The opinion
Robert L. Brown, Justice, dissenting. For the first time in my memory, the majority has reversed the trial judge for a reason not developed before the him. The majority justifies this aberration by claiming that a hearing under Franks v. Delaware, 438 U.S. 154 (1978), must occur even when not requested by the defendant. That is not what the Franks decision says. It says a hearing is held at the defendant’s request, after the defendant makes a substantial showing that a false statement was intentionally or recklessly made. The majority then holds that even though the appellant in this case did not request a Franks hearing, that is what he really meant to do. After raising Franks on its own, the majority then reverses because it finds no Franks violation occurred. This all smacks of raising a straw-man issue, knocking it down, and deciding the case on that basis.
I would proceed as did the appellant and the trial judge in the suppression hearing and decide this case based on Ark. R. Crim. P. 13.1(b). That rule says in part:
(a) A search warrant may be issued only by a judicial officer.
(b) 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 on 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.
Here, that was not done. The affidavit was all hearsay and was based on what Officer Andrews observed. None of that was disclosed. And while I agree that a police officer’s veracity and reliability need not be proved, the fact that an affidavit was totally hearsay must be disclosed.
The issue in this case is not whether Officer Baugh intentionally or purposefully misled the trial judge with his affidavit. The trial judge specifically found that Officer Baugh’s actions were not “purposeful.” The issue is the validity of an affidavit which fads to disclose the true source of the information and erroneously implies that Officer Baugh is that source. The trial judge correcdy zeroed in on the real issue in this case. The majority has not.
Nor can I subscribe to the majority’s conclusion that by Officer Baugh’s saying he had “reason to believe” the facts attested to, this absolved him of revealing the source of his facts. Even had the prosecutor made the “reason to believe” argument, which he did not, it would have been wrong. Direct knowledge or disclosure of hearsay is essential to the validity of a warrant.
What the prosecutor did raise to the trial judge in passing was the case of United States v. Leon, 468 U.S. 897 (1984). In Leon, the Supreme Court permitted a search to stand where police officers reasonably believed, using an objective standard, that the search warrant was properly issued. Though Officer Baugh may have believed he was doing nothing wrong by signing the affidavit, as the trial judge judge found, he still cannot pass the test of objective reasonableness required by Leon. Any experienced police officer would know that a person attesting to facts must have firsthand knowledge of those facts or disclose the hearsay. 1
This is a case about cutting corners. It is about reversing a trial judge on an issue not raised to him. It is further a case about the respect due an affidavit and what we mean by sworn-to facts. Rule 13.1(b) requires an affidavit or recorded testimony under oath to support a search warrant. This opinion substantially waters down that requirement. Now, the hearsay of one police officer need not be disclosed by the attesting police officer. That should not be, as it flies in the face of the plain language of Rule 13.1(b). The trial judge properly nipped this kind of activity in the bud. I would affirm the suppression.
I do not believe, as the majority concludes, that Leon is limited to defects in a search warrant caused by the magistrate. Leon is a lengthy opinion which sets forth multiple principles applicable to a properly issued search warrant. In its concluding paragraph, the Supreme Court said:
In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.
Leon, 468 U.S. at 926 . (Emphasis added.) An analysis under Leon looks at both the conduct of the magistrate and the police officers.