George v. State ( 2003 )

Wendell L. Griffen, Judge.

This case arises from the criminal conviction of Glenn E. George of nine counts of possessing visual or print medium depicting sexually explicit conduct of minors. The conviction resulted in a sentence of ninety years’ imprisonment and $78,000 in fines. Appellant argues that the trial court erred in denying (1) his motion to suppress evidence seized pursuant to an invalid warrant; (2) his motion to suppress evidence not described in the warrant or in the affidavit incorporated into the warrant; (3) his motion to dismiss the charges for violation of the speedy-trial rule; and (4) his motions for directed verdicts for failure of proof on three counts. We hold that the search warrant was invalid because the affidavit upon which it was based failed to state a time reference for when the criminal activity occurred or the contraband to which it referred was observed. Accordingly, we reverse and remand.

Factual and Procedural History

In this case, the affidavit for a search warrant stated that B.T., fourteen years of age, reported to her mother on March 21, 2001, that appellant had provided her and some of her friends with alcohol and that she had seen nude photographs of girls about B.T.’s age in his apartment. On March 27, 2001, Hot Springs Police Department Detective Paul Norris interviewed B.T. and her mother and learned that, while in appellant’s apartment, B.T. saw photographs of nude girls that she knew to be fourteen to fifteen years of age on appellant’s computer. Subsequently, Norris also interviewed J.T., who confirmed that appellant had supplied the girls with alcohol at his apartment. J.T. also told Norris that she had found a video on appellant’s computer, while she was there, depicting a friend named K.T. dancing nude.

Norris then wrote an affidavit for a search warrant. In that affidavit, Norris alleged that at appellant’s specifically described residence,

there is now being concealed certain property, namely: the evidence associated with the producing, directing, or promoting sexual performances and employing or consenting to use of child in sexual performances.

Which are[:] evidentiary items in a sexual exploitation investigation and in direct violation of Arkansas State Statute 5-27-402 and 5-27-403.

And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: That on 03-22-01 [B.T.’s mother] reported her fourteen year old daughter, [B.T.], revealed to her Glenn George provided alcohol to her and other friends and that she observed nude photographs of other girls she knows to be age fourteen or fifteen. [B.T.] was interviewed and stated Glenn George gave her an alcoholic beverage to drink and she saw nude photographs on George’s computer of girls she knows to [be] fourteen or fifteen years old. That a friend of [B.T.’s], [J.T.], was also interviewed and stated George provided her with an alcoholic beverage and she found a video on George’s computer of a friend, [K.T.], dancing nude.

The affidavit was signed by Norris. The issuing magistrate signed below, with a handwritten date of March 26, 2001. The affidavit was file-stamped April 2,2001. The warrant itself, however, also signed by the magistrate, shows the date of April 27, 2001, but was also filed on April 2,2001. In relevant parts, the warrant reiterated the descriptions and allegations contained in the affidavit, and otherwise expressly incorporated the “attached affidavit” by reference.

Norris executed the warrant that same day (March 26, 2001). Police officers found photographs of minor girls and videotapes, all of which appeared to the officers to be lewd material. Some of the material showed appellant engaging in sexual activity with some of the minors.

Appellant was arrested on March 28, 2001. His trial commenced on May 15, 2002. At a pretrial hearing, appellant moved to suppress the evidence seized in the search. One of his arguments was that the affidavit failed to establish a time frame when the observations leading to the allegations had been made. The trial court denied the motion to suppress, reasoning as follows:

[L]ooking at the four comers of the [affidavit for the search warrant], there is sufficient time frame alleged that the court could feel that there was just cause for the issuance of the warrant. The matters that were being sought were not consumables; they were not items that were normally moved in the course of illegal commerce; there’s nothing to indicate that the items would not remain in place for a substantial period of time; they were being kept by [appellant] for what appeared to me off the facts alleged for his personal use, primarily; and the time frame is set out on the warrant I think to give me sufficient cause to believe that this illegal material remained on his premises on the date that the warrant was issued.

Appellant also made a number of technical challenges to the warrant, none of them to any avail.

At the end of the State’s case-in-chief, appellant moved for a directed verdict on counts three through five of the criminal information. Count three alleged that appellant engaged in deviate sexual activity with another person not his spouse who was less than fourteen years old. Counts four and five alleged that appellant possessed visual or print medium depicting minors participating or engaging in sexually explicit conduct. Counsel for appellant stated the following:

[A]s to each of the counts that involve these young girls just baring their breasts for the video camera. At least two of them testified that they took them, and there was nothing to show that [appellant] knowingly possessed the items, even if they met the definition of sexual behavior. I don’t think they do, because they don’t qualify as a lewd exhibition. It’s the same sort of flashing behavior you see maybe in New Orleans for the Mardi Gras where they toss jewels and silly things like that. It’s more akin to mooning [than] to lewd behavior.

The trial court denied the motion. Appellant then rested and renewed his motion, which was again denied. The resulting convictions were based on the offense of possessing visual or print medium depicting sexually explicit conduct involving children.

Sufficiency of the Evidence

Appellant challenges the sufficiency of the evidence underlying his conviction of possessing visual or print medium depicting sexually explicit conduct of minors. He does so as his last point of error. However, out of concern for double-jeopardy, we must consider this point first. Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003).

In his motion for directed verdict, appellant argued that there was insufficient proof of his knowledge and insufficient proof of the allegation that the contents of the visual or print media constituted in fact lewd exhibition. We note in passing that appellant now argues only the latter point. We also recognize that appellant did not offer a constitutional challenge to the statutes in question, and does not do so now on appeal.

We review challenges to the sufficiency of the evidence by determining whether substantial evidence, direct or circumstantial, supports the guilty verdict. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003). Substantial evidence is evidence of sufficient certainty and precision that compels a conclusion and passes beyond mere suspicion or conjecture. Id. In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the verdict and consider only that evidence supporting it. Id.

The Arkansas Code forbids the knowing possession of “any visual or print medium depicting a child engaging in sexually explicit conduct.” Ark. Code Ann. § 5-27-304(a)(2) (Repl. 1997). Among the statutory definitions pertinent to the term “sexually explicit” we find the “[l]ewd exhibition of. . . [t]he breast of a female.” Ark. Code Ann. § 5-27-302(2)(E)(ii) (Repl. 1997). Our case law has defined “lewd” to mean “obscene, lustful, indecent, lascivious,” as well as “offensive to common propriety,” or “offending against modesty or delicacy.” Gabrion v. State, 73 Ark. App. 170, 173, 42 S.W.3d 572, 574 (2001).

In fact, our decision in Gabrion is quite to the point, in that that case involved a videotape depicting two minor girls. We noted in our opinion that the video tapes involved in that case contained “full frontal nudity.” Id. at 172, 42 S.W.3d at 573. In addition, the videotape showed Gabrion directing the girls to undress and “assume suggestive poses that showed off their breasts and buttocks.” Id., 42 S.W.3d at 573. We found that the jury could properly deem the videotape to be lewd and noted further that Gabrion apparently wanted us to ignore the fact that the girls on the tape were underage and not adults. Id., 42 S.W.3d at 574.

In the present case, we hold that the jury had substantial evidence before it to convict appellant of possessing visual or print medium depicting sexually explicit conduct of minors. The images in question were found within a videoclip on two CD-ROMs. The CD-ROMs were introduced at trial as State’s Exhibits A and B. Still images from those videoclips were introduced separately as State’s Exhibits E, F, and J. Among those images, one was labeled “[B.T.’s] Tits.” Most of the pictures show young girls displaying their breasts.

B.T. testified at trial that she was the girl depicted in the pictures referred to as Picture 37 and “[B.T.’s] Tits.” She also testified that the pictures were taken on August 10, 2000, and that her date of birth was June 12, 1986. Another witness identified herself and two other girls on Picture 166. She stated that she was fourteen years of age when that picture was taken.

In Exhibits E and F, the girls can be seen dancing and posing provocatively. In Exhibit J, the images mostly show the girls smiling and posing. However, the first image of that series is labeled “Goodbigdicksuckers.” That same image shows the girls with their mouths wide open. The captions of other images reveal titles such as “My pussy is so hot,” “Please fuck me,” and “I’ll fuck you or suck you.”

While appellant attempts to characterize the images as something akin to mere nude photos or something that could be seen at a Mardi Gras party, the evidence leads us to a different conclusion. The various labels, especially when taken together with the specific kind of posing, dancing, and frontal nudity, establish very well the lewd nature of the material. In particular we point out that appellant’s case really appears indistinguishable from Gabrion v. State, supra, where we held that frontal nudity of minors, along with suggestive posing and directing, was sufficient evidence for the same offense. Furthermore, the crucial fact, and most relevant for the conviction in both cases, remains that both this case and Gabrion involve minors, not adults. Thus, it was not error for the trial court to deny appellant’s motions for directed verdict.

Defective Affidavit

Appellant next argues that the affidavit for the warrant contained an insufficient reference to time, that the warrant itself contained an inadequate description of property to be seized, that the warrant contained a number of technical irregularities, and that property not specified in the warrant was seized. We reverse the trial court’s denial of the motion to suppress based on the insufficient time reference in the affidavit.

We review a trial court’s determination of questions of probable cause or reasonable suspicion de novo, based on the totality of the circumstances, reviewing the findings of historical fact for clear error and determining whether those facts gave rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Cummings v. State, supra. The magistrate who issues the warrant must make a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Sanders v. State, 76 Ark. App. 104, 61 S.W.3d 871 (2001).

Where the affidavit for a search warrant makes no mention of the time during which the alleged criminal activity occurred or was taking place, the affidavit is considered insufficient to support the issuance of a search warrant, leading to the suppression of the evidence seized in the resulting search. Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983). Pursuant to Ark. R. Crim. P. 13.1(b) (2003), some mention of time in the affidavit is crucial because a magistrate must know that criminal activity or contraband exists where the search is to be conducted at the time of the issuance of the warrant. Heaslet v. State, 77 Ark. App. 333, 74 S.W.3d 242 (2002). We have held that suppression is not required if the time-frame can be inferred from the affidavit itself. Id.

The State argues that appellant’s claim regarding insufficient time-frame is akin to what is known as a staleness claim. We disagree. A staleness claim does not challenge the complete lack of any time reference, or inference, within the four corners of the affidavit for the search warrant, but bases the challenge on the period of time that has passed between observation of the criminal activity or contraband — as set forth in the affidavit for the search warrant — and the execution of the search. In its argument, the State cites several cases that all correctly hold that, beside the time factor, we must consider other factors, such as the nature of the criminal activity involved and the kind of property subject to the search. See, e.g., Lacy v. United States, 119 F.3d 742 (9th Cir. 1997); United States v. Maxim, 55 F.3d 394 (8th Cir. 1995); United States v. Rugh, 968 F.2d 750 (8th Cir. 1992); Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d 387 (2001); Hause v. Commonwealth, 83 S.W.3d 1 (Ky. Ct. App. 2001).

None of those cases involve the situation we face. This case involves an affidavit that omits any reference to when the informant observed the alleged criminal activity and contraband in appellant’s home. The affidavit merely sets out the date when the informant told her mother about the allegations. Every case cited by the State, however, involves a true staleness claim, where the affidavit or warrant made a specific reference to a date when the criminal activity or contraband was observed. At issue in those cases was whether the nature of child pornography give a magistrate reason to believe that images would remain in an accused’s possession for longer periods of time so as to justify the various time gaps between observation of the alleged crime and the execution of the search warrant. See, e.g., Lacy v. United States, supra.

Thus, the State’s argument is inapposite to the claim involved in the instant case. We do not now need to distinguish between cases involving child pornography on the one side and drugs on the other. The nature of the contraband in question becomes an issue where the challenge goes to the staleness of the information contained in the affidavit. Instead, the case law we must apply to the instant case is clear. When an affidavit does not provide any reference of time for when the criminal activity or the contraband was observed, the affidavit fails. See Collins v. State, supra; Heaslet v. State, supra.

Under Arkansas law, a further question is whether the affidavit, within its four corners, provided a sufficient basis for an inference of time. See Heaslet v. State, supra. In Heaslet, we held an affidavit insufficient that mostly contained dates referring to the time when the affiant received a report, not when the activity was observed. Id. We held that the affidavit must provide direct or circumstantial evidence that the alleged contraband indeed is at the place to be searched. Id. We further stated that- circumstantial evidence alone that a suspect may be a drug dealer was insufficient evidence that anything is in his home. Id.

In the case at bar, the affidavit merely states the date when the informant, the minor and alleged victim, informed her mother of the allegations. There are no dates referring to when the alleged criminal activity or contraband was observed. Specifically, the affidavit does not state or suggest when appellant allegedly supplied alcohol to minors. It does not state or suggest when B.T. and/or J.T. saw nude photographs of minor-aged girls on appellant’s computer. By analogy to Heaslet, we hold that the mere allegation that a suspect may be a child pornographer, without some time reference as to when the observations were made, is insufficient circumstantial evidence to conclude that contraband will be found at his home no matter when it may have been formerly observed. Consequently, the affidavit fails for lack of a time reference and the search warrant was invalid.

To hold otherwise would amount to judicial approval of a most unusual proposition, namely that mere conjecture concerning the time of observation of the contraband suffices under the Fourth Amendment of the United States Constitution to justify a search and seizure. As stated above, the law requires for an affidavit to include either a reference of time or a basis upon which one can draw an inference. Inference, however, is not the same as conjecture. The affidavit before us contains no information that would allow us to draw a permissible inference about when the minor saw the contraband in appellant’s home. Any assumptions that she might have seen the contraband shortly before she told her mother are unsupported by the facts as they were alleged in or could be inferred from the affidavit.

' Good-Faith Exception

The remaining question is whether we can uphold the trial court’s decision about the search and seizure pursuant to the good-faith exception found in United States v. Leon, 468 U.S. 897 (1984). The good-faith exception re-validates a police officer’s search and seizure even though the warrant underlying the search action is later found invalid. Id. However, the good-faith exception cannot cure certain errors, namely: (1) when the magistrate is misled by information the affiant knew was false; (2) if the magistrate wholly abandons his detached and neutral judicial role; (3) when the affidavit is “so lacking in indicia of probable cause as to render official beliefin its existence entirely unreasonable”; and (4) when a warrant is so facially deficient “that the executing officers cannot reasonably presume it to be valid.” Id.

Our supreme court has held that the good-faith exception saves the warrant in question if we can determine from the four comers of the affidavit that the officers could infer from the affidavit itself with certainty the time during which the criminal activity was observed. Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985). In that case, the affidavit lacked any direct reference to the time of observation. Id. There were no terms such as “recently” or “now,” and no reference to an urgent situation. Id. Accordingly, our supreme court declared the affidavit defective and the warrant invalid.

In the present case, we hold that the good-faith exception cannot save the search warrant because the affidavit was defective in that it, too, lacked any reference to the time of observation of the alleged criminal activity. As such, reliance on the warrant by the police officers executing the search warrant was unreasonable. To say otherwise would essentially mean that a police officer could reasonably rely on a search warrant based on an affidavit that does not contain any reference or ground for inference as to when the criminal activity happened or the contraband was observed. We see no legitimate reason to reach that conclusion in the face of a decade of court decisions requiring warrants to have such information and declaring them invalid without it. See Collins v. State, supra. Any reliance on a search warrant that is so fundamentally defective cannot be deemed reasonable under the Leon good-faith exception.

Speedy Trial

Finally, appellant claims error in the trial court’s decision to deny his motion to dismiss for lack of a speedy trial. Arkansas Rule of Criminal Procedure 28.1(b) (2003) requires the State to try a criminally accused within twelve months from the time provided in Ark. R. Crim. P. 28.2. Rule 28.2 generally provides for the twelve months to run from the time the charge is filed. However, periods of delay resulting from a continuance granted at the request of the defendant or his counsel must be considered when calculating the twelve months period. Ark. R. Crim. P. 28.3) (2003). Here, appellant was arrested on March 28, 2001. His trial did not start until May 15, 2002. However, appellant moved for a continuance on January 10, 2002. The trial court granted the continuance until May 15, 2002. Pursuant to our rules, we hold that there was no violation of the speedy-trial requirement.

Conclusion

The dissenting opinion expresses indignation at our decision to reverse appellant’s conviction and asserts that “[cjommon sense tells us that [his] illegal activity occurred recently and was likely continuing to occur.” As our opinion reports, however, the affidavit for the search warrant that the police used to seize the incriminating evidence from appellant’s residence does not provide a single objective clue about when the minor informants observed illegal evidence or activity. Apparently, the police failed to ask them basic questions of criminal investigation such as,’’When did you see this?” or “When did these things happen?” Had they done so and made the answers obtained from those basic queries part of the affidavit for the search warrant, the staleness cases relied on by the State would certainly be germane to our analysis and decision.

The Fourth Amendment does not permit judges to assume or imagine missing details into search warrant affidavits about when illegal activity occurred or was observed merely because we deplore criminal conduct, whether affecting minors or anyone else, or because of some subjective notion of “common sense” and “indignation.” Recognizing and respecting that reality is by no means a “hyper-technical approach” as claimed by our dissenting brethren. Rather, it keeps faith with time-honored principles and procedures that underlie and give life to the Fourth Amendment.

The fact that the police have the might to seize material from a person’s residence does not, under the Fourth Amendment, ever create the right to do so. Otherwise, the whole notion of probable cause, which the Fourth Amendment requires be demonstrated to an independent judicial officer before a search warrant can be issued, is a farce. Given, the record now before us and a line of court decisions from this court and our supreme court declaring that to omit temporal information in a search warrant application about when alleged illegal activity occurred or was observed renders a search warrant unconstitutionally and fatally flawed, we unapologetically refuse to treat probable cause and the Fourth Amendment with such disdain.

Reversed and remanded.

Gladwin, Neal, and Baker, JJ., agree. Pittman and Robbins, JJ., dissent.