Langford v. State

Annotate this Case
Mack LANGFORD v. STATE of Arkansas

CR 97-976                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 26, 1998


1.   Motions -- suppression -- factors on review. -- In reviewing
     a trial court's ruling on a motion to suppress, the supreme
     court makes an independent determination based upon the
     totality of the circumstances; the evidence is viewed in the
     light most favorable to the appellee, and the case reversed
     only if the ruling is clearly erroneous or against the
     preponderance of the evidence; totality-of-the-circumstances
     analysis is applied when determining whether the issuing
     magistrate had a substantial basis for concluding that
     probable cause existed. 

2.   Motions -- suppression -- review of -- totality-of-
     circumstances analysis discussed. -- Under the totality-of-
     the-circumstances analysis, the task of the issuing magistrate
     is simply to make a practical, common-sense decision whether,
     given all the circumstances set forth in the affidavit before
     him, including the "veracity" and "basis of knowledge" of
     persons supplying hearsay information, there is a fair
     probability that contraband or evidence of a crime will be
     found in a particular place; the duty of a reviewing court is
     simply to ensure that the magistrate had a substantial basis
     for concluding that probable cause existed.

3.   Criminal procedure -- reliability requirements of Ark. R.
     Crim. P. 13.1(b) -- affidavit disclosed enough information to
     show informants were worthy of belief. -- Rule 13.1(b) of the
     Arkansas Rules of Criminal Procedure adopts the totality-of-
     the-circumstances analysis; appellant contended that the
     officer's affidavit did not meet the requirements of Rule
     13.1(b) because he failed to set forth particular facts
     bearing on the informants' reliability and failed to disclose
     the basis of the informants' beliefs that appellant was
     involved in illegal drug activity; although the officer did
     not provide specific details about the informants' assistance
     in previous drug cases, he stated more than a mere conclusion
     and disclosed enough information to show that the informants
     were worthy of belief.      

4.   Criminal procedure -- confidential informant -- when failure
     to establish basis of knowledge not fatal -- affidavit
     provided substantial basis for finding of reasonable cause to
     believe that drugs and other contraband would be found at
     appellant's residence. -- Under Rule 13.1(b), failure to
     establish the bases of knowledge of the confidential
     informants is not a fatal defect "if the affidavit viewed as
     a whole provides a substantial basis for a finding of
     reasonable cause to believe that things subject to seizure
     will be found in particular places"; here, the officer's
     affidavit, viewed as a whole, provided a substantial basis to
     believe that drugs and other contraband would be found at
     appellant's residence. 

5.   Search & seizure -- warrant -- how invalidated. -- Under
     Franks v. Delaware, 438 U.S. 154 (1978), a warrant should be
     invalidated if a defendant shows by a preponderance of the
     evidence that: (1) the affidavit contained a false statement
     that was made knowingly, intentionally, or recklessly by the
     affiant; and (2) the false statement was necessary to a
     finding of probable cause; if such findings are made, the
     Franks' test requires that the false material should be
     excised and the remainder of the warrant examined to determine
     if probable cause still exists; if the truthful portion of the
     warrant makes a sufficient showing of probable cause, the
     warrant will not be invalidated.

6.   Search & seizure -- inconsistencies not fatal -- affidavits
     sufficient to constitute showing of probable cause. --
     Although the supreme court found several inconsistencies
     between statements contained in the affidavits and testimony
     given at the suppression hearing, appellant failed to show
     that the affiants made any false statements knowingly and
     intentionally or in reckless disregard of the truth; even if
     appellant was correct that certain statements were false, the
     rest of the affidavits made a sufficient showing to constitute
     probable cause to issue the search warrant.    

7.   Search & seizure -- search warrant -- application for must
     describe with particularity places to be searched --
     affidavits sufficient as to locations to be searched. --
     Appellant's argument that the affidavits violated Rule 13.1(b)
     of the Arkansas Rules of Criminal Procedure, which requires
     that the application for a search warrant describe with
     particularity the places to be searched, was without merit;
     appellant gave no authority for the proposition that an
     affidavit is insufficient if it fails to identify the precise
     room within a residence in which drugs or other contraband may
     be found; here, the affidavits established sufficient facts to
     support a finding of probable cause to believe that contraband
     could be found in the locations described in the warrant.    

8.   Search & seizure -- nighttime warrant -- when proper. -- An
     affidavit must set forth a factual basis as a prerequisite to
     the issuance of a nighttime warrant and that mere conclusions
     are insufficient to justify a nighttime search; Rule 13.2(c)
     of the Arkansas Rules of Criminal Procedure provides that the
     issuing judicial officer may authorize a search at any time,
     day or night, if there is reasonable cause to believe that:
     (i) the place to be searched is difficult of speedy access;
     or(ii) the objects to be seized are in danger of imminent
     removal; or (iii) the warrant can only be safely or
     successfully executed at nighttime or under circumstances the
     occurrence of which is difficult to predict with accuracy; in
     reviewing whether the requirements of the rule were met, the
     supreme court makes an independent determination based upon
     the totality of the circumstances and reverses the trial
     court's ruling only if it is clearly against the preponderance
     of the evidence. 

9.   Search & seizure -- nighttime warrant -- four exigent
     circumstances listed in support of application for -- trial
     court's denial of suppression motion not clearly against
     preponderance of evidence. -- Where the officer listed four
     exigent circumstances in support of his application for a
     nighttime warrant to search appellant's residence, the supreme
     court, after a careful review of the affidavits, determined
     that, under the totality of the circumstances, the trial
     court's decision to deny the motion to suppress evidence
     seized in the nighttime search was not clearly against the
     preponderance of the evidence; there was a sufficient factual
     basis for a nighttime search.  

10.  Search & seizure -- search warrant -- probable cause existed
     to issue -- fruit-of-poisonous-tree doctrine inapplicable. --
     Appellant's argument that statements he made to officers
     following their entry into his residence should have been
     suppressed as "fruits of the poisonous tree" because they were
     obtained from an illegal search, was without merit where the
     supreme court determined that the issuing judge had a
     substantial basis to conclude there was probable cause to
     issue the search warrant; where the tree is not "poisonous,"
     neither is the fruit.    

11.  Appeal & error -- failure to give admonition to jury -- not
     prejudicial error where instruction was not requested below. -
     - Failure to give an admonition to the jury is not prejudicial
     error where the instruction or admonition was not requested
     below.

12.  Appeal & error -- appellant failed to request that court
     admonish jury -- no reversible error found. -- Appellant's
     contention that the prosecutor's closing remarks constituted
     an impermissible "golden rule" argument and that the trial
     court committed reversible error for failing to sustain his
     objection and for failing to admonish the jury to disregard
     the remarks, was without merit where appellant did not ask the
     trial court to admonish the jury; in addition, prior to
     closing arguments of the guilt phase, the trial court
     instructed the jury that closing arguments of the attorneys
     were not evidence and that any argument, statements, or
     remarks of the attorneys having no basis in the evidence
     should be disregarded by the jury; in light of the court's
     instruction and appellant's failure to request an admonition
     or other curative relief, there was no reversible error;    
     the judgment was affirmed.


     Appeal from Pope Circuit Court; John S. Patterson, Judge;
affirmed.
     Mark S. Cambiano, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Sr. Asst.
Att'y Gen., for appellee.

     Ray Thornton, Justice.
     Appellant Mack Langford was convicted of possession of
methamphetamine with intent to deliver, simultaneous possession of
methamphetamine and a firearm, possession of marijuana with intent
to deliver, and possession of drug paraphernalia.  A jury sentenced
him to two forty-year prison terms and two ten-year prison terms
for the respective offenses and imposed fines of $50,000.  The
trial court ordered the sentences to run concurrently for a total
sentence of forty years.  Appellant raises four points on appeal. 
We find no error and affirm.
     Around 2:30 a.m. on September 29, 1993, Officer Stephen Brown
of the Fifth Judicial Drug Task Force applied for a warrant to
search the residence of appellant for various drugs, drug
paraphernalia, drug money, related drug documents, and weapons.  In
support of his application for a warrant, Officer Brown submitted
his affidavit and the affidavit of Mary Duncan.  In his affidavit,
Officer Brown stated that on September 24, 1993, he received
information from two confidential informants that appellant was
providing methamphetamine for sale and distribution to Doyle Gray
and Kathy Buchanan, also known as Mary Duncan.  In addition,
Officer Brown detailed a controlled-drug buy that he arranged for
the evening of September 28, 1993.  He recounted that the two
informants went to Mary Duncan's residence to attempt to buy an
"eight ball" of methamphetamine, and, while under police
surveillance, Duncan went to appellant's residence and then
returned to her home where she delivered an eight ball to the
informants.  Officer Brown further stated that a subsequent field
test on the eight ball revealed methamphetamine.
     Officer Brown also declared that both informants had provided
information against their penal interests and had provided
information that led to the subsequent arrest and prosecution of
drug violators.  Officer Brown stated that he had verified the
informants' information through his personal knowledge, as well as
intelligence received and placed in case files of the Fifth
Judicial Drug Task Force.  Officer Brown also listed several
exigent circumstances, which he believed made a nighttime search
necessary.  
     Mary Duncan executed the second affidavit in support of the
search warrant.  Duncan stated that on September 28, 1993, she gave
appellant $325 for the purchase of methamphetamine.  She also
stated that she had personal knowledge that appellant had drugs
packaged for sale at his residence, which he normally kept in his
bathroom cabinets, and that he had provided Doyle Gray with drugs
on numerous occasions.  Duncan further recounted that she had seen
drug paraphernalia and firearms at appellant's residence within the
previous week.  Finally, she declared that she had personal
knowledge that appellant was planning to leave his residence on
that day.
     Based on this information, Municipal Judge Dennis Sutterfield
issued a search warrant that authorized the search of appellant's
residence at anytime, day or night.  Officer Brown and local law
enforcement officers executed the warrant at approximately 3:30
a.m. on September 29, 1993; they seized marijuana, methamphetamine,
firearms, cash, and various items of drug paraphernalia.
     Appellant filed pretrial motions to suppress the evidence
seized during the search and any statements he made to the police
during the execution of the warrant.  He argued that the affidavits
contained insufficient facts to establish probable cause and to
justify a nighttime search.  Appellant further asserted that the
statements were the fruits of an illegal search.  The trial court
denied the motions.   
     For his first point for reversal, appellant argues that the
trial court erred in denying his motion to suppress the evidence
seized from his residence because the affidavits for the search
warrant failed to establish the reliability of the informants and
how they knew about his alleged illegal drug activities, contained
material false statements, and failed to establish the particular
place where the drugs or other contraband could be found.  We
address each of these alleged errors in the affidavits separately.
     In reviewing a trial court's ruling on a motion to suppress,
we make an independent determination based upon the totality of the
circumstances; we view the evidence in the light most favorable to
the appellee, and we reverse only if the ruling is clearly
erroneous or against the preponderance of the evidence.  Mullinax
v. State, 327 Ark. 41, 938 S.W.2d 801 (1997), cert. denied, 117 S. Ct. 2411 (1997).  We apply the totality-of-the-circumstances
analysis when determining whether the issuing magistrate had a
substantial basis for concluding that probable cause existed. 
Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996); State v.
Mosley, 313 Ark. 616, 856 S.W.2d 623 (1993).  Under this analysis, 
     [t]he task of the issuing magistrate is simply to make a
     practical, common sense decision whether, given all the
     circumstances set forth in the affidavit before him,
     including the "veracity" and "basis of knowledge" of
     persons supplying hearsay information, there is a fair
     probability that contraband or evidence of a crime will
     be found in a particular place.  And the duty of a
     reviewing court is simply to ensure that the magistrate
     had a "substantial basis for . . . conclud[ing]" that
     probable cause existed.
Moore, 323 Ark. at 538, 915 S.W.2d  at 289-90 (citing Rainwater v.
State, 302 Ark. 492, 791 S.W.2d 688 (1990)).
     Rule 13.1(b) of our Arkansas Rules of Criminal Procedure
adopts the totality-of-the-circumstances analysis and provides in
part:
     If an affidavit or testimony is based in whole or part on 
     hearsay, the affiant or witness shall set forth particular
     facts bearing on the informant's reliability and shall
     disclose, as far as practicable, the means by which the
     information was obtained.  An affidavit or testimony is
     sufficient if it describes circumstances establishing
     reasonable cause to believe that things subject to seizure
     will be found in a particular place.  Failure of the affidavit
     or testimony to establish the veracity and bases of knowledge
     of persons providing information to the affiant shall not
     require that the application be denied, if the affidavit or
     testimony viewed as a whole, provides a substantial basis for
     a finding of reasonable cause to believe that things subject
     to seizure will be found in a particular place.
     Appellant contends that Officer Brown's affidavit did not meet
the requirements of Rule 13.1(b) because he failed to set forth
particular facts bearing on the informants' reliability and failed
to disclose the basis of the informants' beliefs that appellant was
involved in illegal drug activity.  Appellant bases his hearsay
complaint on Officer Brown's averment that he had received
information from two confidential informants alleging that
appellant regularly provided methamphetamine to Doyle Gray and Mary
Duncan for resale and distribution.  Appellant correctly argues
that Officer Brown did not establish how the informants obtained
their information.  With respect to the informants' reliability,
Officer Brown's affidavit contained the following statements:
     CI-A and CI-B have both provided information against their
     penal interest and both had provided information about other
     drug violators, which has been verified though affiant's
     personal knowledge, as well as intelligence received and
     placed in case files of the Fifth Judicial Drug Task Force. 
     Both informants have provided information which led to the
     subsequent arrest and prosecution of violators.
Although Officer Brown did not provide specific details about the
informants' assistance in previous drug cases, he stated more than
a mere conclusion and disclosed enough information to show that the
informants were worthy of belief.  See Akins v. State, 264 Ark.
376, 572 S.W.2d 140 (1978).      
     In addition, under Rule 13.1(b), failure to establish the
bases of knowledge of the confidential informants is not a fatal
defect "if the affidavit viewed as a whole provides a substantial
basis for a finding of reasonable cause to believe that things
subject to seizure will be found in particular places."  Heard v.
State, 316 Ark. 731, 736-37, 876 S.W.2d 231, 234 (1994), (quoting
Mosley v. State, 313 Ark. 616, 622, 856 S.W.2d 623, 626 (1993)). 
Here, Officer Brown's affidavit, viewed as a whole, provided a
substantial basis to believe that drugs and other contraband would
be found at appellant's residence.  Officer Brown's personal
account of the controlled-drug buy established that the informants
went to Mary Duncan's residence to purchase methamphetamine with
marked money, Duncan left her house and went to appellant's
residence to get the eight ball for the informants, she returned to
her house where she gave the drugs to the informants, she was 
under surveillance during this time, and the drugs tested positive
for methamphetamine.  Officer Brown's affidavit also established
that the informants had been searched for drugs before they went to
Duncan's residence and that none was found.  Based on this
information alone, we conclude that Officer Brown's affidavit
provided a substantial basis for a finding of reasonable cause to
believe that drugs and other contraband would be found at
appellant's residence.  
     We turn next to appellant's second argument concerning the
insufficiency of the affidavits used to obtain the search warrant. 
He contends that both affidavits contained numerous material false
statements.  This court has recognized that, under Franks v.
Delaware, 438 U.S. 154 (1978), a warrant should be invalidated if a
defendant shows by a preponderance of the evidence that:  (1) the
affidavit contained a false statement that was made knowingly,
intentionally, or recklessly by the affiant; and (2) the false
statement was necessary to a finding of probable cause.  Echols v.
State, 326 Ark. 917, 950, 936 S.W.2d 509, 525 (1996), cert. denied,
117 S. Ct. 1853 (1997) (citing Franks, 438 U.S. at 155-56).  We
have further recognized that, if such findings are made, the
Franks' test requires that the false material should be excised and
the remainder of the warrant examined to determine if probable
cause still exists.  Id.  If the truthful portion of the warrant
makes a sufficient showing of probable cause, the warrant will not
be invalidated. Id.     
     In this case, we have found several inconsistencies between
statements contained in the affidavits and testimony given at the
suppression hearing.  For example, both affidavits averred that 
Duncan had purchased an eight ball from appellant on the evening of
September 28, 1993.  Also, Duncan averred that appellant kept drugs
packaged for sale in his bathroom cabinets and that he supplied
drugs for resale and distribution to Doyle Gray.  However, at the
suppression hearing, Duncan testified that, while she got the drugs
from appellant's residence, she actually purchased them from
someone that she did not know.  Duncan further denied knowing that
Gray had purchased drugs from appellant or that appellant kept
drugs at his residence.  
     Notwithstanding these and other inconsistencies, appellant has
failed to show that the affiants made any false statements
"knowingly and intentionally or in reckless disregard of the
truth."  Heritage v. State, 326 Ark. 839, 846, 936 S.W.2d 499, 503
(1996).  Even if appellant is correct that certain statements were
false, and even if Officer Brown and Mary Duncan knew the
statements to be false, the rest of the affidavits made a
sufficient showing to constitute probable cause.  The affidavits
established that Duncan purchased drugs for the informants at
appellant's residence on the evening of September 28, 1993, with
marked-buy money, and that appellant was going out of town on
September 29.  Based on this information alone, there was a
sufficient showing for probable cause to issue the search warrant. 
     Appellant's final argument under his first point is that the
affidavits violated Rule 13.1(b) of the Arkansas Rules of Criminal
Procedure, which requires that the application for a search warrant
describe with particularity the places to be searched.  Appellant
complains that Officer Brown's affidavit did not establish "items
subject to seizure would be found in particular places" and that
"the facts set out in Duncan's affidavit would have only warranted
a search of the appellant's bathroom."  Appellant cites no
authority for the proposition that an affidavit is insufficient if
it fails to identify the precise room within a residence in which
drugs or other contraband may be found, and we conclude that his
argument is without merit.  The affidavits established sufficient
facts to support a finding of probable cause to believe that
contraband could be found in the locations described in the
warrant.    
     Appellant's second point on appeal is that the trial court
erred in denying his motion to suppress because the evidence was
seized as the result of an illegal nighttime search.  He contends
that the affidavits for the search warrant contained an
insufficient factual basis to justify a search at night.
     It is well settled that an affidavit must set forth a factual
basis as a prerequisite to the issuance of a nighttime warrant and
that mere conclusions are insufficient to justify a nighttime
search.  Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996);
Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993).  Rule
13.2(c) of the Arkansas Rules of Criminal Procedure provides that
the issuing judicial officer may authorize a search at any time,
day or night, if there is reasonable cause to believe that:
     (i) the place to be searched is difficult of speedy access; or
     (ii) the objects to be seized are in danger of imminent
     removal; or
     (iii) the warrant can only be safely or successfully
     executed at nighttime or under circumstances the occurrence of
     which is difficult to predict with accuracy; . . ..
     In reviewing whether the requirements of the rule were met, we
make an independent determination based upon the totality of the
circumstances and reverse the trial court's ruling only if it is
clearly against the preponderance of the evidence.  Echols, 326
Ark. at 954, 936 S.W.2d  at 527.
     Officer Brown listed four "exigent circumstances" in support
of his application for a nighttime warrant to search appellant's
residence:
     (1)  There are currently drugs at the Mack Langford
     residence, which are packaged and maintained in a manner
     that their destruction or removal can be easily
     accomplished.
     (2)  Mack Langford has threatened CI-B with a semi-
     automatic pistol within the last week and is, therefore,
     believed to be armed and dangerous, thus making the
     element of surprise inherent with a nighttime search
     essential for the safety of the officers executing the
     warrant.                                                
     (3)  Affiant has information that Mack Langford will be
     leaving the morning of 29 September 1993, thus giving
     rise to affiant's belief that the drugs will be removed,
     hidden or otherwise disposed of.
     (4)  The location of the residence is located such as to
     make speedy access impossible in that it sits on a hill
     overlooking the road, which provides the only access to
     the property.
     After a careful review of the affidavits presented in this
case, we have determined that, under the totality of the
circumstances, the trial court's decision to deny the motion to
suppress evidence seized in the nighttime search was not clearly
against the preponderance of the evidence.  The affidavits set
forth information that Duncan, while under police surveillance,
purchased drugs for the confidential informants at the appellant's
residence on the evening of September 28, 1993; that Duncan bought
the drugs with marked money; that Duncan had seen drug
paraphernalia and firearms at appellant's residence within the
previous week; that appellant was leaving his residence sometime
the morning of the September 29; that appellant had threatened one
of the informants with a weapon within the last week; and that the
location of the residence made speedy access impossible.  Based on
this information, we hold that there was a sufficient factual basis
for a nighttime search.  
     Appellant next argues that statements he made to officers
following their entry into his residence should have been
suppressed as "fruits of the poisonous tree" because they were
obtained from an illegal search.  We have already found that the
issuing judge had a substantial basis to conclude there was
probable cause to issue the search warrant; therefore, this
argument must fail.  As we have previously noted, where the tree is
not "poisonous," neither is the fruit.  Miller v. State, 269 Ark.
341, 348, 605 S.W.2d 430, 435 (1980).     
     For his final contention, appellant argues that remarks made
by the State during closing argument of the penalty phase of the
trial warrant reversal of the convictions.  The pertinent argument
and resulting colloquy follow:
     PROSECUTOR:  If you went home and you saw a guy give your
     granddaughter or your grandson or your son or your
     friends some dope --
     DEFENSE:  Your Honor, I want to object to that about
     being the Golden rule argument and the Prosecutor knows
     that's improper.
     THE COURT:  Well, it's a form of argument.  The jury can
     reject if they --
     PROSECUTOR:  -- saw a man hand that child some dope,
     which one among you would not have the nerve to knock
     that dope out of his hand?  Everyone one of you; and you
     can do the very same thing this afternoon by imposing
     yourself--your twelve opinions between him and people
     like him in your community.
     Appellant contends that the prosecutor's remarks constituted
an impermissible "golden rule" argument and that the trial court
committed reversible error for failing to sustain his objection and
for failing to admonish the jury to disregard the remarks.
     We have repeatedly stated that failure to give an admonition
to the jury is not prejudicial error where the instruction or
admonition was not requested below.  Gray v. State, 327 Ark. 113,
937 S.W.2d 639 (1997); Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996); Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993),
cert. denied, 114 S. Ct. 391 (1993).  In our review of the record,
we note that, while appellant objected to the prosecutor's remarks,
he did not ask the trial court to admonish the jury.  It appears
that the trial court was preparing to offer an instruction or an
admonition when the prosecutor interrupted his comments.  Under
these circumstances, appellant should have renewed his objection
and asked for an admonition, but he did not do so.  We also note
that, prior to closing arguments of the guilt phase, the trial
court had instructed the jury that "closing arguments of the
attorneys are not evidence" and that "[a]ny argument, statements,
or remarks of the attorneys having no basis in the evidence should
be disregarded by you."  In light of the court's instruction and
appellant's failure to request an admonition or other curative
relief, we conclude that there was no reversible error.
     For the reasons stated, the judgment is affirmed.