dissenting. I disagree with the majority decision because, using the authority of United States v. Leon, 468 U.S. _, 104 S.Ct. 3405 (1984), the majority has overruled the Arkansas Supreme Court’s decision in Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983). This Court, in our Collins v. State, 9 Ark. App. 23, 658 S.W.2d 881 (1983), held that time could be inferred in a search warrant where no time was specified. The Arkansas Supreme Court, by a unanimous vote, reversed our decision and held that the absence of time in a warrant was one defect which could not be cured.
I am of the opinion that the absence of time in an affidavit is such a fundamental omission that it cannot be cured by the police officers’ objective good-faith reliance on the warrant issued by a magistrate. In Leon, the Court listed four exceptions to the “good faith” exception to the exclusionary rule, which would mandate suppression. The Court said:
Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth, (citation omitted). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 60 L. Ed. 2d 920, 99 S. Ct. 2319 (1979); in such circumstances, no reasonably well-trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” (citations omitted). Finally, depending on the circumstances of a case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid, (citations omitted).
104 S.Ct. at 3421-22.
Thus the Supreme Court has recognized that not all defects can be cured by “good faith”. I submit that time is a defect which cannot be so cured. But see United States v. Savoca, No. 83-3510 (6th Cir. May 3, 1985) (available June 13, 1985, on WESTLAW, Allfeds database); State v. Wood, 457 So.2d 206 (Ct. App., La. 1984).
In Collins v. State, No. 84-243 (Fla. Dist. Ct. App. Feb. 22, 1985) (available June 13, 1985, on LEXIS, Genfed library), the affidavit which supported the issuance of a search warrant was not sworn to by the officer. The court held that a search warrant unsupported by an oath was not “a mere technicality that good faith can cure.” I would hold, as did the Arkansas Supreme Court in Collins, supra, that “time is crucial” and that requiring a reference to time in an affidavit is not “an unreasonable nor technical demand of the law”. Collins, 280 Ark. at 456-57. Further, I agree with the Court’s statement that “[W]e use a practical, common sense approach to examine search warrants but that approach cannot cure omissions of acts that are undis-putedly necessary”. 280 Ark. at 457.
Additionally, I disagree with the majority’s decision that, under the totality of the circumstances test outlined in Illinois v. Gates, 462 U.S. 213, adopted by the Arkansas Supreme Court in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), the informant’s reliability was established. The references to the informant and his past information and its accuracy are purely conclusory, and, in my view, insufficient to meet even a relaxed “common sense approach”.
Leon requires that a “reasonably well-trained officer” have a reasonable knowledge of what the law prohibits. 104 S.Ct. at 3420 n. 20. Arkansas law is clear that some mention of time must be contained in the affidavit. Collins, 280 Ark. at 456-57. This is a basic principle every well-trained officer should know. In light of the conclusory nature of the allegations regarding the informant’s reliability and the total lack of any indication of time in the affidavit, I submit that the majority has erred in failing to apply Leon’s third exception. This affidavit is “so lacking in indicia of probable cause” that it renders official belief in its sufficiency “entirely unreasonable”. See Leon, 104 S. Ct. at 3421-22. I dissent.
Corbin and Glaze, JJ., join in this dissent.