Ellen Kathleen Wheeler and Ronnie Ray Wheeler v. State of Arkansas

ca05-639

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

 

DIVISION III

ELLEN KATHLEEN WHEELER and RONNIE RAY WHEELER

APPELLANTS

v.

STATE OF ARKANSAS

APPELLEE

CACR05-639

February 1, 2006

APPEAL FROM SEBASTIAN COUNTY CIRCUIT COURT [NOS. CR-2004-561-B, CR-2004-561-C]

HONORABLE J. MICHAEL FITZHUGH,

CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellants Ellen and Ronnie Wheeler were found guilty by a Sebastian County jury of possession of drug paraphernalia with intent to manufacture methamphetamine, maintaining premises for drug sales, possession of methamphetamine with intent to deliver, and simultaneous possession of drugs and firearms. They were sentenced to terms of imprisonment for twenty years, six years, thirty years, and thirty years, respectively, and the trial court ordered all of the sentences to run concurrently. On appeal, the Wheelers argue that the trial court should have suppressed items found in a search of their residence as well as their statements made after the search, because the trial court did not apply the principles of Franks v. Delaware, 438 U.S. 154 (1978), in ascertaining whether the search warrant was based on a valid affidavit. We affirm.

Detective Ronald Scamardo testified at the suppression hearing that he prepared an affidavit for a search warrant involving the Wheelers. Detective Scamardo never came into contact with the Wheelers. A search warrant was secured based on his affidavit. At trial, Detective Scamardo explained that he was present when the confidential informant's vehicle was searched but that he was not present at the controlled buy. He stated that the information contained in his affidavit was a result of the "collective effort [of] several members of the Fort Smith Police Department."

George Lawson, a police officer for the City of Fort Smith, testified that the Fort Smith Police Department received information that the Wheelers were actively involved in the manufacture and sale of methamphetamine. On May 7, 2004, the police department conducted a controlled buy from the Wheelers' residence.

Police officers met with a confidential informant (CI), searched the CI, searched the CI's vehicle, and provided $220 to the CI to purchase methamphetamine. Lawson and other officers followed the CI to the Wheelers' residence, watched the CI go inside the residence and come back out, and followed the CI to a designated meeting place. At this time, the CI provided the officers with a small bag of an off-white powder substance.

Lawson did a field test, and the substance tested positive for methamphetamine. Lawson testified that he had Detective Scamardo get a search warrant for the Wheelers' residence, and the search warrant was executed at 4:50 p.m. on May 7, 2004. According to Lawson, Detective Scamardo had started out working on this case, but he had to leave to execute another search warrant. Detective Scamardo left after Lawson and other officers met the CI but before the CI went into the house. Lawson testified that Scamardo witnessed "everything except the controlled buy." According to Lawson, Detective Scamardo had been successful with this CI in the past. Lawson related to Detective Scamardo what happened after he (Scamardo) had to leave.

Among other things, the police officers found quantities of methamphetamine packaged for resale, drug paraphernalia, and firearms in the Wheeler residence. The Wheelers were arrested, and they made statements to police officers indicating their guilt after being Mirandized. The Wheelers argued at a suppression hearing that, because the affidavit used to obtain the search warrant was not based on personal knowledge, the items found in the search, as well as statements made by the Wheelers after the search, should be suppressed. The trial court refused to suppress the items found during the search and their subsequent statements. The Wheelers argue on appeal that the trial court erred when it refused to suppress the evidence obtained and seized as a result of the May 7, 2004 search warrant.

First, it should be noted that the Wheelers have not included a copy of the affidavit in question in their brief. The State does not include a copy of the affidavit either, but the State does recite the pertinent part of the affidavit in its argument section. Nevertheless, this court may go to the record to affirm. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).

The Wheelers specifically argue on appeal that the trial court erred when it did not apply the Franks principles in ascertaining whether the search warrant was valid. See Franks, supra. The State contends in response that the Wheelers did not raise this argument below, because they filed motions to suppress that raised only general objections and because they did not cite any specific authority in support of their motions at the suppression hearing. The State contends that the Wheelers have either changed their argument or have made it for the first time on appeal. Although the Wheelers did not specifically refer to the Franks case at the suppression hearing, they developed the argument below that the affidavit was not based on personal knowledge as it inferred and that, because of this, it was misleading.

When reviewing a trial court's ruling on a motion to suppress, this court makes an independent determination based upon the totality of the circumstances, and we will reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. State v. Rufus, 338 Ark. 305, 993 S.W.2d 400 (1999). Franks v. Delaware, supra, sets forth the standard to use when determining whether false material, misleading information, or omissions render an affidavit in support of a search warrant fatally defective. Under Franks and subsequent case law, a warrant should be invalidated if a defendant shows by a preponderance of the evidence: (1) that a law enforcement affiant made a false statement knowingly and intentionally or with reckless disregard for the truth, and (2) that with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause. Id.; U.S. v. Clapp, 46 F.3d 795 (8th Cir. 1995); Rufus, supra; Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993).

The body of the sworn affidavit by Detective Scamardo executed in support of the search warrant was as follows:

My name is Ronald D. Scamardo, Jr. and I am employed as a Detective with the Fort Smith Police Department. I have been employed by the Police Department for approximately 18 years and I have been a Detective for approximately 6 years. My primary duties include the investigation of felony offenses with a focus on financial crimes within the city limits of Fort Smith, Arkansas; however, I have also participated in numerous narcotics investigations and I am familiar with the use of informants, surveillance and other investigative techniques. I have also worked in cooperation with other local, state and federal law enforcement agencies/officials in the course of these investigations.

On this date, May 7, 2004, I interviewed an informant, hereinafter referred to as "CI." This person told me that Ellen Wheeler, who lives at 2315 North 33rd Street, Fort Smith, Arkansas is active in the sale of Methamphetamine. This person was familiar with Methamphetamine having been a user for the last two years. This person knows Methamphetamine by site [sic] and smell and made these statements to me with full knowledge of their penal interests.

Within the last 24 hours, this same CI agreed to participate in a controlled buy of Methamphetamine from Ellen Wheeler at the above-listed address. Prior to the transaction, the CI and the CI's vehicle were searched to ensure that there was no contraband in the CI's possession. Surveillance was maintained on the CI as the CI traveled to the location, was observed to enter the residence and the exit after staying for a brief period of time. Upon exiting the residence, the CI turned over a quantity of off white powder, which was field tested by Sgt. George Lawson of the Fort Smith Police Department and tested positive for Methamphetamine. His field tests have always been accurate and confirmed by the Arkansas State Crime Laboratory.

While within the residence, the CI noticed items consistent with the clandestine manufacture of Methamphetamine, including: tempered jars and completed product (Methamphetamine), which was drying under a heating device. I can further relate that the CI was provided with items of United States currency that had the serial numbers recorded as follows: ... . Lastly, in checking with the City of Fort Smith, city services are provided to this residence in the name of Ronnie and Ellen Wheeler.

Based upon the information I have outlined in this Affidavit, I have probable cause to believe that Ellen Wheeler is concealing Methamphetamine, associated drug paraphernalia and recorded items of United States currency within her residence at 2315 North 33rd Street, Fort Smith, Arkansas.

WHEREFORE, your Affiant respectfully prays that a Search Warrant be issued for the search of the residence located at 2315 North 33rd Street, Fort Smith, Arkansas for the seizure of Methamphetamine, associated drug paraphernalia and recorded items of United States currency.

The Wheelers do not question whether the affidavit sufficiently established the reliability and veracity of the CI or whether the information contained in the affidavit was sufficient to establish probable cause. The Wheelers argue only that the trial court erred when it refused to suppress evidence seized and obtained as a result of a search warrant based upon a misleading affidavit. The Wheelers assert that the trial court misapplied the law because it did not apply the Franks standard to this case.

Our supreme court has addressed the issue of whether affiant officers' failure to disclose to the issuing judge that part of the information contained therein was obtained from a different officer renders the search warrant invalid pursuant to Franks. In Pyle, supra, the affiant officer asserted that he identified Pyle talking to an intermediary in a controlled drug buy when in actuality the identification was made by another officer who did not sign the affidavit. The supreme court held that this error did not constitute a Franks violation. In Rufus, supra, our supreme court held that an omission in an affidavit that the officer who signed the affidavit was not the officer who observed the drug transaction did not render the search warrant invalid under the Franks doctrine.

As in Pyle and Rufus, there has been no Franks violation in the present case. Officer Lawson testified that Detective Scamardo was present for the events described in the affidavit until after the officers met the CI and before the CI entered the house to make the controlled buy. Detective Scamardo interviewed the CI and was present for the search of the CI's car and person. He did not personally witness the controlled buy, but Officer Lawson related to Detective Scamardo everything that he and another officer did during the controlled buy. The fact that Detective Scamardo did not personally witness the controlled buy does not demonstrate a "reckless disregard for the truth" as the Wheelers contend. Here, as in Rufus and Pyle, there is no evidence that the affiant officer purposefully misled the magistrate. Detective Scamardo made attributive references to Officer Lawson in appropriate places, and the questionable portions of the affidavit were written in the third person as opposed to the first person. Also, Detective Scamardo stated that he "had probable cause to believe" that the information contained in the affidavit was true and not that he had personal knowledge of all the facts. The Wheelers cannot show that Detective Scamardo misled the judge knowingly and intentionally or that he showed reckless disregard for the truth.

Even if this court had decided that the affidavit contained misleading information, the affidavit, if supplemented with the omitted information, is sufficient to establish probable cause. Here, as in Rufus, if the affiant officer had revealed that his information regarding the controlled buy had come from Officer Lawson, the affidavit still would have supported probable cause, as an affidavit does not have to contain facts establishing the veracity and reliability of police officers. See Rufus, supra; Haynes v. State, 83 Ark. App. 314, 128 S.W.3d 33 (2003). Thus, the Wheelers cannot prove by a preponderance of the evidence either prong of the Franks analysis.

Although the trial court did not specifically refer to the Franks standard, to Pyle, supra, or to Rufus, supra, in its reasoning, it reached the right decision in denying the motion to suppress.

Affirmed.

Pittman, C.J., and Glover, J., agree.