Webb v. State

2011 Ark. 430, 385 S.W.3d 152, 2011 Ark. LEXIS 517
CourtSupreme Court of Arkansas
DecidedOctober 13, 2011
DocketNo. CR 10-1146
StatusPublished
Cited by8 cases

This text of 2011 Ark. 430 (Webb 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
Webb v. State, 2011 Ark. 430, 385 S.W.3d 152, 2011 Ark. LEXIS 517 (Ark. 2011).

Opinion

JIM GUNTER, Justice.

| Appellant Rodney Webb was convicted by a Drew County jury of possession of cocaine in violation of Ark.Code Ann. § 5-64-401 (Repl.2005), and sentenced to twenty-two years’ imprisonment by the circuit court after the jury could not reach a unanimous verdict on sentence. We assumed jurisdiction of this case pursuant to Ark. Sup.Ct. R. l-2(b)(5)(2011). On appeal, he argues only that the circuit court erred in denying his motion to suppress. We affirm.

Appellant was charged by criminal information on July 1, 2009, with one count of second-degree battery and one count of possession of cocaine with intent to deliver.1 On October 14, 2009, appellant filed a motion to suppress the cocaine found on his person, arguing that it was seized in violation of his right to be free from illegal searches and seizures under the Fourth and Fourteenth Amendments of the United States Constitution and article |⅞2, section 15 of the Arkansas Constitution. Appellant asserted that the search took place after a pretextual traffic stop and was done presumably under the auspices of a search for weapons. Appellant acknowledged that the arresting officer claimed that appellant gave his consent to the search, but appellant argued that because the traffic stop was based solely on unsubstantiated and unreliable information, any consent granted by him was illegally obtained. Appellant also alleged that any consent given by him was given without having the benefit of any proper warnings necessary to make his consent voluntary.

A hearing on the motion was held on January 25, 2010. Prior to the presentation of evidence, the court was informed that appellant was on parole at the time of the search and that he had signed a parole agreement, although the specific agreement signed by appellant was not introduced at the hearing. The State presented two witnesses, Deputy Jeremy Chapman and Deputy Rex Davis, both employed by the Drew County Sheriffs Department, who testified regarding the events that culminated in the search and seizure of appellant on June 26, 2009. That day, Deputy Davis received a tip from a confidential informant that appellant was dealing cocaine from his vehicle. Davis relayed this information to Deputy Chapman and informed him that appellant was in his vehicle in Wilmar, Arkansas, where Davis had seen him commit a traffic violation. Chapman testified that he initiated a traffic stop after locating appellant’s vehicle in Wilmar when it crossed the center line by almost three feet. He testified that after approaching the vehicle, he asked appellant to exit and for consent to search it. Chapman testified that appellant handed over the keys and said, “I don’t have anything to hide.” Chapman proceeded to search the vehicle but found nothing |,4ncriminating. He stated that he then asked to pat down appellant’s person, received consent, and felt a hard, foreign object in appellant’s groin area. Chapman testified that there was a “short struggle” at that point, but with the help of other deputies, appellant was detained and a clear plastic vial containing nine white rock-like substances was found in his groin area. Chapman admitted that he asked to search appellant’s person because Davis had indicated that the information he had received was that appellant was hiding crack cocaine in his groin area.

Following the State’s presentation of evidence, the circuit court announced that the focus of the suppression issue was whether appellant had signed a parole agreement waiving his right to consent to searches by law enforcement. The court took the suppression issue under advisement until the parties could file briefs and obtain the actual parole agreement signed by appellant.

On February 4, 2010, the State filed its brief, arguing that appellant did not have standing to challenge the search (1) because as a parolee, he was still in the custody of the Arkansas Department of Correction and (2) because he signed a parole agreement agreeing to warrantless searches at the direction of or by his parole officer. Alternatively, the State contended that the search was valid incident to an investigatory stop pursuant to Rule 3.1 of the Arkansas Rules of Criminal Procedure. Attached as an exhibit to the brief was a “Permission for Warrant Less Search” signed by appellant on February 21, 2008, which stated that he gave his parole officer or any law enforcement officer the consent to search his person, vehicle, residence, or property under his control without a warrant if his parole officer had reasonable grounds to believe that appellant had violated the terms of his parole or may have | committed any federal or state crime. Also attached and signed by appellant in February 2008 were his conditions of release, which stated that he “must submit [his] person, place of residence, and motor vehicles to search and seizure at any time, day or night, with or without a search warrant, whenever requested to do so by any Department of Community Punishment Officer.”

On February 5, 2010, appellant filed his brief on the suppression issue, maintaining that the advance consent to search that appellant signed as a condition of his parole only allowed searches by his parole officer or a Department of Community Correction officer at the behest of his parole officer. Appellant argued that it did not allow warrantless searches by any and all law enforcement officers. Moreover, appellant averred that the traffic stop and search of appellant “was a classic pretextual stop and search” and that the items seized from appellant should have been suppressed. Also on February 5, 2010, the circuit court entered a two-sentence order denying appellant’s motion to suppress. That order did not make any specific findings of fact or conclusions of law.

On February 12, 2010, appellant filed a motion for rehearing, arguing that at the hearing on January 25, the State had been allowed to present witnesses on its behalf with regard to the suppression issue but that appellant had not been afforded the same opportunity because the hearing had been concluded so the parties could research and brief the issue regarding appellant’s parole status. Appellant contended that despite the hearing’s abrupt end, the circuit court had entered an order denying the suppression motion. Appellant maintained that a hearing should be conducted so that he could present witnesses on his behalf. Also on |.-,February 12, appellant filed a motion for findings of fact and conclusions of law, asking the circuit court to explain its reasoning for denying suppression so as to create an appropriate record for appellate purposes.

On the day appellant’s jury trial was scheduled to begin, the circuit court agreed to continue the suppression hearing to allow appellant to testify. Appellant testified that after Deputy Chapman approached the vehicle, he asked appellant to step out of the car. Chapman asked if appellant had any weapons on him and patted him down. Appellant stated that Chapman and another deputy, Chris Owen, discovered that appellant’s passenger had an active warrant and placed him under arrest. Thereafter, Chapman searched appellant’s vehicle. Appellant stated that he did not give consent to search the vehicle. Appellant testified that after finding nothing in the vehicle, Chapman again searched appellant’s person, focusing on his groin area. Appellant stated that he moved when Chapman touched his groin area, and as a result, the officers put him on the ground, unzipped his pants, and pulled them down. Appellant testified that he never gave consent to search his person.

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Bluebook (online)
2011 Ark. 430, 385 S.W.3d 152, 2011 Ark. LEXIS 517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-v-state-ark-2011.