¶1dissenting. The majority opinion admirably recognizes that the boiler plate, computer generated reference to the residence to be searched was insufficient to permit a nighttime intrusion. The evidence cited in the majority opinion to support the Court’s reliance on the “danger of imminent removal” provision of Ark. R. Crim. P. 13.2(c)(ii) is inadequate.
¶2The fact that the affidavit was presented at 9:02 p.m. suggests nothing about the imminent removal of the drugs. Nor does the fact that drugs were purchased by the informant earlier that evening.
¶3The fact that the drugs were contained in a clear plastic bag does not suggest imminent removal. The statement in the affidavit that “the evidence sought is packaged and maintained in a manner that its destruction or removal can be easily accomplished” is no less conclusory than the statement that “the residence is so situated that the approach of the officers serving this warrant can be readily detected.”
¶4The majority opinion suggests that anytime drugs are to be searched for officers can press a button on a word processor, spew out a wholly conclusory statement that drugs to be found can easily be removed and, if approved by the magistrate, conduct a nighttime search.
¶5Even if it were proper for a magistrate to rely on a conclusion, the one discussed is irrelevant. While ease of removal may be related to the “danger of imminent removal,” they clearly are not the same. “Imminence” has to do with time. It would, for example, be appropriate to invade a home at night if the magistrate were presented with information that preparation had been made by the suspect to remove drugs to another location or perhaps to destroy them soon because of fear of being caught with them. The fact that drugs can be, say, flushed down a toilet quickly is just as true in daylight as in darkness.
¶6It is true that in Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977), we seemingly approved a nighttime search on the basis of an officer’s statement that evidence might be disposed of. The opinion does not, however, quote the language of the affidavit presented to the Court in that case.
¶7Although the majority opinion does not refer to it, the State argues the conviction should be affirmed, regardless of deficiencies the affidavit may have had, because the officers were acting in good faith in executing the warrant. United States v. Leon, 468 U.S. 897 (1984). I cannot find good faith on an objective basis when officers use a computer print-out of an affidavit in conclusory form obviously intended to be used in virtually any drug search regardless of the facts necessary to justify the search pursuant to Rule 13.2(c). See Abbott v. State, 307 Ark. 278, 819 S.W.2d 694 (1991), in which we declined to apply the Leon balm to evidence obtained in a search resulting from a warrant which charged a nonexistent offense and was thus facially deficient.
¶8Approval of the nighttime search in this case eviscerates the heightened requirement for nighttime invasion of people’s homes in all future cases where an officer concludes it would be easy to dispose of the drugs; in other words, all drug search cases.
¶9I respectfully dissent.