dissenting.
I respectfully dissent. Under the majority’s analysis, a search warrant may now be executed at night for the purpose of entering a premises to assure the safety of persons who may be there. A search warrant is a criminal process through which a court permits entry of police into private premises for the purpose of searching for and seizing “contraband or evidence of a crime.” See Coggin v. State, 356 Ark. 424, 438, 156 S.W.3d 712, 721 (2004). Under the Fourth Amendment, no warrant may issue “but upon probable cause ... and particularly describing the place to be searched, and the persons or things to be seized.” A search warrant is criminal in nature and its use is restricted to issues arising in criminal prosecutions. See 79 C.J.S. Searches and Seizures § 172 (2006).
Further, the plain language of Arkansas Rule of Criminal Procedure 13.2(c)(iii) precludes the majority’s interpretation. The use of the word “safely,” in permitting execution l12at night where the warrant “can only be safely or successfully executed at nighttime,” refers solely to the safety of law enforcement officers who are executing the warrant. Rule 13.2(c)(iii) grants permission to execute at night where that is the only safe time for the officers to do so or where postponing will negate the likelihood the evidence to be seized will still be there. Safety of the occupants of a premise to be searched is simply not contemplated or addressed by Rule 13.2.
The majority’s decision ignores stare de-cisis and the predictability and stability of the law it is intended to protect.
Our rules governing searches do not exist merely to provide technicalities for the sake of form — they exist so that people can rest assured that when an officer produces a search warrant it is with good cause, properly executed, approved by a judicial officer and not an improper attempt to invade the protective sanctity of one’s person or home.
Harris v. State, 264 Ark. 391, 394, 572 S.W.2d 389, 391 (1978). The use of a search warrant to check on the safety of occupants of the premises to be searched is improper. Further, while it is within this court’s jurisdiction to change its rules, this court should not change the rules without notice and referring the proposed change to the proper supreme court committee.
In Harris, this court stated that “[gjood cause must exist and be found by the issuing judicial officer to exist to authorize entry into a citizen’s privacy in the night time. This is a safeguard justified by centuries of abuse.” 264 Ark. at 393, 572 S.W.2d at 393. I believe that the majority is making alterations to Rule 13.2 and the law on search warrants that are improper and unnecessary. The circuit court properly granted the motion to dismiss. Therefore, I dissent.
BROWN and BAKER, JJ., join this dissent.
ROBERT L. BROWN, Justice,