FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT
[NO. CR-2013-1101] HONORABLE LEE FERGUS, JUDGE.
Law Firm, P.A., by: E. Dion Wilson, for appellant.
Rutledge, Att'y Gen., by: Ashley Priest, Ass't
Att'y Gen., for appellee.
M. GLOVER, Judge.
Jones was tried by a jury and found guilty of the offenses of
simultaneous possession of drugs and firearms; possession of
a controlled substance, cocaine, with purpose to deliver;
possession of drug paraphernalia to manufacture (or other
designated purposes) cocaine; possession of a controlled
substance, marijuana, with purpose to deliver; and possession
of a controlled substance, hydrocodone. He was sentenced to a
total of 240 months' imprisonment in the Arkansas
Department of Correction and fined $25, 000. This appeal
followed with Jones asserting 1) the trial court erred in
denying his motion to suppress because the issuing magistrate
failed to record material testimony relevant to the issuance
of the search warrant, 2) the trial court erred in denying
his motion to suppress because the affidavit was insufficient
to establish the time frame in which the criminal activity
was allegedly observed, and 3) the trial court erred in
allowing the State to present testimony that the guns found
in his house were readily accessible and capable of firing.
of Motion to Suppress
first two points of appeal involve the trial court's
denial of his motion to suppress, contending the trial court
erred in doing so because it failed to record material,
relevant testimony and because the affidavit was not
sufficient to establish the time frame in which the criminal
activity was allegedly observed. These two issues can best be
discussed together, and the following facts are pertinent to
affidavit for search warrant was prepared by Officer Mike
Brumfield of the Jonesboro police. He explained that on July
17, 2013, he performed a "trash pull at 908 N.
Main" from a city trash can located on the curb for
trash pick-up that day. He had received several reports that
the resident at that address was selling crack cocaine. He
retrieved one trash bag from the can and took it to the
police-department parking lot to go through it. He found
approximately sixty sandwich bags with the corners torn out
of both sides. One of the baggies had a white powdery
substance on it, which he field tested with a cocaine test
swab, and it tested positive for the presence of cocaine. He
also explained that the same trash bag contained mail with
the 908 North Main address on it. The affidavit was signed by
Brumfield, presented to a judge, and signed by the judge as
well. Brumfield executed the search warrant the same morning
he retrieved the trash and prepared his affidavit for search
warrant. Evidence obtained during the search of the house
resulted in the charges against Jones.
moved to suppress, and at the suppression hearing, Officer
Brumfield testified: he prepared the affidavit for search
warrant based on his findings from the trash bag; he was the
source of the information contained therein; he signed the
affidavit and took it to the judge, who read over it and
placed him under oath; the judge asked him some questions,
but he did not provide any extra information other than what
was contained in the affidavit; he asked for a no-knock entry
because he believed Jones had a "concealed carry, "
and the judge asked him questions concerning that request,
none of which was recorded; the judge denied the
no-knock-entry request; the judge did not ask him where the
"reports" came from; and he could not remember if
the judge asked him about the time frame for the
"reports" about Jones selling cocaine. He
acknowledged he did not include time-frame information
concerning the reports or anything about whom he got the
reports from in his affidavit. He also confirmed the evidence
taken under oath by the judge regarding the search warrant
pertained only to the no-knock entry and the criminal history
and that this testimony was not recorded.
further testified he gave Jones a receipt for items seized
following the search but acknowledged that he did not
document that fact in his file. He also explained he did not
take any photos of the cocaine swab that tested positive and
he threw the swab away. The remainder of the hearing was
devoted to legal arguments. At the conclusion of the hearing,
the trial court denied the motion to suppress.
appeal, Jones contends the trial court erred in denying his
motion to suppress because testimony given to the trial court
was not recorded and because the affidavit supporting the
search warrant did not establish a sufficient time frame for
when criminal activity was observed. We disagree.
Lack of recorded testimony
contends it is clear from Officer Brumfield's testimony
at the suppression hearing that he gave testimony in the
judge's chambers when he was seeking the search warrant,
the testimony was not recorded and neither was a written
summary of it prepared, and the issuing magistrate's
failure to do so was fatal to the search warrant's
validity. His argument is misplaced.
Rule 13.1 of the Arkansas Rules of Criminal Procedure
provides in ...