¶1concurring. While I agree with the majority opinion that this case should be affirmed, I write separately because I do not agree that the affidavit was sufficientlspecific to support the State’s request for a nighttime search, but rather I would affirm because the good-faith exception applies in this case.
¶2The majority opinion notes that the affidavit for the search warrant was quite lengthy. However, the part of the affidavit seeking to justify a nighttime search warrant was very brief, and read as follows:
Affiant hereby requests that he be allowed to execute this warrant at night, because the location of the residence is such that officers approaching the residence could be easily observed, and there are firearms and a vicious dog located at the residence. Furthermore, any methamphetamine located at the residence could be easily disposed of.
¶3I do not believe that that language is sufficient to establish the. existence of exigent circumstances that justify a nighttime search. Nighttime search warrants have been invalidated on several occasions by our supreme court when the facts supporting one or more exigent circumstances have been found wanting. See Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999) (citing Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); State v. Broadway, 269 Ark. 215, 599 S.W..2d 721 (1980)). In Fouse v. State, supra, the supreme court discussed the well-established rule that conclusory language in the affidavit submitted to support a search warrant, unsupported by facts, is insufficient to justify a nighttime search. In Fouse, the affidavit submitted read, in part:
It has been my experience and I know that the process of manufacturing methamphetamine takes approximately four hours and that the chemicals used to manufacture methamphetamine are volatile and subject to explode or at the least cause a fire and can be a danger to surrounding houses in a residential setting such as this. There is also an emminent (sic) danger that the items and hardware used to manufacture methamphetamine may be moved or destroyed and the methamphetamine product may be transported and/or sold.
¶4337 Ark. at 20, 989 S.W.2d at 149. The court held that the affidavit was conclusory, and reversed the trial court’s refusal to suppress evidence resulting from a nighttime search.
¶5In State v. Broadway, the court stated:
An affidavit should speak in factual and not mere conclusory language. It is the function of the judicial officer, before whom the proceedings are held, to make an independent and neutral determination based upon facts, not conclusions, justifying an intrusion into one’s home.
¶6269 Ark. at 218, 599 S.W.2d at 723.
¶7In the case at bar, the affidavit simply states that the location' of the residence is such that the approaching officers could be easily observed, that there are firearms and a vicious dog at the residence, and that the methamphetamine could be easily disposed. I suspect that the affidavit’s description of appellant’s residence would apply to a large number, if not an overwhelming majority, of the residences in this state, and that the very nature of methamphetamine renders it easily disposable, wherever it may be located. The affidavit does no more than make assertions, unsupported by facts. In light of Fouse v. State, and Garner v. State, supra, it is hard for me to conclude that the affidavit relied on in the case at bar is sufficiently specific to justify execution of the warrant at night.
¶8However, I would affirm this case based upon the good-faith exception set forth in United States v. Leon, 468 U.S. 897 (1984), where it was held that an objective good-faith reliance by a police officer on a facially valid search warrant will avoid the application of the exclusionary rule in the event that the magistrate’s assessment of probable cause is found to be in error. See United States v. Leon, supra; Langley v. State, 66 Ark. App. 311, 990 S.W.2d 575 (1999). The test under Leon is not whether the police officers executing the search warrant subjectively believed that they were complying with the law. Rather, the test is whether a reasonably well-trained police officer would believe that probable cause exists for a nighttime search. See Fouse v. State, supra. In applying the good-faith exception, our supreme court has stated that the objective standard is not met when a police officer only presents suspicions regarding removal and the municipal judge only repeats the boilerplate language. Fouse v. State, supra. However, in the case at bar, there is nothing in the record to suggest that the officers in this case acted other than in an objectively reasonable manner. Furthermore, there is nothing in the record to suggest that they had any doubts about the technical sufficiency of the search warrant. State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991). The affidavit was four pages long, setting forth testimony from various informants regarding activities in the appellant’s house. In addition, Detective Mitchell had traveled to the residence accompanied by a police officer who provided additional information disclosed by an informant. Furthermore, the informant had described how the persons in the home would dispose of the methamphetamine. Under these circumstances, I would conclude that a reasonably well-trained police officer would have believed that probable cause existed to conduct a nighttime search, notwithstanding the lack of specificity in the affidavit.
¶9Therefore, while I do not believe that the facts set forth in the affidavit are sufficiently specific for a nighttime search, I concur that this case should be affirmed based upon the good-faith exception.
¶10dissenting. I would reverse and remand appellant’s conviction following his conditional plea of guilty to the charge of possession of drug paraphernalia and his sentence (two years of supervised probation and $500 fine). Contrary to the majority, I consider reversal mandated because Arkansas Rule of Criminal Procedure 13.2 (c) details that a search warrant may only be executed at night as follows:
Upon a finding by the issuing judicial officer of reasonable cause to believe that: (i) the place to be searched is difficult of speedy access; or (ii) the objects to be seized are in danger of imminent removal; or (iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy ....
¶11The established law in Arkansas is that a search warrant shall be executed between the hours of 6 o’clock a.m. and 8 o’clock p.m., and the three exceptions to this restriction are stated in the aforementioned rule. Ark. R. Crim. P. 13.2(c). A factual basis must be stated in the affidavit, or in sworn testimony, before a nighttime search warrant may be validly issued. Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992). Where there is no factual basis in the affidavit to support a nighttime search, but the affidavit instead speaks in mere conclusory language, the Arkansas Supreme Court has affirmed a trial judge’s decision to suppress evidence seized pursuant to a nighttime search. State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). In State v. Martinez, 306 Ark. 353, 356, 811 S.W.2d 319, 321 (1991), our supreme court also affirmed a trial judge’s decision to suppress evidence seized in a nighttime search where a warrant merely recited (i) that arrangements had been made to purchase a controlled substance from the accused; (ii) that it was believed that the accused stored the controlled substance at his residence; (iii) and that the proposed sale was expected to occur at his residence. In doing so, the supreme court mentioned that the affidavit submitted to the issuing magistrate was silent with respect to anything regarding reasonable cause to believe that the controlled substance (marijuana in that case) would be destroyed or removed before the next morning. Id.
¶12These decisions dictate reversal and remand of appellant’s conviction and sentence. The affidavit for search warrant submitted to Bentonville Municipal Judge John Skaggs by Detective Dave Mitchell of the 19th Judicial District Drug Task Force simply affirmed the following regarding the reasons for requesting authorization to execute the search warrant at night:
Affiant hereby requests that he be allowed to execute this warrant at night, because the location of the residence is such that officers approaching the residence could be easily observed, and there are firearms and a vicious dog located at the residence. Furthermore, any methamphetamine located at the residence could be easily disposed of.
¶13This language is as conclusory as that held unacceptable in Martinez, supra.
¶14Although the briefs mention that the residence to be searched was situated in a cul-de-sac, Mitchell’s affidavit did not reference that factor as a reason for needing to execute the warrant at nighttime. Mere presence of a dog, vicious or docile, should not determine whether a search warrant can be executed at nighttime. And given that there are many residences throughout Arkansas where firearms can be found — either with or without the presence of dogs and whether located on a cul-de-sac or not — it does not follow that the presence of firearms makes a nighttime search necessary to protect the safety of the searching officers or to ensure that the search will be successful. The better logic is that people are more likely to fetch their guns when confronted in their homes at night by uninvited others than during the daytime, no matter where they live, whether they are law-abiding or law-breakers, or whether they have dogs or not.