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Jones v. State

Court of Appeals of Arkansas, Division II

August 24, 2016

CHRISTOPHER JONES APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. CR-2013-1101] HONORABLE LEE FERGUS, JUDGE.

          Wilson Law Firm, P.A., by: E. Dion Wilson, for appellant.

          Leslie Rutledge, Att'y Gen., by: Ashley Priest, Ass't Att'y Gen., for appellee.

          DAVID M. GLOVER, Judge.

         Christopher 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. We affirm.

         Denial of Motion to Suppress

         Jones's 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 them.

         The 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.

         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.

         Brumfield 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.

         In this 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.

         1) Lack of recorded testimony

         Jones 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 ...

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