Bragg v. State , 499 S.W.3d 261 ( 2016 )

Cite as 2016 Ark. App. 378
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-15-926
ANTHONY L. BRAGG Opinion Delivered: September 7, 2016
APPEAL FROM THE BOONE
APPELLANT COUNTY CIRCUIT COURT
[NO. 05CR-15-43]
V.
HONORABLE JOHN R. PUTMAN,
STATE OF ARKANSAS JUDGE
APPELLEE AFFIRMED
BART F. VIRDEN, Judge
Appellant Anthony Bragg entered a conditional guilty plea to several felony drug
offenses and a firearms offense in the Boone County Circuit Court. On appeal, Bragg argues
that the trial court erred in denying his motion to suppress evidence on the basis that the
affiant included false statements in the affidavit for a search warrant. We find no error and
affirm.
I. Background
On January 23, 2015, Robert Williams gave the Boone County Sheriff’s Office a
handwritten statement that
I had my maintenance man called to come fix my fan that broke[.] [H]e came into
my house an[d] proceed[ed] to fix the fan but he didn’t have the right piece[.]
[B]efore he left he pulled a black pouch out of his front shirt pocket[,] opened it up[,
and] pulled [out] a big bag of what I believe was meth an[d] asked me an[d] my
[fiancée] [if] we wanted some[.] I told him he needed to leave an[d] when I said that
he pulled a gun an[d] said [“]I guess this don’t need to be talked about again[”] an[d]
then he left so I got me[,] my [fiancée, and] our 10 month old an[d] left to come to
Cite as 2016 Ark. App. 378
the police because we are scared for our lives[.]
In an affidavit to establish probable cause and grounds for issuance of a search warrant,
Coordinator Robert Braden with the Fourteenth Judicial District Drug Task Force provided
the following facts:
That on Friday January 23rd, 2015, Robert Williams, resident at [redacted] in Omaha
Arkansas otherwise known as State Line RV Park, went to the Boone County
Sheriff’s Office and reported an incident involving Anthony Bragg, maintenance man
at the State Line RV Park. Williams made a report with Deputy Robert Cutburth
of the Boone County Sheriff’s Office.
Affiant Robert Braden of the 14th Judicial Drug Task Force spoke to Williams on
the phone and received a description of the handgun along with a recap of the
incident.
Williams gave the following statement: On Friday January 23rd, 2015, he had
requested maintenance come to his residence to repair his fan. Williams stated
maintenance man Anthony Bragg came to his residence but did not have the part to
fix the fan. While there Bragg removed a black pouch from his front shirt pocket.
Bragg opened the pouch and showed Williams a one gallon size zip-loc bag half full
of a white crystalline substance he believed to be methamphetamine. Bragg offered
some of the substance to Williams at which time Williams refused and told Bragg he
needed to leave the residence. Bragg pulled a black semi-auto pistol from his right
front pocket and stated “I guess this don’t need to be talked about again.” Bragg then
left the residence.
Williams stated he felt threatened by the actions of Bragg and immediately brought
his family to the Boone County Sheriff’s Office to report the incident.
A judge issued the search warrant, and it was executed by Braden and several other
officers. Bragg’s home, vehicle, and a nearby shed were searched, and several incriminating
items were seized. The State charged Bragg with possession of methamphetamine with
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intent to deliver, possession of firearms by certain persons, possession of drug paraphernalia,
and possession of marijuana. Bragg filed a motion to suppress evidence alleging, among other
things, a violation of the United States Supreme Court’s holding in Franks v. Delaware, 438
U.S. 154 (1978).
II. Hearing on Motion to Suppress
At a hearing on Bragg’s motion to suppress, the parties stipulated to the following
facts in relevant part: 1
On January 23, 2015, Robert Williams, a resident of State Line RV Park in Omaha,
came to the Boone County Sheriff’s [Office] to file a complaint. . . . Boone County
Deputy Robert Cutburth took the complaint and spoke with Mr. Williams. In his
conversation with Deputy Cutburth, Mr. Williams referred to the person he was
complaining about as “Anthony the maintenance man.” Deputy Cutburth knew
there was an individual who resided at State Line RV Park, worked there as a
maintenance man, and was a black male named Anthony Bragg, because Deputy
Cutburth had arrested Anthony Bragg at the RV park in a previous investigation.
Deputy Cutburth relayed the complaint and information provided by Mr. Williams
to Captain Tom Smith and Investigator Colin Lillard, both with the Boone County
Sheriff’s Office. Captain Smith and Colin Lillard were also familiar with the same
Anthony Bragg due to recent and repeated contact with Mr. Bragg in another
ongoing but unrelated investigation.
Pursuant to the complaint and information provided by Deputy Cutburth, Captain
Smith contacted Investigator Robert Braden with the 14th Judicial District Drug
Task Force to assist in the investigation. Inv. Braden had also assisted the sheriff’s
office in the ongoing, unrelated investigation referenced above. Based on the
complaint and information provided by Captain Smith, Investigator Braden spoke
via telephone with Mr. Williams. In their phone conversation, Mr. Williams referred
to the person he was complaining about as “a black man named Anthony.”
In denying Bragg’s motion, the trial court entered an order finding that “Bragg has
A stipulation is the equivalent of undisputed proof in that it leaves nothing for the
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fact-finder to decide. McCroskey v. State, 272 Ark. 356, 614 S.W.2d 660 (1981).
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not made the required showing that the affiant of the affidavit for the search warrant,
knowingly, intentional[ly] or recklessly made any false statements or omissions. Further, the
affidavit provides a substantial basis for a finding of reasonable cause to believe that things
subject to seizure would be found on Bragg’s property.”
III. Standard of Review
In reviewing the denial of a motion to suppress evidence, we conduct a de novo
review based on the totality of the circumstances, reviewing findings of historical fact for
clear error and determining whether those facts give rise to reasonable suspicion or probable
cause, giving due weight to inferences drawn by the trial court and proper deference to the
trial court’s findings. Hampton v. State, 90 Ark. App. 174, 204 S.W.3d 572 (2005).
IV. Discussion
Bragg argues that the affiant identified “Anthony Bragg” as the person who
categorically did the things alleged in the search-warrant affidavit, yet Robert Williams
never named “Anthony Bragg.” Bragg contends that inserting the name “Anthony Bragg”
in the affidavit was a total disregard for the truth and improper under Franks v. Delaware,
438 U.S. 154 (1978). Bragg maintains that if the false information is set aside, there are no
facts to support probable cause.
Franks provides the proper analysis for determining whether false material, misleading
information, or omissions render an affidavit in support of a search warrant fatally defective.
A warrant should be invalidated if a defendant shows by a preponderance of the evidence
(1) that the affiant made a false statement knowingly and intentionally, or with reckless
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disregard for the truth, and (2) that with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish probable cause. State v. Rufus, 338
Ark. 305, 993 S.W.2d 490 (1999). 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. Id.
Quoting from United States v. Halsey, 257 F. Supp. 1002, 1005 (S.D.N.Y. 1966), the
Franks Court said, “When the Fourth Amendment demands a factual showing sufficient to
comprise ‘probable cause,’ the obvious assumption is that there will be a truthful showing.”
(Emphasis in original.) The Franks Court further said that
This does not mean “truthful” in the sense that every fact recited in the warrant
affidavit is necessarily correct, for probable cause may be founded upon hearsay and
upon information received from informants, as well as upon information within the
affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to
be “truthful” in the sense that the information put forth is believed or appropriately
accepted by the affiant as true.
Franks, 438 U.S. at 164–65.
To uphold the validity of an affidavit made in support of a search warrant, it is not
necessary that the affidavit be completely without inaccuracy as long as the inaccuracies are
relatively minor when viewed in the context of the totality of the circumstances, including
the affidavit taken as a whole and the weight of the testimony of the participants who
procured and executed the search warrant. Moss v. State, 2011 Ark. App. 14, 380 S.W.3d
479.
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While the affidavit contained a misstatement to the extent that Braden suggested that
Williams had provided Bragg’s first and last name, Bragg has failed to sustain his burden of
showing that Braden added or omitted material knowingly, intentionally, or recklessly, as
opposed to making a careless mistake. Cf. Heritage v. State, 326 Ark. 839, 936 S.W.2d 499
(1996). In his written statement, Williams identified his maintenance man employed at the
State Line RV Park on or about January 23, 2015. According to the stipulations, in speaking
with the law-enforcement officers, Williams had initially said that it was “Anthony, the
maintenance man,” and in a later phone conversation with Braden, Williams added that his
maintenance man was a black male. There was no evidence that there was more than one
black maintenance man named Anthony working at the RV park around that time. “The
application for a search warrant shall describe with particularity the persons or places to be
searched and the persons or things to be seized . . ..” Ark. R. Crim. P. 13.1. Here, Braden
was not required to insert Bragg’s full name in the affidavit in order to describe him with
particularity.
Even if Bragg’s full name were removed from the affidavit, the remaining
information provided a sufficient description that the police, through reasonable effort or
inquiry, could have located and identified Bragg as the person to whom Williams had
referred. We note that there was little likelihood of a mistake being made in executing the
search given that Bragg was known to Braden, as well as several other law-enforcement
officers, including one who had previously arrested Bragg at his residence at the RV park.
Considering the totality of these circumstances and giving proper deference to the trial
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court’s findings, we cannot say that the trial court clearly erred in denying Bragg’s motion
to suppress.
Affirmed.
ABRAMSON and GRUBER, JJ., agree.
Charles D. Hancock, for appellant.
Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.
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