dissenting. Today the majority adopts a per se rule that if a person is probably a drug dealer, then as a matter of law, there is probable cause for the police to search his residence, even though there is no indication in the affidavit for search warrant that any drug activity ever took place at the person’s residence. I must dissent.
As noted by the majority, on June 17, 1998, at approximately 9:30 p.m., Arkansas Game and Fish Officer David Evans observed appellants in the woods watering eighteen marijuana plants. On June 19 and 22, the police removed all of the plants. Also on June 22, Evans presented a municipal judge with an affidavit for a search warrant describing his observation of appellants and the removal of the plants. Evans further stated,
Lee Cloud has, over the past several years, been convicted for possession of controlled substances on a number of occasions. Information and intelligence developed by different law enforcement agencies working within Arkansas County indicates that both Lee Cloud and Curtis Yancey have been involved, and continue to be involved, in the propagation, preparation, consumption and delivery of controlled substances, specifically marijuana.
Evans requested, and received, a search warrant to search appellants’ residences, neither of which was anywhere near where the plants were confiscated.
An affidavit is sufficient only “if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place.” Ark. R. Crim. P. 13.1(b). ‘“Reasonable cause to believe’ means a basis for belief in the existence of facts which, in view of the circumstances under and purposes for which the standard is applied, is substantial, objective, and sufficient to satisfy applicable constitutional requirements.” Ark. R. Crim. P. 10.1(h).
We review the totality of the circumstances when determining whether the issuing magistrate had a substantial basis for concluding that probable cause existed. Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998). In Tatum v. State, this court stated:
In judging the sufficiency of the affidavit based on information received from an informant, the magistrate issuing the warrant must make a practical, common sense decision based on all the circumstances set forth in the affidavit. The duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant. While inferences the magistrate may draw are those which a reasonable person could draw, certain basic information must exist to support an inference. The practical common sense approach used to examine search warrants cannot cure omissions of fact that are undisputedly necessary. (Citations omitted.)
21 Ark. App. 237, 731 S.W.2d 227 (1987).
On appeal, appellants argued “there was no statement of any fact [in the affidavit] to show how the informants knew there was marijuana in the homes.” I must agree, as there is, quite simply, no allegation in the affidavit even suggesting that there was probable cause to believe items subject to seizure would be present in the appellants’ residences. The affidavit in this case is even less forthcoming with facts to support probable cause than the affidavit in Reed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). There, police sought to search Beed’s residence for a ring taken from a victim during a rape, aggravated robbery, and kidnaping. The Arkansas Supreme Court concluded as follows:
The affidavit was not sufficient, however, in that it failed to disclose how the reliable informant knew that the ring and the other property described in the warrant were in the house to be searched. It was merely recited that the informant had said Bennie Beed had resided at the described premises during the time he was being sought by the officers for these crimes and that the property described was hidden in the house. The statement of this conclusion without any statement of underlying circumstances from which the informant arrived at it was insufficient to meet the test for showing probable cause for the search.
271 Ark. at 535, 609 S.W.2d at 898.
The affidavit in the present case lacks even the conclusory statement found in Beed that the items subject to seizure could be found at appellants’ residences. Because there were no facts whatsoever in the affidavit supporting probable cause to believe that items subject to seizure were present at appellants’ residences, I believe the search warrant was improperly issued. See also Tatum v. State, supra.
The majority attempts to gloss over this glaring absence by concluding that “it was reasonable for the judge issuing the search warrant to infer that the evidence sought to be discovered would be found where appellants resided.” However, the omission of any reference to appellants’ residences is so complete that none can be inferred. The majority’s flawed conclusion that such an “inference” is reasonable serves only to make a mockery of the requirement that there be reasonable cause to believe that things subject to search will be found in a particular place. The majority concludes that because appellants are involved in drug activity, then there must be drug activity taking place at their residences. Certainly, the marijuana seen growing in the woods several miles from appellants’ residences would not be found at the residences because the police confiscated all of it. What is missing in the majority’s analysis is some objective fact contained in the affidavit establishing probable cause to believe that some evidence of drug activity could be found at appellants’ residences. Also missing is any conclusion by the officers that, based on their experience, marijuana would likely be found in appellants’ homes, despite their confiscation of all the plants they had seen days earlier. The affidavit does not provide either facts or informed conclusion, so the majority presupposes, without any basis in fact or in the record before us, that persons involved in controlled substances will have drugs at their residences.
It is also patently obvious that the ninth circuit cases relied on by the majority to support the propriety of their inference do not support their position. In United States v. Angulo-Lopez, 791 F.2d 1394 (9th Cir. 1986), the affidavit provided that a confidential informant had told police that the defendant was selling drugs (heroin and cocaine) from his residence. In United States v. Terry, 911 F.2d 272 (9th Cir. 1990), the affiant averred that, in his experience, persons involved in methamphetamine trafficking keep drugs, paraphernalia, records, and money at their residences. However, in United States u Pitts, 6 F.3d 1366 (9th Cir. 1993), which purported to rely on both Angulo-Lopez and Terry, there was neither direct evidence nor an officer’s opinion given connecting the drugs to the residence searched. In Pitts, the court found the affidavit, which described an ongoing FBI investigation involving past weekly sales of cocaine where Pitts was the distributor, and a recent sale of crack cocaine by Pitts to a witness at her home some four months earlier, to provide a “reasonable nexus” between Pitts’s drug dealing and his home, where police subsequently found, among other things, a shotgun, marijuana, and a bag with a trace amount of white powder. It is not clear from this opinion whether the additional information provided by the witness that she had purchased shotguns for Pitts to use in his drug dealing and his arrest for possession of those guns some six months earlier was included in the affidavit for search warrant. Thus, in both Angulo-Lopez and Terry there was at least a conclusory statement contained in the affidavit to support the belief that the drug activity was taking place at the residence to be searched; the subsequent case, Pitts, although purporting to rely on these precedents, clearly exceeded the bounds of both Terry and Angulo-Lopez.
Furthermore, these Ninth Circuit cases were soundly and properly criticized in Washington v. Thein, 138 Wash.2d 133, 977 P.2d 582 (1999), wherein the Washington Supreme Court held that generalizations made in an affidavit regarding the common habits of drug dealers were not, standing alone, sufficient to establish probable cause to search a person’s residence, and that to support probable cause to search a person’s residence, there must be facts establishing a link between a person’s drug activity and a person’s residence. The court further noted that there were even conflicts in the decisions of the Ninth Circuit Court of Appeals and that most courts require some nexus beyond an officer’s general conclusions. In the case at bar, the affidavit does not even contain an officer’s general conclusions. As the Washington Supreme Court concluded, “a finding of probable cause must be grounded in fact,” facts which are sorely lacking in the affidavit but which the majority here presupposes for the State. Likewise, in Beed, the Arkansas Supreme Court established the need for more than conclusory statements. The affidavit in the case at bar, in stating that “ [information and intelligence developed by different law enforcement agencies working within Arkansas County indicates that both Lee Cloud and Curtis Yancey have been involved, and continue to be involved, in the propagation, preparation, consumption and delivery of controlled substances, specifically marijuana,” can only be characterized as conclusory.
The majority also cites favorably, but inexplicably, to several cases from other circuits; these authorities are even farther afield from the facts before us than Terry and Pitts. In United States v. Feliz, 182 F.3d 82 (1st Cir. 1999), there was a detailed and thorough affidavit supporting the warrant1; in United States v. Lamon, 930 F.2d 1183 (7th Cir. 1991), there was an affidavit that stated appellant had sold cocaine out of the house to be searched within the past seventy-two hours and had also sold drugs out of his automobile, along with the officer’s statement that “based on his training and experience, he knew that illicit drug dealers often use their automobiles to deliver drugs to their customers and often store drugs and paraphernalia. . . in their automobiles.” In United States v. Malin, 908 F.2d 163 (7th Cir. 1990)(abrogated on other grounds), officers observed marijuana growing in the back yard of the house to be searched; the court ruled that this observation “reasonably yielded the conclusion that marijuana or other evidence of marijuana possession would be found in Malin’s house.”
Finally, the search cannot be saved by the application of United States v. Leon, 468 U.S. 897 (1984). In Leon, the Supreme Court stated that the good-faith exception does not apply in four instances, including the instance “where the officer’s affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923. The Arkansas Supreme Court and this court have repeatedly refused to apply Leon when an affidavit provides only conclusory language, usually in cases involving nighttime searches. See, e.g., Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993); Gamer 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); Langley v. State, 66 Ark. App. 311, 990 S.W.2d 575 (1999); Thompson v. State, 42 Ark. App. 254, 856 S.W.2d 319 (1993); Carpenter v. State, 36 Ark. App. 211, 821 S.W.2d 51 (1991). Moreover, the majority even acknowledges that Leon requires that “sufficient evidence must be presented to allow a magistrate to determine probable cause; his action cannot merely ratify the bare conclusions of others.” (Emphasis added.) Thus, it follows that Leon should not apply when an affidavit lacks even conclusory language supporting the search. Leon does not and should not save the police from the complete and utter failure to state in their affidavit the reason why they believe items subject to seizure may be found in a particular place.
In my mind, this should be an easy case to reverse. The majority’s conclusion is deeply disturbing in its breadth and scope. They have effectively eliminated the requirement that law enforcement agencies present facts to support a request for a search warrant to search a person’s home. That decision does not bode well for any Arkansan. I dissent.
Hart, J„ joins.
[The agents’] search warrant affidavit contained a paragraph setting forth in detail his training and experience in the investigation of drug trafficking crimes. Agent Dumas stated he had been a law enforcement officer for approximately four years, and was sworn as a Special Agent of the Maine DEA in May, 1996. Agent Dumas further stated that “[fjrom my experience, education, training and/or study, I know it to be quite common for those involved in the illegal trafficking/furnishing of scheduled drugs to possess, maintain and keep with, near them, and/or in their residences business records and journals relating to the trafficking and/or furnishing of scheduled drugs....” Agent Dumas continued: “In particular, I know that, where, as here, an individual is demonstrated to be trafficking in drugs, it is not uncommon for there to be evidence of their drug trafficking activities, such as drug records, telephone numbers of suppliers and customers, drug trafficking paraphernalia, drug proceed and/or evidence of transfer, expenditures or investment of drug proceeds kept at the trafficker’s residence.” Finally, with regard to sums of money in the possession of drug traffickers, Agent Dumas state that in his experience it was common for those involved in the illegal trafficking/furnishing of scheduled drugs to possess and keep with them, near them, and/or at their residences, sums of money...either as a result of scheduled drug sales or for the purpose of purchasing scheduled drugs or facilitating scheduled drugs sales with others. Because such moneys are not usually safely disposed of legitimately (e.g., deposited in a bank or declared as taxable income), it is common for those who traffick illegal scheduled drugs to keep these sums on their person or near the, in a safe location, frequently in their residences, and/or at/near their residences and/or near the same location where they keep their drugs, or maintain drug operations.