¶1concurring. I fully agree that the rule announced in Leon and Sheppard was long past due and that the effect those decisions will have on our law should be determined by the Arkansas Supreme Court. I do not agree that this case is a proper one for that determination. Had I thought so I would have joined in the dissent and urged that this case be decided by the Supreme Court.
¶2The good faith of the police officer serving the warrant in this case was never an issue in the trial court. Although Leon and Sheppard were handed down after the briefs had been filed in this case we were not asked to consider them by supplemental letter brief or otherwise. The issue was injected into the case sua sponte in our conference of the case. Appellate courts do not ordinarily reverse on issues neither raised below nor briefed and argued.
¶3More importantly, I do not agree that Lunsford was decided on the basis of federally declared minimum standards which have now been raised. A.R.Cr.P. Rule 13.1(b) requires that where a search warrant is issued on sworn testimony that testimony must be recorded. Rule 16.2 provides the manner in which the issue of the legality of the warrant may be raised and Rule 16.2(e) provides that the court shall suppress evidence obtained under a defective warrant where the violation is substantial. Lunsford held that failure to record the sworn testimony on which the warrant was issued was a substantial violation warranting suppression. Although Russ v. City of Camden, was cited in the Lunsford opinion it was not necessarily the basis for the holding. Russ was decided in 1974 under a now superseded statute in the light of then existing federal minimum constitutional standards as required by Mapp v. Ohio, 367 U.S. 643 (1961). Its holding was codified when our Rules of Criminal Procedure were promulgated two years later.
¶4For that reason I do not think a mere departure from Lunsford would be enough. In my opinion our court can only adopt the present relaxed constitutional requirements by amending our own procedural rules to provide an exception for “good faith” on the part of the officer serving a warrant which was issued in substantial violation of our rules. Rule 16.2(e) does not now contain such an exception and calls for suppression when the warrant itself is substantially defective. Furthermore, in my opinion such an amendment should not be made to apply retroactively.