dissenting.
| i3The majority radically errs when it applies a good-faith analysis under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1989), to the facts of this case. First, an appeal requiring a factual determination from this court on good faith is not a legitimate State appeal. See, e.g., State v. Thompson, 2010 Ark. 294, 377 S.W.3d 207. Secondly, the good faith of law enforcement officers cannot offset a complete failure of those officers and the issuing judge to justify and approve a nighttime search under the criteria set out in Arkansas Rule of Criminal Procedure 13(c)(2), regardless of which party appeals. See, e.g., Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991). For these reasons, this appeal must be dismissed.
The majority begins by noting that this is a State appeal under Arkansas Rule of Appellate Procedure-Criminal 3(c) and that the issue for this court to resolve is whether the circuit court erroneously concluded that Rule 13.2(c)(iii) allowing for nighttime search warrants “only applies to officer safety.” The majority concludes that this is an issue involving the correct and uniform administration of the criminal law and, thus, a proper State appeal. The majority then answers the question by holding that Rule 13.2(c)(iii) applies only to officer safety. I agree with that conclusion.
The majority opinion then swerves way off course and commences an analysis of whether the executing police officers operated in good faith under Leon to salvage an otherwise defective search and seizure. In doing so, the majority looks to the circumstances militating in favor of officer good faith in the majority’s view such as diapers in the trash bags, the fact that officers knew there were small children living on the premises, and the fact that no meth-lab components were in the trash bag. However, in examining these facts as part |14of its analysis, the majority does precisely what this court has said time and again it will not do in State appeals — it investigates the facts and makes a factual determination. Indeed, in its own opinion, the majority cites authority stating that we do not take State appeals where the resolution turns on the facts or on a mixed question of law and fact. See State v. Thompson, supra.
The fact that a good-faith analysis under Leon is not appropriate for a State appeal has been acknowledged by this court:
Because the issue presented in this appeal [whether the police officer operated in good faith in executing the search warrant] involves a mixed question of law and fact, an interpretation of our rules with widespread ramifications is simply not at issue here. See State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). We have similarly held: Where the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact, this court will not accept an appeal under Ark. R.Crim. P. 36.10 (now Ark. R.App. P. — Crim. 3(c)). State v. Harris, 315 Ark. at 597, 868 S.W.2d 488; State v. Mazur, 312 Ark. 121, 123, 847 S.W.2d 715 (1993); quoting State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). We only accept appeals by the State when our holding would establish a precedent that would be important to the correct and uniform administration of justice. State v. Rice, 329 Ark. 219, 947 S.W.2d 3 (1997); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993). Because the circuit court’s decision in the present case required him to review unique circumstances and decide mixed question of law and fact, we must conclude that the correct and uniform administration of justice is not at issue. Accordingly, we dismiss the appeal.
State v. Hart, 329 Ark. 582, 584-85, 952 S.W.2d 138, 139 (1997). The same holds true in the case at hand.
In addition, there is the point that the executing police officers, using an objective standard of what a reasonably well-trained police officer would believe is reasonable cause for a nighttime search warrant, as Leon requires, could not have so believed in this case. Rule 13.2(e) requires a finding by the judge that there is reasonable cause for the nighttime search | abased on three criteria:
(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.
Rule 13.1 requires affidavits based on one of these three criteria to support the search warrant. No affidavit with the required justification was made for a nighttime search; nor were findings made by the circuit judge of reasonable cause to support such a search.
Indeed, as the circuit judge pointed out in his review of this matter, the affidavit by the police officers “did not set out facts showing reasonable cause to believe that any circumstance existed which justified a nighttime search.” The circuit judge went even further and made the following findings in denying that the officers operated in good faith:
Notwithstanding the search warrant issued by the district judge, there was no objective basis for the Jacksonville Police officer who applied for the warrant or those who conducted the nighttime search to believe that the place to be searched was difficult of speedy access. There was no objective basis to believe that the warrant could only be safely or successfully executed at nighttime or under the circumstances the occurrence of which were difficult to predict with accuracy. There was no objective basis for a good-faith belief that any exigent circumstance existed to justify a nighttime search. A reasonably well trained law enforcement officer would have known that these factors determine whether a nighttime search warrant is valid.
These factual findings by the circuit judge are beyond dispute and evidence why the search and seizure premised on officer good faith is so far afield.
A good-faith rationale has no place in this State appeal for the reasons stated. Indeed, for there to have been good faith on the part of the executing officers, they would have to have been completely ignorant of our nighttime-procedure rules. That does not equate to 11figood faith. The objective standard requires reasonable knowledge of what our nighttime rules require. See Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990). Moreover, the search warrant issued by the district judge does not comply with our rules for nighttime searches and could not be affirmed under our case law regardless of which party is appealing. To uphold the search and seizure in this case on grounds of good cause would stand this state’s jurisprudence relating to State appeals and nighttime searches on its head. I respectfully dissent.
HANNAH, C.J., and BAKER, J., join this dissent.