Lauderdale v. State
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Cite as 2011 Ark. App. 269
ARKANSAS COURT OF APPEALS
DIVISION I
No. CACR09-410
Opinion Delivered
April 13, 2011
KITAKA LAUDERDALE
APPELLANT
V.
APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
WESTERN DISTRICT
[NO. CR-2005-225]
HONORABLE JOHN N.
FOGLEMAN, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
JOHN MAUZY PITTMAN, Judge
Appellant was convicted of two counts of possession of a controlled substance with
intent to deliver (cocaine and methamphetamine) and sentenced to lengthy terms of
imprisonment. On appeal, he argues that the trial court erred in denying his request for a
continuance; in granting the State’s motion to reconsider its grant of appellant’s motion to
suppress evidence; in ruling that police officers acted in good faith in relying on the search
warrant; and in ruling that appellant was not illegally detained following the search. We
affirm.
Appellant argues that the trial court erred in denying his eve-of-trial motion for a
continuance so that he could terminate his retained attorneys and hire attorney John Wesley
Hall, Jr., to replace them. A motion for continuance is addressed to the sound discretion of
Cite as 2011 Ark. App. 269
the trial court, whose judgment will not be reversed on appeal in the absence of a clear abuse
of that discretion. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). Appellant bears the
burden of establishing such abuse: to do so, he must not only demonstrate that the trial court
abused its discretion by denying the motion for a continuance, but must also show prejudice
that amounts to a denial of justice. Id. We find no such error in this case.
The right to counsel of one’s choice is not absolute and may not be used to frustrate
the inherent power of the court to command an orderly, efficient, and effective administration
of justice. Wilson v. State, 88 Ark. App. 158, 196 S.W.3d 511 (2004). Once competent
counsel is obtained, the request for a change in counsel must be considered in the context of
the public’s interest in the prompt dispensation of justice. Id. Appellant had previously been
granted nine continuances. Furthermore, on the very day he moved for a continuance to
obtain new counsel, appellant filed a pleading stating that he was completely satisfied with the
legal services provided by his present attorneys, and that they had represented him
competently, diligently, adequately, and informatively. Finally, appellant’s request for a
continuance and change of counsel was made late on a Sunday afternoon, the day before trial
was to begin. In light of these facts, we hold that the trial court did not abuse its discretion
by denying appellant’s motion. The right to counsel cannot be used to delay trial or be
manipulated to play cat-and-mouse with the trial court. Wilson v. State, supra.
Following the suppression hearing, the trial court ruled that evidence seized pursuant
to a search warrant was inadmissible because the warrant was defective. Subsequently, the
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Cite as 2011 Ark. App. 269
State moved for reconsideration of this ruling. The trial court granted the motion and, upon
reconsideration, ruled that the evidence was admissible because the police officers seized it in
good-faith reliance on the warrant. Appellant argues that the trial court lacked authority to
grant the State’s motion for reconsideration of the order granting his suppression motion. We
do not agree. A motion in limine is a threshold motion, and the trial judge is at liberty to
reconsider his prior rulings during the course of a single trial. Estacuy v. State, 94 Ark. App.
183, 228 S.W.3d 567 (2006); see also Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003).
We cannot say that the trial judge abused his discretion in reconsidering his earlier ruling on
appellant’s motion.
Appellant further argues that the police officers could not in good faith rely on the
warrant issued by Judge Laser because it did not specifically indicate when the alleged criminal
activity occurred. In reviewing a trial court’s 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 and determining whether those facts give rise to reasonable
suspicion or probable cause, giving due weight to inferences drawn by the trial court and
proper deference to the trial court’s findings. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468
(2004). The test for determining whether the good-faith exception enunciated in United States
v. Leon, 468 U.S. 897 (1984), should be applied in a given case is whether it was objectively
reasonable for a well-trained police officer to conclude that the search was supported by
probable cause. Hampton v. State, 90 Ark. App. 174, 204 S.W.3d 572 (2005).
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It is true that the time when the offense was committed must either be mentioned in
the affidavit for a search warrant or be susceptible of being inferred from the information in
the affidavit, e.g., by the use of the words “now” or “recently,” the use of the present tense,
or a statement that the issuance of the warrant is urgent. Herrington v. State, 287 Ark. 228, 697
S.W.2d 899 (1985). However, under the good-faith exception, we look to the four corners
of the affidavit to determine if we can establish with certainty the time during which the
criminal activity was observed; if the time can be inferred in this manner, then the police
officer’s objective good-faith reliance on the magistrate’s assessment will cure the omission
unless the affidavit is so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable, or the warrant is so facially deficient that the executing
officers cannot reasonably presume it to be valid. George v. State, 358 Ark. 269, 189 S.W.3d
28 (2004). Here, the affidavit said that officers received information that appellant had in the
past few months been dealing large quantities of drugs from his home, and that a search of his
trash bags on the day that the warrant was issued established his address at that residence and
revealed numerous specified items of packaging material known to be associated with the sale
and transport of drugs in large quantities, including a package made of brown tape and plastic
wrap consistent with the size and shape of one kilogram of cocaine. The affidavit further said
that the inside of this packaging contained a heavy white-powder residue that field-tested
positive for cocaine. We hold that this affidavit was not so lacking in indicia of probable cause
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as to render official belief in its existence entirely unreasonable and that the trial judge did not
err in refusing to suppress the evidence obtained in the search.
Finally, appellant argues that the evidence recovered from his vehicle should have been
suppressed because he was illegally detained following the search of his person pursuant to the
warrant and that the drugs were discovered during this asserted period of illegal detention.
The warrant authorized a search of appellant’s person and his residence. When police officers
arrived to execute the warrant they observed appellant get into his vehicle and drive away
from the residence. The vehicle was stopped, appellant was searched, his cell phone was
confiscated, and he was handcuffed. Immediately after appellant was handcuffed, one of the
police officers indicated that he had observed cocaine in plain view inside appellant’s vehicle.
The entire sequence of events, from the commencement of the stop to the discovery of the
cocaine in appellant’s vehicle, took seventy-six seconds.
We think that the officers properly detained appellant following the search of his
person. His residence had not yet been searched, as authorized by the warrant, and the officers
were thus justified in detaining appellant as long as reasonably necessary to complete that
search. Although the general rule is that every arrest, and every seizure having the essential
attributes of a formal arrest, is unreasonable unless it is supported by probable cause, there is
an exception for limited intrusions that may be justified by special law-enforcement interests.
Michigan v. Summers, 452 U.S. 692 (1981). This exception is not confined to the momentary,
on-the-street detention accompanied by a frisk for weapons involved in Terry v. Ohio, 392
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U.S. 1 (1968); the Summers Court held that the exception included detention of a person
during a search of his house for contraband pursuant to a warrant. In so holding, the Supreme
Court reasoned that such detention forwarded the legitimate law-enforcement interests of
preventing flight, minimizing risk of harm to the officers and destruction of evidence, and
facilitating the orderly completion of the search. Michigan v. Summers, supra. All of these
considerations are applicable to the situation presented in the case at bar.
Affirmed.
R OBBINS and G RUBER, JJ., agree.
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