NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION III

JACKIE E. REYNOLDS,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-1349

SEPTEMBER 5, 2001

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT,

NO. CR99-161-2,

HON. PHILLIP H. SHIRRON,

JUDGE

AFFIRMED

Jackie E. Reynolds was charged in Hot Spring County with possession of drug paraphernalia and possession of marijuana with intent to deliver. The matter was set for a jury trial, and Reynolds filed a motion to suppress evidence obtained from the execution of a search warrant at his residence. After conducting a pretrial hearing, the trial court denied the motion. Reynolds was convicted of the charges, and he was sentenced to ten years' probation for possession of drug paraphernalia and to ten years' imprisonment for possession of marijuana with intent to deliver.

Reynolds now appeals his convictions, contending that the trial court erred 1) in failing to grant his motion to suppress, and 2) in allowing a witness for the State to testify about a statutory presumption regarding the possession of marijuana with intent to deliver. We find no error and affirm.

1. Whether the trial court erred in failing to grant his motion to suppress, based upon the unreliability of the informant.

Pat Mahoney, a criminal investigator with the Hot Spring County Sheriff's Office, prepared the affidavit in support of the search warrant for Reynolds's home. According to the affidavit, Mahoney and other law enforcement officers had been investigating a series of burglaries. The affidavit stated that "a suspect" who confessed to taking stolen property stated that he and another suspect took stolen goods to Reynolds's home. The affidavit also contained the suspect's statement that the two of them traded the goods to Reynolds for approximately a half pound of marijuana, and that the suspect observed two or three pounds of packed marijuana in the barn on Reynolds's property.

At the suppression hearing, Mahoney testified that he applied to Municipal Judge Chris Williams for a search warrant based upon information delivered through the Rockport Police Department, who had a burglary suspect in custody. Mahoney testified that Judge Williams requested that the informant's appearance before him be sworn, and that this was done. Mahoney also testified that he had never met the informant before, that the informant (identified at the hearing as Burton Latture) had described items stolen in the series of burglaries, that Mahoney believed that Latture's information was accurate because the prior execution of a search warrant at the residence of Gary Schurlock had resulted in recovery of some of the property described by the informant, and that Latture had said in his statement that he and Schurlock had taken stolen items to Reynolds's residence. Finally, Mahoneytestified that Latture verified the statements of the affidavit in sworn testimony before Judge Williams.

Reynolds argues on appeal that Mahoney, an experienced officer, was aware that the facts presented to the magistrate were not sufficient to establish probable cause to search. He points out that the magistrate took the sworn testimony of the informant without recording it, which violated the requirement of Ark. Rule Crim. P. 13.1. He concludes that Mahoney was aware of these deficiencies and that the search warrant cannot be saved by the good-faith exception to the exclusionary rule under United States v. Leon, 468 U. S. 897 (1984).

Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987), was a case in which the sworn oral testimony of an informant was recorded as required by Rule 13.1(c), but the State refused to disclose the testimony to the appellant because the prosecutor did not want to disclose the informant's name. The Jackson court, holding that the very purpose of the rule had been defeated, refused to consider the testimony; and it found that the written affidavit for a search warrant was deficient under Rule 13.1 because the State had not provided the issuing magistrate with particular facts bearing on the informant's reliability. The court then analyzed the good-faith exception to the exclusionary rule:

Leon holds that objective good faith reliance by a police officer on a facially valid search warrant will avoid the application of the exclusionary rule in the event the magistrate's assessment of probable cause is found to be in error. Under this rationale the exclusionary rule is designed to deter misconduct on the part of the police rather than to punish for errors on the part of magistrates, and admitting evidence seized pursuant to a defective warrant will not reduce incentives on the part of judicial officers to comply with the dictates of the Fourth Amendment.

291 Ark. 98, 100-01, 722 S.W.2d 831, 833. The search was upheld, because there was a written affidavit and the officer who had executed the warrant had acted in good faith. Id. In reviewing a trial judge's ruling on a motion to suppress, the appellate court makes an independent determination based on the totality of the circumstances and reverses only if the ruling is clearly against the preponderance of the evidence. Wray v. State, 69 Ark. App. 170, 11 S.W.3d 9 (2000). In cases where there is a written affidavit, the applicability of the good-faith exception is determined by reviewing the totality of the circumstances, which can include unrecorded oral testimony and consideration of evidence that was not before the issuing judge. Moya v. State, 335 Ark. 193, 201-02, 981 S.W.2d 521, 525-57 (1998).

In the present case, the informant's previously verified information regarding stolen items gave Officer Mahoney probable cause to suspect that stolen property and marijuana would be found at Reynolds's residence. Additionally, Judge Williams's issuance of the warrant after hearing the informant's sworn statement under oath is evidence that he deemed the informant reliable. Thus, Mahoney objectively and reasonably relied on the warrant issued by Judge Williams. Consistent with Jackson v. State, id., and Moya v. State, supra, we uphold the trial court's denial of Reynolds's motion to suppress based upon his objective good-faith reliance on Judge Williams's issuance of the search warrant.

2. Whether the trial court erred in allowing a witness for the State to testify about the statutory presumption under which possession of marijuana becomes a felony offense.

Officer Mahoney testified at trial regarding marijuana found at Reynolds's residencewhen the search warrant was executed. The following exchange occurred during this testimony:

Q. Are you aware of what the presumption limit is for marijuana? In other words, if you have less than a presumptive limit, you're charged with a misdemeanor. If you have more than a presumptive limit- 1

Defense Counsel: Objection, Your Honor, he's asking for a legal conclusion. The Court will give instructions to the jury on that.

The Court: He may testify if he knows, if he remembers.

Q. Do you know what the presumptive limit is?

A. One ounce.

Q. So, if you have more than one ounce, you can be charged with a felony?

A. Yes, sir.

Q. Less than one ounce, a misdemeanor, is [that] correct?

A. Correct.

Reynolds argues on appeal that the admission of this testimony violated his due process rights because it relieved the State of its burden of establishing intent to deliver, an element of the crime for which Reynolds was being tried. Reynolds did not, however, make this argument at trial, and we have often said that we will not consider arguments raised for the first time on appeal. Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000). Thus, wedo not address this point of appeal.

Affirmed.

Robbins and Vaught, JJ., agree.

1 Arkansas Code Annotated section 5-64-401(d) (Supp. 1999) creates the rebuttable presumption that a person who possesses more than an ounce of marijuana possesses the marijuana with intent to deliver.