Keenom v. State

80 S.W.3d 743, 349 Ark. 381, 2002 Ark. LEXIS 373

• Court: Supreme Court of Arkansas
• Decided: June 20, 2002
• Docket: CR 01-673
• Status: Published

Opinions

Ray Thornton, Justice.

At approximately 7:30 p.m. on March 7, 2001, Detective David Jones, of the 19th Judicial District Drug Task Force was off-duty and conducting personal business at the Wal-Mart Supercenter in Bentonville, when he saw a man he considered to appear suspicious, because of his long hair and beard, and because he was pushing a cart containing chemicals that might be used in the manufacture of methamphetamine, including two cans of acetone, several bottles of rubbing alcohol, and several packages of coffee filters.

Detective Jones followed the suspicious customer, appellant James Patrick Keenom, to the parking lot and took his license plate number, which he later checked through the ACIC to determine the man’s identity and address. He watched appellant return to the store and talk to another man the detective considered to look suspicious because he had long hair and was holding “Heet” brand fuel cleanser and camping fuel. Detective Jones then watched appellant leave the store and drive away.

Detective Jones called Detective Tony Noblin, also of the 19th Judicial District Drug Task Force, and told him what he had seen. The two decided to go to appellant’s residence and perform a “knock and talk” to see if they could acquire consent to search and to see if they could catch him in the act of manufacturing. Detective Noblin testified that they knew they could not obtain a warrant for a nighttime search based on the information they had, and the only way to get on appellant’s property was to do a “knock and talk.” The officers drove to the Decatur Police Department to get directions to the address. The officers and detectives arrived at the main residence on the property located on a rural, dirt road about six miles outside Decatur and saw appellant enter a house. They did not smell methamphetamine cooking, so they left and went back to the Decatur Police Department to get the officers to come with them. They also decided that because they were shabbily dressed in plain clothes, they should be accompanied by members of the Decatur Police. At the suppression hearing, the detectives testified that they wanted officers with them who could appear in uniforms so as not to unduly frighten the residents when the detectives came to the door. They also admitted that they wanted the officers with them because it was nighttime, there was a greater likelihood of someone getting hurt, and there were issues of “officer safety.”

At 11:30 p.m., the officers and detectives caravanned to the house they believed to be appellant’s residence. They knocked on the door of the house and were met by appellant’s mother, Frances Keenom. They asked for her son, and she explained that he lived in a trailer house further into the property, approximately 700 feet east of her home. She did not give consent to the police to proceed further into her property, and made no further comment. The police proceeded further into the property to reach appellant’s trailer house, passing several chicken houses and other structures, and passing “no trespassing” signs that they stated they did not see.

The facts concerning exacdy what transpired after the police arrived at appellant’s trailer are disputed. When the officers arrived at appellant’s trailer, all agree that he met them outside before they could knock on the door. Appellant testified that their headlights awakened him, and that he only had time to put on a pair of jeans before stepping outside to meet them. The officers stood by their cars with their lights shining on appellant’s front door, while the detectives approached appellant, coming within ten feet of him. Appellant was barefoot and wearing only his britches when asked by Detective Jones for permission to search the trailer. All agree that appellant refused to consent. Fie suggested to the police that they leave and come back in ten minutes, but they responded that they could not do that. The officers remained and continued to question appellant. Appellant testified that during this questioning, he requested to go inside because it was storming and cold and that the police refused to let him return to his trailer and threatened to take all of his belongings if he tried to go inside. Appellant also testified that they did allow him to go to his car to get a jacket, and this testimony was not challenged. After an unspecified amount of questioning, appellant admitted that he had a quarter of a gram of methamphetamine inside the trader, and at that point Detective Jones testified that Detective Noblin apprised him of his Miranda rights because he had begun to implicate himself in criminal activity. Appellant denied that he was read his Miranda rights. Detective Jones continued to question him and asked appellant if he had some kind of lab operation in his trailer. Appellant responded that he had accepted payment from his friends on previous occasions to allow them to manufacture methamphetamine in his trailer. At that point, after anywhere from twenty to forty-five minutes of questioning, the detectives arrested him for conspiracy to manufacture methamphetamine. The detectives denied that they ever took him into custody before that point. The detectives did not deny that they refused to allow him to go back inside his trailer, but they denied that they threatened appellant.

After arresting appellant, the detectives entered and made a sweep of the residence on the grounds that they had seen the curtains moving while they were talking with appellant, and because they thought a lab might be in operation at that moment. Apparently, they did not consider this “sweep” to be a search because Detective Jones testified that they were only in the trailer a minute or two to make sure there would be no explosion from a meth lab left cooking and that no one was inside the trailer. Detective Jones testified that appellant consented to a search after he was arrested, but that the detectives believed it would be appropriate to go get a search warrant at that time. Detective Noblin testified at the suppression hearing that after Detective Jones left the scene with appellant, he did not try to obtain a nighttime search warrant, and that when they were out at appellant’s trailer, they were doing something “that the magistrate would not have let us do if we had gone to the magistrate.”

Detective Noblin stayed at the residence with one of the uniformed officers to secure the area while Jones obtained a search warrant from Judge Schrantz in Rogers. The magistrate required that they not serve the search warrant until daybreak, and so it was served at the residence at 6:05 a.m. the next morning. As a result of the search, the officers reported finding weapons, drug paraphernalia, and lab materials, and appellant was charged with manufacturing methamphetamine and simultaneous possession of drugs and firearms.

Appellant moved for suppression of the evidence obtained from the search on the grounds that they were obtained in violation of his Constitutional rights. That motion was denied after a hearing and appellant changed his plea from “not guilty” to a “conditional guilty plea.” He reserved the right to appeal from an adverse judgment of the motion to suppress evidence, ensuring that if he prevailed upon appeal he would be allowed to withdraw his guilty plea. The trial court found appellant guilty and he was sentenced to twenty years’ imprisonment in the Arkansas Department of Correction, five years of which was suspended upon certain conditions. We conclude that appellant was denied his rights under the Fourth Amendment to the United States Constitution to be free from unreasonable search and seizure, and we reverse.

We first address appellant’s argument that his Fourth Amendment rights were violated by the search and seizure performed by the State. We review the lower court’s ruling by making an independent determination based on the totality of the circumstances and viewing the evidence in the light most favorable to the State. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). This court will reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997).

In Arkansas, “knock and talk” is a label for a procedure that is defined as follows:

Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof whether the questioner be a pollster, a salesman, or an officer of the law.

Griffin, supra. (Emphasis added.) (citing Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964)).

Our recent decision in Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002), sets out the standard for determining when a “knock and talk” investigation becomes a seizure for purposes of Fourth Amendment analysis. We said:

[a] seizure does not occur simply because a police officer approaches an individual and asks a few questions. Id. A seizure occurs when a reasonable person would not feel “free to leave.” Michigan v. Chesternut, 486 U.S. 567 (1988). The “free to leave” analysis, however, is not an accurate measure of the coercive effect of an encounter in situations where a person would have no desire to leave, such as where the person is seated on a bus. Florida v. Bostick, 501 U.S. 429. “In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. The crucial test is whether, taking into account all circumstances, the police conduct would have communicated to a reasonable person “that he was not at liberty to ignore the police presence and go about his business.” Id. (citing Michigan v. Chesternut, supra.) It is important to note that the “reasonable person” test presupposes an innocent person. Id.

Scott, supra. Though the “knock and talk” procedure is not automatically violative of the Fourth Amendment, it can become so. In Scott we held that the test to determine if a “knock and talk” encounter reached the level of a seizure for the purposes of the Fourth Amendment was whether a reasonable person would feel free to terminate the encounter. Id. The crucial test is whether, taking into account all circumstances, the police conduct would have communicated to a reasonable person “that he was not at liberty to ignore the police presence and go about his business. ’’ Id. (citing Michigan v. Chesternut, supra). (Emphasis added). It is important to note that the “reasonable person” test presupposes an innocent person. Id. Scott, supra. In our review of federal appellate court decisions holding that the “knock and talk” procedure is not per se violative of the Fourth Amendment, we also noted a word of warning: “police must realize the inherent limitations in the more informal way of proceeding.” Id. (citing United States v. Jerez, 108 F.3d 684 (7th Cir. 1997)). As stated above, the test to determine if a “knock and talk” encounter has become a seizure is whether a reasonable person would feel free to terminate the encounter. Scott, supra.

In the instant case, it is undisputed that appellant asked the officers to leave and come back later. Officer Noblin stated that “Keenom told us to leave and come back in ten minutes.” When asked on cross-examination' whether the officers complied with that request, Officer Noblin conceded that they did not. Similarly, appellant testified that during his encounter with the officers he asked to return to the house to retrieve some clothing and was denied the opportunity to reenter the house. The State’s witnesses did not controvert this testimony, but Officer Noblin suggested that the officers would have had no choice but to leave the premises if appellant had gone inside his house. The undisputed fact remains that the officers did not leave the premises. They continued to question appellant for a period of twenty to forty-five minutes, depending upon which of the State’s witnesses’ testimony is credited.

Even viewing the evidence in the light most favorable to the State, we conclude that a reasonable person in appellant’s position would not have felt free to terminate the encounter with the police and return to the safety and privacy of his house. Officer Noblin’s testimony does not controvert appellant’s statement that he was not allowed to go inside to retrieve some clothing. Similarly, his request that the officers leave and come back in ten minutes was ignored. Instead, these officers continued to question him while he stood in the weather, partially clothed, under the glare of the headlights of the officers’ cars. This persistence by the officers would strongly convey to a reasonable person the officers’ intention not to desist. Officer Noblin’s subjective knowledge that the officers would had no choice but to leave if appellant had gone inside his home is simply irrelevant to the inquiry. This is merely an acknowledgment that the officers had no probable cause to arrest appellant.¹ Furthermore, even giving deference to the trial court’s position as the finder of fact concerning what amounted to reasonable suspicion, there is insufficient evidence to hold that the officer had reasonable suspicion to do more than stop appellant simultaneously with his observation of the “suspicious” seeming appellant. United States v. Hensley, 469 U.S. 221 (1985). Terry v. Ohio, 392 U.S. 1 (1968). There certainly were no grounds for the officer to witness suspicious behavior in Bentonville, ascertain the appellant’s identity, obtain the assistance of other officers, caravan to the appellant’s rural residence six miles outside Decatur, attempt to obtain the appellant’s consent to conduct a search of his residence, and, finally, after being refused consent, engage in a twenty- to forty-five-minute detention of appellant on the theory of an investigatory stop.

The persistence of the officers may be the functional equivalent of physical restraint, which, in the absence of justification, is proscribed by the Fourth Amendment. See, U.S. v. Jerez, supra; U.S. v. Wilson, 953 F.2d 116 (4th Cir. 1991). Under the totality of the circumstances in this case, the officers exceeded the inherent limitations of the “knock and talk” procedure. Their persistence in the face of appellant’s efforts to terminate the encounter and his request that the officers leave, resulted in his being seized in violation of his Fourth Amendment rights. Such prolonged questioning, leading as it did to appellant’s unsuccessful attempts to return to the safety and solitude of his house, would surely lead a reasonable person to believe that he could not ignore the officers. The safety and sanctity of the home is shielded by the Fourth Amendment. Though the “knock and talk” procedure is not per se violative of the Fourth Amendment, the police must conduct themselves in a manner that does not communicate to a a reasonable person that he or she is not free to ignore the police presence. Scott, supra.

Following our determination that appellant was unlawfully seized under the Fourth Amendment, we must consider whether the contraband seized from the execution of the search warrant should be suppressed. We conclude that Wong Sun v. United States, 371 U.S. 471 (1963), controls the analysis of this issue. In that case, the Supreme Court stated in its holding that:

We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality,- the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Maguire, Evidence of guilt, 221 (1959). We think it clear that the narcotics were “come at by the exploitation of that illegality” and hence that they may not be used against Toy.

Id. This holding represents the general policy that “knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.” Silverthorn Lumber Co. v. United States, 251 U.S. 385 (1920). The policies of this rule do not make any logical distinction between physical and verbal evidence. Wong Sun, supra. The Supreme Court in Wong Sun stated that “verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officer’s action in the present case is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” Id.

The search warrant executed in this case was based upon the statements made by appellant to the officers following his illegal seizure. There was no break in time between the events leading up to appellant’s arrest and the inculpatory statements he made that led to the issuance of the search warrant. In other words, the primary taint of the unlawful seizure had not been sufficiently attenuated or purged. Under these circumstances, the fruits of the warrant were poisoned by the officers’ unlawful conduct in seizing appellant. Accordingly, we conclude that appellant was deprived of his Fourth Amendment rights and the evidence should have been suppressed.

Appellant also contends that the detectives conducted a custodial interrogation, violating his Fifth Amendment rights. The State argues that appellee failed to preserve this issue for appeal, or alternatively, that appellant was not in custody before he was read his Fifth Amendment Miranda rights. Because we hold that appellant’s Fourth Amendment rights were violated and the evidence should have been suppressed as “fruit of the poisonous tree,” we need not address the issue of appellant’s Fifth Amendment rights.

Because the detectives performed an unreasonable search and seizure, we conclude that appellant was deprived of his Fourth Amendment rights and that the evidence should have been suppressed.

Accordingly, we reverse.

Glaze and Brown, JJ., dissent.

1 Compare the analogous inquiry in Fifth Amendment violation analysis that the United States Supreme Court set out in Stansbury v. California, 511 U.S. 318 (1994). The Court stated:

an officer’s view concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer’s vietvs or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.

Id. (Emphasis added).