Prosecutors are asking that a circuit judge who ruled in favor of throwing out evidence of a local dog-fighting and drug case are asking him to reconsider his decision.
Two weeks ago, Faulkner County prosecutors were ordered to drop evidence collected against a Conway man accused in an unlawful dog-fighting case because the defendant's Constitutional rights were violated as officers conducted a search warrant of his residence to collect evidence against him.
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.
Deputy Prosecuting Attorney Megan Carter said she believes the evidence collected as authorities conducted the 2017 search warrant should be permissible as evidence during trial and has since requested Circuit Judge Charles "Ed" Clawson reconsider his decision.
"Evidence obtained in violation of the Fourth Amendment need not be excluded, as a matter of law, when officers act in objectively reasonable reliance on a search warrant issued by a neutral and detached magistrate," Carter's motion for reconsideration reads in part. "The exclusionary rule is intended to deter police misconduct, not to punish law enforcement when they rely in good faith on a search warrant that is later found to have been issued in error ... Law enforcement should not be punished by the errors of judges in the issuance of a search warrant when law enforcement relies upon that search warrant in good faith."
During a motion hearing held in March, the defense counsel and Carter argued whether the evidence collected in a Jan. 4, 2017, search warrant should be used as evidence against Johnson.
Jimmy Morris Jr., who represents Johnson, questioned the affidavit used to obtain the search warrant and had asked during the motion hearing held earlier this year if any other information, besides what was included in the affidavit, was relayed to the judge who signed off on allowing officers to search Johnson's home regarding the case they were building.
Both narcotics investigators who testified — Officer Todd Wesbecher and Sgt. Andrew Burningham — denied passing off any other information to the judge who gave them permission to search the Donaghey Avenue residence.
During the March motion hearing, Wesbecher testified the police department had received a tip that a man known as "Cocaine Wayne" was allegedly selling drugs out of the residence in question, which is located in the 1700 block of Donaghey Avenue. Wesbecher also said narcotics investigators searched the contents of the trash can outside of the residence, and found what they believed to be marijuana residue. The Arkansas State Crime Lab confirmed the residue was, in fact, marijuana.
Morris then questioned Wesbecher about the reliability of his source after learning Wesbecher had previously arrested the man who gave CPD the tip about narcotics being sold out of the residence.
"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 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.”
Carter argues that the investigators who collected evidence that led to several charges being filed against Johnson should not be punished for carrying out the search warrant since a Faulkner County judge signed off on allowing them to search the residence.
"In this case, Officer Wesbecher testified, and the Court agreed in its ruling, that no other information was provided to the Magistrate at the time the search warrant was executed than what appeared in the affidavit," the argument reads in part. "Despite the Court's finding that the warrant in this case was insufficient as a matter of law, the State would respectfully request the search warrant still be upheld as the officers executed the search warrant in good faith and with a magistrate's approval."
Clawson, who previously said the probable cause affidavit used to back up the search warrant did not provide enough information or validate searching Johnson's residence on the day in question, had not yet responded to Carter's request by press time Wednesday.