The opinion
Robert L. Brown, Justice, dissenting. I echo what the ^majority has said about an Assistant Attorney General working in the Criminal Division and the appearance of partiality that gives when that same person is the district judge who issues a search warrant. While the case law supports the majority’s conclusion that Judge Svoboda is required to be actively involved in this case at the appellate level as an Assistant Attorney General for an actual conflict to arise, the appearance of bias in favor oflaw enforcement was very real and palpable when he issued the search warrant. The danger, of course, is that the dual role of judge and law-enforcement advocate erodes public confidence in neutral and detached magistrates, which is unfortunate. Flowever, I do not dissent on this point.
I dissent because of the failure of the affidavit and search warrant in this case to comply with our nighttime search rule, Arkansas Rule of Criminal Procedure 13.2(c) (2006). Since the adoption of this rule in the 1980s, this court has been resolute in holding that the rule be followed for nighttime searches.
The rule provides in pertinent part:
Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing judicial officer may, by appropriate provision in the warrant, authorize the execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.
Ark. R. Crim. P. 13.2(c) (2006).
Three cases illustrate how steadfast this court has been in requiring that Rule 13.2(c) be followed. See Fouse v. State, 337 Ark. 13 , 989 S.W.2d 146 (1999); Richardson v. State, 314 Ark. 512 , 863 S.W.2d 572 (1993); Garner v. State, 307 Ark. 353 , 820 S.W.2d 446 (1991). In each case, and many more besides, we emphasized that there must be facts supporting one of the three factors quoted above and a judicial finding to that effect before a nighttime search warrant could issue.
In Richardson, we said:
We have consistently held that a factual basis supporting a nighttime search is required as a prerequisite to the issuance of a warrant authorizing a nighttime search____We have held conclusory language . . . unsupported by facts is insufficient to justify a nighttime search .... Given that there was nothing to give reasonable cause to believe the items specified in the search warrant would be disposed of, removed, or hidden before the next morning, issuance of the nighttime search warrant was in error.
314 Ark. at 518-19 , 863 S.W.2d at 576 .
In Garner, supra, we held that the judge who checked two boxes on a search warrant, one which read that the place was difficult of speedy access and the other which said the warrant could only be executed at night, had not complied with Rule 13.2(c). That judge had merely made conclusory statements unsupported by sufficient facts to establish reasonable cause for a nighttime search. Similarly, in Fouse, supra, we held that the detective executing the affidavit, though he had touched on imminent removal, had not provided sufficient factual support for a nighttime search.
On the other hand, where sufficient exigent circumstances have been set forth in the police officer’s affidavit, which comply with Rule 13.2(c), we have not hesitated to uphold the issuance of a nighttime search warrant. See, e.g., Langford v. State, 332 Ark. 54 , 962 S.W.2d 358 (1998); Owens v. State, 325 Ark. 110 , 926 S.W.2d 650 (1996).
In the case before us, neither the police officer’s affidavit nor the judge’s search warrant comes close to complying with Rule 13.2(c). Neither document purports to make any reference to the required Rule 13.2(c) criteria of difficulty of speedy access, imminent removal, or the necessity for a nighttime search. The inescapable conclusion is that this court is now retreating from this time-tested rule of criminal procedure that has stood us in good stead for some twenty years. If we are to reexamine such an important rule as Rule 13.2(c), we should do so first through our Criminal Practice Committee where prosecutors, judges, and defense counsel are represented in addition to the Attorney General’s office and Prosecutor Coordinator’s office. It would be my distinct preference to use this mechanism already in place to examine any change in Rule 13.2(c). To do otherwise undermines not only our rule but also our established procedure for amending our Rules of Criminal Procedure.
For these reasons, I respectfully dissent.
Hannah, C.J., and Imber, J., join this dissent.