{
  "id": 6139022,
  "name": "Byrones Eugene ZEILER v. STATE of Arkansas",
  "name_abbreviation": "Zeiler v. State",
  "decision_date": "1994-06-22",
  "docket_number": "CA CR 93-995",
  "first_page": "182",
  "last_page": "186",
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      "cite": "878 S.W.2d 417"
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    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
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      "category": "reporters:state",
      "reporter": "Ark.",
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      "category": "reporters:state",
      "reporter": "Ark.",
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      "year": 1991,
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    {
      "cite": "269 Ark. 215",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
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      "weight": 5,
      "year": 1980,
      "opinion_index": 0,
      "case_paths": [
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    {
      "cite": "42 Ark. App. 254",
      "category": "reporters:state",
      "reporter": "Ark. App.",
      "case_ids": [
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      "weight": 2,
      "year": 1993,
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  "last_updated": "2023-07-14T21:17:20.155315+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Cooper and Robbins, JJ., agree."
    ],
    "parties": [
      "Byrones Eugene ZEILER v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "John E. Jennings, Chief Judge.\nByrones Eugene Zeiler entered a conditional plea of guilty to possession of marijuana with intent to deliver, and was sentenced to five years with two suspended and fined $500.00. He brings this appeal pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure, arguing that the trial court erred in denying his motion to suppress evidence seized during a nighttime search of his residence. Because we agree that the affidavit for the search warrant contained an insufficient factual basis to justify the nighttime search, we reverse.\nGreg Donaldson, a police officer for the city of Clarksville, testified at the suppression hearing about the circumstances leading up to his procurement of the search warrant. After a confidential informant indicated that he could buy marijuana from appellant, Donaldson supplied the informant with money, and the informant entered appellant\u2019s residence and returned with marijuana. Donaldson then prepared an affidavit and procured the warrant. He testified that the affidavit was the sole basis for the issuance of the warrant.\nThe affidavit describes a drug buy made by the informant from appellant at appellant\u2019s residence on the evening of December 27, 1992. It includes the recorded serial numbers of the currency used to make the purchase of marijuana. The affidavit then states:\nBecause of the ease with which the dope can be disposed of and the fact that Zeiler is dealing it now and may get rid of what he has left or dispose of the money used in this buy, a nighttime search should be authorized.\nThe warrant issued that night recited that the affiant \u201chas reasonable cause to believe and does believe\u201d that at the described premises \u201cthere is now being concealed certain property to wit: marijuana and other controlled substance[.]\u201d The warrant further states that \u201c[d]ue to the danger of the immediate removal of the objects to be seized as described above in this warrant the issuing judicial officer authorizes execution of this writ at any time, day or night[.]\u201d\nIn reviewing a trial court\u2019s ruling on a motion to suppress because of insufficiency of the affidavit, we make an independent determination based upon a totality of the circumstances and reverse the trial court\u2019s ruling only if it is clearly against the preponderance of the evidence. Thompson v. State, 42 Ark. App. 254, 856 S.W.2d 319 (1993). An affidavit must set out facts showing reasonable cause to believe that circumstances exist which justify a nighttime search. See State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). The issuing judicial officer must have 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. Ark. R. Crim. R 13.2(c); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991). The affidavit should speak in factual, not merely conclusory, language. State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980).\nIn State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991), the supreme court affirmed the trial judge\u2019s granting of a motion to suppress. After quoting the language of Rule 13.2(c) regarding the circumstances that justify a nighttime search, the court said:\nThe affidavit in this case does not set out facts showing reasonable cause for [the issuing judge] to have found that any of the three circumstances quoted above existed. The affidavit merely provides that four previous sales of marijuana had been made by Jesse Martinez to Officer Hanes, that controlled substances were believed to be stored at the Martinez residence, and that another purchase was scheduled to occur at the residence that day. The affidavit is silent with respect to anything regarding reasonable cause to believe the marijuana would be destroyed or removed before the next morning. Thus, we hold it was error for the nighttime search warrant to have been issued.\nOur holding is consistent with Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990), and State v. Broadway, supra. Both Hall and Broadway have facts similar to the facts in the present case. In Hall, supra, we held that an affidavit reciting simply that illegal drugs were at appellant\u2019s residence and that a confidential informant had purchased marijuana there within the last seventy-two hours did not state facts sufficient to support the issuance of a nighttime search warrant. The Hall case is controlling of the present case in all respects.\nRelying on Martinez, we held in Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993):\nNeither the affidavit nor the sworn testimony set out facts showing reasonable cause for the issuing judge to have found that any of the required circumstances had been met for a nighttime search. A conclusory statement was made that the drugs to be seized were in danger of imminent removal, but no facts were stated to support this conclusion. The officers merely described the sales that had been observed thus far. We therefore hold that it was error for the nighttime search warrant to have been issued.\nThe affidavit in the case at bar speaks similarly in a conclusory statement about the necessity of a nighttime search. Officer Donaldson acknowledged on cross-examination that the affidavit was limited to the fact that marijuana was purchased that evening; it did not indicate whether more marijuana or other controlled substances were observed at appellant\u2019s residence; it did not state whether any drug paraphernalia or other equipment used to package or distribute marijuana was present; it did not recite any other indications of drug activity at the premises such as a steady stream of traffic coming and going. In short, there was no showing of any factual basis to support the conclusion that \u201c[appellant] may get rid of what he has left or dispose of the money used in this buy.\u201d\nWhile the search warrant was issued in violation of Rule 13.2(c), a motion to suppress will not be granted unless the violation is \u201csubstantial.\u201d Ark. R. Crim. P. 16.2(e). It is well established that the nighttime intrusion into a private home upon a warrant issued in violation of Rule 13.2(c) constitutes a substantial violation. See Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993). Also, in accord with this line of authority, we do not find that the \u201cgood faith exception\u201d applies to this case.\nReversed and remanded for the appellant to be allowed to withdraw his conditional plea.\nReversed and remanded.\nCooper and Robbins, JJ., agree.",
        "type": "majority",
        "author": "John E. Jennings, Chief Judge."
      }
    ],
    "attorneys": [
      "William M. Pearson, for appellant.",
      "Winston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Byrones Eugene ZEILER v. STATE of Arkansas\nCA CR 93-995\n878 S.W.2d 417\nCourt of Appeals of Arkansas Division II\nOpinion delivered June 22, 1994\nWilliam M. Pearson, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0182-01",
  "first_page_order": 206,
  "last_page_order": 210
}