McNeely v. State

925 S.W.2d 177, 54 Ark. App. 298, 1996 Ark. App. LEXIS 502

• Court: Court of Appeals of Arkansas
• Decided: July 3, 1996
• Docket: CA CR 95-602
• Status: Published

Opinions

JAMES R. Cooper, Judge.

The appellant was convicted in a jury trial of possession of a controlled substance and possession of drug paraphernalia. He was sentenced to one year in the county jail and fined $500.00 and was sentenced to six years in the Arkansas Department of Correction and fined $5,000.00, respectively. On appeal, the appellant argues that the trial court erred in denying his motion to suppress without conducting an evidentiary hearing on the motion. We affirm.¹

The appellant filed a motion to suppress on August 16, 1994. The trial court entered an order denying the motion to suppress after the appellant did not appear at the hearing held on November 2, 1994. On appeal, the appellant contends that the trial court erred in denying his motion without conducting a hearing because the State had the burden of proving the validity of the search and seizure. However, the appellant failed to raise this objection below.

Prior to trial, the appellant’s trial counsel stated:

We have a — we filed a Motion to Suppress the marijuana and the, well, just the marijuana in this case. We were set for a hearing, I think it was about a week ago yesterday. The defendant did not show up and that Motion to Suppress was denied.

Let me raise a Motion in Limine based largely on the same issue before the Court to deny — to suppress the introduction of the marijuana, let’s see. . . based on ... it is reported to me that Samantha Stevens was the person who opened the door and allowed the police officers into the apartment. The basis of our Motion in Limine to Suppress [is] that she had no authority to consent to the police officers to enter without a search warrant.

The appellant’s argument on appeal was not made to the trial court and hence it is not preserved for appeal. Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993). This Court does not address arguments raised for the first time on appeal. Williams v. State, 320 Ark. 211, 895 S.W.2d 913 (1995). Moreover, the proponent of a motion to suppress has the initial burden of establishing that his own Fourth Amendment rights have been violated by the challenged search or seizure. Myers v. State, 46 Ark. App. 227, 878 S.W.2d 424 (1994).

Affirmed.

Pittman, Robbins, Stroud, and Neal, JJ., agree. Mayfield, J., dissents.

1 The State asserts that we must dismiss the appellant’s appeal because he did not file a notice of appeal subsequent to the entry of an amended judgment and commitment order. The initial judgment and commitment order was entered on November 10, 1994, and the appellant filed his notice of appeal on November 14, 1994. The trial court entered an amended judgment and commitment order on November 16, 1994, which did not modify the appellant’s sentence but merely set out the presumptive sentence in the appropriate space on the order. However, the trial court subsequently recalled the amended commitment order. Thus, it was not necessary for the appellant to file a new notice of appeal.