evidence. Parties cannot change the grounds for an objection on appeal but are bound by the scope and nature of the objections and arguments presented at trial. Morris v. State, 86 Ark. App. 78, 161 S.W.3d 314 (2004). Because the argument appellant raises is not preserved for appeal, we cannot address it.2

Affirmed.

Gladwin and Robbins, JJ., agree.

1 We note that minor discrepancies in the physical description of property to be searched is not normally fatal. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003); see also Jones v. State, 45 Ark. App. 28, 871 S.W.2d 403 (1994).

2 We have reviewed the evidence log that was prepared by the officers upon the execution of the warrant. Although appellant did not include the log in his addendum, it shows, consistent with the testimony of Ms. Norris, that the "Winnie the Pooh" container contained a glass container and four plastic baggies with "off white crystal/powder/ice like substance."