Burroughs v. State

241 S.W.3d 280, 96 Ark. App. 289, 2006 Ark. App. LEXIS 880

• Court: Court of Appeals of Arkansas
• Decided: October 11, 2006
• Docket: CA CR 05-1169
• Status: Published

Opinions

David M. Glover, Judge.

Appellant, Jason Wayne Burroughs, was tried by a jury for the offense of manufacturing methamphetamine. He was tried as a habitual offender, fpund guilty, and sentenced to twenty years in the Arkansas Department of Correction. As his sole point of appeal, he contends that the trial court erred in denying his motion to suppress the evidence that was seized from his house because “the officers that furnished the information leading to the issuance of the search warrant were in his home illegally.” We attempted to certify this case to our supreme court but certification was denied. We find merit in appellant’s argument and reverse and remand this case to the trial court for proceedings consistent with this opinion.

The Suppression Hearing

At the suppression hearing, Lieutenant Allen Story, a Hot Springs police officer, testified that on September 9, 2004, he was assisting Arkadelphia police officers who held warrants for a burglary suspect. He said that they went to the residence located at 247 Glade Street in Hot Springs, which was appellant’s residence, and knocked on the door. He related that a female answered the door, that he explained that they had a warrant for the arrest of some individuals, and that he asked for her identification. He said that she informed him her name was Alice Ashmore, and he again asked her for identification. He testified that she then said, “Come in, I’ll get it out of my purse.” He said that he went in, along with Detective Chapmond; that the female went to her purse, got her identification, and gave it to him; that he ran it through ACIC and NCIC; and that it showed there was an outstanding warrant for her through another agency. He stated that he asked her if there was anyone else in the house, and she said there was not.

On cross-examination, he explained that there was a total of five or six officers who approached the house, that all were armed, and that only he was in uniform. He denied hearing a dog barking. He could not recall whether Ashmore was arrested or not. He explained that when he first entered the residence, he watched Ashmore go and get her identification. He said that he did not see any contraband in the room, but that he was not looking. He acknowledged that no one ever told Ashmore that she had the right to refuse entry to the officers. He said that he believed the other officers entered the rooms off the living room, that noises were heard, and that one of the officers said he observed what he thought were the makings of a meth lab. Story said that the officers reported hearing a noise and could not see into the rooms, so he assumed the doors off the living room were closed. On re-direct, Story stated that he did not enter the house to search and that he did not ask for consent to search. On re-cross, he stated that he entered the house because Ashmore invited him in as she was getting her identification and that the purpose of asking for her identification was to find out if she was who she said she was and whether she was related to the individuals for whom they were looking. He acknowledged that they were looking for evidence of her identity, but stated that he did not consider going into the house as looking for evidence.

Detective Chris Chapmond of the Hot Springs Police Department testified that he and Story and at least one other officer went onto the porch of the residence located at 247 Glade Street; that a couple of other officers went around to the side of the house; that Story made contact with a female, identified himself, and explained to her that they were looking for an individual wanted for questioning regarding a burglary or burglaries in Arkadelphia; and that she gave them a name and invited them inside to get her identification. He stated that Story stepped in and went to the right, where the woman’s purse was on the couch. Chapmond said that he looked toward the kitchen and saw what he believed to be bottled acid, iodine salt crystals, and a gas generator (hydrogen peroxide). He also stated that there was a strong odor in the room. He stated that he recognized the odor from his experience working with narcotics. He testified that he and Detective Stringer heard some sounds in the back bedroom; that they asked if anyone else was in the house; that the female, Ms. Ashmore, said no; and that for officer’s safety, they checked both the bedroom and the bathroom. He stated that they found a Mrs. Cotten in the bathtub; that she also had outstanding warrants for her arrest; that there was an active meth lab in the back corner of the bedroom; that the house was secured; that the drug task force was notified; and that Rick Norris secured a search warrant for the premises. He stated that he then left with the Arkadelphia officers.

On cross-examination, Chapmond testified that he did not recall hearing a dog barking; that there could have been a dog, but that he did not recall one; and that if there were a dog, he would have had him secured for officer’s safety. He acknowledged that he did not hear Story advise Ms. Ashmore that she had the right to refuse entry to the officers. He said that on the table in the kitchen, there was camp fuel, Liquid Fire, which is a drain cleaner, and some iodine salt crystals. He testified that he also saw a bottle of hydrogen peroxide, and that those items, plus the smell, led him to believe that they were being used to produce methamphetamine. He stated that there were six officers inside the house prior to the time that they searched the back of the residence. He said that he, Story, Stringer, and three Arkadelphia police officers went into the living room because Ms. Ashmore told Story to come in and that she would get her identification. He acknowledged that it did not take six people to see an identification.

Sergeant Rick Norris of the Hot Springs Police Department testified that he was assigned to the 18th District Drug Task Force as coordinator. He said that on September 9, 2004, he was called to the house at 247 Glade Street in Hot Springs by other officers. He stated that he went to the house, that he looked in through the front door and saw several items, that they secured the residence, and that he went back to get a search warrant. On cross, Norris stated that he based his affidavit on information that he received from the officers who had gone inside the house; if it had not been for their entry, his attention would not have been drawn to that house on that particular day.

For the defense, Allison Ashmore testified that she was at 247 Glade Street on September 9, 2004; that she was asleep on the couch and her dog started barking; and that she got up and heard the police knocking on the door. She said that she went to the door and that they told her they were the police. She stated that she opened the door about a hand length; that the officers told her they were looking for a girl with purple hair; that they told her to put the dog up before she opened the door; that she put the dog in the bedroom; that she opened the door about eight inches wide and saw two officers; that one officer was in uniform and she talked with him; that she told him there was no girl with purple hair there; and that they did not mention anything about burglary suspects or tell her that they had a warrant for anyone. She stated that her hair was blonde with brown roots.

Ms. Ashmore testified that the officers asked if they could come in and look around to see if she was telling the truth. She said that she told them it was not her house, that she had only been staying there for a couple of days, and that she was eight months pregnant. She testified that she told them they could look right there in the living room and kitchen. She stated that they did not tell her she had the right to refuse to let them in the house and that they did not ask her to sign a consent-to-search form. She stated that when they came in, the officer in uniform stood there talking to her while at least three more officers came in behind him and proceeded to go into the kitchen. She said that she told them not to do that but they did anyway. She explained that there were two other rooms and a closet in the house and that all the doors to those rooms were closed; that she had put the dog in the bedroom; that they asked her if anyone else was there and she told them no because she did not know that her mother had come home; that they started yelling, “somebody’s in here,” and slung the bathroom door open with their guns drawn; that her mother was in the bathroom taking a bath; that they let her mother get dressed and had her mother put the dog out; that they then proceeded to go through the rest of the house; that they did not have a search warrant at that time; and that they were opening cabinets and drawers. She stated that they told her to pack a bag; that they “sent her down the road”; and that they took her mother to jail. Ms. Ashmore stated that she was not arrested or issued a citation.

The trial court took the matter under advisement, and in a letter opinion dated April 18, 2005, denied appellant’s motion to suppress, specifically finding “that the officer’s entry into the residence was by spontaneous invitation and not in response to request for consent, so that the provisions of State vs. Brown do not apply.” Appellant was then subsequently tried by a jury and found guilty. In this appeal, he challenges the trial court’s denial of his motion to suppress.

Standard of Revie-w

In reviewing a trial 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 fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Swan v. State, 94 Ark. App. 115, 226 S.W.3d 6 (2006). We defer to the credibility determinations made by the trial judge when weighing and resolving facts and circumstances. Id.

Stated another way, our standard of review for a trial court’s action granting or denying motions to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the trial judge. Breshears v. State, 94 Ark. App. 192, 228 S.W.3d 508 (2006). We give considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts and defer to the superior position of the trial judge to pass upon the credibility of witnesses. Id. Illegal entry by law enforcement officers into the homes of citizens is the “chief evil” the Fourth Amendment is intended to protect against and therefore is of the highest degree of seriousness. Id. It is settled law in this state that warrantless entry into a private residence is presumptively unreasonable under the Fourth Amendment. Id. Nonetheless, that presumption may be overcome if the police officer obtained consent to conduct a warrantless search. Id. As the United States Supreme Court has explained, a firm line has been drawn by the Fourth Amendment at the entrance to the house. Id. (Citing Payton v. New York, 445 U.S. 573 (1980)).

State v. Brown

In State v. Brown, 356 Ark. 460, 474, 156 S.W.3d 722, 732 (2004), which involved a “knock and talk” situation, our supreme court held:

We hold that the failure of the Drug Task Force agents in this case to advise Jaye Brown that she had the right to refuse consent to the search violated her right and the right of Michael Williams against warrandess intrusions into the home, as guaranteed by Article 2, § 15, of the Arkansas Constitution. We affirm the suppression of all evidence seized in this case that flowed from this unconstitutional search. While we do not hold that the Arkansas Constitution requires execution of a written consent form which contains a statement that the home dweller has the right to refuse consent, this undoubtedly would be the better practice for law enforcement to follow.

Following the supreme court’s decision in Brown, Rule 11.1(c) of the Arkansas Rules of Criminal Procedure was amended to provide:

(c) A search of a dwelling based on consent shall not be valid under this rule unless the person giving the consent was advised of the right to refuse consent. For purposes of this subsection, a “dwelling” means a building or other structure where any person lives or which is customarily used for overnight accommodation of persons. Each unit of a structure divided into separately occupied units is itself a dwelling.

(Emphasis added.) In Stone v. State, 348 Ark. App. 661, 669, 74 S.W.3d 591, 595-96 (2002), our supreme court explained:

A warrantless entry into a private home is presumptively unreasonable under the Fourth Amendment. However, the presumption of unreasonableness may be overcome if the law-enforcement officer obtained the consent of the homeowner to conduct a warrantless search.

(Citations omitted.) Arkansas Rule of Criminal Procedure 10.1 (2005), defines search as

any intrusion other than an arrest, by an officer . . . upon an individual’s person, property, or privacy, for the purpose of seizing individuals or things or obtaining information by inspection or surveillance, if such intmsion, in the absence of legal authority or sufficient consent, would be a civil wrong, criminal offense, or violation of the individual’s rights under the Constitution of the United States or this state.

Further, a search occurs whenever something not previously in plain view becomes exposed to an investigating officer. McDonald v. State, 354 Ark. 216, 119 S.W.3d 41 (2003).

Flere, the basis relied upon by the trial court in denying appellant’s motion to suppress was its specific finding that the officer’s entry into the home was by “spontaneous invitation” and not in response to a request for consent. Our difficulty has been in understanding how Ms. Ashmore’s “spontaneous invitation” takes this case out of the purview of Brown, supra. After Brown, a search of a dwelling — even one based upon consent — is not valid “unless the person giving the consent was advised of the right to refuse consent.” The officers were very candid in acknowledging that they did not advise Ms. Ashmore of the right to refuse consent.

The State has the burden of proof in suppression cases because all warrantless searches are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant, and the burden of proof is on those who seek to justify it. Mays v. State, 76 Ark. App. 169, 61 S.W.3d 919 (2001). From the evidence presented, the officers were not at the residence to search for drugs, rather they were there either searching for persons, i.e., the persons for whom they had arrest warrants, or, at least, they were there searching for evidence of Ms. Ashmore’s identity. In fact, Story explained, “We were looking for evidence of her identity, but I wouldn’t consider that going into the house looking for evidence.” The candid testimony presented by the State in the instant suppression hearing established that the officers were at the residence to determine if the persons on whom they wanted to serve arrest warrants were actually at the residence. Accordingly, we have determined that the situation falls in the category of a “knock and talk” because the officers were “searching” for individuals for whom they had arrest warrants. They were not sure that those persons were actually located at 247 Glade Street. Therefore, they approached the address to “knock and talk” their way to finding the persons for whom they had arrest warrants.

As quoted previously from the Bulloch case, Rule 10.1 of the Arkansas Rules of Criminal Procedure explains that a “search” is

any intrusion other than an arrest, by an officer . . . upon an individual’s person, property, or privacy, for the purpose of seizing individuals or things or obtaining information by inspection or surveillance, if such intrusion, in the absence of legal authority or sufficient consent, would be a civil wrong, criminal offense, or violation of the individuals’ rights under the Constitution of the United States or this state.

(Emphasis added.) Because we have concluded that the facts of this case fit more in the category of a “search” than in the straight service of arrest warrants, the only “sufficient consent” would have been consent preceded by advice of the right to refuse consent, as explained in Brown, supra, and as stated in Arkansas Rule of Criminal Procedure 11.1, which was not done here. A search by any other name is still a search, and this search of the dwelling should have been preceded by advising Ms. Ashmore that she did not have to give consent. Consequently, we hold that the trial court erred in denying appellant’s motion to suppress. We reverse and remand this case for proceedings that are consistent with this opinion.

Reversed and remanded.

Hart and Roaf, JJ., agree. Vaught, J., concurs. Bird and Crabtree, JJ., dissent.