Circuit judge says evidence collected from January search warrant cannot be used

Prosecutors have been ordered to drop evidence collected against a Conway man accused in an unlawful dog fighting case.

Online records show 37-year-old Carl Johnson is currently charged with simultaneous possession of drugs and firearms, possession of a controlled substance, maintaining a drug premises within 1,000 feet of a drug-free zone and unlawful dog fighting after authorities confiscated eight pit bulls while conducting a search warrant at a residence in the 1700 block of Donaghey Avenue.

According to court documents, Conway Police Department investigators and the SWAT team were executing a search warrant on Jan. 4, 2017, of the Donaghey Avenue residence when drugs and the dogs believed to be involved in dog fighting were found.

“Police officers improperly relied upon a search warrant for narcotics in violation of Arkansas Rules of Criminal Procedure and lacked exceptional circumstances to search,” the motion to suppress physical evidence reads. “During the course of the search of Defendant’s property, certain items from his residence were illegally seized in violation of the Defendant’s rights under the United States and Arkansas Constitution and the evidence should therefore be suppressed.”

Defense Attorney Jimmy Morris Jr. filed a motion in April 2017 requesting the evidence collected during the execution of the search warrant on Jan. 4, 2017, be suppressed from evidence in the case against his client.

A suppression hearing where CPD investigators Todd Wesbecher and Andrew Burningham testified was held March 5 in Faulkner County Circuit Court.

After listening to the investigators’ testimony and reviewing the evidence at hand and considering arguments made by both the defense counsel and prosecution, Circuit Judge Charles “Ed” Clawson ultimately ruled in the defense’s favor last week.

“The Court, having reviewed the evidence, the testimony and the applicable case law, finds that the defendant’s motion to suppress the evidence should be and is hereby granted,” Clawson wrote Thursday in a letter to both parties.

Clawson said the probable cause affidavit to back up the search warrant did not provide enough information or validate searching Johnson’s residence on the day in question.

“At the March 5 hearing, the Court heard testimony from the investigating officers regarding the preparation of the search warrant and Investigator Wesbecher testified and was cross examined regarding the nature and content of the information in the affidavit,” Clawson said in his letter to Morris and Deputy Prosecuting attorney Megan Carter. “His testimony was that there was no other information provided to the Magistrate at the time the search warrant was prepared other that that which appears in the affidavit. Based on that testimony and the testimony of Investigator Birmingham, the Court must find after review that the affidavit in and of itself is inadequate to support the search warrant.”

In his ruling, Clawson further states the probable cause affidavit used to obtain the search warrant used against Johnson does not provide enough factual evidence to provide detail on what the officer’s were searching for and why.

During the March motion hearing, Wesbecher testified the police department had received a tip that a man by the name of “Cocaine Wayne” was allegedly selling drugs out of the residence, which is located in the 1700 block of Donaghey Avenue.

Morris questioned Wesbecher about the reliability of his source after learning Wesbecher had previously arrested the man who gave CPD the tip.

“There has to be something that says [the source] is reliable,” he said at the hearing, noting he did not feel Wesbecher’s source that triggered a search warrant against his client was credible. In his questioning, Morris also asked why Wesbecher included information about finding baggies with a Batman symbol on them in Johnson’s trash can in his affidavit to obtain a search warrant.

Wesbecher said similar baggies were found in other drug-related cases, which further instilled probable cause to search the residence.

Burningham confirmed that evidence from Johnson’s trash can — residue from inside the Batman baggie as well as from inside a cigarette package — tested positive for marijuana at the State Crime Lab.

The marijuana residue that was collected and tested in this case was an insufficient amount and should not have been included in this matter, Clawson said.

“There were two facts set forth in the affidavit and to some extent, the information contained in them while at first reading appears to be related, the nexus seems to break down past the emptying of the trashcan,” his Thursday ruling reads. “The Court will note that there was an amount of what the crime lab determined to be marijuana in the trashcan. However, the amount was, I believe from the testimony, 10 mg and that in and of itself is insignificant and in the Court’s opinion not such that a search warrant should be issued for Mr. Johnson.”

Clawson also said that while he realizes the defense has also asked the court to consider suppressing a statement Johnson made during his arrest, he will not rule on that matter at this time.

“There also appears to be a motion to suppress a statement filed by the defense; however, the evidence presented in this hearing did not touch on that motion,” he said in his letter to both parties. “The Court will therefore make no ruling.”

Johnson is scheduled to appear next at 9 a.m. June 5 in Faulkner County Circuit Court for a pretrial hearing regarding the aforementioned case against him.

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