Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bathrick v. State

Court of Appeals of Arkansas, Division III

September 28, 2016

ALAN C. BATHRICK APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE SHARP COUNTY CIRCUIT COURT [NO. 68CR-15-12] HONORABLE HAROLD S. ERWIN, JUDGE

          R. K. Starken, for appellant.

          Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, Judge

         Appellant Alan C. Bathrick entered a conditional guilty plea to possession of marijuana with the purpose to deliver and possession of drug paraphernalia, for which he received ten-year and six-year suspended impositions of sentence. Upon entering the conditional plea, Mr. Bathrick reserved in writing the right to appeal and challenge the trial court's denial of his motion to suppress evidence pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure. In this appeal, Mr. Bathrick argues that his motion to suppress the incriminating evidence should have been granted because there was no probable cause to issue the warrant to search his house. We agree, and we reverse and remand.

         When reviewing a trial court's denial of a motion to suppress evidence, the appellate court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts 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 trial court. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143. A finding is clearly erroneous when, even if there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. We defer to the trial court's superior position in determining the credibility of the witnesses and resolving any conflicts in the testimony. Id.

         On February 5, 2015, Officer Jimmy Bennett swore out an affidavit in support of a warrant to search Mr. Bathrick's residence. The facts establishing the grounds for issuance of the search warrant were stated, in pertinent part, as follows:

On 11/05/2015 Affiant conducted an interview with confidential informant (CI) regarding the distribution of marijuana in Sharp County. CI states that on 11/04/2015 traveled to 7 Arapaho Drive in Cherokee Village to meet Allen Bathrick regarding the purchase of marijuana. CI states that he/she traveled to the residence to purchase two (2) ounces of marijuana. CI states that while at the house Bathrick stated that he did not have the amount the CI needed, but that he would be getting more the next day and would have two (2) ounces then. CI states that there were approximately five (5) grams of marijuana in the residence at the time. CI states that Bathrick has been a supplier of marijuana to CI for the past four (4) months supplying approximately six (6) grams every two (2) weeks. (emphasis added).

         Based on the information in the affidavit, a search warrant was issued on February 5, 2015, for the search of Mr. Bathrick's house and any vehicles on the property. On the same day, the police searched Mr. Bathrick's house and his truck, finding and seizing quantities of packaged marijuana and various items of drug paraphernalia. After Mr. Bathrick's arrest, he was interviewed by the police and admitted that he had been selling marijuana out of his house.

         After being charged with the felony drug offenses, Mr. Bathrick filed two motions to suppress. The affidavit that was the basis for the warrant indicated that the CI supplied information on November 4, 2015, and November 5, 2015. These two dates were nine months after the date the warrant was issued on February 5, 2015. Clearly, the dates in the affidavit are incorrect. In the first motion, Mr. Bathrick argued that the affidavit indicated that the incriminating information was supplied by the CI on November 4 and 5 of 2014, which was three months prior to the search and was too stale to constitute probable cause.[1]In Mr. Bathrick's second motion to suppress, he argued that the dates given in the affidavit reflected that the CI's information was given to the police on November 4 and 5, 2015, which was several months after the search warrant was applied for and issued. Mr. Bathrick asserted that the judge should have noted or made further inquiry about the incorrect dates, and that by failing to do so prior to issuance of the search warrant, the judge abdicated his role as a neutral and detached judicial officer. On these grounds, Mr. Bathrick asked for suppression of the physical evidence seized from his property, as well as his subsequent custodial statement because it was "fruit of the poisonous tree."

         Separate hearings were held on each of Mr. Bathrick's motions to suppress. At the first hearing, the prosecutor argued that the November 4, 2015 date identified in the affidavit for search warrant was a typographical error and that the actual date when the CI observed marijuana in Mr. Bathrick's house was February 4, 2015, which was the day before the search warrant was issued and executed. The trial court agreed, and it denied Mr. Bathrick's first motion to suppress, stating that there was a misprision in the affidavit and that there was no issue of staleness. At the conclusion of the second hearing, the trial court denied Mr. Bathrick's second motion to suppress, again stating that there was a misprision in the affidavit regarding the relevant dates.

         On appeal, Mr. Bathrick argues that there was no probable cause to issue the search warrant and that the search violated the Fourth Amendment to the U.S. Constitution, Article 2, Section 15 of the Arkansas Constitution, and Rule 13.1 of the Arkansas Rules of Criminal Procedure. We agree that the trial court clearly erred in finding probable cause to support the search warrant, and we therefore hold that the trial court erred in failing to suppress the evidence.

         Rule 13.1, which provides the guidelines to issuing search ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.