Speed Alone Does Not Defeat Magistrate Neutrality; Multi-Day After-Hours Processing Is Not a Nighttime Search Under Rule 13.2(c)

Introduction

In Timothy Clevenger v. State of Arkansas, 2025 Ark. 128 (Sept. 11, 2025), the Arkansas Supreme Court affirmed a first-degree murder conviction arising from the brutal beating death of the defendant’s wife, Margaret. The appeal raised four principal issues: (1) sufficiency of the evidence; (2) suppression of evidence seized under a search warrant on grounds that the approving judge was not neutral and that officers conducted unauthorized nighttime searches; (3) admission of evidence relating to a potential murder weapon; and (4) admission of lay testimony and photographs about bloodstains and patterns at the scene.

The Court rejected the challenges on the merits or for lack of preservation. Importantly, the decision clarifies two recurring questions in criminal procedure:

How quickly a judge may approve a warrant without compromising neutrality and detachment; and
When after-hours forensic processing over multiple days becomes a “nighttime search” under Arkansas Rule of Criminal Procedure 13.2(c).

Summary of the Opinion

The Court affirmed on all grounds. Its core conclusions:

Sufficiency: The State presented substantial circumstantial evidence consistent with guilt and inconsistent with any other reasonable hypothesis, including defendant’s inconsistent statements and timeline, physical injuries, blood evidence and indicia of cleanup, motive evidence (marital strain, financial pressure, and a $250,000 life-insurance policy), and flight.
Warrant neutrality: A district judge’s two-minute turnaround on a warrant—given advance notice, a succinct, fact-rich application, and the judge’s experience—did not show abandonment of neutrality and detachment or a lack of a substantial basis for probable cause.
Rule 13.2(c) “nighttime searches”: No nighttime warrant issued and no nighttime search occurred. Each day’s execution began during authorized hours, and limited after-8 p.m. activity that continued as soon as feasible, while the scene was continuously secured, did not transgress Rule 13.2(c). Multi-day processing under continuous scene security remains a single, continuous search that does not become a “nighttime search” solely because some tasks extended after 8:00 p.m.
Duration-of-search challenge: Not preserved; the Court declined to reach the four-day duration argument.
Evidentiary rulings: Discovery objections to the “candlestick” theory and to Dr. Peretti’s testimony were not contemporaneously raised and thus unpreserved. The trial court did not abuse its discretion in permitting a crime-scene specialist’s lay testimony about “stains” and in admitting crime-scene photographs under Rule 403.

Analysis

Precedents Cited and How They Shaped the Decision

1) Neutral and Detached Magistrate; Probable Cause

United States v. Leon, 468 U.S. 897 (1984), and Johnson v. United States, 333 U.S. 10 (1948): A warrant must be issued by a neutral and detached magistrate; courts accord “great deference” to a judge’s probable cause determination (Leon). The Court invoked these bedrock principles to frame the neutrality inquiry.
Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001); Kelley v. State, 371 Ark. 599, 269 S.W.3d 326 (2007); State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980): Applications should be factual, not conclusory; the judge makes a practical, common-sense determination of probable cause.
Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004); George v. State, 358 Ark. 269, 189 S.W.3d 28 (2004): On totality of circumstances, the question is whether there is a fair chance evidence will be found; appellate review asks whether the magistrate had a substantial basis.
Florida v. Harris, 568 U.S. 237 (2013): Probable cause turns on a fair probability as reasonable people—not legal technicians—assess it. The Court uses this to explain that brevity of review does not negate a reasonable, common-sense determination.

These cases underpin the Court’s conclusion that the two-minute review did not, standing alone, show bias or rubber-stamping, especially where the judge had advance notice, a concrete, fact-dense application, and the scene and subject of the search (the home and curtilage) were patently linked to the reported homicide.

2) Nighttime Searches; Multi-Day Execution

Ark. R. Crim. P. 13.2(c): By default, warrants must be executed between 6:00 a.m. and 8:00 p.m., absent nighttime authorization tied to specified exigencies.
Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993); Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977): If a search begins before 8:00 p.m. and continues past that hour as soon as feasible, it does not violate the nighttime-search ban.
Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990): These decisions scrutinize issuance and execution of nighttime warrants and when violations are “substantial.” The Court distinguishes them because no nighttime warrant issued here and no search commenced after 8:00 p.m.
Moore v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968): A search can be treated as “single, continuous” when the scene is secured to prevent tampering. The Court uses Moore to characterize multi-day forensic work at a guarded scene as a continuing execution.
Livingston v. State, 2013 Ark. 264, 428 S.W.3d 474; State v. Tyson, 2012 Ark. 107, 388 S.W.3d 1: Both discuss execution timing with respect to the 8:00 p.m. deadline and the use of a nighttime clause.

Synthesizing these, the Court holds that each execution day started within authorized hours (11:21 a.m., 10:35 a.m., 9:35 a.m., and 9:34 a.m.). Limited after-8:00 p.m. activity on two days—while the scene was continuously secured—did not convert the execution into a prohibited nighttime search. This is a practical, continuity-based application of Rule 13.2(c) and Moore, with Brenk’s “begun-before-8 p.m.” principle extended to the realities of multi-day processing.

3) Sufficiency; Evidentiary Standards of Review

Parker v. State, 2025 Ark. 55, 709 S.W.3d 807; Oliger v. State, 2025 Ark. 8, 704 S.W.3d 305; Nelson v. State, 2024 Ark. 24, 683 S.W.3d 177: Circumstantial evidence can be sufficient if consistent with guilt and inconsistent with other reasonable conclusions; appellate courts view evidence most favorably to the State.
Smith v. State, 2025 Ark. 26, 708 S.W.3d 336: Flight can evidence consciousness of guilt.
Scarbrough v. State, 2024 Ark. 71, 687 S.W.3d 557; King v. State, 2019 Ark. 114, 571 S.W.3d 476; White v. State, 2024 Ark. 11, 682 S.W.3d 7: Suppression review considers the totality, defers to trial-level credibility calls, and reverses only if clearly against the preponderance or clearly erroneous on facts.

4) Evidentiary Rulings; Preservation; Blood Evidence Terminology

Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007): If confirmatory testing establishes human blood, evidence that a sample initially field-tested positive is admissible.
Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993): Concerned expert testimony about luminol; it restricts using presumptive luminol results as substantive proof absent confirmatory testing.
De la Garza v. State, 2025 Ark. 10, 704 S.W.3d 627; Bragg v. State, 2023 Ark. 66, 663 S.W.3d 375; Bishop v. State, 2023 Ark. 150, 675 S.W.3d 869: Evidentiary rulings are reviewed for manifest abuse of discretion; the threshold is high.
Harlan v. State, 2024 Ark. 69, 686 S.W.3d 810: A party’s violation of an evidentiary order does not itself equate to judicial abuse of discretion.
Haynie v. State, 2025 Ark. 46, 709 S.W.3d 46; Cone v. State, 2022 Ark. 201, 654 S.W.3d 648; Williams v. State, 2017 Ark. 287, 528 S.W.3d 839: Photographs are admissible if probative to explain testimony, depict the scene, or corroborate the theory of the case; Rule 403 exclusion applies only if prejudice substantially outweighs probative value.
Kellensworth v. State, 2021 Ark. 5, 614 S.W.3d 804; Scarbrough, supra; Mann v. Pierce, 2016 Ark. 418, 505 S.W.3d 150: Issues, even constitutional, must be raised at the first opportunity; undeveloped arguments without authority are not considered.

Legal Reasoning and Application

A. Sufficiency of the Evidence

Applying the familiar substantial evidence standard, the Court cataloged powerful circumstantial proof:

Margaret’s injuries were consistent with a violent, blunt-force assault; she had defensive wounds and skull fractures.
Defendant’s knuckle and hand injuries were consistent with repeated striking.
Blood was present throughout the home, with indicia of attempted cleanup (sink, light switch, hand towels, washing machine).
Defendant’s statements were contradicted by time-stamped gym footage and a neighbor’s camera (arrival at 7:22 a.m. rather than 7:00, different shirt, circuitous route), and by the absence of bloody pawprints despite his claim he let the dog out.
Motive evidence included a deteriorating marriage, acute financial pressures, and his sole-beneficiary status on a $250,000 life insurance policy.
Flight to avoid arrest was probative of guilt.

The jury was entitled to draw inferences connecting the injuries, the physical evidence, and the defendant’s conduct. No error in denying the directed verdict motion.

B. Motion to Suppress

1) Neutral and Detached Magistrate

The defense argued that an approximately two-minute approval showed the judge was not neutral. The Court rejected the premise that speed equals rubber-stamping. Under Leon, Johnson, and Arkansas precedents, the inquiry is whether the issuing judge had a substantial basis on a practical, common-sense reading of a factual affidavit. Here, the application:

Described the 911 call, the discovery of Margaret, and the officers’ observations of extensive blood and absence of forced entry.
Linked the premises directly to the homicide.
Noted discrepancies in the defendant’s statements as the investigation began.

With advance notice and a straightforward, fact-laden affidavit, a brief turnaround did not signal bias or abdication. The approving judge acted within the expected “fair probability” determination that guides reasonable people, not legal technicians (Harris). No suppression was warranted on neutrality grounds.

2) Alleged Unauthorized Nighttime Searches (Rule 13.2(c))

Rule 13.2(c) requires execution between 6:00 a.m. and 8:00 p.m. absent a nighttime clause. The defense argued some work occurred after 8:00 p.m. The Court clarified two points:

Commencement controls: No nighttime warrant issued, and each day’s search commenced during authorized hours (11:21 a.m., 10:35 a.m., 9:35 a.m., 9:34 a.m.). Under Brenk and Brothers, continuation past 8:00 p.m.—if begun earlier and concluded as soon as feasible—does not become a prohibited nighttime search.
Continuity and scene security: Relying on Moore, the Court deemed the multi-day processing a single, continuous search because the scene was guarded between sessions. The aggregate after-8:00 p.m. work (roughly 4 hours and 19 minutes across two days) did not convert the execution into a nighttime search.

Notably, the Court resolved the issue on “no violation occurred” grounds; it did not need to reach the State’s alternative positions (technical irregularity under Rule 16.2(e) or inevitable discovery) that the circuit court had referenced.

3) Duration of the Search

The defense’s new appellate claim that a four-day search was per se unreasonable was not preserved. A passing comment about a “four-day free-for-all” did not fairly present a duration-of-execution challenge below; the Court therefore declined to address it.

C. Admissibility of Evidence and Witness Testimony

1) Discovery and Expert Testimony about the Potential Weapon

Objections to the “candlestick” theory and to Dr. Peretti’s hypothetical-based expert testimony were raised the following day, not contemporaneously. Arkansas law requires objections at the first opportunity to preserve issues, even constitutional ones (Scarbrough; Kellensworth). Earlier generalized discovery motions did not substitute for a timely objection when the evidence was offered (Mann). The trial court’s rulings stand.

2) Crime-Scene Specialist’s Lay Terminology and Photographs

Before trial, the court granted a defense motion in limine, restricting references to non-confirmed “blood” to the neutral term “stain” and disallowing terms like “possible blood” or “splatter.” At trial, the State’s crime-scene specialist, a lay witness, described “stains” and apparent transfer/spatter patterns on surfaces and clothing. The Supreme Court emphasized:

Brenk governs expert luminol testimony and is inapplicable where the State did not offer luminol results through an expert.
Dunn clarifies that once confirmatory testing establishes human blood, the jury may hear that stains had initially field-tested positive; the Court noted confirmatory testing occurred here.
The trial court exercised caution—more than precedent demanded—in shaping the terminology and repeatedly conferred to balance probative value and prejudice. Such deliberation is the opposite of “improvident” decision-making (De la Garza; Harlan).

As for photographs, the Court held they were neither needlessly cumulative nor unfairly prejudicial relative to their probative value under Rule 403. They helped the jury understand the scene and testimony (Haynie; Cone; Williams). No abuse of discretion was shown.

Impact and Practice Implications

1) Warrant Applications and Judicial Review

Speed is not suspect per se: A rapid approval—here, two minutes—does not by itself demonstrate a lack of neutrality. What matters is the affidavit’s factual content, the judge’s independence, and the practical common-sense basis for probable cause.
Practical guidance: Investigators should give advance notice when possible and present concise, fact-rich affidavits that clearly connect the place to be searched with the suspected crime. Courts can rely on experience and the plain logic of the circumstances without ritualistic delay.

2) Rule 13.2(c) and Multi-Day Crime-Scene Processing

Commence within authorized hours: Begin each day’s execution between 6:00 a.m. and 8:00 p.m.; continuation after 8:00 p.m. “as soon thereafter as feasible” does not constitute a prohibited nighttime search.
Maintain continuous security: Guarding the scene between sessions preserves continuity (Moore). Document start/stop times and scene security to demonstrate compliance and continuity.
Nighttime clauses still matter: If a search will begin after 8:00 p.m., secure a nighttime authorization as cases like Tyson and Richardson highlight. This decision does not green-light starting after-hours without the clause.

3) Preservation and Trial Management

Object at the first opportunity: Discovery and evidentiary challenges must be contemporaneous. General pretrial motions do not preserve a specific objection at trial to particular testimony or exhibits.
Blood evidence terminology: Brenk limits expert luminol testimony absent confirmatory testing; Dunn permits linking presumptive tests to confirmed blood. Trial courts retain broad discretion to cabin terminology (e.g., “stain”) to prevent undue prejudice.
Photographs: Even graphic images are admissible when probative; suppression under Rule 403 requires prejudice that substantially outweighs probative value. Curate sets to avoid cumulative excess, but courts regularly permit comprehensive scene documentation.

4) Prosecutorial and Defense Strategy

For the State: Anchor warrant applications in specific, observed facts; log execution start times daily; maintain scene security; disclose crime-scene photographs early. When confirmatory blood testing exists, Dunn enables presentation of the evidentiary pathway from presumptive to confirmed results.
For the Defense: Anticipate and timely challenge execution-timing issues; develop a record if duration is at issue; request clear rulings on in limine motions and be ready to object if the line is crossed. Preservation is crucial—appeals falter without it.

Complex Concepts Simplified

Substantial evidence: Enough proof that a reasonable person can be convinced beyond speculation; circumstantial evidence can suffice if it points to guilt and not to a reasonable alternative.
Neutral and detached magistrate: A judge who independently evaluates a factual affidavit for probable cause; not a mere rubber stamp for law enforcement. Speed alone does not negate neutrality.
Probable cause: A fair probability, based on facts, that evidence of a crime will be found at a particular place. It’s a practical, common-sense standard.
Nighttime search (Rule 13.2(c)): By default, warrants are executed 6:00 a.m.–8:00 p.m. If a search starts before 8:00 p.m. and continues reasonably thereafter, it’s not a “nighttime search.” Multi-day execution remains continuous when the scene is secured and each day begins within authorized hours.
Preservation/Contemporaneous objection: To appeal an evidentiary or procedural issue, the party must object when the issue arises at trial; raising it later or for the first time on appeal generally forfeits the claim.
Rule 403 balancing: Courts exclude relevant evidence only when its unfair prejudice substantially outweighs its probative value. Photographs often pass this test if they help the jury understand the scene or injuries.
Presumptive vs. confirmatory testing: Presumptive tests (e.g., field tests, luminol) suggest but do not prove blood; confirmatory tests verify human blood. Brenk cautions against relying on presumptive luminol alone; Dunn allows linking presumptive indications to confirmed results.

Conclusion

Clevenger reinforces two pragmatic rules of Arkansas criminal procedure. First, a judge’s rapid approval of a search warrant does not by itself impugn neutrality when the affidavit is factual and persuasive and the judge acts independently. Second, multi-day, after-hours forensic processing at a homicide scene is not a forbidden “nighttime search” under Rule 13.2(c) where each day’s execution begins within authorized hours and the scene is continuously secured; limited post-8:00 p.m. activity is permissible as a continuation.

On the merits, the Court found ample circumstantial evidence of guilt—defendant’s inconsistent timeline and route, injuries, blood evidence and attempted cleanup, marital and financial motives, and flight. Procedurally, the Court’s preservation rulings are a reminder that objections must be timely and specific; generalized motions do not salvage untimely challenges to evidence or testimony.

Taken together, the decision provides clear guidance to law enforcement on warrant practice and scene processing, underscores strict preservation requirements for litigants, and harmonizes Arkansas’s nighttime-search jurisprudence with the realities of complex, multi-day forensic work at secured crime scenes.

Rule 4-3(a) Review

Given the life sentence, the Court conducted the mandatory Rule 4-3(a) review of all adverse rulings and found no prejudicial error. The conviction and life sentence were affirmed in full.