The opinion
Jim Hannah, Chief Justice, dissenting. I must respectfully dissent. A nighttime search is at issue. Nighttime searches are, and have always been, of particular concern. In Harris v. State, 264 Ark. 391, 393 , 572 S.W.2d 389, 393 (1978), this court stated that, “[g]ood cause must exist and be found by the issuing judicial officer to exist to authorize entry into a citizen’s privacy in the night time. This is a safeguard justified by centuries of abuse.” The business of law enforcement should be carried out in broad daylight for all to see whenever reasonably possible. I do not disagree that there are conditions under which a nighttime warrant is justified and absolutely required. This case does not present such a situation.
In this case, the magistrate was informed that drug activity was occurring in the nighttime and during the early morning hours. Nothing in this case indicates the necessity of a nighttime search. The magistrate was also informed that upon his arrest, Davis informed police that he knew that he was being watched. While Davis’s knowledge might give cause to be concerned that if free he would either inform others to destroy evidence or destroy it himself, he was arrested, putting to rest any such concern. Nor was Davis’s passenger a concern as an active arrest warrant had already been issued before the stop so that he was not free to act. Without more, a nighttime search was not justified. Further, as Justice Brown discusses in his dissent, Ark. R. Crim. P. 13.2 was not followed.
Although there is a very understandable desire to control the scourge of drugs and drug-related crime, we must persist in protecting fundamental freedom. We may not forget those centuries of abuse this court mentioned in Harris.
Brown and Imber, JJ., join this dissent.