The state brings this interlocutory appeal from the trial court’s granting of the appellee’s motion to suppress certain evidence. Ark. Rules of Crim. Pro., Rules 36.10 and 16.2 (d) (1977). The sole issue presented is whether the trial court erred in ruling that the evidence, marijuana, be suppressed due to an invalid nighttime search warrant.
The facts and circumstances surrounding the issuance ot the search warrant are not in dispute. The facts constituting probable cause in support of the affidavit state that, based on police file reports of appellee’s activities and information received about a purchase in appellee’s home the day before the search from a proven confidential informer, police officers arranged a “controlled buy” at appellee’s home. This informant purchased a quantity of marijuana from the appellee between 5 and 7 p.m. Shortly thereafter, the two police officers, who observed the informant enter the premises and leave, typed an affidavit and filled in the blanks of a search warrant authorizing a search of appellee’s home. They took the completed instruments to a judicial officer’s residence for his approval. After the police officers were sworn by him, they signed the affidavit and the judge signed the search warrant.
The affidavit, after enumerating the above asserted facts surrounding the “controlled buy,” ended with this conclusory statement:
Having found reasonable cause to believe that the substance described herein could be removed unless the search is conducted immediately, you are hereby commanded to search the above described premises of property at anytime of the day or night.
The search warrant, a printed form, contained this identical language as a standard paragraph, except it used the word “probable” rather than “reasonable.” The warrant was issued based solely on the affidavit. The search was conducted at 9:15 p.m. that evening. Five individuals, including the appellee, who were engaged in a dice game, attempted to leave the room or premises. Marijuana was seized, which was concealed on appellee’s person and in his bedroom. There was no evidence of the use or sale of the marijuana.
A motion to suppress shall be granted only if the court finds that a violation is substantial or contrary to the federal Fourth Amendment or Art. 2, § 15, of our state constitution. Harris v. State, 262 Ark. 506, 558 S.W. 2d 143 (1977); and Rules of Crim. Proc., Rule 16.2 (1977). Even so, penal statutes or rules are to be strictly construed in favor of the individual. Austin v. State, 259 Ark. 802, 536 S.W. 2d 699 (1976). Stated in another way, the constitutional guarantee against unlawful search and seizure must be construed in favor of the individual. Lowery v. United States, 128 F. 2d 477 (8th Cir.1942). In Harris v. State, 264 Ark. 391, 572 S.W. 2d 389 (1978), we said:
Good cause must exist and be found by the issuing judicial officer to exist to authorize entry into a citizen’s privacy in the nighttime. This is a safeguard justified by centuries of abuse. . . .
The forms and procedure are quite elementary, the adherence to which will save everyone concerned a good deal of time, money, and sometimes, anguish.
The state, in support of its position, cites numerous federal cases to justify nighttime searches in drug related cases pursuant to a federal statute or rule. Here, however, we are interpreting our own recent rules on this subject. Rules of Crim. Proc., Rule 13-1 (d) (1977), authorizes the judicial officer to issue a search warrant when he believes reasonable cause exists for the issuance based upon the proceedings before him. Rule 13.2 (c) provides, however, that a search warrant shall be executed between the hours of 6 a.m. and 8 p.m. or in the daytime. There are only three exceptions to this restriction. The pertinent one here is that “the objects to be seized are in danger of imminent removal.”
The affiants, and not the court, “found reasonable cause” existed for an immediate search since the substance “could be removed.” They then “commanded” themselves to make the search at anytime during the day or night. There is no factual basis in the. affidavit to support a nighttime search except this conclusory finding and self-command. 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. At the suppression hearing, the state properly took the view that the conclusory • language in the affidavit was a mistake and neither added nor detracted from it. Admittedly, this clause should appear only in the search warrant. It is undisputed that except for the judicial officer’s signature, address, and date, the warrant was completely filled in by the affiants when it was submitted to the judge for his signature. The record reflects no testimony before the judicial officer to support the nighttime search. The affidavit itself reflects the existence of marijuana in appellee’s house during the preceding day. Further, the affiants’ conclusory language is vastly different from the sworn testimony in Harris v. State, 262 Ark. at 509, supra, that “evidence [murder weapon] . . . might be disposed of . . .” We cannot construe “could be removed” to convey the meaning that the controlled substance was in “danger of imminent removal,” which is required to justify a nighttime search.
In the circumstances, we must agree with the trial court that there was insubstantial compliance with the legal requirements for a nighttime search of appellee’s home.
Affirmed.
Fogleman, C.J., and Hickman and Stroud, JJ., dissent.