Bragg v. State

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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