{
  "id": 6649856,
  "name": "Joseph KANDUR v. STATE of Arkansas",
  "name_abbreviation": "Kandur v. State",
  "decision_date": "1987-04-01",
  "docket_number": "CA CR 86-160 & CA CR 86-174",
  "first_page": "194",
  "last_page": "197",
  "citations": [
    {
      "type": "official",
      "cite": "20 Ark. App. 194"
    },
    {
      "type": "parallel",
      "cite": "726 S.W.2d 682"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "15 Ark. App. 399",
      "category": "reporters:state",
      "reporter": "Ark. App.",
      "case_ids": [
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      "weight": 2,
      "year": 1985,
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    {
      "cite": "285 Ark. 166",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1877678
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      "weight": 2,
      "year": 1985,
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        "/ark/285/0166-01"
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    {
      "cite": "265 Ark. 512",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1665033
      ],
      "weight": 2,
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/ark/265/0512-01"
      ]
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    {
      "cite": "16 Ark. App. 1",
      "category": "reporters:state",
      "reporter": "Ark. App.",
      "case_ids": [
        6649472
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      "weight": 2,
      "year": 1985,
      "opinion_index": 0,
      "case_paths": [
        "/ark-app/16/0001-01"
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    {
      "cite": "19 Ark. App. 62",
      "category": "reporters:state",
      "reporter": "Ark. App.",
      "case_ids": [
        6644466
      ],
      "weight": 2,
      "year": 1986,
      "opinion_index": 0,
      "case_paths": [
        "/ark-app/19/0062-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 334,
    "char_count": 4889,
    "ocr_confidence": 0.938,
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  "last_updated": "2023-07-14T21:16:54.687302+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Cracraft and Mayfield, JJ., agree."
    ],
    "parties": [
      "Joseph KANDUR v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "James R. Cooper, Judge.\nThe appellant was charged with being a felon in possession of a firearm and possession of a controlled substance with intent to distribute. He was sentenced to one year in prison on the firearms charge and fined $4,000.00, and a term of ten years confinement and a fine of $10,000.00 on the drug charge. A petition to confiscate $10,872.70 was granted by the trial court in a hearing at the close of the trial on the drug charges. We granted a motion to consolidate these cases on appeal.\nThe appellant makes several arguments regarding the validity of the search warrant. The State concedes that the warrant was invalid because it is the same warrant that we found invalid in a companion case. Ulrich v. State, 19 Ark. App. 62, 716 S.W.2d 777 (1986). Because the search warrant was defective, we find that the trial court erred when it refused to grant the appellant\u2019s motion to suppress the evidence seized pursuant to the warrant.\nThe State also concedes that there was insufficient evidence to convict the appellant of the firearms possession charge. The gun was found in the home occupied by both the appellant and his wife. There was no evidence at trial that the appellant was in possession of the firearm. Where there is joint occupancy of premises, mere occupancy is insufficient to convict one of possession of contraband unless there are additional factors linking the appellant with the contraband. Blair v. State, 16 Ark. App. 1, 696 S.W.2d 755 (1985). Therefore, the appellant\u2019s conviction on this charge must be reversed and dismissed.\nThe appellant also argued, in both cases, that he was denied his right to a speedy trial. However, in his reply brief the appellant states that he does \u201cnot seek a ruling on the speedy trial question if a new trial is to be granted.\u201d Because this case is being reversed and remanded on the drug charge, we find that the appellant has waived his argument on the speedy trial issue.\nThe only argument that must be addressed is the appellant\u2019s argument that the funds were improperly confiscated. It is the appellant\u2019s contention that because the money was found while the police were searching his home under the authority of an invalid search warrant the money could not be confiscated, at least where the only evidence was obtained pursuant to the invalid warrant. We agree.\nArkansas Statutes Annotated \u00a7 82-2629(a)(6) (Supp. 1985) provides that when money is found in close proximity to drug manufacturing paraphernalia, then a presumption arises that the money is also forfeitable. This statute also sets out a procedure for seizing the property. A law enforcement agent may seize property upon process issued by any circuit court having jurisdiction over the property on petition filed by the prosecuting attorney. Ark. Stat. Ann. \u00a7 82-2629(b) (Supp. 1985). Seizure without process may be made if the seizure is incident to an arrest or search under a search warrant. Ark. Stat. Ann. \u00a7 82-2629(b)(1) (Supp. 1985). In the case of Little Rock Police Department v. One 1977 Lincoln Continental Mark V, 265 Ark. 512, 580 S.W.2d 451 (1979), the Arkansas Supreme Court affirmed a chancellor\u2019s order that a car in which 3.14 pounds of marijuana had been found was improperly seized and could not be forfeited. The Court found that the police did not have probable cause to search the car and that the driver had not consented to the search. In the case at bar, the search warrant was invalid because there was no probable cause and, following Sands, supra, we hold that the money found in the appellant\u2019s home cannot be forfeited as property seized or discovered pursuant to the execution of the warrant.\nWe find no merit to the State\u2019s arguments that the 1981 amendments to this law and subsequent case law have overruled Sands. In both of the cases cited to us by the State, Limon v. State, 285 Ark. 166, 685 S.W.2d 515 (1985), and Reddin v. State, 15 Ark. App. 399, 695 S.W.2d 394 (1985), it is clearly pointed out that the searches were lawful. The State argues that a forfeiture is an in rent civil proceeding, independent of the criminal charge and that the exclusionary rule does not apply. However, this case does not turn on whether the evidence of the seizure can be admitted into evidence, but upon whether the initial seizure was lawful. Here it clearly was not. In conclusion, we do not mean to imply that the money may not be subject to forfeiture on another basis. We only hold that it is not forfeitable as a fruit of the invalid warrant.\nReversed and dismissed in part and reversed and remanded in part.\nCracraft and Mayfield, JJ., agree.",
        "type": "majority",
        "author": "James R. Cooper, Judge."
      }
    ],
    "attorneys": [
      "Young & Finley, for appellant.",
      "Steve Clark, Att\u2019y Gen., by: Lee Taylor Franke, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Joseph KANDUR v. STATE of Arkansas\nCA CR 86-160 & CA CR 86-174\n726 S.W.2d 682\nCourt of Appeals of Arkansas Division II\nOpinion delivered April 1, 1987\nYoung & Finley, for appellant.\nSteve Clark, Att\u2019y Gen., by: Lee Taylor Franke, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0194-01",
  "first_page_order": 208,
  "last_page_order": 211
}