FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-16-130]
HONORABLE CHARLES E. CLAWSON, JR., JUDGE
Pinnacle Law Group, by: Matthew A. Kezhaya, for appellant.
Rutledge, Att'y Gen., by: Michael A. Hylden, Ass't
Att'y Gen., for appellee.
March 28, 2017, appellant Derrick Johnson was found guilty by
a Faulkner County jury of fifteen counts of distributing,
possessing, or viewing matter depicting sexually explicit
conduct involving a child. On appeal, Johnson claims that the
circuit court erroneously denied his motion to suppress
evidence found on his mobile phone. We affirm. This case
began when an eleven-year-old girl, M.P., made allegations to
the police that Johnson had, on multiple occasions, touched
her breasts under her clothes, her vagina over her clothes,
and on one occasion, slid his cell phone under a closed door
ostensibly to video her and her six-year-old sister changing
out of their swimsuits. Johnson was later acquitted on the
sexual-assault charges; however, in the process of
investigating these allegations, child pornography was
discovered on one of Johnson's cell phones.
first moved to suppress the evidence found on the phone,
alleging the search-warrant affidavit erroneously stated that
it was seized from Johnson's house when it was really
seized from his person. The court granted this motion.
Following this ruling, the investigator, Kandis Rikard,
requested a new search warrant to search the contents of the
phone. The affidavit in support of the warrant was
substantially similar to the prior warrant with the exception
of an additional paragraph stating that the phone was found
incident to an arrest. The court signed this warrant and
again Johnson brought a motion to suppress. Finding that the
motive to obtain this warrant did not come from material
obtained as part of an illegal search, the circuit court
denied the motion. It is this denial that is the subject of
the present appeal.
reviewing the denial of a motion to suppress evidence, we
conduct 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
inferences drawn by the circuit court and proper deference to
the circuit court's findings. Johnson v. State,
2015 Ark. 387, at 3, 472 S.W.3d 486, 488. A finding is
clearly erroneous when, even if there is evidence to support
it, the appellate court, after reviewing the entirety of the
evidence, is left with a definite and firm conviction that a
mistake has been made. Id.
warrant is generally required before a search of a cell
phone, even when the cell phone is seized incident to arrest.
Riley v. California, 134 S.Ct. 2473, 2493 (2014).
Arkansas Rule of Criminal Procedure 13.1 controls the
issuance of search warrants. One requirement to issue a
warrant is that it must be supported by an affidavit that
establishes probable or reasonable cause to believe the
things subject to seizure will be found in the place
identified. Johnson, supra. When that
affidavit relies on hearsay, the affiant must set forth facts
bearing on the informant's reliability and shall disclose
how the information was obtained. Ark. R. Crim. P. 13.1(b).
In determining the adequacy of the affidavit, the task of the
issuing magistrate is to make a practical, common-sense
decision whether, given all the circumstances set forth in
the affidavit before him, including the "veracity"
and "basis of knowledge" of persons supplying the
hearsay information, there is a fair probability that
evidence of a crime will be found in a particular place.
Id. On appeal, the duty of the appellate court is to
simply ensure that the magistrate had a substantial basis for
concluding probable cause existed. Id.
argument that the circuit court erred in denying his motion
to suppress has two prongs. First, he asserts that it was
error for the court to find that the affidavit in support of
the search warrant established reasonable cause because the
affidavit does not establish the reliability of the hearsay
declarant's allegations or provide any allegations that
would demonstrate that the cell phone held evidence of sexual
indecency with a minor.
to the affidavit, Melissa Driver, the mother of the two minor
victims, was approached by her eleven-year-old daughter,
M.P., and was told that Johnson had "touched her breasts
under her clothes and touched her vagina on top of her
clothes on multiple dates and times." Driver also
suspected her six-year-old daughter, J.P., had been
assaulted. Based on this, Driver contacted investigators. The
affidavit shows that the children were taken to a local
child-advocacy center where Melissa Moore conducted a
"Child First Forensic Interview." It was in that
interview that M.P. disclosed having been touched
inappropriately and that Johnson had slid his cell phone
under a closed door with the video application running while
she and her sister were changing clothes. These are all facts
that bear on the various informants' reliability and
disclose how the information was obtained. Further, failure
to establish the bases of knowledge of the informant is not a
fatal defect if the affidavit viewed as a whole
"provides a substantial basis for a finding of
reasonable cause to believe that things subject to seizure
will be found in a particular place." Winters v.
State, 89 Ark.App. 146, 156, 201 S.W.3d 4, 12 (2005).
Here, the affidavit contains allegations by M.P. that Johnson
had slid a phone that was recording under a door while she
was changing out of a swimsuit. This provides a sufficient
nexus to the investigators' needs to search any cell
phones in Johnson's possession. On these facts, a
substantial basis for probable cause existed.
argues that logic dictates that these allegations do not
merit probable cause because a phone slid under a door could
necessarily only record either the floor or the ceiling. This
is not persuasive because the phone could have been slid
close enough to the children for the camera to pick up
footage of them changing.
Johnson argues that the motive for the search warrant at
issue comes solely from the materials obtained from an
illegal search. He asserts that under the independent-source
doctrine, the images found on the phone should be excluded.
There is a two-part test to determine whether the inclusion
of illegally obtained information in an affidavit precludes
the application of the independent-source doctrine.
Lauderdale v. State, 82 Ark.App. 474, 120 S.W.3d 106
(2003). First, the appellate court examines the search
warrant by excising the offending information from the
probable-cause affidavit and determines whether the affidavit
nevertheless supports the issuance of a search warrant;
second, the appellate court examines the motivation of the
officer or officers who obtained the warrant and determines
whether the motivation to obtain the warrant came as a result
of discovering the tainted information. Id.
the warrant at issue was almost the same as the warrant that
was suppressed. The first warrant was suppressed for stating
the phone had been taken during a search of Johnson's
residence; the second warrant asserted the phone had been
taken from Johnson's person. As discussed, the affidavit
supports the issuance of a warrant.
Rikard stated at the second suppression hearing that her
motivation to search the phone was based on M.P.'s
statement that Johnson had "stuck a phone underneath the
door to try to video her while she's changing out of her
bathing suit." To that end, Rikard provided that she
then "served simultaneous warrants to get all the
technology, cell phones, computers, any type of electronic
evidence and have it dumped." Rikard stated that her
motive was the same when she filed the affidavit for the
second warrant as it was when she filed ...