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                SUPREME COURT OF ARKANSAS
                                       No.   CR-15-174

JAMES JOHNSON III                                Opinion Delivered   October 29, 2015
                              APPELLANT
                                                 APPEAL FROM THE PULASKI
V.                                               COUNTY CIRCUIT COURT
                                                 [NO. 60CR-12-2989]

STATE OF ARKANSAS                                HONORABLE BARRY A. SIMS,
                                APPELLEE         JUDGE

                                                 AFFIRMED.


                           KAREN R. BAKER, Associate Justice


       On August 6, 2014, a Pulaski County Circuit Court jury convicted appellant, James

Johnson III, of capital murder and sentenced Johnson to life imprisonment without the

possibility of parole.1 This timely appeal followed. This court has jurisdiction pursuant to

Ark. Sup. Ct. R. 1-2(a)(2) (2015).

       Johnson’s appeal arises from the death of Charles Gaskins during the course of an

aggravated robbery in Little Rock on July 30, 2012. Because Johnson does not challenge the

sufficiency of the evidence, only a brief statement of the facts is necessary. The record

demonstrates that around midnight on July 30, 2012, Nikelle Girndt and her fiancé, Gaskins,

were sitting on the front porch of their trailer in southwest Little Rock off Baseline Road

when two masked gunmen jumped onto the porch. Girndt testified that she thought it was


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       At the conclusion of the trial, count two, possession of firearms by certain persons,
Ark. Code Ann. § 5-73-103(c)(1)(B) (Repl. 2005), was still pending.
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a prank until one of the masked men said “[T]his is a robbery.” Girndt further testified that

one of the men raised the gun to her chest; Gaskins intervened and attacked one of the men

to free Girndt from the gun’s path as Gaskins remained outside on the porch. Girndt testified

that she then ran inside the home and attempted to lock the door and struggled with one of

the men as he tried to shove his way in the door. Girndt testified that she awoke Gaskins’s

son-in-law, Stephon Gillersen, and called 911. Finally, Girndt testified that, through the

window, she saw Gaskins lying on his stomach on the porch, but Gillersen would not let her

open the door until officers arrived for fear that the men remained outside.

       Later that same day, Johnson and Donte Davis were developed as suspects in the

homicide, stopped pursuant to a traffic stop, and arrested and charged with capital murder.

Upon his arrest, Johnson had a cell phone on his person that was seized. Pursuant to a search

warrant, over his objection, the phone contents were searched, and incriminating evidence

was found on the phone. Specifically, the search revealed the following text message on

Johnson’s phone: “So ima go my own route if they ketch me on this here charge im gone fa

life.” The search also revealed that Johnson’s phone had accessed a news article regarding the

homicide entitled “Witness says fiancé fought masked man on porch, died.” Johnson was

tried and convicted as discussed above, and this appeal followed.

       Johnson raises one point on appeal: the circuit court erred in denying Johnson’s

motion to suppress evidence obtained from his cell phone records.

                                     I. Points on Appeal

       For his sole point on appeal, Johnson contends that the circuit court erred in denying


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Johnson’s motion to suppress evidence obtained from his cell phone. Johnson contends that

the search-warrant affidavit was deficient and that the good faith exception is inapplicable

because the affidavit was “bare bones.”

       “In reviewing a circuit court’s denial of a motion to suppress evidence, we conduct a

de novo review based on the totality of the circumstances, reviewing findings of historical

facts for clear error and determining whether those facts give rise to reasonable suspicion or

probable cause, giving due weight to inferences drawn by the circuit court and proper

deference to the circuit court’s findings. E.g., Menne v. State, 2012 Ark. 37, 386 S.W.3d 451.

A finding is clearly erroneous, even if there is evidence to support it, when the appellate

court, after review of the entire evidence, is left with the definite and firm conviction that a

mistake has been made. E.g., Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. We defer to the

superiority of the circuit court to evaluate the credibility of witnesses who testify at a

suppression hearing. E.g., Cockrell v. State, 2010 Ark. 258, 370 S.W.3d 197. We reverse only

if the circuit court’s ruling is clearly against the preponderance of the evidence. Ritter v. State,

2011 Ark. 427, 385 S.W.3d 740.” Jackson v. State, 2013 Ark. 201, 5–6, 427 S.W.3d 607,

611–12.

       Turning to Johnson’s argument on appeal, he asserts that the circuit court erred in

denying his motion to suppress the search warrant that resulted in the search of the contents

of his cell phone. Prior to trial, Johnson filed a motion to suppress and orally made a motion

to suppress. At the pretrial hearing, Johnson contended, as he does on appeal, that the circuit

court erred in denying the motion to suppress because the affidavit in support of the search


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warrant does not provide a nexus between the phone and the homicide. The State responds

that the application for the search warrant provided detailed information regarding the

connection between the phone and Gaskins’s homicide and urges us to affirm the circuit

court.

         Our law regarding search warrants, pursuant to Rule 13.1, of the Arkansas Rules of

Criminal Procedure (2014), subsection (b) provides as follows:

         The application for a search warrant shall describe with particularity the persons or
         places to be searched and the persons or things to be seized, and shall be supported by
         one (1) or more affidavits or recorded testimony under oath before a judicial officer
         particularly setting forth the facts and circumstances tending to show that such persons
         or things are in the places, or the things are in possession of the person, to be searched.
         If an affidavit or testimony is based in whole or in part on hearsay, the affiant or
         witness shall set forth particular facts bearing on the informant’s reliability and shall
         disclose, as far as practicable, the means by which the information was obtained. An
         affidavit or testimony is sufficient if it describes circumstances establishing reasonable
         cause to believe that things subject to seizure will be found in a particular place. Failure
         of the affidavit or testimony to establish the veracity and bases of knowledge of persons
         providing information to the affiant shall not require that the application be denied,
         if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding
         of reasonable cause to believe that things subject to seizure will be found in a particular
         place.

         Accordingly, “probable or reasonable cause to believe the things subject to seizure will

be found in the particular place identified is required, and this must be established by affidavit

or recorded testimony.” Yancey v. State, 345 Ark. 103, 110, 44 S.W.3d 315, 319 (2001)

(internal citations omitted).

         In determining the adequacy of the affidavit, “the task of the issuing magistrate is to

make a practical, common sense decision whether, given all the circumstances set forth in the

affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying the


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hearsay information, there is a fair probability that contraband or evidence of a crime will be

found in a particular place.” Coggin v. State, 356 Ark. 424, 437–38, 156 S.W.3d 712, 720

(2004) (quoting State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999)). The duty of this court

is to simply ensure that the magistrate had a substantial basis for concluding probable cause

existed. Id. “Our review of probable cause for the issuance of a warrant is confined to the

information contained in the affidavit as that was the only information before the magistrate

when he issued the warrant. George v. State, 358 Ark. 269, 189 S.W.3d 28 (2004).” Wagner

v. State, 2010 Ark. 389, 7, 368 S.W.3d 914, 921 (2010).

       Here, the record demonstrates that, on August 1, 2012, the phone was seized and held

in custody for almost two years.2 On June 30, 2014, a search warrant for the phone’s contents

was issued, and the warrant was returned to district court on July 14, 2014. Detective Kevin

Simpson’s affidavit in this case reveals the following facts relevant to probable cause:

       •      On July 30, 2012, at approximately 12:31 a.m., a shooting and homicide
              occurred at 9500 South Heights #203.
       •      LRPD officers responded to the scene, determined Gaskins to be deceased, and
              initiated an investigation.
       •      On July 30, 2012, LRPD homicide detectives received information identifying
              Johnson and Davis as suspects in the homicide.
       •      On July 30, 2012, LRPD located Johnson and Davis, the two men were
              detained in a traffic stop, arrested and taken into custody.
       •      On July 30, 2012, during Johnson’s arrest for capital murder, a black Cricket
              ZTE phone in a red case with a black rubber cover was located on Johnson.
              Detective Simpson believes that said phone contains possible evidence
              regarding the Gaskins homicide at 9500 South Heights #203. The phone was
              seized and stored in evidence.


       2
        At the pretrial hearing, Johnson’s attorney explained that after the cell phone was
seized, on April 29, 2014, Riley v. California, 134 S. Ct. 2473, 2477 (2014), was announced
and held that a search warrant was required to search a cell phone’s contents.

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       •       On July 30, 2012, Davis and Johnson were transported to LRPD for further
               investigation.
       •       Once at the LRPD homicide office, Davis was advised and waived his Miranda
               rights and gave a taped statement implicating himself and Johnson in the
               Gaskins homicide.

       Here, Johnson contends that the affidavit was deficient and the circuit court erred

because “the affidavit does not provide any nexus between the phone and the homicide . . .

. There are no facts included in the warrant to justify any reasonable belief that the phone

contains evidence of the murder of Charles Gaskins.” We disagree. The record demonstrates

that Detective Simpson’s affidavit creates a nexus between the homicide and the phone.

       First, the affidavit established that the victim had been shot and that two men were

identified as suspects in the homicide. The affidavit also established that Johnson was one of

the two suspects. Second, upon arrest for capital murder, approximately twenty-hours after

the homicide, the phone was found on Johnson and seized and secured. Third, the affidavit

established that after Johnson and Davis were arrested, during questioning at the police station,

Davis implicated himself and Johnson in the homicide.

       Here, because Johnson was working with at least one other person when the homicide

was committed, it is reasonable to infer that the cell phone that was in his possession was used

to communicate with others regarding the shootings before, during, or after they occurred.

Further, because the confidential informant relayed information about Johnson’s involvement

in the homicide to Detective Simpson on the same day that the homicide occurred, it is

reasonable to infer that the cell phone in Johnson’s possession at the time of his arrest was used

to communicate with some third party regarding his involvement in the homicide. See, e.g.,


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United States v. Gholston, 993 F. Supp. 2d 704, 719 (E.D. Mich. 2014) (where codefendants

were charged with robbery, the court denied codefendant Gholston’s motion to suppress a

search warrant of the data on his cell phone and explained that a search of a cell phone was

likely to reveal evidence of communication of criminal activity involving multiple

participants.).

         Based on these facts, it is reasonable to conclude that the phone may have been used

as a communication device regarding the homicide. Accordingly, the record demonstrates

that there was a nexus between the homicide and the phone. Further, the warrant is clear that

the facts asserted in Detective Simpson’s affidavit were the basis for the magistrate’s finding

of probable cause that evidence related to the Gaskins homicide would be located on the cell

phone at issue.

         Based on the facts of this case, we are satisfied that there was adequate probable cause

to issue the search warrant and that the resulting search was proper. Therefore, we find no

error in the circuit court’s denial of Johnson’s motion to suppress, and we affirm the circuit

court.

         This case involves a sentence of life imprisonment without parole; therefore, it is

subject to review under Arkansas Supreme Court Rule 4-3(i) (2015). As required under

Ark. Sup. Ct. R. 4-3(i), the record has been examined for all objections, motions, and

requests made by either party that were decided adversely to Johnson, and no prejudicial

error has been found.

         Affirmed.

         James Law Firm, by: Lee D. Short, for appellant.

         Leslie Rutledge, Att’y Gen., by: Ashley Driver Younger, Ass’t Att’y Gen., for appellee.


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