Kelley v. State , 371 Ark. 599 ( 2007 )

Annabelle Clinton Imber, Justice.

Appellant Eric Wayne Kelley stice. Pulaski County Circuit Court for the rape of M.M., a minor under fourteen years old. Kelley received a sentence of life imprisonment. Now he brings the instant appeal, arguing that the circuit court erred in denying his motion to suppress certain evidence found during a nighttime search of his home because neither the affidavit nor the search warrant contained sufficient factual basis to justify a nighttime search. We agree, and we reverse and remand.

On November 7, 2005, the Sherwood Police Department received information from Texas authorities that Kelley had outstanding arrest warrants, from Dallas County, Texas, for sexual offenses against children. Sherwood police officers were also notified that Kelley was residing in the Audubon Cove apartments, number 101 C, in Sherwood, that he was using the alias Melvin Kelley, and that he had allegedly been having sexual relations with an eleven- or twelve-year-old boy of Middle Eastern descent.

On November 10 around 6:00 p.m., Officer Kevin Webb was patrolling in the area of Kelley’s suspected residence, and he saw a man and a child, who matched the description of the child Kelley was allegedly having sexual relations with, leave apartment 101 C, get into a black Nissan Maxima, and drive away. Officer Webb performed a traffic stop and asked the driver, Kelley, to exit the vehicle. Kelley could not produce a driver’s license, and instead presented an identification card bearing his alias. Kelley told Officer Web that the passenger was his “nephew.” When Officer Webb talked to the child, M.M., alone, he advised the officer that he was Kelley’s “friend.” Officer Web placed Kelley under arrest, and Kelley and the child were taken to the police department.

At the police department, Sergeant Jeff Hagar, interviewed M.M. with his mother’s permission, and M.M. stated that he and Kelley had been friends for about a year and a half. He told Sergeant Hagar that Kelley had performed oral sex on him approximately ten to twenty times during that period of time. M.M. also stated that Kelley had taken nude pictures of him and stored the pictures on the digital camera and computer in Kelley’s apartment.

In the early morning hours of November 11, the officers obtained a nighttime search warrant for Kelley’s apartment. The affidavit in support of the warrant contained the facts detailed above, and the officers allegedly gave testimony before the magistrate that Kelley had been adamant in asking the officers at the police department to allow him to call his sister so she could retrieve his medicine from his apartment. The officers told the magistrate that they were concerned that Kelley would ask his sister to dispose of the camera and computer while she was in the apartment. However, the testimony was not recorded, and the affidavit did not contain any facts concerning Kelley’s insistence on calling his sister. Additionally, with regard to the necessity for a nighttime search, the affidavit only stated that

I also request that the warrant be executed anytime during the day or night due to the fact that the objects to be seized are in danger of imminent removal.

The officers then executed the warrant at Kelley’s apartment and seized various electronic equipment, including a computer, digital camera, compact discs, and digital video discs.

The State filed a felony information charging Kelley with the rape of M.M. and later amended the information to include the offense of engaging children in sexually explicit conduct for use in visual or print medium. Kelley filed a motion to suppress the evidence seized during the search of his apartment, because, among other reasons, the search and seizure violated the Arkansas Rules of Criminal Procedure. After a hearing, the circuit court denied Kelley’s motion. He was later convicted on the rape charge.¹ Kelley now appeals from his conviction.

For his sole point on appeal, Kelley argues that the circuit court erred in denying his motion to suppress because the affidavit and warrant did not contain any factual basis to support a nighttime search under our rules of criminal procedure. The State, however, argues that Kelley did not have standing to challenge the search. In the alternative, the State presents three arguments: (1) that the circuit court’s denial of Kelley’s motion was not clearly against the preponderance of the evidence, (2) the good-faith exception to the warrant requirement, under United States v. Leon, 468 U.S. 897 (1984), applies to the instant case, and (3) the circuit court’s decision to deny Kelley’s motion was harmless error. When reviewing a circuit court’s decision to deny or grant a motion to suppress, this court conducts 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 the inferences drawn by the circuit court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).

I. Standing

First, we address the State’s argument that Kelley did not have standing to challenge the search of his apartment because he was in police custody at the time of the search. When determining whether a defendant had standing to challenge a search, the pertinent inquiry is whether the defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize the expectation as reasonable. See Mazenpink v. State, 336 Ark. 171, 907 S.W.2d 648 (1999). Even though Kelley was not present in his home during the search, he clearly had a subjective expectation of privacy in the area searched because a search of his home was involved, and society would be prepared to recognize a person’s subjective expectation of privacy in his own home. See Mazenpink v. State, supra (defendant who was not present in his home at the time of the search still had standing to challenge the searching officers’ failure to use proper knock- and-announce procedures). Thus, Kelley did have standing to challenge the search of his apartment.

II. Motion to Suppress

We now turn to the issue of whether the circuit court erred in denying Kelley’s motion to suppress the evidence found at his home because the nighttime search warrant was not supported by a sufficient affidavit. While Kelley argues that the warrant and affidavit in the instant case were wholly lacking in a factual basis to support a nighttime search, the State asserts that there was sufficient factual basis in the warrant and affidavit, and even if the affidavit and warrant were deficient, the Leon good-faith exception should apply. We conclude that the affidavit and warrant lacked any factual basis to support a nighttime search, and the Leon good-faith exception is not applicable to the facts of this case.

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV. This court, however, has recognized a heightened protection of our citizens’ right to privacy in their homes. See Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). In particular, our court has been in the vanguard of other jurisdictions in protecting our citizens against unreasonable searches and seizures in their homes at night. See Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991); Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002) (Brown, J., concurring). In addition to the constitutional protections and general rules requiring probable cause to obtain a search warrant, Ark. R. Crim. P. 13.2(c), which was adopted by this court in 1976, expressly provides further protection against unjustified nighttime searches of our citizens’ homes. Ark. R. Crim. P. 13.2 (c) (2007). See also, In re Rules of Criminal Procedure, 259 Ark. 863, 530 S.W.2d 672 (1975). Rule 13.2(c) mandates that a warrant for a nighttime search be supported by evidence that there is reasonable cause to believe that one of the following conditions exists:

(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.

Ark. R. Crim. P. 13.2(c) (2007).

As early as two years after our adoption of the Criminal Rules of Procedure, in Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978), this court was asked to determine the validity of a warrant served at night where the warrant lacked any indication that it could be served either day or night. Id. Finding that the warrant was invalid, we emphasized that good cause must exist to authorize entry into a citizen’s privacy in the nighttime and remarked that “[t]his is a safeguardjustified by centuries of abuse.” Id. at 393, 572 S.W.2d at 390.

Two years later, we were asked to decide whether the issuance of a warrant based upon an affidavit that detailed the facts concerning a controlled buy of marijuana from the defendant’s home but that contained a conclusory statement about “[h]aving found reasonable cause to believe that the substance described herein could be removed unless the search is conducted immediately,” was in violation of the defendant’s constitutional rights. State v. Broadway, 269 Ark. 215, 216, 599 S.W.2d 721, 721 (1980). This court expressed its shock that the magistrate issued a nighttime search warrant based upon the conclusory statement in the affidavit concerning the removal of evidence and clarified the purpose behind including a detailed factual basis in an affidavit to secure a nighttime warrant, by stating “[a]n affidavit should speak in factual and not mere conclusory language. It is the function of the judicial officer, before whom the proceedings are held, to make an independent and neutral determination based upon facts, not conclusions, justifying an intrusion into one’s home.” Id. at 218, 599 S.W.2d at 723. The Broadway court then concluded by holding that the magistrate’s issuance of a nighttime warrant based upon the conclusory affidavit was a substantial violation of the legal requirements for a nighttime search of the defendant’s home. Id.

After the United States Supreme Court’s decision in United States v. Leon, supra, our court considered whether the Leon good-faith exception could be applied to save a deficient warrant in Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990). In that case, the affidavit did not contain any facts supporting a nighttime search, and, although the affiant gave testimony that indicated the necessity of a nighttime search, the testimony was not recorded. Id. Recognizing our longstanding rule that testimony given before the issuing magistrate must be recorded in order to be considered upon review, this court concluded that nothing in the affidavit indicated reasonable cause to believe that a nighttime search was warranted under Rule 13.2(c). Id. See also, Ark. R. Crim. P. 13.1(c) (2007) (requiring recordation of oral testimony given before a magistrate). The Hall court concluded that the Leon good-faith exception did not apply because officers with reasonable knowledge of what our rules of criminal procedure prohibit would know that a nighttime search made pursuant to the deficient warrant was illegal. Id. For a similar result, see State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991).

In Garner v. State, supra, we were asked once again to consider whether the Leon good-faith exception would cure an invalid warrant for a nighttime search when, much like in State v. Broadway, supra, and the instant case, both the warrant and affidavit contained conclusory language that simply mirrored the language of our criminal rule. Id. While the court did acknowledge that the good-faith exception could apply in some nighttime search cases, we reiterated that the Leon court recognized four instances in which the good-faith belief of the executing officers would never save an invalid warrant:

1. Where the officers misled the issuing judge with information they knew was false or would have known as false, except for reckless disregard of the truth.

2. Where the issuing judge abandons the judicial role of neutrality and detachment and becomes an adjunct law enforcement officer.

3. Where the officers’ affidavit is so lacking in indicia of probable cause as to render official belief as to its existence unreasonable.

4. Where the search warrant is facially deficient in faffing to identify the places to be searched or things to be seized.

Id. at 359, 820 S.W.2d at 450 (emphasis added). The Gamer court pointed out that even though the executing officers might have given oral statements to the municipal judge, which were unrecorded, and the officers may have subjectively believed that they were complying with the law, objectively the affidavit and warrant were lacking in any indicia of reasonable cause. Id. This court acknowledged that no oral statements to the magistrate were recorded and hence could not be considered on review. Id. Under such circumstances, going outside the affidavit and warrant to the subjective knowledge of the officers was impermissible. Id. In short, we concluded that the Leon good-faith exception could not be used to cure a warrant and affidavit that were so blatantly lacking in reasonable cause for a nighttime search. Id.

Likewise, our court reached a similar conclusion in Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993), a case involving the seizure of nude photographs of the appellant’s young rape victims and other sexual objects, pursuant to a nighttime search warrant that contained only a conclusory basis for justifying the nighttime search. Id. Then, in Moya v. State, 335 Ark. 193, 981 S.W.2d 521 (1998), this court decided to follow the Eighth Circuit Court of Appeals’ approach for applying the good-faith exception. Id. In doing so, we concluded that when determining whether the Leon good-faith exception applies in cases where the warrant lacks sufficient probable cause for a search, the appellate court is permitted to go outside the affidavit and consider information known to the officers, even if that information was not presented to the issuing magistrate. Id. However, the Moya opinion did not address the issue of whether an appellate court could look beyond the affidavit to determine if there was reasonable cause for a nighttime search. See id. In sum, the Moya opinion incorporated a federal standard regarding application of the Leon good-faith exception to the question of whether there was probable cause to search, but the Moya court did not consider the additional requirement of reasonable cause for a nighttime search under our rule 13.2(c), an element not required under federal law. Additionally, in Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999), a case decided several months after Moya, this court again followed our past holdings and concluded that when an affidavit contains only conclusory statements to justify a nighttime search and only repeats the boilerplate language of Rule 13.2(c), the Leon good-faith exception does not apply. More recently, in Davis v. State, 367 Ark. 330, 240 S.W.3d 115 (2006), we reiterated that when there is no recorded testimony given in support of an affidavit, this court does not look to facts outside of the affidavit to determine probable cause for a nighttime search. Id. at 336, 240 S.W.3d at 120 (citing Moya v. State, supra).

In 2003, we considered the question of whether a nighttime search was justified when the defendant, like the appellant here, possessed child pornography and knew that investigating police officers suspected that he had pornographic pictures in his possession. See Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003). In that case, this court found that there was evidence in the affidavit supporting a nighttime search because the officers explained in the affidavit that the defendant knew he was under suspicion, and, therefore, was likely to destroy the pictures before the officers could return the next day. Id. However, the Cummings case is factually distinguishable from the instant case. The affidavit in that case specifically stated that the evidence to be seized was .in danger of imminent removal because officers had questioned the defendant about sexual pictures of his minor stepdaughter that were on a website, the defendant admitted to having racy pictures of his step-daughter on his computer, and, after the interview, the defendant was aware that he was under suspicion. Id. The defendant in Cummings was not only aware that he was under suspicion for sexual conduct with a child, but, more importantly, he was not detained and remained at home with his computer and the pictures after being made aware of the officers’ suspicions. See id. Moreover, the affidavit explained that the defendant’s knowledge about the officers’ suspicions was the reason a nighttime search was necessary. In the instant case, Kelley knew he was under suspicion because he was arrested and placed in police custody, but nothing in the affidavit indicated that Kelley was capable of disposing of the evidence at his home before morning. Although Kelley’s knowledge of the officers’ suspicions could give cause for concern that he might destroy the evidence, the fact that he had been arrested and was being detained would put that concern to rest.

Both dissenting Justices argue that the facts in the affidavit alone constitute sufficient factual basis for this court to determine that a nighttime search was justified. Although we certainly agree that the facts surrounding Kelley’s arrest and M.M.’s statement that Kelley had nude pictures of M.M. on his computer and digital camera established sufficient probable cause for a search of Kelley’s home in general, we cannot agree that the facts as presented in the affidavit could justify a nighttime search. The simple fact is that the affidavit did not contain any explanation why those facts justified a nighttime search, and the officer’s testimony to the magistrate was unrecorded, and, thus, could not be used to save the warrant. See Hall v. State, supra. It is true that digital pictures on a computer and camera are both easy to remove and to destroy. But, if the dissenters’ approach is taken to its logical end, facts in an affidavit supporting the existence of any easily removable or destroyable evidence, such as illegal drugs, would justify a nighttime search, and as a result, Rule 13.2(c) would be rendered a nullity.

In the instant case, the affidavit and warrant only contained the conclusory statement that the objects to be seized were in danger of imminent removal without providing any facts or explanation in support of such a statement. Thus, the affidavit lacked all indicia of reasonable cause to justify a nighttime search, and, under our objective standard, the officers should have known that an affidavit not stating facts that support a nighttime search was in violation of our rules. Accordingly, the Leon good-faith exception does not apply here, and we reverse and remand.²

III. Rule 4-3 (h) Review

In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions and requests made by either party that were decided adversely to Kelley, and aside from the point of error upon which we reverse this case, no prejudicial error has been found. See Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003).

Brown and Gunter, JJ., dissent.

1 Prior to trial, the State decided to nolle prosequi the charge of engaging children in sexually explicit conduct for use in visual or print medium.

2 In view of the imposition of a life sentence in the instant case, we cannot say that the circuit court’s error was harmless.