Anderson v. State

Lawson Cloninger, Judge.

Appellant raises two points for reversal on this appeal of his conviction on the misdemeanor charge of possession of marijuana. We reverse on the first point and remand for further proceedings not inconsistent with this opinion.

At about 2:00 a.m. on April 13, 1983, an officer of the Stuttgart Police Department appeared before the circuit judge to obtain a search warrant for appellant’s house and vehicle. After hearing oral testimony, which was not recorded, the judge issued a warrant. Police officers entered appellant’s residence at about 2:30 a.m. and seized marijuana and various items described as drug paraphernalia.

Appellant admitted that the marijuana was his. He was charged with several crimes but all were subsequently dismissed except for possession of marijuana with intent to deliver. Before the trial, appellant filed a motion to suppress the evidence seized on the basis of a lack of probable cause and a faulty warrant. The State agreed to suppress all evidence seized from appellant’s vehicle, but the court denied the motion with respect to items seized from the house. A jury found appellant guilty of possession of marijuana, a misdemeanor, and sentenced him to one year in prison and imposed a one thousand dollar fine.

In his first point for reversal, appellant contends that the trial court erred in denying his motion to suppress the evidence because the warrant was improperly and illegally authorized. The record of the hearing reveals that (1) the testimony of the officer requesting the warrant was not recorded and no affidavit was prepared; (2) although the issuing judge recalled an oath having been administered, the officer himself stated that he had not been sworn.

Rule 13.1(b) of the Arkansas Rules of Criminal Procedure requires that:

The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in 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. [Emphasis added.]

In the present case neither an affidavit nor recorded testimony under oath was taken.

The Arkansas Supreme Court held in Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977), that the State bears the burden of establishing that a search warrant relied upon by it was issued in compliance with the law by producing the required written evidence considered by the issuing magistrate to establish probable cause. The court went on to say that it regarded the “failure to record the testimony on which a search warrant is issued to be a substantial violation of proper safeguards in procedures for obtaining a search warrant.” Hence, said the court, a motion to suppress the evidence seized should have been granted when the record was silent as to whether the facts recited to a municipal judge by a sheriff concerning the concealment of marijuana in a mobile home were “recorded testimony under oath” as required by Rule 13.1(b).

The facts in the instant case necessitate reversal under the provisions of Rule 13.1(b) and under the Lunsford decision. The lack of compliance with the requirement of either an affidavit or recorded testimony under oath is fatal to the sufficiency of the warrant under Rule 13.1(b).

Regarding appellant’s second point for reversal, we find no error. Appellant argues that the trial court erred in admitting into evidence items allegedly used as drug paraphernalia. The record reflects, however, that the items in question were relevant to the crime with which appellant was charged and therefore admissible under Rule 402, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979). Whether evidence is relevant is a matter addressed to the sound discretion of the trial court, and, absent an abuse of that discretion by the lower court, the Court of Appeals will not disturb its ruling. Pruitt v. State, 8 Ark. App. 850, 652 S.W.2d 51 (1983). We find no abuse of discretion here. A police officer, who had established his familiarity with the subject matter, explained the use of each article of paraphernalia as it was introduced into evidence. Such testimony concerning the items enabled the trial court to view the paraphernalia as relevant within the terms of URE Rule 401: ‘‘[E]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

The judgment is reversed and the cause remanded.

Mayfield and Cooper, JJ., dissent. Cracraft, C.J., concurs.