dissenting. I agree with ell majority decision that the affidavit failed to demonstrate reasonable cause to justify a nighttime search and that the failure was a substantial violation. However, I would hold that the police officers failed to act in “good faith” pursuant to United States v. Leon, 468 U.S. 897 (1984), such as to salvage the defective nighttime search. Leon utilizes an objective standard, and considers what a reasonably well-trained police officer would have believed to be reasonable cause to warrant a nighttime search. See id. There is simply no basis for finding that the officers had a “good faith” basis for believing that there was good and sufficient probable cause to justify a nighttime search of appellant’s residence. Therefore, I respectfully dissent from the decision to affirm. Instead, I would reverse and remand the conviction.
As I understand the majority’s viewpoint, the fact that two judges (the initial magistrate and the circuit judge) found the affidavit for a nighttime search warrant adequate is dispositive on the “good faith” question. If that is the standard, I have not found it in any cases. Moreover, that reasoning cannot withstand scrutiny when one remembers that in every instance where the legality of a search is challenged on appeal following issuance of a warrant — for a nighttime search or otherwise •— the question would not be before us on appeal if the initial request for a warrant had not been granted by at least one judicial officer, i.e., the judge to whom the affidavit for search warrant was initially presented.
In Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991), the appellant moved to suppress evidence, and argued that the affidavit contained insufficient facts to support a nighttime search. Our supreme court agreed. After determining that the violation was substantial, the court considered whether the officers acted in “good faith” pursuant to Leon, supra. The court recognized four situations in which an objective “good faith” by police officers will not overcome a defective search. These situations include when 1) the officers misled the judicial officer with information that the officers knew to be false or should have known to be false, 2) the judicial officer acts as an adjunct police officer, 3) the affidavit is so deficient on its face that it is unreasonable for an officer to consider that reasonable cause existed, and 4) the warrant fails to sufficiently identify the place to be searched or the items to be seized. In examining the “good faith” exception, the Garner court stated as follows:
Our concern today is for the integrity of our Rules. If they are to have any meaning relative to nighttime searches, more must be shown the municipal judge than was offered in this case. Subjectively, the executing officers no doubt believed that they were complying with the law because they were using a printed form. Objectively, the affidavit and warrant were lacking in any indicia of a reasonable cause for a nighttime search other than a reiteration of the conclusory language in our Rules.
Id. at 359-60, 820 S.W.2d 446, 450.
This is not a question of federal law. Arkansas law and our Rules of Criminal Procedure prescribe certain standards before a nighttime search warrant can issue. Our case law is controlling. Given that a nighttime search is, in itself, an exception under our own law, our courts have resisted the temptation to lower the threshold for conducting nighttime searches. This decision flies in the face of that reluctance.
Although Adams did not mention the following facts in the affidavit or in sworn testimony to the magistrate, the trial court allowed him to testify over appellant’s objection that: 1) the area was dark except for a large bonfire that was burning beside the residence that illuminated the outside structure; 2) a female was pacing in front of the residence between the house and the fire; 3) the female would watch with intensity as vehicles drove by; 4) the female was outside the first time the officers drove by; 5) the female was still outside ten minutes later when the officers drove by again; 6) Adams contacted the Cleveland County authorities, who indicated that appellant had a temper and that “he did have a propensity for violence somewhat.” Taken together, Adams’s statements could not have led a reasonably well-trained police officer to believe that reasonable cause existed to justify a nighttime search. The officer’s reference to a large bonfire that illuminated the structure contradicts the “cover of darkness” that often justifies a nighttime search. Also, the mere fact that a female was pacing in front of the.residence.when the officers initially drove by and was still present when the officers drove by ten minutes later does not support a reasonable inference, let alone compel the con-elusion on the part of a reasonably well-trained officer, that the female was acting as a lookout such as to necessitate a nighttime search.
In rendering its ruling, the trial court noted that it considered extraneous evidence known to the officers at the time of the application to determine whether the officers acted in “good faith” pursuant to Moya v. State, 335 Ark. 193, 981 S.W. 2d 521 (1998). While the trial court did not err in considering unrecorded oral testimony to determine whether the officers acted in good faith, the court did err in considering facts that were not supported by the evidence, and circumstances that occurred after the warrant was executed. These facts included 1) that anyone who approached the residence would be in open view, and 2) that the affiant had been informed by a deputy sheriff that in his opinion appellant was a violent person, 3) that appellant came to the door armed with a loaded handgun and 4) that numerous items used to manufacture methamphetamine were confiscated as a result of the search.
Given the deficiencies in the affidavit, the lack of indicia of a reasonable cause for a nighttime search provided by Adams’s unsworn testimony, and the trial court’s reliance on facts that were not supported by the evidence, I would hold that the totality of the circumstances fail to demonstrate that the officers had a “good faith” basis for believing that there was good and sufficient probable cause to justify a nighttime search of appellant’s residence. Thus, I respectfully dissent from the decision to affirm the conviction, and would reverse and remand instead.
I am authorized to state that Judge Baker joins in this dissent.