{
  "id": 6140741,
  "name": "Terry Lynn STEPHENSON v. STATE of Arkansas",
  "name_abbreviation": "Stephenson v. State",
  "decision_date": "2000-10-25",
  "docket_number": "CA CR 00-124",
  "first_page": "254",
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  "last_updated": "2023-07-14T17:32:31.293590+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "KOONCE and GRIFFEN, JJ., agree."
    ],
    "parties": [
      "Terry Lynn STEPHENSON v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "John F. STROUD, Jr., Judge.\nTerry Lynn Stephenson was convicted in a bench trial of manufacturing a controlled substance, possession of a controlled substance, and possession of drug paraphernalia. On appeal she contends that the trial court erred in denying her motion to suppress evidence seized pursuant to a search warrant. We disagree and affirm.\nWhen reviewing a trial court\u2019s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances; we view the evidence in the light most favorable to the appellee and reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999). We apply the totality-of-the-circumstances test in determining whether the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant. Id.\nOn November 11, 1997, Detective Jeff Anderson ofthe'Con-way Police Department\u2019s narcotics division swore out an affidavit for a search warrant. The warrant listed seven facts, which we now set forth in abbreviated form:\n1) On October 23, 1997, the Conway Regional Drug Task Force was advised by Faulkner County detective Jim Wooley that Terry Lynn [Stephenson], who is associated with Gerald Pate of 89 Gap Road, drove Pate\u2019s blue Chevrolet Camero to the John Deere business in Damascus and purchased \u201call the ether they had, which was sixteen cans of starting fluid....\u201d\n2) On October 25, 1997, a white female later identified to be [Stephenson] purchased twenty-four cans of starting fluid from Duncan Outdoor in Conway.\n3) On November 8, 1997, driving her own gray Buick Skylark, [Stephenson] purchased thirty-six cans of starting fluid from Duncan Outdoor in Conway. She commented to an employee that she liked the John Deere fluid \u201cbecause it is 80% ether.\u201d\n4) On November 11, 1997, Investigator Travis Thorn and I went to the residence at 89 Gap View Road, where we could smell a very strong odor of chemicals. The vehicles mentioned above were at the residence.\n5) Pate was convicted of first degree murder in 1959 and served twenty-six years. He also \u201chas priors to theft and burglary and also car theft.\u201d\n6) [Stephenson] \u201chas prior for the Uniform Controlled Substance Act\u201d in Conway and in Perry County, and also \u201chas prior for theft of property.\u201d\n7 ) \u201cDue to my experience and training, these chemicals are used to manufacture methamphetamines.\u201d\nThe circuit judge issued a search warrant for the residence at 89 Gap Road on the basis of Anderson\u2019s affidavit. Execution of the warrant later the same day by the Conway Police Department\u2019s SWAT team resulted in seizure of items that led to the drug charges against appellant. Appellant filed a pretrial motion to suppress items seized pursuant to the warrant. After a hearing, the motion was denied.\nAppellant contends on appeal, as she did below, that the last four of the affidavit\u2019s listed facts were either wholly false or intentionally misleading, and that exculpatory facts known to Anderson before he submitted the affidavit were omitted from it. Appellant points to the statement in Fact 4 of the affidavit that Anderson and another officer \u201ccould smell a very strong odor of chemicals\u201d at the residence; she contrasts the statement with Anderson\u2019s testimony at the suppression hearing that he smelled only ether. Appellant notes the statements in Fact 5 that Gerald Pate had been convicted of murder and had \u201cpriors\u201d for theft, burglary and car theft; she asserts that a murder conviction has no bearing on a person\u2019s propensity to manufacture a controlled substance, and she notes Anderson\u2019s testimony at the hearing that he knew that Pate had not been convicted of theft or burglary. Regarding the statement in Fact 6 that appellant had \u201cprior for the Uniform Controlled Substance Act,\u201d she points to Anderson\u2019s acknowledgment at the hearing that the State actually had dropped previous controlled-substance charges against her and that she had no convictions. Finally, regarding Fact 7\u2019s reference to \u201cchemicals\u201d used in manufacturing methamphetamine, she cites Anderson\u2019s later testimony that only starting fluid had been connected to the residence.\nOur supreme court has explained the analysis to be used in determining whether false material, misleading information, or omissions render an affidavit in support of a search warrant fatally defective:\nSince Franks [v. Delaware, 438 U.S. 154 (1978),] was handed down in 1978, courts have consistently held that a warrant should be invalidated if a defendant shows by a preponderance of evidence: 1) that the affiant made a false statement knowingly and intentionally, or with reckless disregard for the truth, and 2) that with the affidavit\u2019s false material set to one side, the affidavit\u2019s remaining content is insufficient to establish probable cause. United States v. Clapp, 46 F.3d 795 (8th Cir. 1995); Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). Similarly, when an officer omits facts from an affidavit, the evidence will be suppressed if the defendant establishes by a preponderance of the evidence that: 1) the officer omitted facts knowingly and intentionally, or with reckless disregard, and 2) the affidavit, if supplemented with the omitted information, is insufficient to establish probable cause. United States v. Buchanan, 167 F.3d 1207 (8th Cir. 1999); Pyle, supra.\nState v. Rufus, 338 Ark. 305, 314-15, 993 S.W.2d 490, 495-6 (1999).\nHere, under the first step of Franks, we do not find that the affiant\u2019s reference to \u201cchemicals\u201d coupled with later testimony that he meant only ether and starting fluid rises to a showing that the officer made a false statement knowingly and intentionally, or with reckless disregard for the truth. We do find, however, that the affiant\u2019s use of the term \u201cprior\u201d without clarification that the references were only to arrests and that the charges were later dropped, was on its own a false statement made with reckless disregard for the truth, or that omission of the clarifying information amounted to reckless disregard. The stated facts in the affidavit at the least would have led the magistrate to believe that Pate stood convicted of theft and burglary, and that appellant had been convicted under the Uniform Controlled Substances Act. Thus, we discard these parts of the affidavit.\nTherefore, under the second prong of Franks, we must decide whether the remaining contents of the affidavit were sufficient to establish probable cause. This leaves the affiant\u2019s stated facts that appellant purchased seventy-six cans of starting fluid in a short period of time, once buying a business\u2019s entire supply and once remarking that she preferred the brand with a high ether content; and that the affiant and another investigator smelled at appellant\u2019s residence the strong chemical odor of ether, which in their experience with law enforcement, they knew to be associated with the manufacturing of methamphetamine. Although Pate\u2019s convictions for murder and car theft also remain, we do not view these as pertinent evidence establishing probable cause to search for items related to drug charges.\nThe question before us is whether the remaining pertinent facts, as set forth above, were enough to establish probable cause. Our supreme court has stated that the smell of ether alone is not enough to justify a nighttime search. See Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999). Here the search took place in the afternoon, and the smell of ether was not the only piece of evidence before the circuit judge. We find that probable cause to issue the warrant was shown by the affiant\u2019s stated facts that appellant purchased an unusual amount of starter fluid, that she stated a preference for a brand with a high ether content, and that the smell of ether emanated from her residence.\nAffirmed.\nKOONCE and GRIFFEN, JJ., agree.",
        "type": "majority",
        "author": "John F. STROUD, Jr., Judge."
      }
    ],
    "attorneys": [
      "Lynn F. Plemmons, for appellant.",
      "Mark Pryor, Att\u2019y Gen., by: Valerie L. Kelly, Ass\u2019t Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Terry Lynn STEPHENSON v. STATE of Arkansas\nCA CR 00-124\n29 S.W.3d 744\nCourt of Appeals of Arkansas Division III\nOpinion delivered October 25, 2000\nLynn F. Plemmons, for appellant.\nMark Pryor, Att\u2019y Gen., by: Valerie L. Kelly, Ass\u2019t Att\u2019y Gen., for appellee."
  },
  "file_name": "0254-01",
  "first_page_order": 282,
  "last_page_order": 286
}