A circuit judge said he needs more time to determine whether evidence gathered in a case against a Conway man accused of unlawful dog fighting should be excluded.
Carl Johnson, 37, was 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 following a January 2017 incident where authorities confiscated eight pit bulls from a residence at 1710 Donaghey Avenue.
Circuit Judge Charles "Ed" Clawson Jr. said he would make a ruling as to whether statements Johnson made during questioning and other physical evidence found on scene during his arrest would be suppressed from evidence "on or before" Johnson's upcoming June pretrial.
Jimmy Morris Jr., who represents Johnson, initially filed a motion requesting the evidence be suppressed in April 2017. A suppression hearing was held Monday morning in Faulkner County Circuit Court.
Conway Police Department narcotics investigators Todd Wesbecher and Andrew Burningham testified during Monday's hearing.
Morris questioned Wesbecher about the search warrant that was used to gain entrance into Johnson's Donaghey Avenue residence on Jan. 4, 2017.
Wesbecher said investigators 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, 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.
Deputy Prosecuting Attorney Megan Carter argued in favor of using evidence collected from Johnson's residence during his jury trial.
"Illegal substances were found though this search warrant that gave these officers probable cause," she said, adding the Batman baggie reference was included in the affidavit for the search warrant so that officers could learn the context of this particular baggie and whether it was used by a specific drug dealer.
According to court documents, CPD investigators and the SWAT team were executing a search warrant of the Donghey 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.”
After SWAT members secured the residence Jan. 4 so investigators could carry out their search warrant, several contraband items were found in the master bedroom, including methamphetamine, a polymer Norinco SKS rifle and a magazine that matched the gun containing 24 live rounds.
Investigators found a second rifle loaded with three rounds under the bed. Seven additional rounds were found on the side saddle, the affidavit states. According to court documents, Carl and Sheree Johnson stayed in the master bedroom.
Investigators found the eight pit bulls in the backyard during the search of the residence.
The Conway Animal Control Unit responded to and searched the area.
“Inside the garage they recognized numerous items, which in their training and experience are used for preparing a dog for fighting other dogs (K9 medical supplies, spring pole with animal hide attached, two scales, replacement hides for spring pole, [and two] dog treadmills),” the affidavit reads.
The dogs were taken to a veterinarian, who reported one of the dogs “had injuries that appeared to be from a recent fight.”
After hearing the narcotics investigators testimony as well as arguments given by prosecutors and the defense council, Judge Clawson said he needs more time to consider the matter.
"I will have a decision on or before June 5," he said Monday.