Sherman v. State

2009 Ark. 275, 308 S.W.3d 614, 2009 Ark. LEXIS 186
CourtSupreme Court of Arkansas
DecidedMay 14, 2009
DocketCR 08-523
StatusPublished
Cited by7 cases

This text of 2009 Ark. 275 (Sherman v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sherman v. State, 2009 Ark. 275, 308 S.W.3d 614, 2009 Ark. LEXIS 186 (Ark. 2009).

Opinion

JIM HANNAH, Chief Justice.

| Appellant Joseph Sherman appeals the revocation of a previous suspended imposition of sentence that was entered upon the denial of his motions to suppress. Sherman asserts that the circuit court erred in allowing evidence in a revocation proceeding that it had suppressed for new criminal charges; that is, he contends that the circuit court erred in failing to apply the exclusionary rule to the revocation proceeding. He also asserts that, pursuant to article 2, section 15 of the Arkansas Constitution, the circuit court erred in denying his motion to suppress audio and video recordings of cocaine deliveries because a state actor obtained the recordings inside his house without a warrant. This case was certified to this court by the court of appeals as a case involving issues of federal ^constitutional interpretation and significant issues needing clarification or development of the law. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — -2(b)(3) and (5). We affirm.

On November 15, 2004, Sherman pled guilty to possession of cocaine with intent to deliver, and the circuit court sentenced him to ten years’ imprisonment with imposition of an additional five years’ suspended sentence. An amended judgment and commitment order reflecting the conviction and sentence was entered on December 9, 2004.

On June 2, 2006, Blytheville Police Department Investigator Jason Lloyd and Mississippi County Sheriffs Department Sergeant Robert Ephlin presented to the circuit court an affidavit for search warrant for 1044 Moore Street in Blytheville, a residence believed to be occupied by Sherman. In the affidavit, the investigators stated that they had been assigned to work narcotics cases in Mississippi County and the City of Blytheville and that they were aware that Sherman was currently involved in the distribution of cocaine and had been for a number of years. The affidavit stated that the investigators were aware that Sherman had been charged with five drug-related offenses within the past eleven years, had served time in the Arkansas Department of Correction for some of those offenses, and was currently on parole. The affidavit stated that at the time of one of Sherman’s prior arrests, which took place at the 1044 residence, Sherman attempted to destroy evidence by flushing it down the toilet, after officers knocked and announced their presence.

The affidavit further stated that on April 27, 2006, Lloyd was involved in a |3surveillance of Sherman’s residence at 1044 Moore when he observed a white female enter the residence and then leave after a few minutes. Lloyd followed the female and stopped her after he observed traffic violations. During the stop, Lloyd recovered a small baggie of suspected powder cocaine. The woman was arrested and charged with possession of a controlled substance.

The affidavit stated that on June 2, 2006, Lloyd was again conducting surveillance of Sherman’s residence and observed someone enter the residence and leave a short time later. The person was stopped, and Lloyd recovered a small baggie that contained suspected powder cocaine. The person subsequently told Lloyd that he or she had been inside Sherman’s residence and purchased the cocaine for forty dollars.

Based upon the affidavit, the circuit court issued a search warrant on June 2, 2006, which provided that the “knock and announce” rule would not apply. A flash-bang device was used, and during the search, officers recovered a substance believed to be crack cocaine, as well as drug paraphernalia.

On December 13, 2006, Lloyd presented to the district court an affidavit for search warrant. In this affidavit, Lloyd stated that a confidential informant had made two controlled buys of crack cocaine from Sherman at his residence. The district judge signed the search warrant that same day. Lloyd requested and received an exception to the “knock and announce” rule. Upon execution of the warrant, officers recovered drug paraphernalia, pills they suspected to be Xanax, and what officers believed to be trace amounts of cocaine.

|4The State filed new criminal charges against Sherman, and on May 1, 2007, the State filed a petition for revocation of suspended imposition of sentence, asserting that Sherman had committed various new drug crimes, including possession of cocaine with intent to deliver and possession of drug paraphernalia on June 2, 2006, delivery of cocaine on December 5, 2006, delivery of cocaine on December 27, 2006, and possession of Xanax and drug paraphernalia on December 31, 2006. Sherman moved to suppress all the evidence from both searches and separately moved to suppress any audio or video recordings obtained by the confidential informant.

The circuit court orally ruled on both motions to suppress, beginning with whether the evidence was admissible for new criminal charges. 1 With respect to the June 2006 search, the circuit court concluded that the use of the flash-bang device was unreasonable. The circuit court further concluded that the affidavit for search warrant did not establish probable cause for a search. Accordingly, the circuit court granted Sherman’s motion to suppress the evidence seized from the June 2006 search, with respect to new criminal charges.

The circuit court then considered the motion-to-suppress evidence seized from the | .¡December 2006 search. The circuit court concluded that the affidavit for search warrant did not establish probable cause under either the United States Constitution or the Arkansas Constitution. The circuit court found that the affidavit contained no facts establishing the veracity of the informant and that it was “unusual” that the officer who prepared the search warrant submitted it to the court with the no-knock provision already checked, despite the fact that the affidavit contained no facts that would justify a no-knock search.

The circuit court also concluded that the good-faith exception to the warrant requirement, under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), did not apply. Accordingly, the circuit court suppressed the evidence from the December 2006 search, with respect to new criminal charges.

The circuit court then addressed the issue of whether the suppression of the evidence from the trial of the new charges required suppression at the revocation hearing. The court concluded that there was a different good-faith exception that applied to revocation hearings, one that required that officers exhibit subjective, rather than objective good faith, as is required under Leon. The circuit court found that the officer’s errors had more to do with bad training than any bad intent. As such, the circuit court concluded that, because the officers acted in subjective good faith, the exclusionary rule did not apply to the revocation hearing. Therefore, the circuit court allowed admission of the evidence at the revocation hearing.

Sherman also challenged the State’s use of audio and video recordings made by the [(¡confidential informant while in Sherman’s residence.

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Bluebook (online)
2009 Ark. 275, 308 S.W.3d 614, 2009 Ark. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherman-v-state-ark-2009.