{ "id": 6136591, "name": "STATE of Arkansas v. Joseph FORE", "name_abbreviation": "State v. Fore", "decision_date": "1994-05-18", "docket_number": "CA CR 93-654", "first_page": "27", "last_page": "35", "citations": [ { "type": "official", "cite": "46 Ark. App. 27" }, { "type": "parallel", "cite": "876 S.W.2d 278" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "307 Ark. 333", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902420 ], "weight": 5, "year": 1991, "pin_cites": [ { "page": "335-36" }, { "page": "60-61", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark/307/0333-01" ] }, { "cite": "37 Ark. App. 112", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138340 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "117" }, { "page": "831" } ], "opinion_index": 0, "case_paths": [ "/ark-app/37/0112-01" ] }, { "cite": "738 S,W.2d 423", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6662324, 1869811, 1869772 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/22/0235-01", "/ark/293/0514-01", "/ark/293/0517-01" ] }, { "cite": "22 Ark. App. 235", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6662324 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/22/0235-01" ] }, { "cite": "26 Ark. App. 268", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141332 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/26/0268-01" ] }, { "cite": "30 Ark. App. 63", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137328 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "67-8" }, { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/ark-app/30/0063-01" ] }, { "cite": "256 Ark. 756", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724712 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/256/0756-01" ] }, { "cite": "281 Ark. 424", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742369 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/281/0424-01" ] }, { "cite": "296 Ark. 524", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892750 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0524-01" ] }, { "cite": "302 Ark. 597", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884316 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0597-01" ] }, { "cite": "271 Ark. 619", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756202 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/271/0619-01" ] }, { "cite": "445 U.S. 573", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777746 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/us/445/0573-01" ] }, { "cite": "451 U.S. 937", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6251041, 6252257, 6251618, 6250759, 6251304, 6250215, 6251914, 6248783, 6249872, 6250513, 6249526 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/us/451/0937-07", "/us/451/0937-11", "/us/451/0937-09", "/us/451/0937-06", "/us/451/0937-08", "/us/451/0937-04", "/us/451/0937-10", "/us/451/0937-01", "/us/451/0937-03", "/us/451/0937-05", "/us/451/0937-02" ] }, { "cite": "270 Ark. 671", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709225 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0671-01" ] }, { "cite": "445 U.S. 463", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777603 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/us/445/0463-01" ] }, { "cite": "675 F. Supp. 469", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7401540 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "478" }, { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/f-supp/675/0469-01" ] } ], "analysis": { "cardinality": 707, "char_count": 15982, "ocr_confidence": 0.883, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17485092760234283 }, "sha256": "946a035308ebf9c14489227aee202dcf01379c4afc335a65e5f0373fee5317e7", "simhash": "1:1aaee0f5c33fc8ff", "word_count": 2735 }, "last_updated": "2023-07-14T21:17:20.155315+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Jennings, C.J., and Rogers, J., agree." ], "parties": [ "STATE of Arkansas v. Joseph FORE" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nThis is an appeal brought by the State to challenge an order of the trial court that dismissed all charges against the appellee, Joseph Fore, on the basis that the affidavit for the arrest warrant did not show probable cause to justify the issuance of the warrant. The appeal is brought under the authority of Rule 36.10(b)-(c) of the Arkansas Rules of Criminal Procedure.\nThe trial judge based his decision on Fairchild v. Lockhart, 675 F. Supp. 469 (E.D. Ark. 1987), in which it was held that an arrest warrant \u201crubber-stamped\u201d by a clerk of the court at the prosecutor\u2019s behest cannot meet the test of constitutionality which requires a determination by a neutral and detached magistrate that probable cause for the warrant exists. 675 F. Supp. at 478. The petitioner in Fairchild sought habeas corpus relief following a state court conviction for the murder and rape of Marjorie Mason. In making that decision the opinion in Fairchild examined the question of whether there was probable cause for the issuance of an arrest warrant for the petitioner for the attempt to kill Little Rock police officer, Joe Oberle. This question was involved because it was alleged that the Oberle arrest was illegal and that this affected the Mason conviction for the reason that Fairchild had confessed to the Mason crime after he was arrested on the Oberle warrant. Because the affidavit for Ober-le\u2019s warrant was conclusory, recited no underlying circumstances supporting the affiant-officer\u2019s belief that Fairchild was involved in the Oberle assault, no information regarding the identity or reliability of the informants, and no corroborating circumstances in support of any informant\u2019s tips the judge concluded that the affidavit failed to establish probable cause for the issuance of the arrest warrant. The judge also determined that the \u201crubber-stamping\u201d of the arrest warrant resulted in a failure of the real warrant-issuing authority to meet the necessary requirements of detachment and neutrality because that authority had actually been the prosecutor. Nevertheless, the judge went on to examine whether there was probable cause for the warrantless arrest of Fairchild for the murder of Marjorie Mason and determined that there was probable cause for that arrest, 675 F. Supp. at 488, and the petition for habeas corpus was denied.\nRelying on a portion of the reasoning of the judge in Fairchild, the trial judge in the instant case held that the affidavit for the arrest warrant in this case was deficient, that the arrest here was invalid, and that the charges had to be dismissed. The judge stated that the affidavit on which the arrest warrant was based did not identify the affiant\u2019s informant or establish why the informant\u2019s information was credible; that there was no corroboration of the affiant\u2019s allegations; and that, although the affidavit was clearly detailed, it was not accompanied by supporting statements. The judge\u2019s order of dismissal states that \u201cnone of the indicia of reliability are present in the affidavit\u201d and that the clarity of detail \u201cstanding alone in the face of all the defects\u201d does not provide a substantial basis for the issuing magistrate\u2019s decision.\nThe State argues on appeal that the trial court erred, as a matter of law, in dismissing the charges. The State contends that an illegal arrest is not grounds for dismissal of criminal charges. We think the State\u2019s argument is valid. In United States v. Crews, 445 U.S. 463 (1980), the United States Supreme Court held that \u201can illegal arrest, without more, has never been viewed as a bar to a subsequent prosecution, nor as a defense to a valid conviction.\u201d 445 U.S. at 474. Moreover, in State v. Block, 270 Ark. 671, 606 S.W.2d 362 (1980), cert. denied, 451 U.S. 937 (1981), the trial court dismissed criminal charges because the arresting officer had entered the defendant\u2019s home without an invitation or warrant, and the Arkansas Supreme Court reversed and remanded for trial stating that it was \u201cunthinkable\u201d that a person should go scot free because an officer enters his home without an invitation and arrests him without a warrant. The court quoted a footnote from Peyton v. New York, 445 U.S. 573 (1980), that said, \u201cThe issue is not whether a defendant must stand trial, because he must do so even if the arrest is illegal.\u201d Id. at 592. And in State v. Holcomb, 271 Ark. 619, 609 S.W.2d 78 (1980), the defendant had been arrested without a warrant, tried and convicted, but the conviction was reversed on appeal. On remand, Holcomb filed a pretrial motion to dismiss claiming that he could not be prosecuted because his warrantless arrest violated his Fourth and Fourteenth Amendment rights. The trial court agreed and dismissed the charges. The State appealed arguing that an illegal arrest does not bar prosecution. The Arkansas Supreme Court agreed and cited State v. Block, supra. In Ellis v. State, 302 Ark. 597, 791 S.W.2d 370 (1990), our supreme court again stated, \u201cWe have held many times that an illegal arrest does not necessarily invalidate a conviction\u201d and cited Davis v. State, 296 Ark. 524, 758 S.W.2d 706 (1988); O\u2019Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984); and Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974).\nThe Arkansas Court of Appeals has made the same holding. In Urquhart v. State, 30 Ark. App. 63, 67-8, 782 S.W.2d 591, 594 (1990), the defendant argued on appeal that the lower court erred in denying his motion to dismiss based on the alleged invalidity of the warrant issued for his arrest. We cited United States v. Crews, supra, for the rule that an illegal arrest is not grounds for dismissal of charges and citing Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989), which cited Pipes v. State, 22 Ark. App. 235, 738 S,W.2d 423 (1987), we said, \u201cAn invalid arrest may call for the suppression of a confession or other evidence but it does not entitle the defendant to be discharged from the responsibility for the offense.\u201d See also Whitaker v. State, 37 Ark. App. 112, 117, 825 S.W.2d 827, 831 (1992).\nAppellee contends that this argument was not presented to the trial court, and cites State v. Watson, 307 Ark. 333, 820 S.W.2d 59 (1991), for the proposition that, even if the decision of the trial court was erroneous, the appellate court will not reverse if the State did not object on the proper grounds below. In that case the defendant, who had been charged with recklessly failing to take action to prevent the abuse of a child, filed a motion to dismiss the charges claiming that the State could not prove she was a \u201cparent, guardian, or person legally charged with the care or custody of a child.\u201d After a hearing at which the State made a proffer of the evidence it expected to produce at trial, the circuit judge dismissed the charge. On appeal by the State, the Arkansas Supreme Court stated:\nWhile we agree with the state that it was error to dismiss the subject count of the information based upon a proffer of \u201cfacts,\u201d we do not agree that the court lacked subject matter jurisdiction. Jurisdiction is the power of the court to hear and determine a cause, including the power to enforce its judgment; it is the power to hear and determine the subject matter in controversy between the parties. . . .\nWe do not suggest the state concurred in any manner to the dismissal of this case. But it is evident the state did not object on the basis now argued. The ground of the state\u2019s objection, as we interpret the record, was that the proffered evidence was sufficient to sustain the allegation that Ms. Watson was legally charged with the care or custody of [the child]. Had the state objected on the ground that the \u201cfacts\u201d could be determined only by means of a trial and not by way of a proffer at a pretrial hearing, presumably the error would not have occurred.\n307 Ark. at 335-36, 820 S.W.2d at 60-61 (citations omitted).\nWe think Watson is clearly distinguishable from the case now before us.- Here, the issue is whether the lower court properly dismissed the criminal charges based on a deficient affidavit for the arrest warrant, and the State did, in fact, present to the trial court the contention that an illegal arrest is not grounds for dismissing the charges against a criminal defendant.\nThe State\u2019s brief abstracts, largely with quotes from the record, the colloquy between court and counsel as to this issue. Co-defendants had filed motions to \u201cquash and dismiss\u201d the arrest warrants issued against them and the trial court allowed defendant Fore, the appellee here, to orally join in his co-defendants\u2019 motions. At the hearing on the motions, the trial judge told the attorneys that he wanted to hear opening statements. After a defense counsel had addressed the judge, a deputy prosecuting attorney responded as follows:\nYour Honor, I\u2019m not quite actually sure where to begin, but what you just heard is argument on the evidence that the State intends to produce at trial. First is the affidavit. I haven\u2019t heard any testimony in support of the argument that we just heard that would tend to prove that what was alleged in the affidavit is not what was sworn to before another competent Judge. Second, the affidavit and any subsequent information are two separate propositions. Third, this same issue has come up before in previous hearings before this Court last year and we had some discussions, I don\u2019t know that any formal ruling was issued, but the filing of the information stands on its own. And I\u2019m kind of at a loss to be real honest to - -\nTHE COURT: Well I think, excuse me, I didn\u2019t mean to cut you off. I thought you had stopped. But I think the basis, the core of Mrs. Grinder\u2019s motion is that Officer Swesey is incompetent to support, his affidavit is incompetent to support probable cause. And I think that\u2019s - -\nMR. JEGLEY: Okay.\nTHE COURT: - - very clear that\u2019s what she\u2019s saying.\n' MR. JEGLEY: Well I agree, your Honor, and I don\u2019t know that without more what in the world the Court would choose to interpose its judgment over that of the Pulaski Municipal Court which in and of itself had the affiant before him and had opportunity to - - This affiant was sworn in and unless they are prepared to prove the propositions they are arguing about then I would submit, your Honor, that the matter stands before the Court as mere argument. There\u2019s nothing to support their position before the Court.\nTHE COURT: Okay. Mr. Jegley, essentially I understand you to say that a defendant cannot put the State to its proof by filing a motion to dismiss?\nMR. JEGLEY: I\u2019m saying that this is their motion and that this matter has been brought \u00fcp before this Court before, your Honor.\nTHE COURT: And I thought you said without a formal ruling.\nMS. GRINDER: That\u2019s correct.\nMR. JEGLEY: And I don\u2019t know, I don\u2019t think that, I think that in filing their motion they have to be prepared to go forward to prove up their motion to the Court. And then - -\nTHE COURT: Oh, no question about that. I am not saying the burden shifts to you because they filed the motion.\nMR. JEGLEY: And I mean we\u2019re prepared to prove our case up at trial certainly and that\u2019s basically what we\u2019re talking about in the sum and substance of this.\nTHE COURT: Okay.\nMR. JEGLEY: I mean there\u2019s two sides to all these criminal cases.\nTHE COURT: No, sir. Your burden at this point once she goes forward your burden is to prove the adequacy of the affidavit to support probable cause and that\u2019s whey [why] we\u2019re here today as I understand it. She\u2019s attacking the adequacy of probable cause.\nMR. JEGLEY: By argument, your Honor. We haven\u2019t had a witness before us.\nTHE COURT: Oh, certainly. No I asked for opening statements from both of you.\nMR. JEGLEY: Okay.\nTHE COURT: And that\u2019s where we are.\nMR. JEGLEY: Okay.\nTHE COURT: And I\u2019m waiting to hear your statement.\nMR. JEGLEY: My statement is, your Honor, the motion is not well taken. That the case cited Fairchild versus Lockhart is not on point as argued and I would also tell the Court at this point that, advise the Court that the civil actions in this don\u2019t have any relevance whatsoever. And I don\u2019t know who was subpoenaed or who wasn\u2019t subpoenaed and I know that we\u2019ve heard some argument \u00e1bout what proof there is and she knows which case, what the case file contains. So I think it is meritless, your Honor, and I think the motion should be denied.\nTHE COURT: All right. Are you ready, Ms. Grinder?\nThe trial court then heard testimony presented by defense counsel. At the conclusion of this evidence, the judge asked the deputy prosecutor if he was prepared to go forward and was told, \u201cWell, your Honor, we can stand on the affidavit.\u201d Other discussion between court and counsel ensued, and the prosecutor again told the court that \u201conce the affidavit question is over with we have a felony information.\u201d The trial judge, however, ended the hearing with the statement that \u201cin order for the search warrant to stand you have to show that the reviewing officer, the judge, did more than just rubber stamp.\u201d He then said he would take the issue under advisement and subsequently an order was entered which quashed the arrest warrant and dismissed the information.\nIt seems fairly clear that the deputy prosecuting attorney advised the trial judge of the State\u2019s contention that regardless of whether there was probable cause for the issuance of the arrest warrant the defendant was charged by a felony information, and the case of Fairchild v. Lockhart, was not authority for dismissing charges simply because the arrest warrant had not been properly issued. The prosecutor said that \u201cthe affidavit and any subsequent information are two separate propositions.\u201d He said \u201cthis issue has come up before in previous hearings before this Court last year and we had some discussions, I don\u2019t know that any formal ruling was issued, but the filing of the information stands on its own.\u201d He said \u201cthe motion is not well taken\u201d and that \u201cFairchild versus Lockhart is not on point as argued.\u201d And he told the trial court that \u201conce the affidavit question is over with we have a felony information.\u201d\nNevertheless, the trial court clearly took the position that the issue involved was whether the affidavit was adequate to establish probable cause for the issuance of the arrest warrant. Although there was discussion about the sufficiency of the affidavit, the trial judge was informed that the State took the position that the affidavit question and the felony information were two separate propositions. Thus, we think that State v. Watson, supra, relied upon by appellee Fore, is distinguishable from the instant case. There the State argued on appeal that the trial court did not have jurisdiction to dismiss the information charging the defendant with failing to take action to prevent the abuse of a child, but the issue presented to the trial court was \u201cthat the proffered evidence was sufficient to sustain the allegation that Ms. Watson was legally charged with the care and custody of [the child].\u201d Here, the State argued in the trial court (and now argues in this court) that this affidavit for the search warrant and the felony information are two separate propositions. The State is right; Fairchild v. Lockhart does not hold that the charges should be dismissed if the arrest warrant is not properly issued; the trial court erred in its view of the law, and we do not think the State failed to advise the court of the State\u2019s contention that insufficiency of the affidavit for the arrest warrant did not mean that the information should be dismissed.\nReversed and remanded.\nJennings, C.J., and Rogers, J., agree.", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [ "Winston Bryant, Att\u2019y Gen., by: Clint Miller, Senior Asst. Att\u2019y Gen., for appellant.", "William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellee." ], "corrections": "", "head_matter": "STATE of Arkansas v. Joseph FORE\nCA CR 93-654\n876 S.W.2d 278\nCourt of Appeals of Arkansas Division II\nOpinion delivered May 18, 1994\nWinston Bryant, Att\u2019y Gen., by: Clint Miller, Senior Asst. Att\u2019y Gen., for appellant.\nWilliam R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellee." }, "file_name": "0027-01", "first_page_order": 51, "last_page_order": 59 }